CRITICAL REFORM OF LEGAL EDUCATION -- THREE ESSAYS


I. PREFACE


Critical Reform is a collection of three essays. The first essay, The Real Problem with Legal Education, covers too much ground, but reaches the conclusion that "Law Schools need more faculty." The next essay, The Real Problems with Legal Practice, pushes past the limits of what can be done in the real world, in order to illustrate some points.

The third essay, The Modern Conflict, discusses the current thrust of reform and the dynamic that drives that thrust. The essay also points at some more realistic reforms that are actually possible and that would aid the majority of law students.

The appendix to this collection contains various questions, comments and perspectives -- many irrelevant. The questions, comments and perspectives are provided to trigger thought. It is hoped that as you read them you will think "I can do better than that" and that you will then suggest the real questions, comments and perspectives.

Before you read this collection, please jot down answers to the following question:

OF ALL THE SUGGESTED REFORMS AND CHANGES YOU HAVE SEEN PROPOSED FOR THE LEGAL SYSTEM AND LEGAL EDUCATION:

a) which to you like? why? b) which ones are practical. how and why?

The Real Problems With Legal Education begins on Page 2.

The Real Problems With Legal Practice begins on Page 6.

The Modern Conflict begins on Page 10.

II. INTRODUCTION

by Kathy Pullins

III. THE REAL PROBLEMS WITH LEGAL EDUCATION

A. Introduction.

Many people sincerely believe that there is something seriously wrong with modern legal education. Some of this is seen in the various criticisms leveled at the legal process by critics and some from the dismay that both graduates and long practicing attorneys show at the preparation to practice law (or lack thereof) recent graduates reflect.

Much of the current criticism of the system not only misses the point, but obscures the real issues and is part of the problem, not part of the solution. This essay lays out my bias, my belief and my suggestions. It is not gentle nor kind, but the problems are serious.

B. The twin issues.

1. Pragmatically

Pragmatically, the current practice of law is a matter of written communication. Thus oral skills are rarely important in the common practice of law -- even for litigators. However, law school is oriented towards teaching and honing oral skills via the Socratic method. Law school provides intense writing practice and training for relatively few students.

Twenty to thirty years ago this did not matter. The vast majority of lawyers wrote little and spoke much. Pre-trial practice was limited to mostly depositions. The general practice of law was an oral matter. Only a few transaction oriented firms did a great deal of writing. Their needs could be met with the output of law reviews. Thus, thirty or so years ago law schools prepared law students for the actual practice of law with necessary skills and abilities. Today, law schools do not do so.

2. Academic Criticism

In deconstructionist circles (commonly referred to as "politically correct" academia) the law is often condemned for being a product of the minds of dead male Europeans. Legal Education is often condemned for continuing the ideas and dreams created and sustained by those dead minds. The implication is that the common wisdom and belief that forms the common law, leads to common oppression rather than to common justice.

The majority of this criticism is misplaced for two reasons. First, the criticism overlooks the actual ideals and force of the law as shown by the direction and force of legal theory.

Second, such criticism obscures real problems in the methods and direction of legal education. In addressing the flaws in deconstructionist approaches to legal education I will further address the pragmatic issues raised above as well as covering the bases.

C. Basic concepts of a rule by the Common Law.

The paradigm that leads to laws is that consensual rules are to be preferred to the imposed rules that come from anarchy. Historical analysis shows a number of examples where consensual rules were abrogated. In every instance, the primitive "right makes right" replaced consensual rules, with one degree of sophistication or another.

The real choice is not between consensual law and some unforeseen alternative, the choice is between consensual law and imposed law. Either the people as a whole create rules or some person or group will impose rules. Modern law comes from the democratic experience where rule setting (the creation of law) is consensual and not imposed by dictat.

Modern Western law has five basic theoretical principles that conceptually underlie every policy choice and moral decision that the law creates and enforces. The five define the heart of the "Western" (or European) common law systems from which our system of law is derived.

These principles are: (1) that all men are created equal (regardless of race, religion or national origin); (2) that at law the masculine includes the feminine (i.e. that anything he has a right to do, she has a right to do also); (3) that there is a right to life, liberty and the pursuit of happiness; (4) that there is a right to private property and (5) that courts should not only enforce the law (justice) but do equity (be fair).

As far as the law includes the cultural study of European literature, history and philosophy it addresses only the study of the development of the above principles. There are numerous other branches of literature, history and philosophy (cf Divine Right) in Europe, but those principles are our heritage. The others are well ignored (how many classes in Divine Right did you have in law school -- think twice, it is the center of much actual European theory, but not the heritage our country decided to accept).

