Equipping Our Lawyers

William M. Sullivan

William M. Sullivan is Director of the Educating Tomorrow’s Lawyers project. He is an author of Educating Lawyers (2007), a study of legal education, which was part of the Preparation for the Professions Project that Sullivan directed at the Carnegie Foundation for the Advancement of Teaching.

Among the casualties of the Great Recession, future historians may place the traditional assumption that getting ready for practice is a leisurely matter with which law schools need not be too directly concerned.

Instead, it seems that external pressures originating in the world of practice, as witnessed by the emerging American Bar Association standards, are placing growing demands on legal education to align itself more intentionally with the day-to-day skills needed by the larger profession. If this is so, then the content and quality of what students learn in law school is likely to become subject to more intense interest - and scrutiny. 

Another Way to Think About Preparing Lawyers

To address this new challenge, legal education is beginning to ask some fundamental questions about the most effective ways to expand its attention to the whole scope of preparing graduates for their professional lives. In Educating Lawyers, the 2007 report on legal education by the Carnegie Foundation for the Advancement of Teaching, the metaphor of apprenticeship functions to call attention to this needed breadth of preparation.

In that study, we proposed that the first apprenticeship consists in the intellectual training needed to learn the academic knowledge base important to legal thinking and practice. The second apprenticeship involves learning to practice law in various professional contexts. The third apprenticeship initiates students into the social roles, ethical standards, and responsibilities that are entailed by the fundamental purposes of the profession of law.

The report goes on to argue that overriding aim of legal education should be the preparation of professionals who have developed competence in both the academic knowledge base and skills of practice guided by a strong identity as a lawyer committed to the defining purposes of the legal system.

To achieve this end, legal education must focus on forming professional identity by leading students through engagement with the evolving domains of legal practice, and informing their development with the best contemporary understandings of the law and legal thinking, including the changing dynamics of law in a more global society.

A Project to Address These Issues

Educating Tomorrow’s Lawyers, of which I serve as Director, seeks to facilitate a comprehensive approach to the analysis and reform of legal education. The new project is based at the Institute for the Advancement of the American Legal System at the University of Denver and builds upon recent efforts by the group of law schools forming the Legal Education Analysis and Reform Network (LEARN) to develop a larger national consortium of institutions committed to reform in the spirit of the Carnegie Foundation report. See: EducatingTomorrowsLawyers.du.edu.

Among the first activities of Educating Tomorrow's Lawyers has been a survey sent to the deans of all law schools in the U.S. and to Anglophone Canadian law schools asking them what has changed during the past decade in the areas of curriculum; the practices of teaching and learning; faculty development; professional identity formation; and assessment. The survey seeks information not previously measured about what is happening to reshape the experience of legal education.

There is encouraging news in the results. The ferment in many law schools has passed beyond the phase of discussion into active experimentation in the reshaping of the substance and experience of legal education. Five areas of activity already stand out:

1. In curriculum, there is interest in interdisciplinary teaching both within law schools and between law and other disciplines. A number of schools offer joint degrees (e.g., JD/PhD or JD/MBA) or interdisciplinary certificate programs. For example, one is actively encouraging its students to take classes outside of the law school as well as encouraging non-law students to take classes in the law school, and another is emphasizing the social context in which law actually operates.
2. In teaching and learning, there is evidence of integration into new or existing courses of simulated experiences of practice of various kinds as a part of teaching legal doctrine.
3. In the first year, a number of new programs provide an integrated introduction to legal reasoning through experiences that use legal writing and research in conjunction with methods of practice simulation. For instance, one has developed an entire first-year program that places students in collaborative groups that function like law offices handling particular kinds of legal matters, learning basic legal research and writing combined with exposure to issues of ethics and professional identity.
4. In the second and third years, a number of schools now provide expanded opportunities for clinical-legal experience, including an expanded range of clinical subject areas. Of the schools responding to our survey so far, 82% report initiatives that have or are in the process of adding new clinics, the range of which is quite broad.

An especially interesting finding is evidence from a number of schools of a comprehensive approach to innovation rather than just small-scale adjustments. Schools are looking at their programs holistically and along with faculty development and even assessment.

