Thursday, May 1, 2014
(Adapted from my essay in PEPPERDINE LAW, Fall 2013, at 18 -19.)
One morning early in the semester, I met a student in our clinic office. She soon would graduate top in her class. She had won national advocacy competitions. She was a former D-I collegiate athlete, accomplished and brilliant. She was terrified. She told me she had not slept well. She was nervous and kept checking her notes to ensure she was ready, fidgeting like a 1L. She was on her way to her first client interview.
My student had succeeded in every aspect of her legal education, but the prospect of meeting a real person, of undertaking our client’s cause, of receiving her story and evaluating the case, of translating her knowledge into practice intimidated her.
She was experiencing a moment I call The Shift. Law students spend their lives performing for their own advancement. They are working for a grade, working for class rank, working for a job, working for resume enhancement, working for a professor’s praise and recommendation. They are self-centered, because we make them be self-centered. This is endemic to legal education. In clinics, though, they face something new. They are no longer working for themselves, but they are working for a client who is depending on them. They feel the burden of a client’s life, family and fortunes, and they grow anxious when they realize the stakes. The Shift is that profound moment when a student feels the weight of professional obligations to a real client, and this moment imparts lessons that students cannot learn vicariously, through experiences we cannot simulate. This is the purpose and great value of clinical education.
The legal academy is facing a crisis of scrutiny and skepticism. Students are demanding, rightly, more return on their massive investment in law school. The bar is demanding, rightly, graduates better equipped to practice law. The market is speaking, and “practice-ready lawyers” is the watchword. In diverse ways, law schools are reacting, even scrambling, to adjust methods and objectives that have been stable for a century. Across the spectrum of legal education, law schools are figuring out how to train lawyers, not just to teach the law. Experience matters, and we find contemporary law schools returning to old ideas of apprenticeships and learning through practice.
Clinics and externships are at the heart of these discussions, because students can only become “practice ready” by practicing. In 1947, ahead of his time, Professor Charles Henderson Miller of the University of Tennessee said, “To study the phenomena of law in society without books is to sail an uncharted sea, while to study the law without clients is not to go to sea at all.”
Practice readiness means readiness for clients, courts, law offices, co-counsel, opposing counsel, business, transactions, staff, money, marketing and scores of banal surprises. It also demands a return to humanity, the ability to translate the language of law into the language of the people we serve. The grand idea of practice readiness rests on three pillars: doctrine, skill and professionalism. Without all three, our students are not ready to practice with any confidence. These are not zero-sum choices, but these pillars should inform each other from the first day of law school to the last.
Lawyers cannot be merely good social theorists with doctrine at their intellectual disposal, or they will be useless to a real client with a problem. Likewise, lawyers cannot merely be technically proficient and charismatic, or they will fail to discern and understand the complexity and depth of the law necessary to advance their clients’ interests. Lawyers must have an expertise in the law and must be technically proficient and skilled to bring that knowledge to bear. That synthesis is the beginning of professionalism, but it is not the end.
Good lawyers require wisdom, self-awareness, epistemic humility, creativity, imagination, compassion and discipline. Great lawyers seek these virtues intentionally and constantly. These qualities are what the market demands and what students need.
Clinics create environments and generate experiences that are essential to the formation of effective professionals. Students will have these experiences sooner or later. In the wilds of law practice, they will have these experiences with high stakes, uncertain security and inconstant advice. In clinics, they can learn and grow with direction, with mentorship and guidance, with real stakes but without the risk of doing great damage, to their clients or to their own careers. Clinics work at the intersection of doctrine, applied with skills in practice to real clients, and students here can experience the role of attorney with the attendant demands of intellectual and emotional life. They feel the pressure, the confrontation, the demands, the gratification, the fear of law practice. They encounter in clinics the real thing, not a discussion or a simulation of it.
In Externships, students enter the marketplace. While clinics can generate intense experiences with clients and cases, field placements expose students to the bar, to lawyers at work. Students witness how lawyers talk to each other, how lawyers collaborate with support staff, how lawyers grapple with the administration of their business. This is real life in the law, and students are incrementally better prepared to practice at graduation if they have already experienced the culture shock of immigrating from school to work. Their learning curve is steep in the best situations, but it is easier if they can find their way around a law office. In Externships, students learn from practice, deepen their expertise, meet lawyers, hone their craft and observe the world as it is. This makes our students all the more valuable to the lawyers who hire them.
Best of all, we achieve these educational objectives while doing the work of justice for those who need it most. We manifest the mission of our profession by seeking liberty for the oppressed and justice for the vulnerable, by seeking homes for the homeless, by seeking peace. These are not metaphorical ideals but the fruitful reality of our law practice. Students find the power and privilege of the profession instilled with hope, faith and love. They begin their careers with some of the most important work of their lives.
My student did a great job in her client interview. She received her client’s story with compassion. She asked good questions and built a reliable narrative. She evaluated the claim and crafted a strategy. She made decisions and translated her ideas into pleadings. She filed a suit and prosecuted it to a favorable outcome for a client who could not afford her. She went to sea, and she was ready for practice.