Tuesday, August 18, 2015
AALS Section on Clinical Legal Education Issues Statement on the California Task Force on Admissions Regulation Recommendations (TFARR)
I am posting this in full because of its importance. (Scott Fruehwald)
The Association of American Law Schools Section on Clinical Legal Education (“AALS Clinical Section”) applauds the Trustees of the State Bar of California for unanimously adopting the proposal of the Task Force on Admissions Regulation Reform (“TFARR”) to require applicants to have completed 15 credits of experiential education prior to sitting for the California Bar. The AALS Clinical Section is made up of hundreds of legal educators, including many in California who have dedicated their professional lives to preparing students for the practice of law through in-house clinics, externships, and other experiential educational offerings. In recent years, we collectively and individually have been involved in efforts to ensure that our JD students are more ready for practice, consistent with calls for such training made by bar associations, alumni, prospective students, and fellow educators. Many of us have participated actively in state bar associations and on bar committees, allowing us to appreciate the goals of both the legal academy and state regulators. With these experiences and perspectives in mind, we believe that the TFARR proposal, which encourages the integration of 21st century lawyering skills into the core of legal education, presents a significant opportunity to better prepare students to meet the demands of clients upon admission to the bar.
As the Clinical Legal Education Association (CLEA) and other stakeholders have noted, the legal profession has lagged far behind every other profession in regards to required pre-licensing professional skills education. Numerous studies over the past four decades by the American Bar Association (ABA) and others have decried this lack of practical training and called for reforms to the required law school curriculum.1 As a result of these reports, the ABA recently increased the number of credits of experiential education required of JD students from 1 to 6 credits.2 While this represents a significant increase for law students, it corresponds to less than 8% of the JD program. It is also 4 times less than the practical training required of social workers and nurses and more than 6 times less than the practical training required of physicians.3
A. The Proposal Reflects an Increased Demand for Experiential Opportunities
Law students also have been clamoring for more experiential education opportunities. The greatest evidence of this demand is the criteria students rely upon when choosing a law school. These choices have become ever more important for law schools facing declining application numbers. A Law School Admission Council study in 2013 found that clinics/internships were among the most influential factors for prospective students in deciding whether to enroll at a given law school, behind only location and employment of graduates (77% of respondents considered location to be a very important factor and 68% classified clinics/internships as very important).4 In fact, experiential offerings were more important to these prospective students than the cost of the institution, the personal attention they would receive, a school’s ranking, and the reputation of faculty. In addition, a survey conducted in 2004 of recent law school graduates found that opportunities for professional skills training (including clinical courses and legal employment) were rated as the most helpful law school experiences in successfully transitioning to practice.5 Surveys conducted by the National Association for Law Placement in 2010 and 2011 likewise found that lawyers in the private, government, and non-profit sectors attached great value to their law school clinic experiences.6 Thus, from the viewpoints of prospective law students, recent graduates, and more senior lawyers, practical training is vital.
B. The Proposal Permits Great Flexibility and Aligns with the ABA Rules
We are aware that TFARR took these factors into account and that it crafted and revised the final proposal over several years during which it worked closely with California law schools, practitioners, and the judiciary, and engaged in extensive information gathering, including numerous opportunities for public comment. The result is a proposal that gives law schools guidance on developing and evaluating experiential learning offerings while simultaneously giving schools flexibility to design these offerings in ways that suit particular institutional missions, student bodies, and relevant legal markets. First and foremost, the proposed California bar rules provide a “safe harbor” for courses that comply with the revised ABA standard, thus allowing ABA-accredited schools to offer programs that simultaneously satisfy both requirements. Under both sets of rules, virtually any topic taught in a real-client or simulated setting will satisfy the ABA and the California Bar, including interdisciplinary courses developed in collaboration with other professional schools. Skills learned can be as diverse as law practice management, client counseling, practical writing (including transactional writing), and pre-trial preparation.
In addition, under the California rules, the settings in which these skills can be learned include traditional courses, clinics and externships, uncredited clerkships, and apprenticeships. The proposal even allows for portions of a course to count, such that a 3-credit course that uses a contract-drafting exercise for 1/3 of the class time could count the 1-credit module towards the 15-credit requirement. Moreover, in a nod to schools experimenting with their first-year curricula, all but the first 4 units of first-year legal research/writing courses can count towards the 15 credits if they are taught through real or simulated client work. Finally, summer work that is uncredited is specifically allowed to count for up to 6 of the 15 required units. Thus, there are virtually limitless permutations of course, field, and uncredited work that law schools can offer to their students in order to meet both the ABA and California rules.