It is sad that these principles are only a small portion of Classical Studies or European History. Anyone who misses this facet of education misses the entire point of liberal thought and the entire reason for the five basic principles being taught. In the press of many competing ideologies and theories, these five are the ones that our democracy (and general democratic theory) was founded on.

Only those who prefers slavery, sexual inequality, deprivation of rights, denial of private property and an end to fairness have any controversy with the core concepts of the traditional legal education.

[To the modern mind, such a comment may seem more like an insult than a logical conclusion.

However, the majority of historical cultures embraced slavery, sexual inequality, limited rights and the concomitant justice over fairness that such systems demand. Ethiopia of 1970 had slave trade, female circumcision and went on to abrogate all private property.

It is a tribute to the success of the teaching of basic principles that the accusation of the possession of any of the "bad" preferences -- while they are the preferences of major population groups in the world today -- such an accusation is an insult in our society.]

The complaints rightfully made against the system and its culture are usually the result of the ideals not yet being fully reached -- not the fault of improper or wrong ideals.

On consideration, how many complaints are seen about the lack of slavery, the need for more sexual inequality, the necessity for more limits on personal rights or calls for an end to due process and equal protection? An honest reviewer does not see complaints about the basic foundation to our society.

The complaints that are seen are not without basis. But the foundation of the complaints is the failure to live up to the cornerstones of democracy. One sees complaints that the dreams and ideals are not fully idealized, not about the paradigms inner structure or about the principles. Much of the non-academic criticism of the law comes from people that want to see more of its principles in action, not less.

The fact that there is such a level of complaints when any of these five principles is shortchanged is an affirmation of the vitality essence of the law, not a criticism of the center or the choice of principles. Our real complaint is that we are not more successful in our fairness and equity, not that fairness should be abandoned.

D. The real problems.

Coming back to pragmatic issues, it is true that in spite of the underlying health and vitality of the basic ideals, the American Legal System does have real problems. The problems include the way that law is taught, the oversupply of lawyers, and the way that many "educated" lawyers act and/or believe.

These problems stem from the economics and politics that drive the methods and direction of legal education (so called driving forces) -- problems that the system is not prepared to observe, understand or address.

Driving forces are the hardest ones to consider or to change when a system develops problems. In a system with underlying driving forces, the very forces causing the problem are also the ones resisting any change.

E. Economic pressures on law schools.

The economics forces creating problems are pretty basic. Many law schools, like successful football teams, generate massive revenues from alumni donations (direct or indirect). In addition, as long as student-teacher ratios are kept in extreme (and currently accepted) proportions, direct tuition also generates substantial revenues.

Often law schools are portrayed as economically costly for an institution to support. However, when donations (including foundation and government grants directed to the school) are added into the accounting, more than 95% of the private law schools can be described as routinely profitable institutions. Substantially routinely profitable institutions. That is why so many law schools have been opened and the story behind law schools that leave their universities.

The pressure thus exists for universities to have law schools, to make the classes as large as possible, and to keep the number of professors down, all in order to preserve the law school as a profit center.

(This economic pressure is outside of the many academic, philosophic or similar pressures to have a law school as a part of the graduate program at a university). In sports programs there are similar economic pressures. This has lead the NCAA to limit what a school can offer student athletes as a measure to increase the net revenues generated by varsity sports programs. Looking at the sports example, in sports, when the number of scholarships available to schools goes down, the costs to run the programs is reduced and the profit margin increases.

The economic pressure to have a law school as a profit center has lead to a species of graduate schools where the student to teacher ratio is not one-to-one (as in medical schools) or even three or four to one (as it is in most graduate programs) but more like twenty or so to one (a number considered too much for even grade school children or kindergartens). Looking at a review of law schools commercially published, it was not remarkable for a school to have 450 students and 9 full-time faculty.

Only in the law would the education of graduate students be considered appropriate to student-teacher ratios that are so extreme that in many states they would be criminally illegal for non-educational babysitting or child care.

The problem in the law schools is not with the subject matter, the theoretical base or the method. I firmly believe that the law deserves to be studied; that our culture's five basic principles are solid and the case method works -- at least as far as it can in the system we have.

The educational problem is caused by the attempt to teach, with insufficient personnel, in a manner controlled and constantly motivated and encouraged by straight-forward economic reasons, an excessive number of students for a given number of teachers.

In such a cramped and limited educational setting it is impossible to experience collegial relationships, it is cost prohibitive to teach proper research and writing skills (the number one pragmatic problem), and it is impossible to prepare most students for the details of legal practice.

As a result, even though two-thirds or more of a law school's students go into small firms where there is no one to teach them these things if law school has not done so, their needs are ignored.

The need to attempt to educate an excessive number of students limits schools in the services they can provide and in the quality of the education and the non-case method instruction they can offer.

With the case method, a professor can pretend to teach classes of 200 students or more. Some actually do.

