When Will Law School Change?

• Publication year: 2021

89 Nebraska L. Rev.87. When Will Law School Change?

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Steven C. Bennett(fn*)

When Will Law School Change?

TABLE OF CONTENTS

I. Introduction..........................................87

II. The Need for Change .................................90
A."Real World" Connection ..........................91
B.Professional Habits................................94
C.Ethical Sensitivity.................................97

III. Resources for Law School Change ..................... 101

IV. Barriers to Law School Change........................ 103

V. Will the Market Force Change? ....................... 107
A.Economics of the Profession .......................108
B.Access to Information .............................119
C.Focus on Outcome Measures.......................123

VI. Conclusion............................................128

I. INTRODUCTION

Law schools, to paraphrase the fictional Professor Kingsfield, take students who know next to nothing about law, and teach them to "think like lawyers."(fn1) But a rough understanding of the methods of legal analysis does not necessarily equip budding lawyers with all the skills required for success in practice.(fn2) Most importantly, although

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the ability to interpret rules of ethical conduct is one important element of the law school curriculum, mere familiarity with the rules of professional responsibility cannot impart sensitivity to the ethical issues that can arise in practice (much less ensure that new lawyers will place a high priority on maintaining essential standards of professional behavior).(fn3) The recent Carnegie Report,(fn4) an independent external review of law school teaching practices(fn5) which compared legal education with other forms of professional training, emphasized the need to impart basic skills to lawyers before they enter practice, but also expressed concerns about producing lawyers who lack a commitment to professional responsibility.(fn6) These concerns, moreover, have appeared in a series of prior studies and reports.(fn7)

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The question thus arises anew: how can law schools produce "good" lawyers? Recent scholarship and experiments at several law schools suggest an array of potential solutions (big and small), several of which are outlined here.(fn8) The bigger underlying question, however, addressed at the conclusion of this Article, is: when will law school change (on a broader basis)? When will law schools incorporate, more fully, the kinds of changes that can ensure that new lawyers approach their careers equipped with a spirit of professionalism, competence and integrity, and with a genuine drive to demonstrate ethical behavior in all of their actions as attorneys?(fn9) No magic solutions appear,

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but at least one essential component of change must involve demand, by the profession itself, for increased focus on ethics and professionalism. As this Article concludes, the recent economic down-turn may provide a significant catalyst for such change.(fn10)

II. THE NEED FOR CHANGE

Each law school may define its individual mission with emphasis on one or more of an array of concerns-public service, scholarship, and more.(fn11) But, at the core, every law school is an educational institution. Law schools primarily produce one thing: graduates who-for the most part-plan to practice law in one or more fields, in connection with one or more institutions, for some period of time. increasingly, critics and commentators, inside and outside academia, have suggested that law schools can perform that central function better.(fn12)

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Set forth infra are highlights of some of the improvements most often suggested.

A. "Real World" Connection

Law school teaching often relies on the "case method," developed by Christopher Columbus Langdell, Dean of the Harvard Law School, in the late nineteenth century.(fn13) Under the case method, students read judicial opinions, typically from appellate courts, which interpret and apply the law to a particular set of facts.(fn14) Students often do not discuss why the lawyers in a matter behaved as they did, or what else they might have done (or done better). Students are not always asked to consider the client's perspective on the situations described in the cases they read.(fn15) The case method, moreover, teaches students to

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become "Monday morning quarterbacks," critiquing the reasoning of others, while not providing them with the experience of making decisions under difficult circumstances-such as, tight deadlines, client demands, and uncertain information.(fn16) significantly, law students largely work independently.(fn17) In short, traditional law school courses may lack significant "real world" connections.(fn18)

To satisfy some of the need for real world connections, law schools might consider an array of techniques. For example, active recruitment of students with more diverse experience could help the student

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body as a whole gain practical understanding simply by interaction with their peers.(fn19) Imposing some requirement (or at least preference for) practical pre-law school experience could do the same.(fn20)

During school, an array of simulations, "lawyering" courses, and group projects could be offered.(fn21) Experience with actual clients, through clinics and pro bono externships, may also offer practical insights for students.(fn22) More active use of adjunct faculty could bring

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real world experience into the classroom.(fn23) Access to speakers and off-campus events could expose students to the unique opportunities that a legal career can offer-big firms, small firms, solo practice, in-house, government, education, business and more.(fn24) Students, moreover, could be trained to seek out and connect with potential mentors in the legal community.(fn25) in short, through such mechanisms, law students could experience an "immersion" into the community of lawyering.(fn26)

At the end of the law school process, some system of postgraduate placements, connected to the law schools, but aimed at a supervised introduction to full-time practice, might smooth the transition from school to the profession and at the same time inculcate essential values.(fn27) Law schools, moreover, might encourage their graduates to return to law school on a regular basis to interact with students and recount the course of their professional careers.(fn28)

B. Professional Habits

While ethics training is now a staple in law school, most students take only one course on professional responsibility, which is focused

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on learning essential ethics rules.(fn29) That course, often taken in the third year of law school, is largely seen by students as no more than a requirement for graduation and an aid to passing the ethics component of the bar examination.(fn30) in most cases, students receive little detailed instruction in the professional habits of good lawyers(fn31) and are seldom shown samples of exemplary legal work or successful careers.(fn32)

To provide a greater emphasis on the basics of professionalism, law schools might consider several steps.(fn33) More team assignments (e.g., group writing projects or group work in simulations and clinics) could help remind students that they are entering a social profession where relationships with others, based on trust and integrity, is of paramount

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importance.(fn34) Even if not structured as legal clinical training, students could engage in some form of group public service, including service to the law school itself, as part of their law school career.(fn35)

Students should also get some experience as clients themselves, perhaps in role-playing exercises, to help them recognize the needs of those they may come to serve.(fn36) Training in interviewing skills, counseling and negotiating-all among the most basic and transferable skills for use in practice-can help students develop a sense of the elements of lawyering that extend beyond pure legal reasoning and analysis.(fn37)

Most students, moreover, would greatly benefit from some demys-tification of the profession. Students who are seriously considering opening a solo law practice after graduation, for example, need to

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know basic rules of law office management. in particular, students must recognize certain "defensive" aspects of practice: an effective conflicts checking system, retainer agreements, client trust accounts, professional liability insurance, and the like. Even students who plan to join larger firms could receive some essential instruction in the "nuts and bolts" of practice.(fn38) Some exposure to the project management elements of legal service-such as, delegation of responsibilities, team meetings and communications, and even how to bill for time spent on a matter-would permit students to embrace good professional habits as they enter the practice.(fn39) Career development training aimed at outlining the many career options and choices that students face, coupled with some form of access to representatives of the profession (e.g., speakers, adjuncts, mentors and other role models of "good" lawyers), could help students begin to identify personal goals and pathways to success in a legal career.(fn40)

C. Ethical Sensitivity

instruction in ethics and professionalism clearly must extend beyond mere study of ethics rules and opinions interpreting the rules.(fn41)

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To become...