Moreover, the emphasis on skills (as opposed to substantive practice areas) provides schools the ability to tailor offerings to the local marketplace (e.g., oil and gas offerings in Texas or maritime law offerings at coastal schools). The result is that virtually any legal experience a student gains, whether in a law and policy reform organization or at the U.S. Patent and Trademark Office, can potentially count towards the 15-credit requirement. This provides a great deal of room for innovation, allowing institutions to experiment with the delivery of skills and professional training and draw upon generally under-utilized resources such as alumni.
As with any new undertaking, there will be a period of adjustment as schools begin to grapple with both the new ABA requirements as well as state requirements like those proposed by TFARR. TFARR has wisely taken this adjustment period into account by offering exemptions for licensed attorneys from other jurisdictions and allowing post-graduate apprenticeships (which can be paid) to meet the 15-credit requirement. This will ensure that schools have plenty of time to audit and/or ramp up their offerings, that lawyers who had not planned to practice in California still have access to that state’s bar, and that students have every opportunity to learn about and meet the requirements prior to their first bar admission.
Overall, the TFARR proposal presents a significant opportunity to improve the overall competency of new admittees to the State Bar of California. As students enter a rapidly changing and expanding legal marketplace, it is incumbent upon the Bar to ensure that law graduates have the doctrinal knowledge and professional and interpersonal skills needed to effectively and ethically represent clients in California. The TFARR proposal would advance this important obligation of the Bar and help legal education fulfill the demands of our students, their future clients, and the legal profession.
*. Disclaimer in accordance with AALS Executive Committee Regulation 1.4: The opinions expressed here are not necessarily those of each member of the Section and do not necessarily represent the position of the Association of American Law Schools.
1. The ABA’s 1979 Report and Recommendation of the Task Force on Lawyer Competency: The Role of the Law Schools (“the Crampton Report”) proposed that law school curricula pay more attention to providing professional experiences. The ABA’s 1983 Task Force on Professional Competence shared this perspective and recommended that the ABA make enhanced law school training in lawyering skills a top priority. A decade later, the 1992 ABA Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (“the MacCrate Report”) recommended that law schools “develop or expand instruction” in fundamental lawyering skills and professional values; and the most recent, the ABA Task Force on the Future of Legal Education Report and Recommendation reiterated the “calls for more attention to skills training, experiential learning, and the development of practicerelated competencies” and noted that the “balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further towards [the latter].” In addition, the Carnegie Foundation for the Advancement of Teaching publication, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (2007), found that courses that included real-life experience with lawyering could teach students all of the relevant professional competencies: intellectual, practical, and formation of professional identity and judgment.
2. ABA Standard 303(a)(3).
3. Robert R. Kuehn, Pricing Clinical Legal Education, 92 DENVER L. REV. 1, Appendix A (2015) (citing MOLLY COOKE ET AL., EDUCATING PHYSICIANS: A CALL FOR REFORM OF MEDICAL SCHOOL AND RESIDENCY (2010); and COUNCIL ON SOCIAL WORK EDUC., EDUCATIONAL POLICY AND ACCREDITATION STANDARDS, at Educ. Policy 2.3., Accreditation Std. 2.1.3 (2012)).
4. The survey ranked factors based on the percentage of respondents who rated each factor as “4” or “5” on a 5-point scale, with “3” as “somewhat important” and “5” as “extremely important.” See Law School Admission Council, LSAC REPORT, May 2013, at 12.
5. NALP FOUNDATION FOR LAW CAREER RESEARCH AND EDUCATION & AMERICAN BAR FOUNDATION, AFTER THE JD: FIRST RESULTS OF A NATIONAL STUDY OF LEGAL CAREERS 81 (2004).
6. NATIONAL ASSOCIATION FOR LAW PLACEMENT & THE NALP FOUNDATION, 2010 SURVEY OF LAW SCHOOL EXPERIENTIAL LEARNING OPPORTUNITIES AND BENEFITS 6 (2011); NATIONAL ASSOCIATION FOR LAW PLACEMENT & THE NALP FOUNDATION, 2011 SURVEY OF LAW SCHOOL EXPERIENTIAL LEARNING OPPORTUNITIES AND BENEFITS: RESPONSES FROM GOVERNMENT AND NONPROFIT LAWYERS 7 (2012).
