Legal education for the 21st Century

By Howard Miller
President, State Bar of California

The world of legal education is staring in the mirror at its standard model with fading confidence, caused by both academic criticism and client reaction to how legal services are delivered and priced.

The academic criticism came most forcefully in the 2007 Carnegie Foundation Report on legal education with its fundamental statement, quoted and reinforced by Elena Kagan, now the Solicitor General and then-Dean of the Harvard Law School, that in educating lawyers “what has been taught and how it has been taught may be embarrassingly disconnected from what anybody does.”

THE GREAT RECESSION

The Carnegie report criticism has been amplified in the real world by the beginning in 2008 of the great recession, with its impact on the practice of law. Legal education’s standard model rests on an assumption that law schools would teach analytical skills, students would get jobs after graduation with firms or public agencies of various sizes, and it was in those jobs that practical skills of lawyering and representing clients would be learned.

Instead of jobs, there have been layoffs, reaching even the sacrosanct public prosecution agencies, as well as the most successful private law practices. The starter jobs for the most part are not there. Even when they are, the largest clients are refusing to pay for hourly efforts of first year associates, which they view as educational and not adding value to the legal services received. Clients are intent on paying for results, not hours of anyone, let alone of inefficient and inexperienced lawyers. The model has lost its training wheels. My discussions with law deans and faculty have convinced me the law schools know it. They just don’t know what to do.

Imaginative responses to the effect of the great recession may contain the opportunity to improve the education and training of lawyers and provide better service to clients by integrating what are now thought of as supplements – clinical programs and interdisciplinary work – to the core of legal education.

THE WHOLE CASE

At the center of the embarrassing disconnect between legal education and law practice is the relative absence of client experiences or full case files in the classroom process. The analytical skills are taught from cases in appellate reports. But appellate reports on a case are not the “whole case,” whose files would begin with the initial client interview and include memos on strategy, client relationships and client goals. The absence of client experiences from law schools, either in person or by the whole case, is one reason no one thinks that after graduating from law school and passing the bar anyone is adequately prepared to practice law and represent clients. A large part of the inadequacy comes from an overemphasis on pure analytical skills and an absence of knowledge of challenges real clients have faced. It is as though in medical school students never made rounds, but only learned from their professors’ descriptions of experiences with patients, and the professors lectured on the principles of surgery and pathology without reference to actual patient examples or data.

The absence of viewing the “whole case” is one reason for the criticism of law schools not teaching problem-solving or judgment. The growth of clinical legal education has removed some of the disconnect, though by and large it is still managed as a supplement to mainstream training in analytical skills. Interdisciplinary work in law faculties, especially in economics and psychology, has increased dramatically to much good effect, though with more of a focus on theoretical work often not connected to problem-solving in the representation of clients.

A FALSE DICHOTOMY

There has been a longtime false dichotomy between “practical” training on the one hand, and academic analytical and interdisciplinary work on the other. Nothing is more practical than analytical and interdisciplinary quantitative, management, economic and psychological training – so long as it is directly applied to what clients face in their everyday legal problems. And there is no richer set of data for legal analysis and other disciplines than the “whole cases” of real clients as they face decisions in transactions, litigation and negotiation. Bringing real client experience and whole case files, along with interdisciplinary perspective, to the center of the classroom experience will be the basis of training students not only in legal analysis but the skills of problem solving and judgment that are now only on the fringe of the law school experience.

As the legal academy and law students face client-centered legal education, they may wrestle with and perhaps help to solve the problems of availability and pricing of legal services.

Here is the dilemma: we have an excess of lawyers without work, while clients who need them are without lawyers. This has real world devastating consequences. Lawyers’ involvement in the mortgage fraud disaster of false legal representation has obscured an equally important question: Why did the millions of borrowers duped into signing loans with onerous legal provisions not call lawyers to advise them before they signed? What if the public knew there were capable lawyers who for a flat fee of $100 would review loan documents and advise clients? To many lawyers this sounds like a strange, almost absurd question. But homeowner and consumer loan documents can be reviewed in a half hour, with the effect of avoiding major problems. Ordinary potential clients are scared – they know of no place they can go where for a flat amount charge on their credit cards they can get the most basic legal advice. The model of the billable hour has made legal services a luxury good, the pricing of which is challenged by even the most sophisticated clients. (The book to read is The End of Lawyers? Rethinking the Nature of Legal Services, by Richard Susskind, Oxford University Press, 2008)

THE CHALLENGE

On our law faculties and in law student bodies are some of the most talented people in our society. The skills are there to help solve these problems. If the law schools can think through a change in perspective to client-centered legal education they may better educate students, produce better lawyers, serve client needs, develop new models for the cost and pricing of legal services, use with greater imagination their analytical and interdisciplinary resources to serve our society, and help to structure a legal profession that meets its full responsibilities.