21st-century legal education

This article was first posted at Slaw on September 28th, 2006.

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.

Addendum: 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.