Paul L. Caron

Friday, August 28, 2015

Boyack: Is The Goal Of 'Practice Ready' Law Grads Merited, Achievable & Worth The Cost?

PracticeAndrea J. Boyack (Washburn), Get "PRACTICE READY." Get set. Go!:

The ABA’s new standard 303(a)(3) instructs law schools to require graduating students satisfactorily complete “one or more experiential course(s) totaling at least six credit hours.” This standard (along with the subsequent standard 304) goes on to explain that the requirement can be satisfied through a simulation course, a law clinic, or field placement (externship).  This experiential requirement seems aimed at fulfilling the ABA House of Delegates Recommendation 10B from the 2011 Annual Meeting of the ABA that legal education implement curricular programs “intended to develop practice ready lawyers including, but not limited to enhanced capstone and clinical courses that include client meetings and court appearances.”  The California Bar has gone even further, requiring that graduates take 15 “skills” credits in order to be admitted to practice in the state. These enhanced experiential requirements are responsive to calls from all quarters – from the Carnegie Report and the MacCrate Report to Brian Tamanaha’s book and the scam-blogosphere – that law schools revamp their curricula in order to ensure that their graduates are “practice ready.” 

Creating experiential learning opportunities for students is a great idea.  But mandates that law schools produce “practice ready” graduates seem incompletely thought out.  Fundamental questions about “practice ready” graduates remain and will continue to plague the system. ... Basically, although many clamor that law schools need to increase their focus on “practice readiness”, we still don’t know if “practice readiness” instruction is merited, if is it ever achievable (measurable, teachable, possible) in law school, and whether it is worth the cost.

These important, complex, and sobering questions are raised in Robert J. Condlin’s recent paper, "Practice Ready Graduates": A Millenialist Fantasy [31 Touro L. Rev. 75 (2014)].

First, as Condlin points out, “practice ready” is not so much a standard as it is a slogan. ...

Second, Condlin shines light on the fact that resources spent in teaching skills are re-allocated resources, and that the ABA, as well as individual schools and professors should seriously consider whether such reallocation is justified. ...

Third, Condlin asserts that the emphasis on “practice readiness” is unfounded because it is unachievable, at least in the context of law school. ...

Fourth, Condlin also criticized recent calls for “practice readiness” because being “practice ready” will not actually help graduates get a job. ...

Condlin worries that when law schools jump on the “practice readiness” bandwagon it will “destroy something that works in a futile attempt to revive something that does not.”

Condlin makes some excellent points, and I always enjoy reading an article that calls popular wisdom into question and makes me pause and reconsider assumptions I may have.  I am ever the optimist however, and I hope that Condlin may be overstating the extent to which the ABA and the law school industry are in fact emphasizing “practice readiness” as the ONLY goal of law schools.  Condlin worries that advocates for practice skills instruction believe that such instruction is “legal education’s primary purpose” and that “[e]verything else is a frolic and detour, and a fatal frolic and detour in hard times such as the present.”  Truly, it would impoverish the law and society as a whole if teaching the “motor skills” associated with practice becomes the goal of law school, rather than one of its several important goals. I, for one, don’t think that is the case (but I may be naïve).

For an example of an opposite view of skills instruction, consider the “audacious goals” that Michael Roster advocates for law schools in his article, The New Normal. Roster explains that law firms and their clients demand that recent law graduates be able to immediately add value to a case or a deal. Therefore, he concludes, law schools should overhaul their model to ensure that their graduates can immediately function as a 2nd year associate or an unsupervised solo practicioner.  It is likely true that firms would like to pass the buck on training. But it doesn’t necessarily follow that the buck should be passed in this way.  Once upon a time, I’m told, law firms actually did mentor and develop young associates – and some firms still do (smaller and mid-sized firms seem more likely to engage in explicit mentoring and development than big-law firms famous for a chew-em-up-and-spit-em-out approach to new grads).  Condlin suggests that the lack of in-firm training results from selfishness or short-sightedness of baby boomer partners. Roster doesn’t explain precisely why firms currently don’t want to allocate resources to training, but treats firms like a law school’s clients, and argues that the customer is always right.

