Thursday, December 5, 2013

David Barnhizer: A Reply and A Clarification

Below, one of my co-bloggers has posted an abstract of an article by David Barnhizer on legal education, which asks "Is the notion of practice-ready graduates a farce?".  Because I feel that Professor Barnhizer has set up a false notion of "practice-ready" as a strawman, I must reply to his article.

In a comment to a post on the Tax Prof Blog on this article, Professor Eric Muller wrote, "What a foolish argument! A straw man (the brand-new grad ready to handle the multimillion dollar merger) is successfully set up and then knocked down."

Steven Freedman similarly declared: "It's a silly straw man argument to say experiential education is a farce because a first year associate can't manage a complex merger. Many of our students at KU Law complete one or two clinics, plus work experience through internships. While they might not be able to handle complex commercial transactions, they certainly have been used by employers to handle misdemeanor hearings and trials, handle everyday litigation (landlord-tenant, commercial disputes, etc.), work in family court, etc. Based on feedback from our employers, they do consider it a positive if students have had some experience and are ready to manage responsibility from day one. Just like a fresh doctor should be able to set a broken bone or diagnose someone with the flu, fresh lawyers who want to do small and medium sized practice law should be ready to file a simple complaint or handle a motion in limine. But only if their law school prepared them for it."

Professor Theodore Seto added, "What law firms do want is graduates with immediately saleable skills. Ideally, when the partner gives a new associate a file and says, 'I'd like you to defend this deposition next Tuesday,' the associate should say, 'I'm on it,' not, 'What's a deposition?'"

To me, practice-ready is the ability to do the basic things that lawyers do based on their area of practice.  For a litigator, it is the ability to do research, draft pleadings, take depositions, write motions of for summary judgment, write appellate briefs, etc.  For a transactional attorney, it is being able to draft basic contracts, draft corporate documents, structure simple deals, etc.

As C. Christie noted in the comments, "I would think that a 'Practice Ready' law school curriculum would include hands-on experience in the form of internships, externships, apprenticeships, clinics, etc, and not be based solely on exam scores or coursework grades. In Professor Barnhizer's scenarios, I agree that no recent 'Practice Ready' grad would be 'Client Ready.' However, a firm might be more likely to hire a 'Practice Ready' grad because the leap to 'Client Ready' would be less steep, than hiring a non 'Practice Ready' grad. I work in a major law firm, and we don't hire grads with less than about 5 years of experience. Why??? Our clients have told us, through numerous surveys and benchmarking studies, that they will not pay for them because of wasted time and money. However, if firms felt confident that the students were getting real-law experience as students, that situation would change. Call it what you will ... many traditional law school grads require a huge learning curve in a law firm setting, and that is simply not cost-effective anymore. They're also competing against lawyers in India and elsewhere who can do first-third year law firm work at a better cost to clients."

Profesor Barnhizer wrote a couple of replies to the above comments to clarify his position: "Read the full paper. Then argue with me. I guess I should have included in the Abstract the fact that law schools can educate in important ways, including providing students a conceptual and experiential 'template' into which subsequent experience is infused and interpreted in ways that create a stronger likelihood they will be better lawyers. I accept that maybe this perspective (which is the paper's) might appear better in the Abstract. But the comments themselves indicate a strong bias toward 'practice ready' law schools as well as the fact that the commenters didn't look at the paper itself."

He added, "I am not against attempting to educate law students in both skills and the qualities of professionalism from the perspective of clients and social obligations."  "My point is that we have done a relatively poor job of professional, societal and what I would call 'deep practice' education. We need to focus far more than we have on what is the best use of the special three-year period represented by formal academic legal education."  He remarked that "In fact it may be more important to impose stronger requirements on law graduates than on new medical graduates because the functions conducted by lawyers are largely invisible and the client has little way of knowing if he has been provided sub-standard representation. Along with this goes the significant decline in mentoring for young lawyers. Given the fact that there is scant oversight, that quite a few law graduates are now (of necessity) going in to solo or small associational practices for purposes of sharing expenses the fact is that clients are at the mercy of people who really have a limited idea of what they are doing."

He concluded, "So what I am saying is that we need to design ways to 'do it better.'  I am not saying that education for the challenges of being a lawyer should not occur but that we must visualize the task better than we do within the realm of what is realistically possible given issues of time, talent, resources, institutional behaviors and biases. I am also saying that the organized legal profession and state supreme courts need to quit 'palming off' their responsibilities on law schools and pretending they have taken care of the situation.  As I said in 'Abandoning an 'Unethical' System of Legal Ethics' a year or so ago when it was published in the Michigan State Law Review, the legal profession is running a scam on society and clients, pretending that a system of lawyer regulation is in place that protects society and clients even while that system has extremely limited sanctions and accountability and is a 'cover' for a significant range of professional misconduct and incompetence. If that part of the system does not step up and begin to make significant qualitative contributions to the continuing development of good lawyers (and weeding out of bad lawyers) then no matter what law schools do it really will not make much difference."