On her blog, Listen Like a Lawyer, Jennifer Romig reviews Heidi Grant Halvorson’s No One Understands You and What To Do About It (Harvard Business Review Press 2015). Here is an excerpt on making a first impression:
After laying this groundwork, Halvorson spends most of the book talking about the “lenses” that affect first impressions, before any intentional “corrections” can take place. The three key lenses are:
- the trust lens
Trust is based on two factors—warmth and competence—that may sometimes be at odds with each other. More on that in a moment.
- the power lens
To get the attention of a powerful person, it’s all about showing your “instrumentality.” As Halvorson writes, “It’s not about being nice—it’s about being useful.”
- the ego lens
The ego plays games with perception so that the perceiver comes out on top. Understanding ego dynamics can help a person avoid being seen as an ego threat. The least manipulative-sounding of these is focusing on how the speaker and perceiver are members of the same group (such as alums of the same school or members of the same profession).
These lenses are at work in difficult situations that lawyers and legal professionals face every day. A few that come to mind: clients who resist signing settlements that are strongly in their favor; supervising lawyers who want to control conversations with clients; legal professionals who gain a reputation—either for good or poor work—that seems difficult if not impossible to alter.
Monday, August 17, 2015
Though this article from the New York Law Journal was written by Dean Anthony Crowell of New York Law School, and thus focuses on that school's programs, it's worth a read for an overview of the incredible breadth of clinical offerings law schools have been able to develop in recent years (NYLS has doubled its clinical programs since 2013) by partnering with private enterprise, government and non-profits. Good brainstorming material.
From the New York Law Journal:
As the profession demands more practice-ready graduates, law schools must ensure that their students' classroom education is complemented by ample opportunities for a wide range of practical training in both traditional legal settings and new and high-growth fields requiring legal talent. Indeed, in response to the shifting sands of the market, the American Bar Association (ABA) now mandates that law schools require their students to complete at least six credit hours of so-called experiential learning before graduation. Although most, if not all, American law schools have long offered some form of clinical education or a formal externship program, the new ABA requirements call for every school to evaluate its programs and ensure they are sufficiently varied to meet student professional interests while serving important community needs.
Law schools in densely urban environments like New York have the opportunity to create diverse and robust programs through a wide variety of strategic partnerships. Law schools in suburban or rural settings, however, may face more limited opportunities because of lower population density and less diversity of economic, and therefore legal, activity.
New York City, which has long been a major center for financial services, media, health care, and fashion, is now also the largest urban center for technology companies. These industries offer law schools singular opportunities to meet new market challenges. Schools have the opportunity to align their curriculums, academic centers, and practical training programs with the legal needs of these key economic drivers in the City. Fulfilling that goal means that law schools must pursue opportunities in crucial areas of employment and growth, in both the local and global economies: business and financial services; intellectual property, media, technology, and applied sciences; and government and public interest. They must also recognize that sources of employment for their students have to change as the economy changes, and they must build alliances in nontraditional fields, such as compliance, legal technology, entrepreneurship, and financial services.
. . . .
Continue reading here.
In the July 2015 issue of the Michigan Bar Journal, Professor Barbara Kalinowski offers advice of controlling prepositional phrases—keep the number down, but don’t go overboard. Here is an excerpt:
Professor Joseph Kimble and others advocate
questioning every of. If you use an
of-phrase, consider moving the object of the
prepositional phrase (the part after the of )
in front of the noun to make it a possessive.
Take the verdict of the jury, for example. You
can make it the jury’s verdict. (Note: I didn’t
change object of the prepositional phrase;
a possessive there would be clumsy.)
Similarly, putting the object in an adjectival
position can condense and clarify.
Instead of estimate in writing, try written
estimate. Cost of repairs can become repair
cost. Admittedly, saving one word may
seem insignificant, but consider the difference
when the phrases are used together in
Provide an estimate in writing of the cost
Provide a written estimate of the repair cost.
You can read the rest here.
What Legal Education Can Learn from Medical Education About Competency-Based Learning Outcomes Including Those Related to Professional Formation (Professionalism)
What Legal Education Can Learn from Medical Education About Competency-Based Learning Outcomes Including Those Related to Professional Formation (Professionalism) by Neil W. Hamilton & Sarah Schaefer.
