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Editor: Paul L. Caron
Pepperdine University School of Law

Wednesday, January 4, 2017

Kuehn:  Law Schools Do Not Adequately Prepare Students For Legal Practice

KuehnTax Prof Blog op-ed:  Do Law Schools Adequately Prepare Students For Practice? Surveys Say . . . No!, by Robert Kuehn (Associate Dean for Clinical Education, Washington University):

Under ABA Accreditation Standard 301, law schools have two educational objectives: prepare their students “for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.” There has been much concern lately over declining bar passage rates, focusing attention on whether some schools are admitting students who may not be capable of passing the bar exam and whether a school’s program of legal education adequately prepares its graduates for the exam.

In focusing on the bar exam, it’s important not to lose sight of legal education’s primary duty of ensuring that law school prepares students for entry into the legal profession and a successful career. If studies of practicing lawyers and recent law graduates matter, it is clear that law schools are failing, even worse than in preparation for bar admission, to adequately prepare their students for legal practice.

A 2012 study by the National Conference of Bar Examiners (NCBE) analyzed the job activities of newly-licensed lawyers to determine which knowledge domains and professional skills and abilities are most significant to their job. Acquisition of professional skills and abilities were deemed significantly more important to newly-licensed lawyers than legal knowledge — 25 skills and abilities were deemed more important than the highest rated knowledge domain. The percentages of lawyers using these 25 skills in their work (all rated between 89% to 100%) also were all greater than the percentage using the highest rated knowledge domain (86%). Yet these skills and abilities generally are not developed in traditional doctrinal law classes but in the experiential and first-year legal writing courses that, under the ABA standards, need only account for ten percent of a student’s legal education.

These important skills and abilities are also a small part of the bar exam, which purports to measure competence to begin the practice of law. Although the NCBE study was promoted as the basis for further development of the exam, since the study’s completion the portion of the exam devoted to testing skills remains the same (the 3-hour Multistate Performance Test). The NCBE’s only apparent response to the study’s dramatic finding that professional skills and abilities are what new lawyers need most for competent practice was to add civil procedure (the study’s highest rated knowledge domain) to the Multistate Bar Exam.

A report released this year by Educating Tomorrow’s Lawyers reinforces the disconnect between legal education’s overwhelming focus on legal knowledge and the competencies new lawyers need. A study of more than 24,000 lawyers in 50 states sought to determine the foundations entry-level lawyers need to launch successful careers in the legal profession. The study found “that characteristics (such as integrity and trustworthiness, conscientiousness, and comment sense), as well as professional competencies (such as listening attentively, speaking and writing, and arriving on time), were far more important in brand new lawyers than legal skills.” Yet, again, only in clinical and first-year legal writing courses are there efforts in the law school curriculum to address the “soft skills” so necessary for the success of new lawyers.

These two studies mirror the findings of decades of earlier studies. In a 1978 study, mid-career lawyers rated the importance of 21 types of legal knowledge and skills in their daily work and the role of their law school training in attaining that knowledge or skill. With the exception of knowledge of statutory law, none of the eight areas of legal knowledge was considered very important for their work. In contrast, six of the methodology and skills areas were deemed of great importance.  When then asked to rate their law schools’ role in developing skills, two-thirds said their school had been “not helpful” or “played no role” in their ability to develop essential practice skills like interviewing, counseling clients, and negotiating; more than 40% said law school failed to train them to draft legal documents or effectively communicate orally.

A later study of Montana lawyers came to similar conclusions. It asked what level of competence a lawyer should have to perform in a professionally competent manner and what level of competence they observed first-year lawyers to have. The results indicated the need for greater emphasis in law school on the development of professional skills and the importance of character traits to a new lawyer’s successful transition to practice. A 1993 study of Chicago and Missouri lawyers found large gaps between the skills lawyers deemed most important to their practice and the attention law school paid to those skills, especially in the areas of oral and written communication, drafting legal documents, problem solving, negotiation, fact finding, counseling, and litigation. The lawyers believed that a majority of these practice skills could be learned in law school, if the focus of legal education were changed. A similar study of Minnesota lawyers found most did not believe they were well prepared immediately following law school on nine of seventeen important practice skills. Like respondents in other studies, those lawyers believed these skills can be effectively taught in law school.