However, students are not prepared by experience for similar collegial relationships in professional practice. Students do not learn to write, and co-curricular programs, the place where law students learn to write, are limited to about 10% to 15% of the students. Nuts and bolts practice seminars (in those schools that offer them) are rarely extended to significant numbers of students.

Compare a standard law school class student-to-teacher ratio and methodology to traditional graduate school methods, where an educator trying to handle a class of more than five or ten students would be instantly exposed as being over-extended in most instances.

Consider the difference in quality between co-curricular writing experiences and those spawned by large case-method classes. Then consider how the real problems you have observed afflict new law school graduates (and new lawyers).

F. Bottom line on economics.

The result of these economic pressures is a growing number of law schools inadequately teaching an increasing number of soon-to-be licensed attorneys. When licensed, these attorneys have no place to learn the skills and abilities they need to properly practice law as a profession.

Everyone sees the resulting problems. The legal system suffers as does every lawyer and every citizen.

G. General Political pressures.

In addition to the economic pressure there is fierce political pressure that has risen in law schools. It has two portions. The first is the political/academic pressure to create new ideas and new directions. It is not so hard (you can probably think of a few new ideas {both good and bad} at the drop of a hat), but it is wasteful at times.

However, this sort of scholastic pressure is endemic to academics and is relatively harmless in and of itself. Medical schools suffer from the pressure for new ideas more than any other genre, yet medical schools appear to be teaching very well in spite of endemic scholastic pressure.

There is no cure for scholastic pressure and the ideas and product that results from scholastic pressure is of vast benefit to society as a whole.

When there is no known cure, little harm, and great benefit, there is little fruit in looking for a solution. I do not have one for the political/academic pressure to create new ideas and new directions and do not consider it harmful.

H. Specific Political pressures.

The second political pressure, and the one that causes specific harm, is the pressure to avoid or ignore a portion of the cultural and theoretical basis of the law in order to pursue an institutional or societal agenda of extremely narrow focus. This sort of lopsided agenda creation has been the subject of constant complaint and comment for the last fifteen to thirty years.

When the need to create or to follow a "politically correct" agenda is coupled with teachers unable to fully teach because of economic constraints, with students left without proper instruction or grounding in the basics, and when it is meshed with the pressure for new ideas, it results in criticism of the system that hides the real flaws.

The result is constant criticism of the foundations, the cases used to teach the law (and the case law system), the choice of faculty, and the general educational process. While this criticism diverts law students with nothing better to do, provides interesting intellectual debates, and satisfies tenure and retention committees, it obscures the real problems facing the professional instruction of law students.

It is a self-indulgent waste of time and energy when the system seriously needs both.

Current deconstructionist pressures hide the fact that the student/teacher ratio problem is crippling legal education.

I. The Final Political Pressure

Having a law school validates a university in some ways in a similar fashion as having a Division I football team, an MBA program or medical school. At the peak of an overpopulation of lawyers in Texas, several groups have raised pressure to build new law schools -- at state expense, not from any need to have more lawyers (in fact, even those groups want fewer lawyers) but from the political need the group has to have a law school.

And always remember, lawyers go on to become legislators, judges and policy-makers in society. Without a law school, a university is at a disadvantage every time the political process is controlled by the law school graduates of competing institutions.

J. Reprise.

Three of the problems facing law schools are very serious.

They are: (1) the lack of understanding of basic theory (the fault of the educational system the students have been in prior to law school), (2) the denial of access (for most students) to training methods that are teacher intensive (such as writing, workshops, advocacy and other practice skills courses), and (3) a lack in both students and teachers of direction and understanding of the profession (i.e. a failure to teach students that there is more to the practice of law than New York and 80 hours a week briefing in the stacks) or professionalism (i.e. that there is such a thing as professional courtesy, etc.).

K. Partial solutions.

All three of these problems would not exist if America's law schools had sufficient personnel for teaching and mentoring relative to the number of students enrolled.

In addition, if proper student-teacher ratios were required, law schools would move from massive profit centers to rational educational institutions. They would be under no pressure to graduate ever increasing numbers of inadequately educated students.

L. Conclusion/solution.

Change the student teacher ratios in law school.

With proper student-teacher ratios, law schools could return to the basics of turning students into effective lawyers. Law schools would not be forced to rely on the case method as the only way to warehouse and "teach" large numbers of students if they had more teachers or fewer students.

Instead the schools could provide mentoring, teach everyone (not just a privileged few) to write, and provide proper in depth education.

Changing the student-teacher ration to something more appropriate to a graduate school would produce institutions capable of helping promulgate the common law (American Dream) of seeing that all men (and women) are treated equal (regardless of race, religion or national origin); that due process will protect the right to life, liberty and the pursuit of happiness; that the right to private property is not destroyed; and, above all, that the courts should provide equity and fairness for all.

