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August 11, 2009 2:55 PM

Welcome to the Future: Law School 4.0, Part Two

Posted by Aric Press

By Paul Lippe

When I wrote Law School 4.0 in June about the likely direction of change for law schools, I wasn’t purporting to be an expert on legal education or lay out the definitive work on curricular reform.

I was simply trying to place law schools in the context of my change thesis, apply some lessons from other professional schools, and provide some suggestions for improvement rather than just criticize (one should never criticize without offering an affirmative road map). 

Between comments here (23), e-mails direct to me (10), posts on Legal OnRamp (25), and posts in the law professors’ blogosphere (8), see e.g., Henderson, Volokh, ABA Journal, Ruhl, Greenfield, Smith, TaxProf, and YoungLawyers, we got 50-plus responses--most of which were quite favorable, including from law school deans and faculty; a few were snarky and dismissive. 

The snarky comments all came from law professors, boiling down to “Who are you?” “Nothing new,” “Not enough footnotes to be a law review article,” and, most terrifyingly, “Go away, we have a committee that will be meeting on this in the fall.”   

The emotional level of the snarky reaction was well beyond that of the initial project (think Captain Kirk's "Get A Life" on SNL), but nowhere near that of the recent law school grads with huge debt and no jobs, see e.g. JZ's comment of 7.22.

I was tempted to echo the esteemed captain and urge the snarky professors to “get a life.” Instead, let me try to be a good Web 2.0 citizen and use the criticism to become analytically sharper and hopefully more constructive. 

Law school is built financially on three legs of a stool--public or alumni support, endowment distributions, and tuition. (Relative to other professional schools, law schools generate little income via clinical work, research, or continuing education.)

Over the last generation, law school tuition, cocooned by the booming legal market, has increased at twice the rate of inflation. But public and alumni support will be down for at least the length of the recession, now forecast to run through 2010. Endowment payouts will be down longer because of the ”fly-wheel” formula. And law firms, pressured by clients, are cutting way back on compensation for young lawyers, which will limit their ability to pay tuition. 

Like Medicare, this is a structural, not a cyclical, problem. So do I think a law school dean is being loyal to the institution by declining to discomfit the faculty by telling them their model is unsustainable? Law schools should be urgently thinking about how to reduce the costs and shorten the time it takes a young lawyer to reach some level of economic viability. 

The changes I would advocate in curriculum are not primarily about skills training versus classroom training--I don’t have a dog in that fight. My criticism of the case method (which I’m sure is expressed better elsewhere) is that it is disproportionately about reasoning (how I think through issues and persuade others) and intent (am I intending to be prudent or helpful?) and presumes that lawyers operate in a lawyer-centric world, not a client-centric world.

The modern client world is about information--what’s the best way to address this problem that someone I trust has already applied? And it's about systems--how is this likely to actually affect things I care about, especially when applied in high volume? In the thousands of conversations I’ve had with clients over 20-plus years, they are invariably interested in information and systems, not reasoning or intent.  

That’s not to say that reasoning and intent are unworthy subjects of study (although, to be honest, most people either get “thinking like a lawyer” pretty quickly or they don’t), but that maybe they should be 30 percent of the curriculum instead of 80 percent. 

Reasoning and intent prepare you to be an appellate clerk, a law professor, or perhaps a judge; but they don’t prepare you to operate in the world of clients. "Now they get it" is the most common refrain of in-house lawyers about someone newly in-house.

Among other things, that comment reflects that law school is not just incomplete (as any system of education inevitably is), but actually directionally wrong in important ways. In contrast, medical school, centered on clinical immersion in residency, is designed to force students (and faculty) to situate their thinking around the patient’s experience and the consequences of their actions, not just their own reasoning processes. 

With all this in mind, I was delighted by Fred Bartlit’s recent post: "Take even the most fundamental of assumptions one has about a process, and turn it upside down and shake it…. It turns out that ‘turning a legal process upside down' is often exactly the right thing to do to improve efficiency.”