Medical education, following accreditation changes in 1999 that emphasized learning outcomes (and assessment) of core competencies is fifteen years in front of legal education in learning how most effectively to help students achieve competency-based learning outcomes including those emphasizing ethical responsibilities. This article analyzes what legal education can learn from medical education’s experience over these past fifteen years with competency-based learning outcomes, especially ethical competencies.
While legal education has some experience with developing and assessing student competency in many of the core competencies required by the new standards, law schools historically have not emphasized learning outcomes (and assessment) relating to each student’s professional and ethical responsibilities to clients and the legal system beyond a standard curriculum relating to knowledge and analysis of the law of lawyering. Medical education has particularly useful experience to help legal education with learning outcomes related to student ethical development."
Sunday, August 16, 2015
[A]judicial decision must “ring true” with the stories that the audience knows to be true from its experience; that is, the argument must have “narrative fidelity.” Further, it must accept a narrative that is plausible; that is, the argument must have “narrative coherence.” Narrative coherence requires “external coherence;” that is, the narrative must correspond with the audience’s background social knowledge and cultural presuppositions. Narrative coherence also requires “internal coherence;” that is, all the aspects of the narrative--the plot, the characters, the setting--must join together without contradictions.
Louis J. Sirico, Jr. Opening an Oral Argument before the Supreme Court: The Decline of Narrative’s Role, Duke L.J.Online (forthcoming).
For this analysis, I relied heavily on J. Christopher Rideout, A Twice-Told Tale: Plausibility and Narrative Coherence in Judicial Storytelling, 10 Leg. Comm. and Rhetoric: JALWD 67, 71 (2013); J. Christopher Rideout, Storytelling, Narrative Rationality, and Legal Persuasion, 14 J. Legal Writing 54, 64-66. (2008). See also Philip N. Meyer, Storytelling for Lawyers (Oxford 2014) (focusing on storytelling in trials); Ruth Anne Robbins, Steve Johansen & Ken Chestek, Your Client’s Story: Persuasive Legal Writing (Wolters Kluwer/Aspen 2012) (focusing on teaching storytelling to law students).
Saturday, August 15, 2015
Here are the details:
The University of Iowa College of Law is seeking a full-time faculty member to direct the College's Field Placement Program, including teaching and administrative responsibilities. Iowa’s Field Placement Program offers quality educational experiences that immerse students in the performance of legal work in government or non-profit agencies, criminal prosecution or defense offices, state and federal judges’ chambers, and international law offices and agencies, as well as in a newly approved in-house corporate setting. In addition to earning credit for their field work, students in field placements participate in faculty-taught classes designed to maximize students’ learning.
The Director’s teaching responsibilities are multifaceted. These responsibilities include teaching students enrolled in a field placement class, as well as teaching on-site supervisors and law faculty supervisors how to use experiential pedagogy to translate students’ field experiences into substantive, reflective, and engaged learning.
The Director’s administrative responsibilities include developing and managing relationships with legal service providers who partner with the law school to provide quality field placements. In addition to cultivating existing relationships and to identifying and developing new relationships with legal service providers, the Director will take the lead in advising students on complying with new experiential learning admission requirements for various states’ bars. The Director will also assist in developing appropriate law school responses to the ABA’s experiential learning standards. The Director is expected to substantively engage in national dialogues regarding field placements and other experiential education.
Required qualifications include a professional portfolio that demonstrates the effective teaching of law students or other adult learners and a background in experiential learning pedagogy. Candidates must hold a J.D. degree, have a strong academic record, and have at least five years of law-related professional experience after law school. Candidates must possess strong communication, interpersonal, and organizational skills. The successful candidate must have been admitted to a state bar and, if not already a member of the Iowa bar, become so within 12 months of accepting the appointment. (Before applying for the position, out of state candidates should review Iowa Court Rules 31.12 and 31.13.) The Director will be eligible for a clinical faculty position or other non-tenured/non-tenure-track form of faculty status, to be negotiated commensurate with qualifications and experience.
Confidential review of applications will begin immediately and continue until an appointment is made. To ensure full consideration, applications should be received by 10 September 2015 but applications will be considered thereafter until the position is filled.
Please apply by submitting a cover letter, resume, and the names and addresses of at least three professional references to: Faculty Appointments Committee, College of Law, The University of Iowa, Iowa City IA 52242-1113.
THE UNIVERSITY OF IOWA is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran.