Rather than aiming to develop legal reasoning alone, more schools are taking as their purview the arc of professional development extending from student to novice practitioner. The more legal educators inquire into how best to advance their students along this path, the better the prospects for developing a more effective form of legal education, one more closely aligned with the needs of the profession and its publics. In coming months, Educating Tomorrow's Lawyers will be analyzing these data and posting on its site some examples of the innovations outlined above, as well as describing trends in more detail. It is already clear, however, that legal education is moving is ways that build on its historic strengths in order to address more directly and effectively the new challenges emerging in this decade.

By Ross Guberman, President, Legal Writing Pro
(ross@legalwritingpro.com; www.legalwritingpro.com)

Editor's Note: Summit recommendations #1, #2, and #3 urge law schools to identify practice competencies that law students need to develop and to build their curricula around them. Recommendation #11 urges law firms to identify practice competencies and to build their in-house training around them. Recommendations 12 and 13 urge law firms, bar associations, CLE providers and others to create model sets of practice competencies around which to build professional education programs.

Ross Guberman has established himself as one of the country's leading teachers of legal writing using sets of competencies valued highly in all legal settings and often named as a weak part of lawyers' practice skills. In this short piece, Guberman explains how to describe legal writing competencies to make them meaningful and likely to affect improvement in writing skills. See additional articles on legal writing competencies on Mr. Guberman's excellent website cited above. - Chuck Bingaman

Ross Guberman

Imagine that you want to become a better cook, so you invite a local chef to your home.  She follows you into your kitchen, watches you slice and dice, broil and serve and then takes a bite of your prized dish, stuffed quail.
“The quail’s not bad,” she says, “but you need to make it taste even better next time.”  “And while you’re at it,” she adds, “Try to make it look more appealing on the plate as well.”

You wait to hear more, but she walks out, saying, “Thanks for the free dinner, and I take either cash or Visa.”

You’re steamed. The chef may have arrived fresh from the Food Network, but her advice didn’t merit the free quail, let alone your hard-earned money.  What you needed were specifics on how to angle your knife and season your shallots, not happy talk about how the secret to cooking better is, well, making your food taste better and
look better.

Now I bet I can read your mind: “But my firm’s competency model is far more helpful and specific than that chef’s advice.”  Maybe so.  Yet are the phrases that pepper those models— “consider your client’s business objectives” and “speak effectively at meetings” and “take ownership for matters” and “write concisely and clearly”— all that different from “make your food tastier and look better?”

From a management perspective, such “snooze” benchmarks are no doubt useful: They can help with evaluations and promotion, identify skill gaps, and explain why some attorneys make it and others don’t.

But if you’re an individual attorney trying to succeed, you need a roadmap for how to improve, not just what to improve.

Take legal writing.  After all, it figures on every competency model I’ve seen.
You’ll find familiar “snooze” elements in all writing competencies such as “write clearly and effectively” and “adapt your writing to the intended audience.”  Or my favorite: “Draft documents that can be filed with few changes.”  Doesn’t that sort of assume what we have to prove?

To give attorneys some “news” about how to achieve these benchmarks, I recently created a list of 100 specific writing skills based on four sources—all sources you can use defining writing competencies and other practice competencies as well.   At the end of this piece I’ll offer a sampling of the 100 skills.

News Source One: "I'm a partner, hear me roar"

Many firms survey their partners for what they consider vital in effective legal writing. But the questions barely scratch the surface of what these seasoned professionals know.  For example, if you ask partners to describe the writing of a skilled associate, they’ll rattle off “snooze” words like “concise” and “effective” and “client-ready.”  If you press them on what they mean by “concise,” they’ll likely quote Strunk & White, responding that “associates need ‘to omit needless words.’”  That’s a bit more useful, but only if you think that associates type words they don’t need on purpose.  So let’s keep pressing.  Ask your partners what sorts of “needless” words they see most often.  “Adverbs,” you’ll often hear.   That’s much more helpful.  But even better: “So can you explain when to use adverbs and when to cut them?” Now you have valuable “news” to share.

News Source Two: May the Best Lawyer Win

Another approach: Rather than trying to ask senior lawyers to explain what they’re doing after the fact, how about doing some investigative reporting yourself?