Could we turn law school upside down as a first step in improving the economic viability of young lawyers?

So again, in the spirit of being concrete, not simply critical, and recognizing that none of these are new ideas, let me identify some of the best innovations out there:

•    I have found the business school case method, based on actual facts and problem solving by practitioners, to be a much richer learning experience than law school cases. A number of law faculty have been trying to develop practitioner-centric cases for law, and I would hope that half of instruction will shift to this approach over the next five years.

•    Like business school students, law students should generally not go straight from college. For far too many students, law school is simply the path of least resistance, a continuation of school as the most familiar and comfortable environment. Again, most business school students work before business school, which gives them a much more practical grounding.

•    Law schools should engage more adjunct faculty, which would reduce costs and give students a more pragmatic grounding in practice. It is unimaginable that someone would teach medical school without a deep legacy and ongoing practice of seeing patients. I can’t imagine that anyone would seriously argue that law school training is on par with modern medical training.   

I’m sure these ideas represent no more than 5 percent of what’s possible, so let’s try a simple experiment in “can-do” lawyering:

•    All suggestions as to how to improve, refine, and operationalize these ideas are eagerly sought.

•    Anyone in a law school faculty or administration, in law firm recruiting, or a client or law student who is willing to take action in some way: Just post here and explain what you are willing to do (or more likely, already doing) to make this work.

•    Anyone who wants to explain why I’m wrong and the status quo shouldn’t change is strongly encouraged to do so.

•    If, as Fred suggests, you are passionate about “turning a legal process upside down,” but just not this one, please identify what process you’d like to change and suggest some steps to improve it.

Could you try this at home?  Is Fred right?  Can Am Law be a platform to help us all improve the world of lawyers by using our skills to reinvent some processes that we all know make no sense?

Please check back in a few months to find out. Or maybe you’d rather work on scheduling that committee meeting.

---

Paul Lippe is the founder of Legal OnRamp. He can be reached at paullippe@legalonramp.com.

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Let me weigh in as someone who has been a big law partner, a start up company CEO, and now a law professor.

First, let me question your central assumption. Is being a lawyer just about serving paying clients? Not to diminish the importance of providing awesome service to clients, but I think a lawyer's duties are a bit more nuanced than that. You can be a great, client oriented lawyer and keep an eye on the bigger game, but you diminish the profession and short sell what law schools need to do if you take too narrow a view of a lawyer's role in society. I was privileged to work with some great lawyers, but a complete lawyer is going to bring to the game some of what Jerrold Solovy does - not just great client service, but a sense of what the law means in society.

I also think you might be surprised if you spent more time really looking at what law schools are like now. I know I was. Law schools are way better now than they were back when I was in law school. The scholarship is more interesting. (Really, it is. The various "Law and" movements have brought some fundamental insights, and add a lot more than novel length doctrinal treatments.) There are more opportunities for practical and clinical learning. Many law schools are looking hard at how they can best participate in the overall society, and have spawned institutes and centers that play vital roles.

That's not to say law schools can't improve. Any institution has room for improvement, and that's especially true for institutions where a big chunk of the productive staff need respond only to their own views of what they should be doing. But, if we are going to talk about how to improve them, it would really help to start with an accurate assessment of both what law schools do today and what kind of lawyers they need to be creating.

As for room for improvement, here's a tip: you need a mobile version of your LegalOnRamp site. It's way too hard to navigate on an iPhone.

I will graduate from a tier 2 school in December. Based on my personal experience, I generally agree with Mr. Lippe.

If one thing is missing from the law school experience, it is a lack of focus on practical experience and training. In fact, I think law school should be more like medical school in that the first year is spent in the classroom with a core curriculum, second a mix of classroom with clinical training, and third focused on clinical programs. A fourth can even be created with some sort of placement program, similar to a medical residency. If law schools are guilty of one thing, is is not preparing law students to work as attorneys. That training currently comes after graduation. Law firms have complained for years that associates are ill prepared for the work environment or tasks given to them. No wonder why, with such focus on the classroom and the real world kept at such a distance.