In October 2013, The Atlantic asked a wide range of prominent people to identify the greatest speech ever—fact or fiction. Although the choices are great ones, most are predictable. But not all. Here is the speech chosen by General Stanley McChrystal, former commander of American forces in Afghanistan:
Great speeches can inspire nations, armies, and teams to win against the odds and to take action when things seem hopeless. In that tradition, an entire generation can recite the simple message delivered by a slovenly fraternity brother: “What? Over? Did you say over? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!” — Bluto, Animal House
Friday, August 14, 2015
On the occasion of his retirement from academia, Professor John Lande of U. Missouri was asked to write an essay offering advice to the next generation of lawyers based on his experience as both a lawyer and teacher. The result, an article entitled My Last Lecture: More Unsolicited Advice for Future and Current Lawyers, is schedule for publication shortly in the Journal of Dispute Resolution. In the meantime, with the classes starting soon, you may want to consider sending this link to your students where they can download and read Professor Lande's wonderful essay themselves. From the abstract:
I was invited to write this essay on the occasion of my retirement, following in the footsteps of my former colleague, Steve Easton, who wrote a wonderful article, My Last Lecture: Unsolicited Advice for Future and Current Lawyers. My essay supplements Steve’s article with additional advice about law school and legal practice. This article is suitable for students in many different courses, orientations, and professional development programs.
The article advises students to (1) get the most possible benefit from law school (by paying attention to what’s really important, learning to learn, and not doing dumb things), (2) understand themselves and others (by focusing on their clients, being careful about making assumptions, recognizing the importance of emotions including their own, and understanding others’ perspectives), and (3) develop good lawyering judgment and routines (by paying attention to what’s really important, considering what help clients need, developing good relationships with counterpart lawyers, preparing to resolve matters at the earliest appropriate time, being prepared to negotiate much more than they may expect, recognizing that they actually are mediating when they represent clients, being persistent and creative when dealing with problems, and being prepared to advocate hard and smart as necessary). The article concludes by encouraging students to recognize both the good and harm that they can do as lawyers and wishing them great fulfillment from helping others.
No wiser words were ever spoken.
A Reply to Dean Tom Guernsey's Comments Concerning California's Proposed 15-Credit Experiential Learning Requirement
From the Best Practices for Legal Education Blog:
"It is hard to disagree that more experiential learning is a bad thing, and I would wholeheartedly support the California proposal if it were part of a comprehensive look at legal education in general and bar admission specifically, but it is not. The core problem with the California proposal is that it was developed without serious consideration of legal education and preparation for the bar as a whole.
As one example, let’s do the math. (You can disagree with me on some of what follows, but I will only be on the margins).
If you take all of the subjects tested on the California bar examination and all the ABA required courses, you have typically around 25 law school courses. Note that a subject on the bar exam often takes more than one course, for example Federal Civil Procedure and California Procedure. If the average law school course is 3 credit hours, you have 75 credit hours that, for most applicants, are required–either because the ABA requires it or they think they need the course in order to pass the bar.
The ABA requires 83 credit hours to graduate from law school, many require more. Thomas Jefferson, for example requires 88. This leaves, in the Thomas Jefferson example, 13 credit hours the typical student really has for electives. California now seeks to use up a significant number of those credit hours by requiring more experiential learning.
Depending on the final rules about what counts in California and understanding the ABA already requires six credit hours of experiential learning, the number of additional credit hours required could be as many as nine. In my example, that leaves 4 credit hours for students to choose true electives, or to address other reforms being bandied about.
Want to train our students to work in the new economy, a student can take four hours of IP, but if you want to take a course on business finance, or regulatory compliance as well, too bad.
Think legal education is too long? Try to teach those 25 courses in two years rather than three.
Think you can squeeze enough experiential learning into a substantive course to meet the California proposal (what many schools are thinking about) and still cover the subject enough for the bar example. Good luck.
A comprehensive approach to reform would, among lots of other things, not just add an experiential requirement, but have a corresponding reduction in the number of subjects on the bar exam.
Does it really take all these subjects to test legal analysis?”
First, do most students take all the possible bar courses? They didn't when I was in law school, and they didn't at the law schools I have taught at.
More importantly, why can’t some bar courses be taught as experiential courses? Education research has shown that students remember more and can manipulate their knowledge better with active learning. For example, Evidence would work much better if it were an experiential course. Students need to do more than memorize the rules of evidence; they need to be able to apply them.