More recent studies have not reflected any improvement in the role of legal education in preparing graduates for practice. The American Bar Foundation’s After the JD study tracks the careers of a sample of lawyers who passed the bar in 2000. It asked lawyers three and seven years of out of school if “law school prepared me well for my legal career.” On this fundamental objective of legal education, law schools failed miserably — 40% of lawyers after three years of practice and 50% after seven years said that law school did not adequately prepare them. Both groups overwhelmingly agreed that law school was too theoretical and unconcerned with real life practice. In another study of early-career lawyers, only 28% believed that law school prepared them to practice law.

Two studies by LexisNexis reinforce this view. In a 2009 survey, 90% of attorneys in private practice and corporate law offices said that law school does not teach the practical skills needed to practice law today. A similar study six years later found that legal education has not improved, contrary to the claims of some legal educators and regulators. In the 2015 survey, 95% of hiring partners and senior associates who supervise new attorneys responded that recently graduated students lack key practical skills at the time of hiring. The lawyers also believe its not a matter that law schools cannot teach these skills but that they simply refuse to do so: “Most attorneys involved with hiring and management of new lawyers agree practical skills can be effectively honed through clinics, internships, clerkships, and experience in actual or simulated application to a case.”

Law students who just graduated realize their need for more practical training — 87% say legal education needs to undergo significant changes to better prepare future attorneys; 97% favor a law school model that incorporates clinical experience. Judges agree. When asked what change would most benefit law schools, judges of all types of court (federal and state, appellate and trial) rated more coursework on practice-oriented skills the highest, far exceeding support for expanding the core curriculum.

Fifty years ago the dean of the University of Chicago School of Law stated that the aim of law school “is not to train lawyers, but to educate men [and women] for becoming lawyers.” If the attitude of the ABA and law school deans has changed since then, it isn’t reflected in the readiness of law school graduates for practice when over 90% of lawyers give legal education a failing grade. So while educators worry about declining grades on the bar exam, isn’t it also time to fix legal education’s longstanding failure to meet its duty to adequately prepare it students “for effective, ethical, and responsible participation as members of the legal profession”?

For more by Bob Kuehn, see:

http://taxprof.typepad.com/taxprof_blog/2017/01/kuehnlaw-schools-do-not-adequately-prepare-students-for-legal-practice.html

Legal Education | Permalink

Comments

Wait, don't all law school graduates become federal appellate lawyers or law school professors?

- Mindset of the average HLS / YLS graduate, who just coincidentally happen to produce about 40% of the nation's law school professoriate.

Posted by: Unemployed Northeastern | Jan 4, 2017 3:32:22 PM

yes, that is right. Students have less experience..

Posted by: Harvey Walner | Jan 4, 2017 8:37:06 PM

A nationwide survey of big-firm 5th year associates ranked Loyola Law School, Los Angeles, third (after Duke and Michigan) in preparing graduates for big-firm practice. http://blogs.wsj.com/law/2014/08/28/practice-ready-matters-to-young-lawyers-too/#?mod=wsj_valettop_email.

What is required is a pervasive, long-term commitment on the part of a law school’s faculty to provide such training. This kind of commitment cannot be measured simply by counting skills courses, clinics, or externship offerings – as the ABA and National Jurist sometimes attempt. Each practice area requires a different kind of preparation. See http://www.lls.edu/aboutus/practicallearning/practicereadynewsletter/

Posted by: Theodore Seto | Jan 5, 2017 1:43:39 AM

So long ago that none of us remember it, you learned law and medicine by serving a apprenticeship with a practicing lawyer or physician. When that was abandoned—in the case of medicine, to follow a German model—what replaced it created the problems we face today.

To speak of what I know, the typical medical student graduates with a head filled with class-taught facts but often doesn't know how to apply them in relations with staff and patients. If I recall correctly, Ireland deals with that by requiring medical students to work in healthcare for two years BEFORE they enter medical school. They learn people skills before burying themselves in books. I suspect that works better than our model where they're placed after graduation in residencies where they're supposed to act like doctors without the people skills.

Unfortunately, requiring lawyers to do residencies is likely to result in the same exploitation of cheap labor and long hours that medical residents face. That's a far from optiminal environment for learning either profession.

