Chair’s column: Developing “practice-ready” lawyers
I remember a moment during a session of my bar review course many years ago. The instructor paused in the midst of his lecture, turned to the audience of recent law school graduates and asked: “Don’t you hope that new doctors know more about practicing medicine than you know about practicing law?” The wave of nervous laughter sweeping the room showed that the others were thinking just what I was.
I knew very well that I wasn’t really ready to practice law on my own, even though I had been given significant responsibility at the law firms where I worked since my second year of law school. Most everyone else in the room knew that they, too, had no business being unleashed on the public as full-fledged attorneys. And yet, that was exactly what was about to happen for the 80 percent or so of us who would pass the bar.
All these years later, some important questions are beginning to get more attention than a mere throwaway laugh line at a bar review course. Are new law graduates “practice ready”? Who is responsible for assuring that they are? Should established lawyers care?
During much of the history of lawyering in the United States, the answer to those questions was fairly straightforward. Those who sought admission to the bar “read” law with an established practitioner in the professional version of an apprenticeship. The responsibility for launching the new lawyer on the proper path rested with the lawyer to whom the younger practitioner was apprenticed.
Over time, the responsibility for educating lawyers came to rest primarily with law schools. There can be little doubt that the modern law school curriculum provides a broader, more balanced, and more comprehensive education in law than the older model. But does anyone believe that law schools—on their own—produce truly “practice ready” lawyers? Does anybody care?
The answers seem to be “no” and “not until recently.” Even as law schools assumed the primary responsibility for educating lawyers, relatively little attention was directed to whether students were being taught to practice law, as opposed to being taught the law and how to learn the law. No doubt, those are elemental to practicing law, but there is much more. Even so, law schools by and large defined their mission in a way that mostly excluded bridging the gap between the classroom and the courtroom.
The relatively modest level of attention to making new lawyers “practice ready” upon graduation from law school may strike many as surprising. After all, it hardly seems a stretch to ask whether graduates of a professional school are equipped to practice the particular profession for which they have studied. Yet formal critiques have demonstrated in a fairly convincing way that law schools do an excellent job of preparing graduates to think like lawyers, but are severely deficient in the sort of practice-based learning that would make lawyers “practice ready.” See, e.g., Sullivan, et al., The Carnegie Foundation for the Advancement of Teaching, Educating Lawyers: Preparation for the Profession of Law (John Wiley & Sons, Inc. 2007).
After decades of avoiding the issue, law schools (some of them, anyway) are now taking the question of producing “practice ready” lawyers quite seriously. In my view, that’s the good news. The less heartening news is that, in doing so, law professors are often talking mostly to themselves, rather than to experienced practicing lawyers. That news is not so good because the vast majority of law professors can be divided into two groups: those who haven’t practiced actively in decades and those who have never practiced (at least not beyond the level of first- or second-year document reviewer at a large firm). The latter group is ascendant within the typical modern law faculty.
One wonders about the probable success of a “practice ready” program guided by lawyers with little or no practice experience or those who have not practiced since before Perry Mason ended its original run. More about that in a moment.
Even the rising prominence of law schools did not entirely supplant the role of apprenticeships in legal education. Many students work at law firms or other law-related jobs during school. Some students pursue judicial clerkships that will stretch for a year or two after law school. But, most important, we still expect the supervising attorneys at the new lawyer’s first job to carry the bulk of the responsibility for creating a “practice ready” lawyer.
While that has been the model under which most currently-practicing lawyers developed, it is no longer dependable. Law students still seek out clerkships during school. But the poor economy has had its impact even in those most entry-level legal jobs. Fewer lawyers in profitable practices translates to fewer job openings for clerks. Even for those who do find such jobs, the time available for meaningful interaction and learning opportunities with an employer who is hustling to make a living may be limited.
Law students still apply for judicial clerkships, as well. Those slots have always been notoriously difficult to obtain and typically available only to those students with the top grades from the top-tier law schools. Now, there are still more challenges. A combination of judges’ personal preferences and a difficult employment market for lawyers means a growing proportion of judicial clerkship spots are held by permanent or career clerks. Every slot held by a career clerk is one less that will be available to a new graduate.
As for the apprenticeship aspect of one’s first job, that still happens, of course. But it is not as reliable a contributor to one’s legal training as it once was. For those employed by Big Law, there is little mentoring involved in first- and second-year low-level tasks, such as document review. “Read slowly, it’s an hourly case” hardly qualifies as sage advice to the aspiring lawyer. Valuable, perhaps. But not terribly insightful. Yet there may be little more forthcoming.
The clear result has been that more and more new lawyers are effectively on their own as they enter into the practice of law. Before we go further, perhaps we ought to consider whether the general practice competence of new law graduates should be of any particular concern to our membership—the solo and small firm lawyer.
I think it is. First, many of those new lawyers are our members, or at least prospective members. The proportion of new graduates who will hang out their own shingles continues to grow. I most certainly do not envy them the very difficult task that they are undertaking—sometimes driven by personal inclination and sometimes by the scarcity of other options.