That is really why we want lawyers, isn't it?

IV. THE REAL PROBLEMS WITH LEGAL PRACTICE

A. Preface.

Imagine if the medical profession had only one level of training and certification. Imagine if everyone, from LVN to specialist surgeon, had the same general training and licenses. A bigger mismatch of skills and services would be hard to imagine.

The legal profession runs on that model today. Everyone who is licensed has basically the same license (excepting patent lawyers). The unlicensed, paralegals, have even less structure than unlicensed nurses aides. It is no wonder that there is confusion and turmoil in the practice of law.

B. Introduction.

There is something seriously wrong with law as it is now in the United States. The problem is actually a set of problems, each with its own complications. The factors that create the problem are as follows:

(a) An oversupply of lawyers;

(b) A system that requires most lawyers to "work" more hours than time/motion/efficiency studies show that a human being can work;

(c) Financial incentives that focus on overproduction of legal services.

Most other perceived problems [e.g. the fact that the transaction costs in a personal injury case consume 60% to 75% of the resources allocated to the solution of the situation] are examples of the permutations of the impact of the above three problems.

This essay analyzes each of the three elements that work together to create a legal system that increases costs and reduces satisfaction, and then approaches possible solutions that reduce the number of lawyers by changing legal education and then streamline legal services to fit the reduced number of legal hours available to resolve legal needs while improving the overall quality of result.

C. An Oversupply of Lawyers.

A number of incentives resulted in law schools producing [by the 1980s] more than twice as many graduates each year as they had been producing [in the early 1970s].

By 1994 the total number of lawyers in the United States had more than doubled while the population had increased only about 20% in the same time span.

A number of studies show that the result is an oversupply of lawyers that harms both the profession and the public.

D. Working Too Many Hours.

Lawyers in the United States used to average approximately 1,250 "billable hours" a year. They now attempt to average 2,400. In addition, lawyers are expected to expend at least another 100 or so hours a year in pro bono, MCLE, and other "non-billable" pursuits.

2,500 hours a year, divided by 50 full weeks, comes to fifty hours a week. Every two billable hours take three hours at work to produce (if properly worked). This means lawyers are putting in approximately 60 to 75 hours a week -- ten to twelve hours a day, six to seven days a week.

Time/motion/efficiency studies have shown that somewhere between 35 and 40 "work hours" and at somewhere between 50 and 60 "on the job" hours a person ceases to produce any more actual work product and actually begins to produce less -- if the pace is kept up for any substantial period of time.

The real force behind a forty hour work week is that employees start to net negative productivity at some point beyond forty hours (depending on how much of their time is just "on the job" but not working and other intensity related factors).

Fields of employment that are not physically intense take longer for the negative yields to occur (i.e. it takes a year or two of overwork rather than a month or two of overwork), but the same impact occurs.

Overwork (strictly defined by statistically observable rules and measurable output -- and by no other standard) results in negative yields.

Overwork of this type also destroys socialization, reduces quality of life, and leads to clients being overcharged for net services they are not getting (although audit procedures generally result in work product, albeit of an inferior quality and grade, so that clients get the paper they are paying for, but not the quality of legal work).

The time/motion/efficiency laws predict that the practice of law would be less satisfying, with greater hostility and less civility in a situation where overwork occurs.

This prediction matches reality and the current complains lawyers have about what has happened to the practice of law.

E. Overproducing Legal Services.

Not only are there twice as many lawyers, the lawyers work almost twice as much (192% as much actually -- just short of twice as much). Not only do the increased number of lawyers work more -- they are much more efficient in turning out paper due to computers and related technical improvements.

That is, there is an almost unstoppable stream of legal product with an ever increasingly lower quality level.

That is the long and the short behind any number of "unbelievable" law related stories carried in the news and many of the observed complaints and problems commented about in regards to legal work product.

Overproduction of "legal product" with dropping quality levels harms the public and the profession.

F. Matching Needs and Wants.

America needs quality legal services. Many Americans want to provide such legal services. The real issue is how to increase the quality of the services that are needed, while reducing the oversupply and the resultant problems. This means altering the system.

The easiest way to alter or change the system is to change the way lawyers come into the system. The easiest point to reach in that chain is law schools. To change the system means widespread reform of legal education to allow real needs and wants to be met in a sane and rational method.

1. Providing for Basic Legal Services.

America has a frank need for legally trained individuals. The FBI prefers to have agents who are graduates of law school. Civil Service systems reflect that those who have attended law school are much more efficient (in fact, a number of persons attend law school each year who intend to join the diplomatic corp or other civil service organization and who just want the edge the training gives). There are numerous similar needs in society.