I hope that the majority of those supporting more “practice readiness” do not actually envision tomorrow’s law schools as mere trade schools.  But I believe that many of today’s efforts to build bridges from school to actual law practice are worthwhile. It is valuable to teach legal doctrine in a way that gives it context and meaning and gives law students a glimpse into the world of practice. I find it natural and effective to integrate the practice context into teaching. ...

Clearly, the primary goal of law school courses must remain to teach students thinking skills – how to conceptualize a problem, how to parse out legal issues, how to research those issues, how to think analytically about facts and legal applications, and how to incorporate social values and policies into advocacy. In short, teaching students to “think like a lawyer.” That is the primary “skills” instruction that readies graduates for legal practice.  But the entire industry needs to remember that being “ready” to start as a first-year associate or a mentee does not mean that a new lawyer leaves law school ready to practice without supervision and mentorship. In fact, for most graduates, going it on their own without some sort of apprenticing experience would likely end in disaster.

It seems to me that lack of legal mentorship in practice is the real story, and one that the law industry must confront. Because even when law schools do all they can and should to prepare students for a career in the law, new lawyers will only adequately bloom and develop professionally when they have adequate supervision in practice.

Orin Kerr (George Washington), CommentIt would make more sense to speak of the goal as being making students "practice aware" than "practice ready." The goal should be to expose students to and familiarize them with different ways of practicing law. The idea that students can be trained to be "practice ready," in the sense that they can just walk out of the classroom and walk into the courtroom (or wherever else they are practicing) ready to represent clients seems unrealistic.

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One of Loyola-LA's explicit goals is to produce practice-ready graduates. There are many possible ways of defining "practice-ready." Mine is simple: graduates should have a set of immediately billable skills in a chosen area of practice. This is an achievable goal; whether it is attained is easily measured. In my experience, it does help graduates get jobs.

The ABA's experiential learning standard is a blunt axe; merely implementing that standard, without more, will not ensure the transmission of billable skills. Loyola-LA's approach varies by field of practice, as described more fully in our Practice Ready newsletter:

Posted by: Theodore Seto | Aug 29, 2015 2:13:51 PM

"In fact, for most graduates, going it on their own without some sort of apprenticing experience would likely end in disaster."

You mean like the 40%+ of law graduates nationwide in any given year, who are not employed in a full-time, bar-required position but might be tempted to practice anyway since that's why they went to law school and took a bar?

Posted by: Morse Code for J | Aug 28, 2015 9:02:42 PM

Lost in many of the discussions about producing supposedly practice ready graduates through curriculum reforms requiring such things as 6-15 hours of skills related courses is that the numerous criticisms of law schools for failing to produce practice ready gradates are occurring in a context where, for quite some time, a significant proportion of law students have already taken courses with practice components that satisfy the concept but that apparently those courses are insufficient to make them practice ready given the criticism from the bench and bar.

For example, many students take six or more hours of Legal Writing. Yet a major complaint from lawyers and judges is that graduates can't write professionally. Similarly, numerous courses include writing elements and paper requirements. Still we hear graduates can't write well. In addition, courses in ADR, trial and pre-trial skills, transactions, legal profession and clinics, along with wider use of simulation and problem solving in traditional law courses have proliferated. Yet we hear a rising sense of discord about the lack of practice ready graduates. Numerous law schools have hired something like tutors to assist troubled students as well as to assist with preparation for the bar exam.

My point is that there is an incredible amount of confusion and subtextual agendas flying around here. The courses by and large are already in existence for a wide variety of students but apparently aren't working all that well from the [sel-serving] perspectives of lawyers and judges. Perhaps law schools are doing that which is possible. Or maybe law teachers aren't as effective s they like to think. OR maybe the complex reality of law practice transcends most of what can be done in law school. OR maybe lawyers and judges just need a scapegoat. OR, and this is a serious issue, quite a few people being admitted to law schools aren't that smart and lack the intellectual ability to do what really good lawyers hae to do, along wth the fact that quite a few lack the intense self-discipline required to be a good to exceptional lawyer. On this issue connected with the constant complaint about writing inadequacy I have always been convinced that writing and clarity of thought are closely linked. If someone can't think with precision that person can't communicate with precision whether in writing or orally.

Posted by: David | Aug 28, 2015 3:26:50 PM