All competency models cite “effective presentation skills,” for example.  But what do your firm’s best presenters actually do?  When they start, do they use anecdotes?  Statistics?  Quotations? A joke?  And when do they use PowerPoint, and how?

It is through observations like these (partners vs. associates, nationally prominent advocates vs. generic partners) that I’ve generated many of my own lists of writing competencies.  I have identified, for example, techniques that the best practitioners use in drafting introductions and preliminary statements.   Such information is catnip for all ambitious attorneys.

News Source Three: Put 'em to the Test

For another data gold mine, consider administering objective assessments for such skills as speaking, writing, and negotiating—or even for knowledge of, say, the securities laws.  Such assessments are fairer than any other existing evaluation system.

For my part, I’ve created a 75-question objective writing test that uses loads of data to predict, say, which associates will run into trouble and which will excel. I can share with you, for example, that attorneys of all levels who are sent to me for coaching nearly always have trouble on my test with choosing the right transition phrase: Is it “put another way” or “that said”?  Life imitates the test. In these attorneys’ “real life” writing, their skill gap often leads to choppy and repetitive prose.  So I refer them to my list of 110 transition words and phrases, and soon they’re replacing “furthermore” and “however” with “even so” and “true enough.”

Objective assessments can also help track the skills progression from law students to senior partners, one of the hottest topics in professional development today.  Take grammar.  Fill in the blank in this sentence: “If you have any questions, please feel free to contact John or_____.”  Is it “I”? “Myself”? “Me”?  And should John’s name go first or second?  About 51 percent of law students know the answer.  68 percent of associates do.  And 93 percent of partners do.  So the assessment allows me to tell associates that if they want to write like partners, here are the 25 grammar rules they’ll need to master.

News Source Four: "The Deciders"

A final source of data on the “how” as opposed to the “what”: the end users of your attorneys’ product.  Ask your clients, or even judges and regulators, what impresses them.

A simple case study: Writing and circulating “client alerts” takes up a lot of attorney time that might otherwise go toward billable work.  Most client alerts never get read, I’ve learned.  So I have often asked executives what makes them read one of these pieces as opposed to heading for the “delete” key.  I share their responses with partners and associates alike, helping them not just write better client alerts but also develop more business.

So here’s the bottom line: the “snooze” approach to competencies—listing things that people already know intuitively—has its uses, and it improves on the vague models of the past.  But if you want to usher in “Competencies 2.0,” unearth some specific strategies that will generate some “news” that your attorneys can use to attain their long-term goals.

by Founding Dean and Distinguised Professor of Law Erwin Chemerinsky

Editor’s Note: Summit Recommendations #1-4 and 16 urge law schools, as the first stage in the continuum of legal education, to build in practice skills--core competencies--into their curricula, to use modern teaching techniques and to expose all students to serving underserved populations. See Recommendations linked above. Having had the vision and the opportunity to start a law school from scratch in recent years, Dean Erwin Chemerinsky and the University of California at Irvine have pursued such steps. I thought it would be interesting and enlightening for our readers to hear from the Dean himself on how they have approached 21st century challenges at the school. Further information is available from Irvine’s excellent website at www.law.uci.edu. CCB

Professor of Law Erwin Chemerinsky

From the outset our goal has been that UCI Law would be in the top 20 of American law schools by every measure. Our faculty and students are definitely of this caliber. There are, however, many excellent law schools in the United States. What makes us different?

First, we strongly emphasize preparing students for the practice of law at the highest levels of the profession. Every study of legal education has lamented the failure of law schools to prepare students to be lawyers. We have redesigned the curriculum to be different in this regard. For example, all students must participate in a legal clinic as a graduation requirement in which they provide legal services under the direction of a faculty member.

In fact, the clinical experience begins in the first year when all students as a part of their Lawyering Skills class must go to the public defender's office or a legal services office and do in-take interviews of prospective clients.

Another example is an innovative first-year course on the Legal Profession where all students learn about professional ethics and also about the economics, sociology, and psychology of the profession. Throughout the first-year and upper-level curriculum there is great emphasis on incorporating skills training into traditional classes. For example, when I teach Civil Rights Litigation, I have students draft a complaint, do a discovery plan, and engage in a negotiation.