Also, 26% of the California bar tests practical lawyering skills. More experiential courses would help California bar takers on this section of the exam.
In sum, while Dean Guernsey may be correct that they are too many subjects on the California bar, the proposed 15-Credit Experiential Learning Requirement won't hurt students' ability to prepare for the bar, it will help it.
Thursday, August 13, 2015
With the start of the semester only weeks away (if it hasn't already kicked off at your school), you may want to check out this article by Professor Linda Kawaguchi (Director of the Law Library at Chapman) if you're at all involved in teaching legal research and are looking for new ideas to jump start students' critical thinking skills. Professor Kawaguchi's article was previously published in Perspectives: Teaching Legal Research and Writing but was also just posted to SSRN here. From the abstract:
Advanced legal research (ALR) courses are unique in that they provide continual and immediate feedback to both students and teachers over the course of the semester. Unlike traditional doctrinal courses, ALR typically employs a variety of teaching methods and students receive multiple forms of assessment. This level of interaction allows teachers to respond quickly when students are struggling with specific concepts or need clarification. This article analyzes lessons learned from two assignments.
Professor Merritt has just posted part two of her evaluation of the California bar proposal. Here are two key paragraphs:
"Some law school deans have objected to the proposal on the ground that it will 'limit the flexibility and self-determination of individual students in studying law, and in planning diverse careers.' That objection is misguided. The California proposal will increase student options by pressing law schools to teach more of the courses that students want and need."
"If the California proposal is adopted, it will allow students to fulfill their practice-based work in any doctrinal field. Schools can design courses focused on tax practice, securities regulation, environmental work, or any other subject that might attract law students."
You can find the rest here.
There is another new post on the California proposal by Mary Lynch. (here) Professor Lynch points out,
"Lately, some confusion has arisen because of a letter posted to the AALS website authored by a non-standing committee of Deans. The confusion arises because:
- Neither AALS nor this special Dean’s committee ever participated in the two stage TFARR process and so appear to be sort of “johnny come latelys, ” and
- The letter mistakenly focuses on an earlier draft of the final proposal failing to recognize the compromises already reached in the final proposal."
I commented to Professor Merritt's and Professor Lynch's posts: "The predominant method of legal education used today was developed in the nineteenth century at an elite law school for elite, white, male law students who had graduated from elite colleges. Law schools must adopt an approach to legal education that works for all of today's students. The California proposal is a major step in that direction."
In Kansas v. Nebraska, 135 S. Ct. 1042, 1064, Justice Scalia confirmed the changing nature of Restatements. They do not restate current law. Rather, they state the law as the Restatement drafters wish it to be. Academics have known this for a long time:
I write separately to note that modern Restatements—such as the Restatement (Third) of Restitution and Unjust Enrichment (2010), which both opinions address in their discussions of the disgorgement remedy—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements' authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. Keyes, The Restatement(Second): Its Misleading Quality and a Proposal for Its Amelioration, 13 Pepp. L.Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of Restitution and Unjust Enrichment is illustrative; as Justice THOMAS notes, post, at 1068 (opinion concurring in part and dissenting in part), it constitutes a “ ‘novel extension’ ” of the law that finds little if any support in case law. Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.
A new survey by LexisNexis finds that 95% of hiring partners and associates think law grads lack adequate practical skills
The survey, which LexisNexis commissioned from 5 Square Research, Inc., asked 300 hiring partners and senior associates who supervise new attorneys, from a variety of large and small U.S. firms whether new grads have the practical legal skills their employers want. The survey results have been published in a new white paper called Hiring partners reveal new attorney readiness for real world practice which is intended to help law schools identify which skills they should focus on to improve the job prospects of their grads. Among the findings:
Research skills: 86% of respondents overall believe legal research skills are highly important in young associates. 81% believe advanced legal research skills are also highly important and an even higher percentage, 88% reported that proficiency using paid research services is highly important. Considering most young associates spend between 40% and 60% of their time conducting legal research, proficiency in legal research is paramount.
Research competency in case law is most critical, but the ability to research statutes, court rules, citation analysis, jury verdicts, briefs and dockets were also highly important skills for young associates to possess upon hire. Young lawyers often lack advanced legal research skills such as researching more complex legal issues in cases, statutes and regulations, determining strength of validity of primary law, and legislative/administrative intent. The survey demonstrated that, along with drafting pleadings, advanced legal research skills presented the largest gap between the importance of proficiency and the percentage of new associates actually possessing those skills.