The solution for this need is to make the paralegal degree a two year master at law degree (Juris Master or J.M.). Reduce the library requirement for J.M. law schools, change the program to two years plus a three month practicum (with a certification in the area of focus -- such as criminal justice, law enforcement, tax preparation, civil service regulations, patent processing, etc.), and graduate individuals who are not allowed to practice law before courts, but who can engage in specific legal related activities (determined by certification).

This would bring legal education costs down dramatically for those who need part -- but not all -- of the modern legal experience.

To avoid problems with the term paralegal as it is now used (to denote someone with a certification similar to typing school -- though often encompassing graduate level training), individuals with a master of laws [Juris Master] would be called "para-legal lawyers."

Intercessor is also an excellent name for the function a J.M. would fulfill and the approximate translation for a class of individuals in some Hispanic cultures who serve similar services in those cultures.

LLD (rather than LLM) programs in advanced studies in each certification would also exist (as would C.P.A. equivalents for certifications for each specialty). Tax, real estate, criminal defense, criminal prosecution, and basic probate all seem appropriate for LLD degrees.

A person with an LLD would be an "attorney" with a speciality nominated. Thus one would be a "tax attorney" or a "criminal attorney" or a "probate attorney." LLD degreed attorneys would fit much of what the public mind thinks of when it asks the question "what kind of attorney are you."

2. Litigation and Modern Law.

Modern law requires intensive writing and analysis. It is heavily oriented towards reading and research and combines both the oral skills that law used to require with new writing and research skills that used to be required only of a few.

A modern law school that met those needs would take graduates from a two year master's program and put them through a three year doctorate program -- or would offer a separate four year doctorate program (similar to Lehigh University's combined program five year MBA degree). Either approach would lead to a Juris Doctor degree.

Such a law school would be required to meet strict library and staffing requirements -- including a maximum student to teacher ratio of 4 to 1. Writing requirements that encompassed the equivalent of two or more law review articles would also be required as would specialty seminars on trial practice, appeals, negotiation, mediation and similar legal matters.

A graduate from such a program would be called a barrister and would be similar [but with substantial differences] to an English barrister. Such individuals would handle litigation and the mediation of cases submitted to litigation.

3. Transition and Bench Marks.

The goal in changing the educational and licensing system is to transition the system so that it becomes more efficient. The following bench marks would help.

First, take no-fault divorces out of the legal system and make them administrative matters (for which one would go to a paralegal lawyer for help with the forms). In states with strict formula for visitation and child support, the process is really clerical and not judicial.

In such a system, most divorces would be handled in a fashion like filing tax returns. If contested, a divorce could move to the Courts if mediation of the matter failed.

LLD attorneys specializing in divorce law would handle those cases that needed trial with JM paralegals handling those that did not need litigation.

Second, take simple personal injury cases out of the legal system. A straight-forward formula approach to compensation (medical expense + lost wages)*5 would be instituted.

For claims of fifty thousand dollars and less, the matter could be resolved in a small claims court if questions arose about elements.

The goal would be to take the transaction costs and reduce them from 65% or so of the total amount of insurance premiums paid to 15% or so. The 50% saving would go to injured parties and a modest reduction in rates.

Paralegals could aid in the filling out of paperwork for a regulated hourly fee.

For "serious" and contested cases, barrister attorneys, LLD personal injury attorneys and mediation would be available. The alternative of trial would always remain, just as in divorces.

Third, probate could be moved to the same methodology (as is the case in some jurisdictions at present).

Fourth, criminal law would be moved to the province of specialized LLD attorneys. Such attorneys would be more focused and better trained (at a reduced cost as well) for the provision of criminal defense services.

G. Curing the Problem With More and Less.

This system lets more people participate in fixed, low cost settings. It provides both more and less. Paralegal lawyers would not need to know anything but the form books for their administrative speciality. LLD attorneys would focus only on a limited and narrow area of law.

Both of those types of lawyers would not need the libraries, secretaries and other support personnel that a lawyer needs in today's environment. The degrees would be relatively inexpensive to gain (imagine running a law school without the overhead of a library and you have an idea of how inexpensive the degrees could be) and the work well controlled.

In addition, a much larger number of civil service employees would be able to go through the training that a law school offers. The reduction in cost could easily justify requiring some civil service positions to have a JM degree requirement -- which is the case in a number of countries (e.g. Egypt).

At the same time, the "heavy" or expensive end of the law would reduce. Securities work and other office practice could be handled by JM and LLD trained individuals with remarkably lower costs -- especially given the impact of computers on repetitive form design and use. Similar transactions and real estate areas would also lend themselves to similar treatment.

