Sunday, November 17, 2013

The New York City Bar Association’s Task Force on New Lawyers in a Changing Profession Report: Law Schools

The New York City Bar Association’s Task Force on New Lawyers in a Changing Profession Report contains several innovative and practical suggestions. In this post, I would like to concentrate on its comments about and recommendations for law schools.

This section begins, "It is important for law schools to respond wisely and vigorously to these fundamental changes in the profession. While traditional casebook courses still have a role to play, a broad range of other approaches should be (and are being) developed." Concerning the traditional casebook method, the Report states, "The primary criticism is that it addresses only some of the key competencies needed to be an effective lawyer, as catalogued in the landmark MacCrate Commission report, providing excellent training on legal principles and legal theory but insufficient training in the practical skills necessary for practice success with clients. In other words, the traditional casebook model can excel at teaching critical thinking, reading comprehension, and logical reasoning, but provides less experience with solving real world problems, which frequently demonstrate more complexities than the distilled issues addressed in appellate court decisions." The Report also calls for more assessments throughout the semester and greater attention to corporate, transactional, and regulatory work.

Concerning proposals for reducing law school to two years, the Report declares, "With due respect, we think the proposal is too simple a solution to a complex problem. While we agree that controlling the cost of legal education is an important goal, we fundamentally believe that, at least at this time, eliminating the third year is not the right instrument to accomplish it. Indeed, the need for better prepared lawyers suggests the need for more training, not less."

The first recommendation of the task force is an "increased focus at some schools on practical skills like client interaction, factual investigation, or practice management." The Report notes, "We agree that sound scholarship must remain a fundamental building block of law school education, and that the Socratic method has its place. But we feel strongly that newer approaches should continue to be integrated into the law school curriculum." The Report continues, "In the modern legal environment, the ‘practice-ready’ lawyer must have experience identifying and solving problems, navigating the legal system, and exercising professional judgment under conditions of uncertainty. We also believe that writing and professional responsibility remain under-taught and insufficiently integrated into the curriculum, although these topics have received substantial attention from reformers in recent years."

The Report also advocates that law school training be flexible, and it advocates experimentation in legal education. "We specifically call upon the ABA and state licensing authorities as necessary to provide the rule changes or temporary waivers necessary to enable these experiments."

The Task Force believes that the core of new lawyer training should include:

• A detailed understanding of the U.S. legal system, its constitutional underpinnings, and its procedural requirements.

• Sound academic instruction and scholarship in legal reasoning, writing, and analysis (sometimes called "how to think like a lawyer").

• Command of several substantive areas of law, with an opportunity to take advanced courses in selected subject areas and potentially an opportunity to be certified as having specialized knowledge through a law school "major" or a competency certificate.

• Substantial training and experience in complex problem-solving exercises, project management, working in teams and exercising professional judgment, in litigation and transactional settings.

• Exposure to and participation in negotiation, alternative dispute resolution processes, client and witness interviewing, counseling, and oral advocacy.

• Participation in hands-on clinical or other experiential training—at least one such experience during the law school years for every law student and, optimally, more than one experience or a defined period of working full time in a highly supervised training environment.

• Exposure to welll-structured teaching by experienced practitioners, provided in coordination with academics.

• Instruction in the profession’s ethics and commitment to providing community and public service, including the promotion of access to justice through the provision of assistance to indigent clients.

• Exposure to international and comparative expertise, and the cross-cultural and cross-border aspects of sophisticated lawyering.

• Highly supervised training, feedback, and career mentoring in the initial years of practice.

Concerning the third-year of law school, the Report states, "the current third-year curriculum should not be used solely for traditional casebook courses or preparing subjects tested on the bar exam but little used thereafter. It should continue to be the subject of creative and energetic innovation in order to help new lawyers graduate with the skills and experiences needed to be ‘practice-ready’ in the modern legal environment. Thus, we encourage law schools to use the third year of law school to innovate, providing students with substantive expertise and practical experiences that will better prepare them for modern practice."

In a separate section, the Report asserts that experiential learning is critical. It continues, "the practical experience should be preceded by academic training so that it is experienced in the context of knowledge of the legal system and processes and some substantive law. It must be accompanied by meaningful supervision and feedback, as well as structured opportunities to reflect on and analyze the experience from a more academic viewpoint." The Report also recommends that law schools experiment with bridge-to-practice programs.

Finally, in a separate part of the Report, the Task Force condemns the "Arms Race" to move up in the U.S. News Law Rankings. The Report points out that "law schools have felt the need to redistribute scarce law school resources away from education and towards other efforts that will maintain or improve their schools’ rank." The Report singles out two parts of this arms race: "merit scholarships to attract students with high LSAT and GPA scores, and law-school-funded jobs for graduates." The Task Force declares: "While merit scholarships can serve useful ends, they also have negative implications when used simply as a strategic tool to affect rankings. Most significantly, the use of precious scholarship money to attract students with high LSAT scores and GPAs may diminish the pool of money available for other uses, including resource-intensive educational programs and providing need-based scholarships to qualified but financially disadvantaged individuals." The Report adds, "some law schools have been less than transparent about the conditions attached to their merit scholarships, which can lead to confusion and frustration from students who receive a generous scholarship package their first year only to find the scholarship eliminated when they fail to satisfy a certain GPA threshold."

Similarly, "The second example of law schools redistributing resources in response to the USN rankings is the hiring of recent graduates into temporary positions for the purpose of boosting graduate employment statistics. . . . Although law schools typically describe such hiring practices as designed to smooth a graduate’s transition into the working world, these positions also provide a significant benefit to the law school by potentially boosting the school’s USN ranking." The Task Force remarks, "Critics are concerned that such hiring tactics are misleading to prospective law students because they artificially boost overall employment figures and create the impression that the school’s job prospects are stronger than they really are. More fundamentally, law schools that hire their graduates to improve their USN rankings might well not be addressing adequately the fundamental problems in training and experience needed for graduates to have successful careers in today’s legal market. At a minimum, using existing law school resources to fund these types of jobs can divert those funds from being used to address more fundamental issues, impeding the innovations discussed elsewhere in this Report."

The Report’s comments and recommendations on law schools refute those in the law school field who say that there is not a consensus on the need for significant change in legal education. In addition to this Report, there have been similar reports by the ABA and the bars of New York, Illinois, and California, as well as the Carnegie Report, Best Practices, and a multitude of scholarly articles. Legal education is in a crisis, and now is the time to change it.

(Scott Fruehwald)

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Based on a quick reading, the Report seems thoughtful and solid. I write only to emphasize that so-called skills or practical courses should involve developing students' abstract conceptual abilities as much as so-called podium courses. I bristle at the common assumption that legal writing and similar courses provide skills but that learning to comprehend and to manipulate complex abstractions is better left to traditional courses. Unlike podium courses, the "practical" classes do not use organized, pre-edited casebooks that distill the pertinent information for students. Rather, legal writing and similar courses require students to find and to use unedited primary and secondary sources. Accordingly, it is essential that such classes emphasize the conceptual, abstract and ambiguous aspects of legal analysis and communication.

Posted by: Peter Bayer | Nov 18, 2013 12:04:29 PM

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