Legal Education in the 21st Century

I wasn’t much of an articling student. I worked hard, but not smart: my learning curves were more like sheer cliff faces. I’m sure I wasted a lot of clients’ money and lawyers’ time during my year of service, and the firm was right not to ask me back.

In retrospect, I can see many things I should have done differently. But at the time, I was seriously peeved that no one had prepared me for this, that I hadn’t the first clue of what the practising Bar required. That’s been a pretty common experience for many new lawyers before and since.

Many lawyers blame the law schools, using overworn clichés like “ivory towers” and “here in the real world.” But law schools aren’t trade schools, and I don’t think they ought to be. A good legal education teaches students that the law has a history, a purpose and a soul, that law matters; it’s an incredibly rich and fulfilling experience that gives us the right to call ourselves “professionals.”

But law schools will have to adapt to changing circumstances in the years to come; they won’t really have much choice.

It’s not just the schools — law societies, CLE providers, and the practising Bar all share in the responsibility for a legal education system that’s not working very well now and will work much less well in future. They all have to face the question: what training and education do lawyers require in order practise law in the 21st century?

I don’t think we need to do much work on substantive, “black-letter” law: we’re very good at teaching ourselves that, from first-year law school through to advanced CLE seminars. What’s missing from legal education right now is the wherewithal to serve clients well and conduct ourselves professionally.

Here are just a few of the skills in which lawyers need thorough, professional training from the start:

Client relations: First and foremost, empathy: understanding your clients’ personal turmoil and showing them that it matters to you. Secondly, setting mutual expectations for your client relationship. Then the basic stuff – regular communication, retainer letters and the like.

Business acumen: How to run a practice without falling afoul of the law society. How to balance a budget and operate a small business without falling afoul of the bank. How to get clients to pay you on time, if at all.

Business development: How to find clients, keep them, and get more clients as required. How to market yourself in a hundred different ways. Every new lawyer should be given a starter Website upon their call to the Bar.

Dispute resolution: Moot court experiences in school are great. Moot settlement conferences and moot collaborative law sessions would be much better, since most lawyers face these situations far more often.

Legal ethics: Lawyers require a solid grounding in both understanding the law’s moral compass and resolving modern-day bugbears like conflicts of interest and trust-fund usage. Lawyers should know their Code of Professional Conduct like preachers know their holy books: chapter and verse.

I’m sure you can think of others. These are skills that lawyers will require their whole professional lives, yet most of us don’t learn them until we’re several years into our careers. That has to change. Bar admissions courses are improving all the time, but they can only scratch the surface.

Twenty-first century legal education is really the subject of a book, not a blog entry. But here’s a bullet-point list of what I think might change in legal education in the years ahead (I say nothing about whether these possible changes are good or bad):

–> If students aren’t better prepared for practice when they enter their articling year, more and more firms will refuse to accept articling students at all. Law firms’ profitability expectations will trump the historical and professional responsibility arguments for articling. If that happens, the bar admissions process will be thrown into crisis.

–> A power struggle will take place among law schools, law societies and the largest law firms over what sort of education lawyers need and who should pay for it. Law schools, which have the least leverage of the three, will lose badly if they haven’t taken steps before then to mitigate their damages – perhaps by introducing “practice streams” that students can choose after two years of traditional education.

–> Law firms that donate millions to law schools will demand that partners be allowed to join the faculties as either professors or board members overseeing curriculum choices. Meanwhile, the last of the massive boomer generation of professors will move into retirement. The combined effects on law faculty culture will be profound.

–> CLE will finally get the critical analysis it needs, especially if mandatory CLE becomes a reality. CLE providers will have to prove their offerings help reduce E&O claims and result in satisfied clients; CLE providers unaffiliated with traditional legal institutions will do surprisingly well. Internet-delivered CLE will be the norm, not the exception. Adult learning techniques will replace the tired lecture-hall presentations so common today.

–> If lawyer self-governance is ever seriously threatened, state actors might decide that lawyers haven’t been doing a good enough job of educating themselves. Government directives that legal training must become more rigorous might prove quite appealing to entities that would benefit financially from every extra year required to enter the profession.