Many courses have involved mock arguments and role-playing exercises. At the same time, the Law School is highly interdisciplinary, with faculty with joint appointments in many other departments on campus and many students pursuing dual degrees. Many employers already have remarked that UCI Law students are the best that they have seen.

Second, we are creating a community of faculty, staff, and students united by the common desire to create a very special Law School. Integral to this is the small size of the school. In 2011-12, there will be approximately 59 third-year students, 83 second-year students, and about 100 first-year students. First-year students will have almost all their classes in groups of 25 or 33 or 50. Many upper-level classes are under 10 students.>

The small size of the school maximizes the opportunity for interaction between students and faculty. It is a school that strongly emphasizes high-quality teaching. Teaching ability has played an important role in our hiring and promotion decisions. Faculty are encouraged to use multiple evaluations and not just a finale exam in determining a student’s grade.

The small class size also allows us to work with each individual student to find the career path that is best for him or her. All of the class of 2012 and almost all of the class of 2013 were employed in the summer of 2011 in legal jobs, including many at the most prestigious law firms and public interest offices. Already, a number of students in the class of 2012 have obtained prestigious federal judicial clerkships for after graduation.

The atmosphere of the school is warm and collegial. Everyone - faculty, staff, and students - has the chance to play a key role in shaping the school. The students have created numerous organizations, many of which don't exist at other law schools. These include, for example, the Orange County Human Rights Association, the Neuroscience, Law and Ethics Association, and the UCI Space Law Society. For more detailed descriptions of the groups, see http://www.law.uci.edu/students/organizations.html.

Third, the school is deeply committed to encouraging our students to do public service work. The Law School has a vibrant pro bono program of placing law students in pro bono opportunities. In 2010-11, 92% of all of the first-year students did pro bono work. In the summers of 2010 and 2011, every student doing public service work received a stipend to help provide compensation.

Like any skill, practicing law is best learned by doing it. The pro bono and clinical opportunities provide a terrific opportunity for our students to do good and also learn a great deal from the experience.

Our goal is to create the ideal law school for the 21st century and we believe that is exactly our path as we begin our third year of having students in the fall of 2011. We believe that we are creating a law school like no other.

By Mark Grunewald, Interim Dean and James P. Morefield Professor of Law

Mark Grunewald, Interim Dean

W&L Law's third year curriculum builds upon and expands the lessons of the first and second years of instruction, moving students from a passive classroom role into one more closely connected to the world of legal practice. The new curriculum seeks to blend the practical and the intellectual challenges of lawyering into a diverse range of simulated and actual practice-oriented experiences.

The new third year curriculum is not merely a year devoted to practice skills, though lawyering skills are addressed in a variety of ways. Instead, the primary focus is to develop in law students the habits of mind and judgment of legal professionals, in short, to learn and apply law the way lawyers do in the process of solving problems for their clients.

Each third-year semester begins with a two-week skills immersion—a litigation-based experience in the fall and a transactional-based experience in the spring. In the fall, students are engaged in the simulation of an employment dispute that follows a traditional litigation path. In the spring, they handle a simulated purchase and sale a business, representing either the buyer or seller at each stage of the transaction.

Students emerge from these intensive experiences with something of a "tool kit" available to them for use and adaptation to other matters in different practice areas. For example, they are instructed and gain experience in client interviewing and counseling, negotiation, drafting in a variety of settings and a range of litigation-related skills. With the immersions focused on both dispute resolution and transactional work students are forced to confront practice environments and challenges they might not have considered otherwise, and develop a fuller sense of possible career paths. This exposure also creates a baseline set of lawyering competencies and skills across the entire class.

For the remainder of each semester, students enroll in two electives in the form of practice-based courses, clinics, or externships. Over the course of the year, students will enroll in four of these modules, or three in the case of a year-long clinic commitment. At least one of the four electives must include real practice experience in a clinic or an externship.

In assembling their third-year program, students can choose from five in-house clinics and an array of externships with judges, prosecutors, public defenders, law firms and government agencies. In addition, they have available numerous simulation courses, known as practicum classes, that span the range of legal practice areas, both litigation and transaction based. For example, in the last year, students participated in classes involving criminal practice, fiduciary litigation, mergers and acquisitions, sports law, federal energy regulation, failing businesses, insurance litigation, international human rights and business planning.

