Pandemic V: Lawyer formation rescued

As was the case with the justice system breakdown I described in Posts 2 and 3, and further to the problems with lawyer formation I laid out in my previous post, I want to suggest two sets of responses to the crisis in lawyer development.

The first set, presented below, is designed to get our current system and the people who rely on it through these next couple of years. The second, presented in my subsequent post, is intended to outline a new and better system to replace the one that’s breaking down.

In the short term, here are seven suggestions for how we can help get law schools, regulators, and law firms through this lawyer formation crisis.

1. Drop the LSAT.

Law schools should stop using the LSAT as part of their applicant assessment system. Many people won’t be able to write the LSAT this year, and the conditions for those who do write it will be unequal; those two facts alone are reason enough to follow this approach. Law schools can still use undergraduate marks, work experience, and personal qualities to decide who to admit. But let’s be honest: The LSAT is an elitist artifact anyway. It tests only a small number of skills and attributes that lawyers need, and it has no correlation whatsoever with one’s future success as a lawyer.

2. Do online lectures properly.

As long as physical distancing lasts, schools should arrange for all lectures to be video-recorded and (along with lecture notes) uploaded, so that students can access them asynchronously rather than having everyone pile in to a Zoom session. This should be done at least semi-professionally, with good audio, lighting and framing. Each lecture should be 20-30 minutes maximum. The designated course professor need not deliver them all. We need to shift away from “remote teaching” to online learning.

3. Adapt student participation.

Create online message boards with questions for students to answer and discuss among themselves; active or high-value contribution to these discussions would improve a student’s final assessment. Increase the number of assignments for students to carry out, and encourage multimedia responses (video or podcast instead of or in addition to a written submission). Assign more work to groups, using online collaboration platforms (e.g., Google Docs); if isolation is lifted, these group projects can be converted to in-person.

4. Maintain Fail/Pass/Honours.

Let’s get real for a moment. Hardly anyone ever fails a law school course or fails to graduate, so we’re really talking about “Pass/Honours.” In practical terms, that is absolutely no different from “Consonant/Vowel.” I think most professors would agree that they could divide their students into “those who did the work and learned the concepts” and “those who really stood out as brighter, harder-working, and more effective than the others.” Why do we need finer distinctions? Law school is not Grade 3; we’re past the stage of incentivizing children to try hard and do their best. We’re developing professionals to serve the needs of others. Let’s keep a system that recognizes this reality.

5. Forget the bar exam.

This is simultaneously the easiest and hardest advice. Easiest, because the bar exam is little more than “an excellent barrier to entry …and a superb hazing ritual,” in the words of Joan Howarth; it “tests the ability to take tests, not the ability to practice law,” added Allen Mendenhall. It’s archaic, discriminatory, and a waste of time. But also hardest, because the profession just can’t quit the exam, partly out of habit, partly out of fear that law school didn’t prepare students to practice, and partly no doubt because of exam prep industry pressure. The pandemic has made sitting for the bar almost impossible; take this as a sign, and an opportunity.

6. Issue “progressive” law licences.

To mollify bar exam defenders, and as a step towards a better licensure system in future, all graduates who were unable to take the bar exam should be given conditional admissions to practice with “progressive” law licenses that allow the lawyer to practice but would place limitations on, say, the types of actionable legal advice that can be dispensed to individuals. Lawyers who hold progressive licences would be equivalent to “interns” who’ve graduated from medical school but haven’t yet achieved full “doctor” status. Passing a future bar exam (or a superior procedure; see the next post) would be sufficient to convert these “lawyer learner permits” to full law licences. (Also check out the Institute for the Advancement of the American Legal System’s thoughtful discussions of new lawyer licensing options and lawyer competence assessment.)

7. Incentivize new lawyer hiring.

Governments should encourage law firms to keep hiring new law graduates by making the salaries paid to these new lawyers entirely tax-deductible for as long as the crisis lasts. Large firms can go further and split the costs (and the tax benefits) of new lawyer hiring with corporate clients, where the new hires can spend half their time. Governments should also order suspension of repayments of all student loans for this cohort of graduates, and should issue partial loan forgiveness for graduates who enter public service or who move to smaller or rural locations to practise law.

These are seven short-term steps that all the participants in the lawyer development process can take right now and over the next 18-24 months to help us through this crisis. But these measures are by nature temporary, or at best transitional, as we start shifting towards a new lawyer formation regime.

Just as we’re buying time by keeping the crippled court system functioning until we can build better justice institutions and procedures, so too the foregoing measures will help keep the “lawyer pipeline” going through the emergency while we develop something better to replace it. That’s what I consider in the next post in this series, “Lawyer formation re-engineered.”



8 Comments

  1. Jennifer Flynn

    Excellent thoughts as usual, Jordan. To your point about dropping the LSAT and bar examinations, I would add “and replace them with defensible assessment of the competencies that today’s lawyers need.” In law and legal education today, we tend to assess the wrong things or we don’t assess them at all. Assessment is vital for public interest protection–but it is also a crucial part of the learning process. We need high-quality tools for self-assessment, improved feedback, and evaluation that DO correlate with the competencies required for safe and effective practice, continued competence, and sustainable success.


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