–> In the end, lawyers might require as many as six years of training before being allowed to practise law – which would bring them more in line with other professionals, such as doctors, who currently face more gruelling paths to the lofty status and revenue heights they share with many lawyers.

What do you think? Are these diagnoses and predictions on the money or way off the mark? Given the strong academic current among SLAW authors and readers, I’m very interested in your take on the foregoing.

Comments

  1. Jordan, these are thought-provoking comments, but not ones I haven’t heard before. The town/gown debate between lawschools and the profession has never been complete resolved. See the debate around Cecil Wright and moving the lawschool from Osgood Hall to the U of T, the subject of a 1987 book by UTP called “The Fiercest Debate”.

    Many of the things you mention are included in academic legal education in Canada, bearing in mind that a considerable percentage of graduates do not go into private practice, and if they do many don’t stay past 5 years.

    The Law Society of British Columbia is concerned about the course student’s take and do give lists of preferred courses that students should take if they intend to practice. However, it would not be acceptable for either the Law Society or a donor to dictate the curriculum to the law school or university – only the Senate of the University has the power to do that. Governments have tried in the past, unsuccessfully, particularly during a long faculty strike in Manitoba in the 90’s.

    However, you do have some good points. There really has not been a thorough review of Canadian legal education since the Arthur’s Report in the 80’s – and much has changed, not the least of which is technology.

  2. Neil, you’re quite right that many graduates don’t go into private practice, and those who do don’t always make a full career of it (especially this current generation). All the more reason to resist the calls to turn law schools into legal training centers.

    I think that this issue is most clearly viewed not by asking “What can law schools do to better prepare students for the Bar?”, but “How can the Bar better prepare new lawyers to enter it?” This puts the onus for private-practice training where it belongs — on private practitioners. The Bar should start with a brand new lawyer’s first day on the job and work backwards: what should our newest colleague have learned before now in order to hit the ground running? Then go as far back as necessary to fill that order. The goal is not to try putting old heads on young shoulders — much of what lawyers need can only be learned with time and experience — but to ensure that new lawyers can fulfill even minimum standards of business competency and client service.

    Of course, if the Bar does ask these questions, it may find itself turning less and less often to law schools, for which private-lawyer training is not the main priority, for the answers. And that may lead to an entirely new way of viewing legal education.

  3. I agree with the two comments to this post and would like to add a few thoughts from an American ex-pat…I studied law and practised in the US where, as you likely know, we do not article. We graduate in May, take the Bar exam in July and start practising as soon as someone hires us. We typically get our Bar results and are sworn into the Bar by October of the same year. So, for me, five months after my law school graduation and at the tender age of 24, I found myself standing before a court conducting a particularly nasty child-snatch/custody case. Alone. No co-counsel. Just me, my witnesses, and the other side. And you know what? I was fine. Why? Because law school had in fact prepared me for that moment. In law school, I developed the capacity to think deeply, creatively, and logically. I learned to think on my feet. I learned self-control and discipline. I learned to weigh possibilities and consider all angles. I learned to organize and compose my thoughts quickly. I learned to think dispassionately and argue passionately. And, fundamentally, I learned the law and developed respect and reverance for the law and the courts. All of this combined to give me the poise and integrity I needed to survive that day in court and the many years that followed. I may not have known exactly where to stand or to whom to hand my exhibits that first day, but none of that mattered. What mattered was I knew how to address the court, how to talk to my clients and witnesses, how to put my client first. What mattered was that I completely understood the significance of what I was doing in that room. And my law school taught me all of that.

    Years later when I taught ay my former law school, I determined that the best thing I could leave with my students was a feeling of respect for the law and a commitment to bring integrity to the profession. The job of law schools should remain to teach students (1) how to recognize and work through legal issues, (2) where the law comes from and how it evolves, (3) fundamental legal principles of several substantive areas, (4) how to engineer and articulate legal argument, and above all (5) respect for the clients, courts and profession.

    The people who employ young lawyers fresh from law school take on the responsibility (owed to both the people they hire and the entire legal community) to equip new lawyers with the tools of the trade. Every practise runs differently; every discipline has its own quirks and rules; this is best left for on the job training. Law firms need to learn that they must invest heavily in the people they hire. Their complaints about their young lawyers’ preparedness speaks volumes about their own failure.