I also sympathize with the judges, other attorneys, and clients who may encounter those who hold the same license to practice as the rest of us, but who have never been fully socialized into the practice of the learned profession. That leads to the second important reason that I think we should care. Wider access to that socialization process will manifest an eventual benefit to all of us.
If the profession cannot rely upon law firm clerkships, judicial clerkships, or formative experiences in entry-level attorney jobs to produce “practice ready” lawyers, what are the alternatives? The courts have a role in helping to define what “practice ready” means and imposing certain minimal requirements to achieve that level. For example, the Illinois Supreme Court has mandated a basic skills course for new attorneys. The required course must cover “such topics as the jurisdiction of local courts, local court rules, filing requirements for various government agencies, how to draft pleadings and other documents, practice techniques and procedures under the Illinois Rules of Professional Conduct, client communications, use of trust accounts, required record keeping and other rudimentary elements of practice.” Ill. Sup. Ct. R. 793( c).
Thus, the Illinois Supreme Court has advised us that it believes there to be a real concern over whether new attorneys—those who have, by definition, graduated from law school and passed the Illinois bar examination—have within their grasp the “rudimentary elements of practice.” There is the Illinois Supreme Court’s answer to the question of whether new law graduates are “practice ready.”
The courts set the standards but they are not generally in the business of providing education or other guidance to meet those standards. So who is left?
As is so often the case when the question turns to improving the practice of our profession, the answer returns to the organized bar. The ISBA is doing its part. Among other things, our CLE department offers a basic skills course that is fully compliant with the Supreme Court’s requirements. See .
The ISBA’s mentoring program provides a means to match more experienced lawyers to those who seek guidance but do not know how to reach out for assistance. See . The Supreme Court has provided an additional incentive for both mentors and mentees. In October, 2010, the Court adopted a provision for earning CLE credit for lawyer-to-lawyer mentoring, as follows:
Lawyers completing a comprehensive year-long structured mentoring program, as either a mentor or mentee, may earn credit equal to the minimum professional responsibility credit during the two-year reporting period of completion, provided that the mentoring plan is preapproved by the Commission on Professionalism, the completion is attested to by both mentor and mentee, and completion occurs during the first three years of the mentees practice in Illinois. For reporting periods ending in 2011 or earlier, the maximum number of professional responsibility credit hours shall be four. Beginning with the reporting periods ending on June 30 of either 2012 or 2013, in which 30 hours of CLE are required, the maximum number of credit hours available shall be six. Ill. Sup. Ct. R. 795(d)(12).
In addition, involvement in bar association activities can serve as a means to gain valuable insights from more experienced (or just differently-experienced) lawyers that might not otherwise be available. I know the value of those contacts first-hand. Although I finally have to admit that I am middle-aged (unless I expect to live longer than 92 years), I still learn from lawyers I have met through the ISBA—people like Bob Hanaford, Jewel Klein, Lisa Nyuli, John Phipps, Julie Ann Sebastian, Bryan Sims, and Bernie Wysocki, to name only a handful.
Other bar associations are also quite active in those areas. Several bars have taken up the challenge of providing a basic skills course aimed at making young lawyers “practice ready.” Many have also instituted very fine mentoring programs, with benefits flowing to the mentors, the mentees, the association, and the profession as a whole.
Still, there is much more that can be done. One key area for improvement is in the relationship between academia and the practicing bar. The dichotomy that now prevails between the training that one receives in law school and the subsequent “real world” experience need not, and should not, continue.
As law schools begin to look more closely at the obligation to produce “practice ready” lawyers, law professors should not be talking only to each other. They should also tap into the expertise of the practicing bar, which has a vital role to play in helping law schools produce more professionally competent practitioners.
There are many ways that partnership can be established and enhanced. One avenue is through development of law school courses aimed at practice management issues or at preparing the student for real-world practice. For example, The John Marshall Law School offers a course called Law Practice Management, which is co-taught by full-time professor Cliff Scott-Rudnick (himself a full-time practitioner until rather recently) and Judge Russell Hartigan, who is very active within the ISBA.
John Marshall also recently launched a course called Advanced Persuasive Writing, which I co-teach with full-time professor Joanne Hodge. (This is not intended as an advertisement for John Marshall, it is just what I am most familiar with). Our students are required to draft three appellate briefs based on actual case records. Believe it or not, after no less than four semesters of required writing courses, most of the students have never used a full case record before taking our course.
These are only a few examples of how practicing lawyers can participate in improving the profession by assisting in making newer lawyers more “practice ready.” As my bar review instructor suggested many years ago, new lawyers still are not sufficiently proficient in the actual practice law. But the situation is improving. The courts, the law schools, the bar associations, and individual lawyers are realizing that we all have a stake in maintaining professional standards by supporting the professional development of newer lawyers. After a few years of focused commitment to improve the situation, perhaps a question like “Don’t you hope that new doctors know more about practicing medicine than you know about practicing law?” will draw only puzzled looks, not nervous laughter, from recent law graduates. ■