A handful of mediators and litigators would be barrister attorneys who would handle "serious" litigation without oversupplying it. In fact, with almost a shortage of lawyers, mediation and negotiation would increase in attractiveness (and resultant cost savings).

Models reflect that net transaction costs due to lawyers in society (for the same approximate result) would plummet to an average of about 10% of what they currently are.

All of this is done without increasing the cost of legal services (most changes would reduce the cost) and without denying any group access to legal services.

Note that all of the changes carefully avoid altering the balance of power. Reform in this model is not used here as an excuse to shield some group from exposure to liability or to change the law to deny some group the ability to effectively retain an attorney. Instead, reform is looked at as a method to reduce transaction costs in achieving the same social results.

Worth considering?

I think so. Unless what you want is an oversupply of lawyers who are unable to do anything useful.

V. THE MODERN CONFLICT

I. Accreditation Conflicts

The modern conflict over legal education, a few scattered institutions aside, is really a discord between what I call the Stanford Coalition and the ABA.

In the conflict between the Stanford Coalition and the ABA, it is important to keep in mind the three major impacts that the ABA Accreditation procedure has on major schools:

II. A Fight For Time and Power

First, the ABA enforces a method of running law school that shifts the balance of power away from university administrators (the President and Dean);

Second, the ABA requires library assets in a set configuration, and;

Third, the ABA has incredible statistical requirements -- some parts of a law school might spend more than two-thirds of their time (during recertification) on compiling and reporting statistics.

IV. A Simple Thesis

While all three of the issues that have caused the fight between the "Stanford Coalition" and the ABA cause real headaches for administrators and staff, the issues appear to be rather neutral as to the quality of education received by the average student. The debate over what the ABA should be doing has been sidetracked by focusing on these three points.

Where the debate should be going is:

First, making certain that law schools teach students how to write since the practice of law has gone from an oral art (as it was pre 1960s) to a written art;

Second, making certain that law schools have sufficient faculty to support a student-teacher ratio that allows for mentoring and the proper teaching of writing and practice skills (consider the required faculty input for just one law review article), and;

Third, helping law schools to focus on serving the 60% or better percentage of their graduates who will go on to practice in small firms or for solo practitioners.

V. Implementation

[This space left intentionally blank.]

VI. DISCUSSION POINTS

The Real Problem with Legal Education has a rather narrow set of conclusions.

1. That the already passÆ deconstructionist approach to law is a time wasting distraction.

2. That law has gone from an oral art to a written one.

3. That law schools need more faculty in order to properly teach writing.

4. That law schools should provide more training and guidance to the bottom 75% of their classes.

Most law schools are not a hotbed of either deconstructionism or crits.

Most law schools think they are at the forefront of encouraging writing experiences.

Many are at the forefront in providing real world experienced faculty members.

But ... consider ...

A. Just how much writing training is "enough."

What does it take to teach quality writing rather than expose someone to the basic elements of writing?

What kind of writing do students need to do to learn how to do "legal" writing (vs. academic writing)?

Since academic paper writing is far removed from "normal legal writing, what range of non-academic writing experiences should a student have?

B. Just how much "real world" training is appropriate?"

Many schools offer access to a single seminar per student. Most schools think that generally they do better.

But, how many hours of experience are necessary before a student could be expected to handle routine "first year" law clerk matters without "much" supervision. [That is what most hiring solos and small firms want/expect.]

How many different kinds of experience should a student have?

C. To what extent can "practical skills," writing, and law school be combined?//Should a school care what happens to the bottom 75% or so of its class?

Each student should probably have participated in preparing two appellate briefs, some "routine" pleadings for two kinds of court matters (e.g. a divorce and a criminal prosecution), two sets of discovery boilerplate with questions, a summary judgment motion, a post trial motion, two or three simple wills and a contract. That is a good deal of writing, none of it traditionally academic and none of it the same as the writing that students read. All student have for learning by example are case books (which teach them how the judges write -- not the lawyers) and research sources (which combine black letter law with both sides of the fence).

The Real Problem with Legal Practice, for the most part, suggests things that are completely out of touch with any change that can be made in the legal system.

However, the model that compares the practice of law to the practice of medicine, with lawyers the equivalent of doctors and paralegals as the equivalent of nurses, may have some benefits.

It is already being used with board certification in specialties in many states. The Bankruptcy code amendments incorporate portions of the model.

Also, the basic economic facts are fairly well established. The facts are not relevant yet, but ...

A. To what extent should students be prepared for seeking board certification? To what extent should LLM degrees, internships [clerkships], and similar matters be applied to law?

What can rationally be required of inchoate lawyers prior to licensure?

Of that, what should a law school provide?

B. To what extent should law schools or the ABA worry about the tendency to keep lawyers in the office more than sixty hours a week?

