From the President

Holmes was right: Experience trumps logic

By Jon Streeter
President, State Bar of California

Jon StreeterOne 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?