In sum, when you read the entire article, you can see that Professor Barnhizer has a lot to contribute to the legal education debate.   However, this does not excuse his use of "practice ready" as a strawman.  Law students need better educations both in law school and afterwards.  The bench and bar and law schools need to work together to produce attorneys who can serve individual clients and society.

(Scott Fruehwald

| Permalink


OK, I said the abstract could have been a little different in this obviously volatile debate over the appropriate nature of law school. Having said that, I do think actually reading the main text could be useful to the critics who clearly reacted solely to the "straw man". Also, maybe the straw man helps to think through what what I tend to think of as the "deeper skills" of being a lawyer as opposed to what I might call "tactical technical" skills in which there is far too much concentration on the "trees" of law practice than the overarching skills that enhance our ability to use the "trees" in the best and most effective ways for the best reasons. In any event I have spent decades teaching "skills" in every mode that can be used in legal education so I am probably not the best person to attack simply because someone thinks an abstract was a little over the top. If anyone is interested they might like to look at the following publications that I wrote over a lengthy period. I'm including the list because I would hate for anyone to think that I just "popped into" this controversy over the best role of law schools and the nature of legal education and law practice. I read things recently that make it seem as if this crisis of legal education came out of nowhere almost without warning. The fact is that it has been developing for decades and the law schools and the profession have mostly paid lip service or ignored it. Bob MacCrate, Roy Stuckey and many other clinical faculty have been working on it but the mainstream law faculty and administration ought to be embarrassed about how they have finessed the situation.

THE WARRIOR LAWYER [This book applies the strategic work of Sun Tzu and Musashi to the practice of law]

“Abandoning an “Unethical” System of Legal Ethics”, 2012 Michigan State L. Rev.

“The Purposes and Methods of American Legal Education”, 36 Journal of the Legal Profession 1 (2011)

“Lawyer regulation strategies—A personal view from the USA”, 17 International Journal of the Legal Profession 181 (November 2010)

“Redesigning the American Law School”, 2010 Michigan State L. Rev. 251

“Profession Deleted: Using Market and Liability Forces to Regulate the Very Ordinary Business of Law Practice for Profit,” 17 Georgetown J. of Legal Ethics (2004)

“ 'On The Make’: Campaign Funding and the Corrupting of the American Judiciary," 50 Catholic Law Review 361 (2001)

“The Virtue of Ordered Conflict: A Defense of the Adversary System,” 79 Nebraska Law Review 657 (2000)

“Princes of Darkness and Angels of Light: The Soul of the American Lawyer,” 14 Notre Dame Journal of Law, Ethics & Public Policy 371 (2000)

“The Justice Mission of American Law Schools,” excerpts reprinted in CLINICAL ANTHOLOGY: READINGS FOR LIVE-CLIENT CLINICS, Hurder, Bloch, Brooks, and Kay, editors (1997)

“Don’t Ride Buses in Honduras,” in CSU Law Notes, Winter 1996

"Of Rat Time and Terminators," 45 J. Legal Ed. 49 (1995)

"Freedom to Do What? Institutional Neutrality, Academic Freedom and Academic Responsibility," 43 J. Legal. Ed. 346 (1993)

"The Justice Mission of American Law Schools," 40 Cleveland St. L. Rev. 285 (1992)

"The Purposes of the University in the First Quarter of the Twenty-first Century," 22 Seton Hall L. Rev. 1124 (1992)

"The University Ideal and Clinical Legal Education," 35 New York L.J. 87 (1990)

"Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America," 50 Pitts. L. Rev. 127 (1988)

"A Clinical Carol," AALS Clinical Newsletter, 1987

“Teaching and Testing Clinical Skills,” LEGAL EDUCATION AND LAWYER COMPETENCY: CURRICULA FOR CHANGE (F. Dutile ed. 1981)

“The Role of Practical Legal Education in the University Law School,” in PERSPECTIVES ON LEGAL EDUCATION 278 (N. Redlich ed. 1979)

“The Clinical Method of Legal Instruction: Its Theory and Implementation,” 30 J. of Legal Education 67 (1979)

“Clinical Education at the Crossroads: The Need for Direction,” 1977 B.Y.U. Law Rev. 1025.

David Barnhizer

Posted by: David | Dec 6, 2013 6:00:04 AM

Post a comment