The problem with focusing on "practice-ready" graduates

There is a mistaken and problematic mindset of some in legal education that law schools can produce lawyers who are ready to practice in the same way that automobile factories can produce cars that are ready to drive. This view is fundamentally mistaken, leads to disastrous consequences, and fails to recognize the simple fact that attorneys who just graduated from law school should not practice law without guidance from more experienced lawyers. Ever.

And, for the most part, newly minted lawyers don't go it on their own and know they shouldn't. Unfortunately, exceptions exist. Unsupervised practice of junior lawyers occurs on occasion in understaffed, underfunded public defender offices or small firms where a client’s case is a “dog” that cannot be won but must be tried, because no settlement offer has been forthcoming. But these anomalies prove the rule.

Preparing recent graduates to do what they shouldn't and can't — practicing law without guidance — is a fool's errand.

One might ask about graduates who hang a shingle immediately upon completion of law school. Solo practitioners, however, can readily associate with more senior attorneys for guidance and even referrals. Absent some similar relationship, recent graduates simply should not open individual practices. And the implication by some law school administrators to the contrary is misguided, if not disingenuous (more below).

Consider by way of comparison medical school. The first two years contain far more intensive "book" learning than all three years of law school combined. Then in the latter two years, medical students largely observe and work with doctors practicing medicine in hospital clinics. In fact, medical education doesn't end there. Thereafter, most graduates undertake residencies and fellowships of "experiential" learning for up to an additional ten years.

Law schools could follow this model, but it would require lengthening law school and developing stagiaire programs, like those that exist in most developed countries.  That is, a true experiential approach to legal education requires far more formal schooling and post-graduate training, not less.

Many factors likely drive this new so-called practice-ready movement. First, the recent decline in admissions standards caused by the dramatic drop in law school applications has a predictable negative effect on output. Hiring attorneys, however, still want graduates who can research and write well — the core function of attorneys, particularly junior ones. So, one impetus for this movement may actually be remedial. That is, "practice ready" may simply be a euphemism for mere competence.

Second, hiring attorneys are likely seeking to exploit the dramatic changes in the legal-services market. Historically, lawyers have undertaken various tasks in practice.  Litigators, for instance, meet with clients and witnesses, research legal issues, undertake legal analysis, draft documents, and appear in court, amongst other activities.  In the world where legal jobs have been severely diminished by a stifled economy and a shift in how legal services are provided, however, hiring lawyers are now often looking for utility infielders — employees who can fill the shoes of not only lawyers, but all also paralegals and secretaries.

The latter two roles require knowledge of technical and ministerial tasks. Paralegals and secretaries perform vital services. Those functions, however, are not those of lawyers. When I've been questioned by students considering jobs that indicate "some" paralegal and secretarial duties, I caution these prospective employees to be wary, as these positions are less likely to develop into collaborative/partnership relationships and more likely to remain service jobs.

To be clear, for years now technology has broadened the role of what attorneys do. And if employers and employees agree on a redefined model of attorney/paralegal/secretary, that's perfectly fine. But law school is not the place for that other training to take place.

Third, law schools are graduating more students without jobs lined upon completion of their formal studies. One result is that the option of opening an individual practice without any significant guidance is presented as viable. It is not. In order for this possibility to appear valid, graduates, by definition, need to be "practice ready." As discussed, however, new attorneys simply shouldn't practice law without guidance.

To the extent that hiring attorneys would like to transfer the costs of non-lawyer employees to law schools and recent graduates, they are acting in an economically rational fashion — albeit perhaps with an excessive discount rate for the value of developing a long-term professional cadre of attorneys. But just because hiring attorneys are seeking employees on the cheap, doesn't mean, of course, that law schools should cater to these demands. 

Unfortunately, motivated in part by the desire to placate potential donors and capitalize on the latest trend, some in legal education have latched onto this fad by promising more "experiential" learning. Of course, law schools have incorporated practical training into curricula for some time now. This is the very goal of clinical programs. 

Clinics, however, require large time investments and are costly, because students are learning the law and some application, while "experiencing" the practice in small groups. The bottom line, almost literally, is that more experience equals less doctrine. And law schools have already decreased doctrine to levels that some, including me, feel is suboptimal. So, to the extent that this new movement is ultimately a call for further expanding clinical training at the necessary expense of doctrinal education, it's misguided.

Law schools have also responded to the “practice ready” demand by resorting to externships. Unlike clinics, which are expensive, externships are relatively cheap for law schools: students perform free work, typically for judges or other public employers, while schools collect tuition dollars. Neat deal, huh? The exposure to real-work conditions may be of some interest, but not at the expense of even further restricting doctrinal learning. Indeed, it's challenging to obtain a significant educational experience in an externship while necessarily reducing core doctrinal legal knowledge.

The goal of producing practice-ready graduates from law school is another attempt by legal education to throw jelly at the wall to see what sticks. It's not good for law students nor the legal enterprise.  We should eschew such efforts.