In addition, I think the future calls for an undergraduate legal degree like in other common law countries. The economics no longer make sense to require a three year professional degree on top of undergraduate education. The debt load carried by most new graduates is easily approaching the limits of affordability on first year salaries. In addition, the ABA has slowly been losing its fight to limit the number of law schools. One day soon, some school will offer an undergraduate law degree and the ABA will have little to say or do to stop it. Most likely, that school will be in California which has an extremely accommodating policy that does not require ABA accreditation to sit for the bar exam.

You've hit the nails on their heads beautifully. Students want to learn from those who are actually doing what they aspire to do. The adjunct model introduced properly is critical to a student's success. Yet adjuncts are not regarded for what they bring to the education of the student, they are just seen as very)low cost instructors offering a higher profit margin per class because the students still pay the same tuition per credit.

There needs to be significant change within law schools. This is critical. However, the change has to start with the accreditation process and requirements imposed upon the schools. Then they will have some breathing room to make modifications which will allow them to revamp their business model and ultimately these changes will be reflected in a reduced tuition.

In many ways, tuition is a symptom of a systemic academic illness.

Today's law school is predominantly about teaching for the bar. Consequentially, the first two years of law school are lost taking classes in areas of the law that will have no applicability to a person's future career. It is not until the third year that opportunities open up to actually explore areas relevant to one's career. And in the third year, people are preoccupied with the job hunting process. It's analogous to going to undergrad and never settling on a major.

The practical experience will come with time. A new associate is not going to be thrown into a court room or operate without supervision. My bigger issue is that I need to spend the first two years of an associate's career teaching them the law for my particular field, which they never got in law school. When Microsoft wants to hire a CS engineer, they do not hire engineer that took a smattering of topics in college, they look for a CS engineer.

I remember sitting in BarBri studying for the bar and thinking to myself, "Damn, they just taught my three years of law school in 6 weeks."

Great article. Right on the money. I also enjoyed reading the comments opposed to your article that talk a great deal but don't really say anything. Pretty typical on the actual problem with law schools.

I entered Harvard Law School forty-nine years ago next month.

Twenty-five years ago this month I became the career adviser at that school for students who did not want to work for large law firms.

For the next five years I provided individual guidance to hundreds of intelligent, creative, self-sufficient students. I sadly watched them being funneled and misplaced through the on-campus interviewing programs to large law firms that held little interest for most. Their predictable dissatisfaction was caused by the law school’s failures: not teaching them the fundamental skills and values of the profession; not making them aware of their options; not emphasizing career planning and professional development; and charging too much for the services provided.

Twenty years ago this month, a new dean closed my office alleging the budget was a waste since HLS students had little interest in representing individuals.

For the next 5 years I had the opportunity to advise lawyers and law students and make presentations for 25 law schools and bar associations. What I found was that there was little difference in the situation in, and the approach taken by, most of the selective law schools. Training was not a priority. Funneling students to large law firms was.

There is an urgent need for fundamental structural change in law schools and the legal education system. Law schools are not only failing to train lawyers and causing their deep dissatisfaction (even more so today in view of the layoffs caused by the current economic downturn) but contributing to the lack of access of the public to the legal system. Surveys and statistics indicate that 80% of the legal needs of the poorest 45,000,000 of our citizens are unmet.