Is diminished average hourly output and diminished total output a concern of law schools or the ABA?

What should law students be told and how should they be prepared?

C. What are the real changes that are happening in law and how can the law school prepare to meet them?

Real changes include the widespread presence of third party ratings (and the faulty basis used for them).

Also included in change is the gradual diminishing of the profession by the overabundance of lawyers supplied by schools. No one seems to have a pragmatic proposal for reducing the number of law students graduated. As a result, law schools will continue to drop in stature, importance and value. An Afterword (or two).

VII. CHANGES IMPLICIT IN THE MODERN PRACTICE OF LAW

A LAW FIRM PERSPECTIVE

The current trend of the last 20-30 years.

All change has unintended consequences that follow in the footsteps of the intended change. The current trend of making associate status permanent has three consequences no one has given a great deal of clear thought.

The change makes a fair amount of sense. Whether one calls the status "non-equity partner," "senior associate," "professional lawyer" or some other title, leveraged firms are discovering that they do not need to engage in "up and out" practices (where six or more associates exist for every partnership slot and where five of the six go "up" in seniority and then "out" when they do not make partner).

Rather than waste the time and expense that goes into creating a good associate, more and more firms are keeping them on in what is basically an hourly employee status. Which leads to unintended consequences -- the ones that began when the first leveraging of associates began.

The Three Unintended Consequences

First is that associates become hourly employees. They may not be paid by the hour, but they are not really on a "partnership track." (If less than 50% of them make equity partner, then regardless of the "potential" the associate status is a non-partnership track).

As more and more commentators are beginning to note (compare Flores-Sahagun in The Expendable Professionals, Utah Bar Journal, Vol. 6, No. 9) associates are basically the same as any other group of employees who are entitled to work breaks, over-time and similar treatment (for a contrary viewpoint, see the number of firms who are attempting to have paralegals reclassified as "management" not entitled to hourly worker benefits).

Impressively, making associates into employees has some benefits on firm culture, recruiting expense, avoiding complaints of age based discrimination and stability.

On the other hand, it does have some potential difficulties in the form of labor unrest, unions and NLRB overview that law firms have traditionally avoided. All of these problems are still just in embryo or inchoate at present, but all are implicit in the changes that have occurred.

Second, by the changes, firms become businesses in the form of a corporation. They may not be corporations (or may use specific professional corporation formats), but they are in the form of a corporation. Most lawyers still remember the tax treatment of entities that are corporations in substance.

With the new IRS aggressiveness towards professionals, there will probably be a significant period of adjustment even if the status quo is restored at the end.

Third, more and more consumers of legal product are beginning to realize that lawyers (especially non-partnership track associates) have to abide by the laws of nature just like anyone else. Continuous auditing and second guessing are more and more a part of life (e.g. Clients Second-Guess Legal Fees On-Line, The Wall Street Journal, Friday January 6, 1995, B1.). The most important law of nature at issue has to do with the actual net output of human workers. Economists have long known that one actually gets a maximum of 35 to 40 hours of "real" work out of a worker when the employment extends over any substantial time. (That is, in short bursts, people can work longer and harder, but for the long haul, there is only 35 to 40 real output hours).

The ABA study on productivity confirmed that, with the note that when lawyers spent more than 60 hours at the office their net productivity dropped.

Honest evaluations of attorney time (e.g. the excellent Making Partner by Robert Michael Greene reflects that in an office where 2,000 billable hours is the accepted load for an associate, 65 hour weeks (cf page 31) are required).

Net negative productivity occurs at the "standard" 2,000 hours. One need not guess what occurs when the standard is 2,400 hours or more.

As one law professor who writes in the area has noted off the record, after associates bill more than about 1,800 hours a year, hours are just billing units, not any measure of actual productive time worked.

One possible adjustment

One possible adjustment is for firms to recognize that the era of non-equity partners (lawyers as employees of the firm) has come and to apply pragmatic labor relations tools.

First, consider forming off-site work groups. That is, establish satellite offices where costs and expenses (both office overhead and costs of living) are lower and use those groups to handle specific tasks.

There is no reason that a firm in New York City can not establish an office in Wappingers Falls and house twenty to fifty lawyers off-site -- saving several hundred thousand dollars a year in New York City Office overhead -- while still maintaining a New York City presence.

Second, consider using "part-time" employees. Rather than expecting associates to spend the 65 hours a week necessary to bill out 40 billable hours a week (two weeks vacation, no time off for holidays or sickness), one can hire associates whose work load is a more reasonable twenty-five to thirty billable hours a week. With lower overhead at off-site locations, improved productivity (65 hour weeks are in the net negative zone) and lower stress levels (with concomitant better health and better retention in employment) the additional number of employees is actually less expensive.