Writing skills: Approximately two-thirds of litigation attorneys deem Writing and Drafting Skills to be highly important skills among newer associates, but particularly when it comes to Drafting Pleadings, Motions, and Discovery Documents. More than half of litigation hiring managers indicated that newly graduated law students most often lacked practical experience in drafting of settlement agreements, briefs, dispositive motions, deposition questions and interviews, and jury questionnaires. The most important drafting skills are similar among small and large firms.
Transactional skills: 95% of hiring partners and associates whose practice has a transactional focus believed that new graduates are lacking practical transactional skills. The most important skills for new transactional attorneys are to understand fundamental business and financial concepts, conduct due diligence, find forms/checklists, draft simple contracts and agreements, and locate company information. The transactional skills most lacking in newly graduated law students included drafting substantive contracts and ancillary agreements, locating optional/alternative clauses, negotiating contracts and salient provisions and, among large firms, reading a balance sheet or basic financial statements
What is the Solution? Overall, law firm respondents found Litigation Writing and Drafting skills lacking the most, followed by Transactional Skills and Legal Research Skills. But how do law students and new graduates obtain more practical skills? There was support shown in the survey for certification programs that build upon skills obtained in law school. This would not only raise the bar for young lawyers but help them to more quickly become successful and valuable to their employer. In fact, as shown below, the majority (60+%) agreed that a certification in Research Skills, Writing/Drafting Skills, or Transactional Skills would be valuable on a candidate’s resume.
. . . .
For transactional area of law classes, “law schools could offer a negotiation transactions course where the students determine how to structure a transaction, find sample contracts and precedent deals, draft and negotiate key documents… and provide due diligence materials that create issues to be resolved.” Most attorneys involved with hiring and management of new lawyers agree practical skills can be effectively honed through clinics, internships, clerkships, and experience in actual or simulated application to a case. Practical skills that could be addressed in a classroom, workshop or clinical environment should offer a different kind of learning experience than they are receiving in law school already. The idea would be to bridge the gap between law school and practice, beginning with the law school experience. Increasingly, law firms are evaluating these skills during the hiring process. Integrating more practical skills instruction and experiences is the best way for law schools to better equip their graduates with the skills their future employers need, making them more marketable and better able to quickly contribute to their profession.
. . . .
You can read the white paper in its entirety here.
Wednesday, August 12, 2015
We have talked about California's proposed experiential requirements previously on this blog. Deborah Jo Merritt has an insightful post on Law School Cafe concerning this proposal. A few excerpts:
"That second report has been approved by the bar and awaits action by the California Supreme Court. What’s noteworthy about all of this? If approved, law graduates seeking to join the California bar will have to meet three new requirements. Law schools around the country will also have to help their California-bound students satisfy the first requirement: demonstrating completion of '15 units of practice-based, experiential coursework.'"
"I see both positives and negatives in the California proposal but, on balance, it’s a strong step forward. The proposal is a lengthy one, so I will explore it in several posts."
"The TFARR reports suggest a very thoughtful process. Academics and practitioners seem to have spent a lot of time talking with one another, as well as pondering what would be best for clients. The final report carefully considers objections from various stakeholders (especially law schools) and responds to them. I think we should listen to what the California task force has to say, not just because the state is big and diverse, but because intelligent people devoted a lot of attention to this proposal."
"For academics, the most controversial part of the California proposal is its requirement that students complete '15 units of practice-based experiential coursework . . . designed to foster the development of professional competencies.' The requirement is more demanding than the ABA’s recent mandate that students complete 6 hours of “experiential” courses; this difference has drawn strong opposition from some law school deans."
"The California Task Force, furthermore, does an excellent job of defining the educational experiences that develop professional expertise. Too many professors still assume that 'practice-based' courses consist solely of finding the courthouse, filing some papers, and listening to war stories from adjuncts."
"As the California report suggests, those images are far from the truth. First-rate professional education draws from decades of cognitive science work illuminating the ways in which professionals develop expertise. That science, like the TFARR report, recognizes that there are four keys to cultivating expertise: teach the conceptual underpinnings, give students an opportunity to apply concepts in novel settings, provide feedback, and encourage student reflection."
"A prominent group of deans has objected to the California proposal partly on the ground that a 15-hour requirement is too much, too soon. But from a client’s, employer’s, or student’s perspective, it’s hard to believe that 15 hours of practice-based education is too much."