These classes are taught by both our permanent faculty and by practicing attorneys from some of the nation’s leading law firms.

Practicum classes turn the learning model of the first two years of law school on its head, switching from a passive to an active mode of knowledge acquisition and assimilation. There are no lectures or exams. Rather, students meet in small groups or individually with teachers and simulated clients, building upon their knowledge base and developing a professional identity in the process of solving problems.

They are graded based on their performance across the entire semester. The ability to meet deadlines, generate appropriate work product, operate within a team setting and effectively represent client interests all contribute to a student’s final evaluation.

Our intention is not to replicate completely the life of a first year attorney in any of these practice settings. While students do commit to a substantial workload of 15-20 hours per week, per module, there is ample time for critique, mentoring, and teaching advanced subject matter, all reflective of the importance we attach to the close student-teacher relationships we foster across the entire curriculum. Our program is not two years of academic study followed by one year of practice, but three years of demanding, intellectually rigorous legal education.

There are two additional required components in the third-year curriculum that students take on a pass/fail basis. Students participate in a year-long course that explores major contemporary issues in the legal profession including the economic, social and cultural forces that affect legal practice and life as a lawyer. Students also must complete 60 hours of law-related public service, which can be satisfied through a variety of activities both inside and outside of the School. For example, students have fulfilled this requirement by teaching a “street law” course in the public schools, conducting research in support of online public legal resources, assisting in the preparation of wills and related documents for military personnel prior to deployment, and work for a social service organization, such a battered spouse shelter or a senior center.

Beginning in the fall of 2009, the new curriculum was offered on an optional basis for two years to permit the Law School to develop the necessary courses and to plan for full implementation. In 2009-10, about 66% percent of the 3L class opted in to the program. That percentage grew to 75% for 2010-11. Beginning in the fall of 2011, the program will be required for all third-year students.

From the outset, the faculty committed itself to rigorous assessment of the curriculum as it progressed through the phase-in period. We conducted focus groups and exit interviews with students in the program, as well as with those opting to take the existing courses traditionally available to third-year students. Faculty who taught in the new curriculum also provided feedback. We gathered comprehensive data on cost comparisons with “traditional” curricula, effects on class enrollment and bar passage, and other factors. The ability to gather data and experiences from two distinct third-year curricula was a particularly useful factor in the initial stages of the assessment process, as it allowed the Law School to directly compare the pros and cons of curricular choices.

The recent National Association of Law Placement report detailing the high level of satisfaction recent law school graduates expressed with the “real world” training they received is certainly consistent with what the students who have completed our new third year curriculum have told us about the experience. After two years of traditional classes and exams, our students have relished the opportunity to engage the law in a different way and to be challenged in different learning settings as well.

Since students are graded on work product and performance across the semester, success is defined very differently in the new third year. Perhaps the most common reaction from students has been their appreciation of the change in perspective that occurs in the third year, from concerns over personal achievement measured by an exam grade to a sense of professional achievement measured by providing effective representation to a client, whether real or simulated.

Interestingly, while both the levels of challenge and sense of success are heightened in the third-year curriculum, the workload is in fact heavier than what many third-year students have come to expect. This might seem to pose a significant hurdle for genuinely demanding experiential education in law schools. But we have found that our students have risen to the occasion. The reward to work ratio turns out to be high. The experience we offer may not be right for every prospective law student, but for students who want a rich and meaningfully varied, three-year professional education, W&L offers a unique opportunity.

For more information about the Washington & Lee third year curriculum, see http://law.wlu.edu/thirdyear/ .

New York Law School Dean Rick Matasar
photo: John Halpern

After serving New York Law School for 10 years as an innovative and reform minded dean, Richard Matasar announced earlier in this week that he will be leaving during the coming academic year for other opportunities in higher education.

Matasar, who was an active leader in the Equipping Our Lawyers Summit and in the recent project with Harvard Law to identify new approaches to legal education, will be missed in the legal education world. But we predict that his contributions to higher education in the future--including legal education--will be impressive.

For Karen Sloan’s complete story on Matasar’s announcement in The National Law Journal, see http://is.gd/b3nk9z.