Conclusion

With the overflow of new lawyers, quality employees are not hard to find, only hard to keep motivated. In many ways, the same is true of the clients who are purchasing the services of the new permanent associate class.

By focusing on off-site locations and "part-time" employees, it is possible to create flexible, motivated employees with a commitment to a higher quality of life replacing the older goal of partnership.

VIII. CHANGES IMPLICIT IN THE MODERN PRACTICE OF LAW

A SCHOOL PERSPECTIVE

INTRODUCTION

There is a growing conflict between elite law schools and the ABA. It has roots in three important features of what the ABA does in a transactional sense.

First, the ABA enforces a method of running law school that shifts the balance of power away from university administrators (the President and Dean);

Second, the ABA requires library assets in a set configuration, and;

Third, the ABA has incredible statistical requirements -- some parts of a law school might spend more than two-thirds of their time (during recertification) on compiling and reporting statistics.

While all three of these cause real headaches for administrators and staff, they appear to be pretty neutral as to the quality of education received by the average student.

THE REAL ISSUES

The debate over what the ABA should be doing has been sidetracked by focusing on these three points. Where the debate should be going is:

First, making certain that law schools teach students how to write since the practice of law has gone from an oral art (as it was pre 1960s) to a written art;

Second, making certain that law schools have sufficient faculty to support a student-teacher ratio that allows for mentoring and the proper teaching of writing and practice skills (consider the required faculty input for just one law review article), and;

Third, helping law schools to focus on serving the 60% or better percentage of their graduates who will go on to practice in small firms or for solo practitioners.

III. A TENTATIVE PROPOSAL

The ABA could approve changes whereby a law school could be allowed to opt out of extensive oversight (including recertification) by implementing standards that are calculated to result in an education superior to that provided by "minimum standards" certification.

The standards I would propose (which would meet the real issues):

A. An improved student/teacher ratio.

B. A four year academic program (vs. three years at a "standard" or "non-elite" school).

C. Substantial oversight writing experiences required of all students.

D. Substantial alternatives to co-curricular programs (that is, all students would either participate in a co-curricular writing program or in a legal skills practice program. All that do not qualify for the one would be required to participate in the other).

Faculty governance, specific library assets, and statistics beyond the "US News & World Report" level (to use a rather mundane bench mark for extremely simple and simplistic statistical reporting) would not be required.

The goal would be to encourage and promote the freedom necessary to allow schools to promote excellence and to explore variance in methods and approaches. As long as basic protections were met (e.g. the student/teacher ratio and expanded duration of program) one would leave the rest of the issues to the market place.

IX. NOTES

Proposed survey for the Law Student Division, Survey and Report Project.

PREFACE

There is a widespread discussion of the following issues:

First, do law students receive enough feedback?

Is the way that law is taught successful in giving students enough feed back to know what is expected of them, whether or not they are learning and understand the material, and whether or not they are making appropriate progress with acceptable levels of mastery.

Second, is the way that law is taught the optimum way to teach the subject?

That is, does the Socratic method succeed in teaching better than the alternatives.

Third, are co-curricular programs, other than the bare minimum necessary (i.e. Law Review) a waste of time and a distraction, or do they provide educational and professional value to students?

Do the programs help you learn, do they help you find jobs, do they increase your pleasure in being educated, or should the school cut them back and get rid of them as a waste of time, effort and resources?

These are real issues and real questions being discussed. Your input, comments and suggestions will be read with interest and will have meaning.

SURVEY QUESTIONS

In your first year of law school:

1. Do you feel that you received: a) more than enough feedback, b) the right amount of feedback, c) not enough feedback from your professors in law school?

2. Do you feel you had a) too many opportunities for co-curricular activity, b) the right amount of opportunities for co-curricular activity, c) not enough opportunities for co-curricular activity, during the course of the first and second semesters?

3. Do you feel that the co-curricular opportunities you had: a) were too distracting from study and class loads, b) did not distract significantly from study and class loads, c) even with additional opportunities would not distract significantly from study and class loads in comparison with the benefits the opportunities offered.

4. Do you feel the oral Socratic method of teaching, followed by a single final exam: a) helped in your learning material, b) were neutral in your learning material, c) harmed your ability to learn the material.

5. How would you compare the teaching methods used in law school to those of your undergraduate major?

6. How would you compare the testing methods used in law school to those in your undergraduate major?

7. How collegial and accessible were the law school professors compared to those in your undergraduate major?

8. On an average, how much time did you spend with faculty in your last school year prior to law school? _____________

9. On an average, in your first year of law school, how much time did you spend with faculty? _____________

10. If you have had graduate experience in another discipline, during that time, how much time did you spend with faculty?

Copyright 1996 Stephen R. Marsh
All Rights Reserved
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