For more about the deficiencies of traditional law schools and legal education and some suggestions for reform, I invite you to read this request for the appointment of a law school industry czar. http://www.lawyersatisfactionblog.com/2009/01/request-of-ronald-w-fox-to-be.html

I would like to add some thoughts as both an adjunct faculty member and a corporate transactional partner in an AmLaw 100 firm. I became an adjunct professor at American University expressly to address a concern that law schools were not doing enough to introduce students to (or train them for) corporate transactional practice. Most young lawyers I encountered had no idea what a corporate transactional practice involved and had not acquired relevant skills in law school.
In conjunction with a friend and colleague who is a full time law school professor, we developed a semester long simulation exercise to teach negotiated business transactions in a new and challenging fashion. The course is based on an international transaction to be negotiated between a multinational pharmaceutical corporation and a company operating in a developing country which has an ample supply of the key ingredient for a new drug. The exercise is to negotiate a letter of intent, and the simulation incorporates legal, business, international, and social issues that need to be addressed. To add realism, the course is taught in counterpart with a class at a foreign law school, and each class represents one side in the negotiation exercise.
I inform my class at the outset that my goal is not to teach them the law, but to teach them how to use the law. All aspects of the transaction, including negotiation strategy, and the legal and business considerations presented by the facts, are addressed as they present themselves during the course of the negotiations (which are conducted by written exchanges, by live video conferences and teleconferences, and via email exchanges). Aside from introductory lectures, the course is taught in "real time" as the issues present themselves in the actual negotiation. There is no predetermined order or outcome to the negotiation (although the process is "guided" by the professors), and there is no "right" or "wrong" result; sometimes the classes reach an agreement and sometimes they do not. It is the experience which is significant, the opportunity to do what a corporate lawyer does in a controlled environment where “mistakes” become lessons and the process can be studied and experienced from beginning to end in the course of a semester.
The result is a visible progression of the students from unease and awkwardness at live negotiation (a first for many of them) to greater comfort, confidence, and strategic planning by the end of the semester. At the conclusion of the course, we review the areas of law used in the exercise and conclude that it has involved the use of an entire legal curriculum, as well as substantial business areas.
The student comments regarding the course over the past seven years echo what Paul Lippe has indicated. The course ratings are always extremely high. Some students consider the course to have been their best experience in law school and assert that more similar classes would be of tremendous benefit. The ABA has bolstered this potential by requiring practical skills courses to be offered in order to maintain accreditation. The teaching methodology, philosophy and potential for future expansion of such a course were discussed in a published law review article about 18 months ago in the Pepperdine Journal of Business, Entrepreneurship & the Law (posted at http://hq.ssrn.com/submissions/AbstractInfo.cfm?AuthorID=283289&AbstractID=1084071).
Regardless of how law schools react to the current economic situation, there is a need for more practical skills training to supplement the other core law school curriculum offerings.

As a prospective law student, I see your thoughts somewhat paradoxical. On one hand, the current model of legal education serves well for those students moving directly from undergraduate studies to law school (i.e. structured and rooted in academia). On the other hand, for those of us with years of professional experience, the legal education should tie closely to real-world experiences and career progression. While turning a process on its head is the emotional statement behind progress, I see evolving centuries of legal education closely to navigating a ship. As is typically the best approach, plotting the new course and slowly make course corrections, realizing that "righting-the-ship" takes great energy and open waters to navigate effectively. Equally important are the ships captain and crew members, as well as the cargo (law students). The captain is responsible for arriving at the destination quickly, safely and before the cargo sours. The crew is responsible for protecting the cargo. Follow this model and you will have the legal education you envision.

You are right on the money - the time has come for a change. Dean Van Zandt of Northwestern Law School estimates that going to law school is now a losing proposition for about half of all law students. In other words, whatever the quality of legal education, it doesn't payoff for 1 out of every 2 people who go to law school.

While schools have made great strides in incorporating clinical education and practical skills training in recent years, few schools have as yet discovered how to do so in a cost effective manner. Every improvement that is implemented simply increases tuition, partly because schools are not willing to sacrifice any of their traditional programs that facilitate academic research through large classes and minimal teaching loads.

For more on the precariousness of this model, see the paper presented at http://www.nalp.org/recession_legaled

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