Posted by: Michael W. Perry | Jan 5, 2017 5:54:22 AM

So Ted, how much good does that "big-firm practice preparation" do for the 9 out of 10 Loyola Marymount grads who fail to land big-firm jobs?

Posted by: Unemployed Northeastern | Jan 5, 2017 9:03:48 AM

Yes, but . . . U.S. law schools do a wonderful job of preparing students to be law teachers. Unfortunately, more and more law "teachers" are Ph.D.s. I guess the joke is on the professoriate members who still hold J.D.s.

Posted by: Publius Novus | Jan 5, 2017 9:21:32 AM

These are just symptoms of the real problem:

1) The legal profession (including legal academia) is governed by graduates of a handful of top schools whose backgrounds are almost entirely confined to biglaw, biggov and academia. The actual profession is practiced by an entirely different cohort of people, and they don't tend to hang out together. When I was in law school, I encountered very few professors who had any experience (or interest in) actually practicing law. The vast majority seemed to have gone straight from undergrad to HYSCCN to an academic post, with maybe a year or two off to clerk or work at some biglaw firm while they published. These people couldn't tell you what an actual lawyer does on a day to day basis any more than your barber could. Dershowitz wrote a book ("Letters to a Young Lawyer") that is a perfect embodiment of this bubble- to him, the primary challenge of the legal profession is in choosing between a federal judgeship and the bigger money and longer hours of biglaw partnership. He wasn't being ironic, he was serious. But this is a guy who has been on the Harvard law faculty since the 70s. Does he know anyone that graduated a top 30 school and ended up making 50k a year as a solo pracitioner doing divorces and DUIs while trying to pay off 180k in non-dischargeable debt? Does he realize such people even exist? Does he realize they are common? Does he realize this has become the dominant outcome for law students, minus being employed as an attorney?

The upshot of this is that the profession doesn't respond well to the needs of the profession, at least the part of the profession that doesn't deal with multi-billion dollar tax and MNA issues. Which is most of it, unfortunately.

2) There is a giant financial elephant in the room, which is that much of legal academia is driven by a need to suck as hard as possible at the federal student loan teat. Even though reducing law school to 6-12 months of classroom instruction followed by a 2 year residency would massively improve the quality of new attorneys it would also drastically reduce the revenue of law schools. Ditto proposals to toughen up the bar exams, trim back the number of schools, etc. All of these things need to happen but they wont.

Posted by: Jim W | Jan 5, 2017 9:29:48 AM

One of the things I admired the most about "Old School" law schools was the lack of academic credentials to be a law professor. The idea was after a successful practice career, one could "retire" by teaching. The B-school route of requiring PhDs (of which I r one) has resulted in the current absurdity of PhDs teaching corporate tax who have never prepared a tax return. They are great quants, but they don't have a clue about the subject they are teaching. I'm hoping law schools can avoid the same trap.

Posted by: Dale Spradling | Jan 5, 2017 10:18:18 AM

Mr. Spradling: Law schools will not avoid the same trap. They are in it. Take a look at the "credentials" of the faculties of the top schools. More and more Ph.D.s, some of whom DO NOT have J.D.s, much less law practice experience of any kind.

Posted by: Publius Novus | Jan 5, 2017 4:35:23 PM

Law schools fell into that trap years ago. I remember the amazing feeling of being taught civil procedure by an experienced litigator during my 1L year. I also remember being amazed at how unusual an experience it was.

For the most part, professors seem to make a beeline straight from the elite schools to the meat market and then never leave once they get tenure. Why would they? In terms of job security, hours and pay, being a tenured law professor is one of the best jobs in the world. If it's an option that's available to you, you'd be stupid to practice law.

Unless you attend a top 5 school, it is likely that you're going to be taught by people who have absolutely nothing in common with you in terms of career prospects. What's really ironic is that a very sizable portion of the people that will be teaching you took those same courses (with the same curriculum and textbooks) a couple of years prior- the only real qualification they have over you is that they went to a more prestigious school and churn out law review articles that no one reads.

At some point this bubble has to burst.

Posted by: Jim W | Jan 6, 2017 7:41:00 AM

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