Holmes was right: Experience trumps logic
By Jon Streeter
President, State Bar of California
One of the best known quotes in our legal tradition comes
from Justice Oliver Wendell Holmes, who opened his seminal 1881 book, “The
Common Law,” with the grave admonition that “the life of the law has not been logic;
it has been experience.”
Why is it, then, that in medicine and public accounting the
experience of training under the supervision of a licensed practitioner is a
prerequisite for entering the profession, while new attorneys need only pass
the bar examination? Is the complexity of law practice so modest that we can
say, surely, that anyone with the wits to pass the bar examination can figure
it all out, regardless of their circumstances in starting practice?
I think these are good questions, and so did the State Bar’s
Board of Trustees when we gathered this past January for a strategic planning
session devoted to the theme, “Raising the Bar.” Our focus during that session
was on how we, as the Supreme Court’s policymaking body for the profession, can
not only ensure the highest standards of professional competence among our
members, but give members the support they need in order to meet those
standards.
As we met, all of us were well aware of the rapidly changing
conditions in the profession, especially the reality that new law school graduates
are having great difficulty finding employment, the level of debt they carry is
massive, and the ease of starting a practice (which can be done with little
more than a snazzy website), increasingly leads many young lawyers to venture
into practice on their own, guided by little more than the sense of law,
lawyers and clients they picked up in law school. For many, that is a great
starting point. For others, not so much.
What emerged from our January planning session was a task force,
appointed last month, charged with studying whether we ought to recommend to
the Supreme Court the imposition of a pre-admission practical skills training
requirement for all new lawyers in California. The task force work plan
approved by the board calls for hearings, deliberations, and delivery of a set
of recommendations over the course of the next twelve months. The task force
membership includes prominent academics, judges, practitioners from small and
large law firms, and representatives of the Board of Trustees and the Committee
of Bar Examiners. I will chair the effort.
To set the baseline, we will begin with a survey of
available clinical education in law schools and an examination of what
practical skills programs exist for new attorneys in other states and other
countries. We will then look at the advisability and feasibility of adding a
pre-admission practical skills requirement as a condition of bar admission in
California, taking into account the following:
- The amount of
practical skills training that would be required and the maximum period of time
we anticipate applicants for admission would have to spend as trainees
- The specific content of the practical skills training that we
would require, how that training would improve the level of competence among
new lawyers, and whether to require a uniform practical skills curriculum or to
permit a variety of different types of skills training
- The means of delivering practical skills training, of ensuring
quality control over training providers, and of certifying completion of
training
- Whether a pre-admission practical skills training requirement would
further the State Bar’s public protection mission, and, if so, how
- Whether and on what basis to grant credit for practical skills
training in law school
- Whether to offer full or partial exemptions from training, and,
if so, the basis for those exemptions
- Whether a gradual phase-in plan for implementation should be
adopted, including, for example, a pilot phase
- Whether some alternative to formal pre-admission practical
training might be the best approach to improving the readiness of new lawyers
to practice, such as a mandatory post-admission mentoring program
- How a pre-admission training requirement, once fully implemented,
would likely affect the cost and availability of legal services in California,
the amount annual dues that members of the bar pay, the ability of law students
to find employment and manage their student loan indebtedness, and the
willingness of new lawyers to settle in and base their practices in California
- An evaluation of the costs versus the benefits of a pre-admission
practical skills training requirement.
We begin this
study with no pre-determined conclusion. We begin only with a set of questions.
Because clinical education is expensive, some prominent academics have
suggested that now is not the time for the profession to ask these questions.
They point out that, acting on its own, the academy has been steadily improving
the quality clinical experience offered to law students, so we have no reason
for concern.
That may be so,
and if it is we will find out. But as partners with the academy in shaping the
experience that all new members of the legal profession bring to their first
client relationship, we have a clear responsibility here. As the largest
mandatory bar not just in the United States, but in the world, we should play a
leading role in deciding how that responsibility should be discharged.
One of the
great traditions in Anglo-American law, embodied in the culture of the English
Inns of Court, and followed much more widely in the Nineteen Century in the
United States, when most lawyers entered practice after reading law under the
tutelage of a practicing lawyer, is the tradition of mentoring. In any good
system of mentoring, the values of professionalism and the day-to-day skills of
law practice are passed down from one generation to the next. Whatever progress
law schools have made with clinical education – and no doubt their progress has
been considerable – we, as a profession, must be at the center of the
discussion. For what good is mentoring, if it is not about defining what we
stand for as a profession?