"First, we’re talking about high-quality educational experiences, ones that provide both conceptual development and feedback. Courses that satisfy the California requirements will embody top-of-the-line pedagogy. Second, these educational opportunities will occur in just the areas where clients and employers find lawyers deficient.
Finally, and perhaps most important, these are the areas in which lawyers have the most potential to demonstrate their value."
"If we don’t give students a foundation in more of the skills that are special to our profession, we will hamper their ability to succeed in a competitive market. Knowledge of legal doctrine used to be lawyers’ competitive advantage; now it is the combination of that knowledge with other lawyer-specific skills."
"Will these 15 hours diminish the amount of legal doctrine that law students learn?. . . To the extent we lose some doctrinal principles along the way, that’s consistent with the traditions of legal education: we aim to teach fundamental cognitive processes that students can apply throughout their professional careers."
"Lawyering is incredibly hard. It requires a wide range of knowledge, many interpersonal skills, and an ability to juggle very different inputs while problem solving. . . . The outcomes of this difficult task seriously affect other people’s lives. . . . Given the importance of our work to clients, combined with the difficulty of our tasks, we can never be complacent about legal education."
"Every year, we ask our first-year students to stretch their minds and work harder than they’ve ever worked before. We need to do the same. Will we have to stretch ourselves to provide the opportunities required by the California proposal? Maybe, but it’s time for that stretch.
Like our students, we can learn to think in new ways and we can push ourselves to achieve more–so that they and their clients can achieve more. Let’s just do it."
I agree with Professor Merritt's points. The California proposal will be a significant advance in legal education. I hope California enacts it soon.
Here is one way to divide the professional population into two groups. If you know what you are, you know what work environment is best from you. From recruiter Harrison Barnes:
If you are a general person, you will be more comfortable with a managerial role, and working in an environment where you are given tasks in such a manner that the “big picture” is explained to you. In addition, you will not want to be given a lot of details and will prefer to be in an environment in which you understand how your tasks are a part of the overall work that the organization is doing. You are unlikely to have a lot of tolerance for being forced to explain all sorts of small details.
If you are a specific person, the opposite is true. You will prefer working for a manager who explains tasks to you specifically and with a lot of details. In addition, you will not want generalizations. Instead, you will want to understand the logical sequence in which the work should be done. You will typically require a lot of information before acting on a task and will always want to make sure that you understand specifically how things work, and what you should be doing each step of the way. You are a meticulous person.
In my experience, people tend to be either predominantly specific or predominantly global. It is important that you are working in a job and environment that makes the most of your natural inclination. It is also important that you recognize the importance of people who make the most of your skill set.
You can read more here.
These come to us from Hillary Mantis, the director of pre-law advising at Fordham and a longtime contributor to National Jurist Magazine. Continue to the website to get the full details but in sum Ms. Mantis says you should do the following:
- Introduce yourself to any key players you haven't already met.
- Wrap up all of your projects (this assumes, of course, that most, if not all of them are discrete, finite ones that were capable of being completed within the confines of a typical 6-8 week summer program).
- If you're not planning to return, ask for references before you depart and even if you're not comfortable asking for a written one, at least lay the groundwork for securing one in the fall once you get back to school.
You can read Ms. Mantis' complete advice column here.
Tuesday, August 11, 2015
At the request of Time magazine, the Center for Plain Language undertook a plain language analysis of the privacy policies of major internet companies—those bottom-of-the-screen or click-on addenda that you find if you look for them. The project leader was Julie Clement, formerly of Cooley Law School (a good choice). Here is the ranking from top (best) to bottom (worst):
The full study offers quite a detailed analysis, one that you might share with your students. You can access it here.
Although there is a Code of Conduct for United States Judges, it does not apply to the Supreme Court Justices. Should it? No ethics code binds the SCOTUS Justices. In a recent issue of the New Yorker, Lincoln Caplan supports written ethics rules for the Justices. He points to a number of cases in which various Justices owned stock in corporations and failed to recuse themselves when those corporations were parties in cases or filed amicus briefs in cases. You can access the article here.
I would be careful about demanding recusals. Inevitably, many who join the Court will have stock portfolios. A strict recusal code could severely limit the number of cases in which they could take part and thus diminish the input that should go into the decisions. For those who worry about judicial biases, a better solution would be to have the Justices place their assets in the hands of trustees who would have full control.