How lawyers can reengineer our profession from the bottom up
Susan Smith Blakely.
Sometimes you just have to tear something down and start over again—like when you were a child and built a house of blocks or constructed a bridge with your Erector set, and it came tumbling down. You discovered too late that the foundation was not strong. It needed a redo.
The law profession today is showing signs of similar structural insecurity. Before it is too late and our house comes tumbling down upon us, we need to look at the integrity of the foundation that supports our profession. If we examined the experiences of entry-level lawyers, we would see that our profession is broken at its core.
I encounter so many struggling young lawyers today. I see the uncertainty and discontent that overtakes them, disrupts them and undermines their confidence as they enter the profession without adequate preparation for the experience and the safety nets they deserve.
I hear the pain behind their words and I wonder what it will take to improve the profession for young lawyers, both to elevate the quality of their experiences and to retain their talent to benefit our institutions. I wonder how we will be able to gain cooperation and activism from senior leadership to reengineer our profession from the bottom up.
Law school redesign
It all starts with three years of law school and the assumption that academia can produce competent and “practice ready” lawyers. Experience tells us that this assumption is flawed.
The focus on the concept of practice ready in the law profession is not novel, and for years, experts within and without legal academia have advocated for practice-ready law school graduates. But most law schools do not require skills-based clinical or trial experience for graduation. Rather, the emphasis in law school is on legal analysis, which is critical, and memorization, which is not, resulting in too many law school graduates who can analyze and memorize but cannot perform.
We need to change law school curricula and required courses. Students should be trained in pretrial and trial practice, negotiations, drafting, business management, team building and other core legal practice skills. These changes will require trade-offs with more traditional law school courses, but they will meet the needs of 21st-century lawyers.
Even if many lawyers will not embrace litigation practices, most of them will at some time during their careers enter a courtroom for a professional purpose. And the desired outcome is that they know what to do in that setting and how to appear professional. The same is true for the skills that are fundamental for a transactional practice. Anything less reflects poorly on the profession.
Revisions to law school curricula should not be considered in isolation, however. Reengineering the profession also will require mandatory legal apprenticeships, a fresh look at the content and necessity for bar exams, and a serious investment in mentoring.
Mandatory apprenticeships and internships
Most lawyers agree that the third year of law school is not necessary. What needs to be taught can be accomplished in two years and can be followed by one year of a mandatory apprenticeship or internship. Eligibility to finance those postgraduate experiences through student loan programs should be part of any such initiative.
Mandatory apprenticeships or internships are essential in other professional licensure programs: Medical licensing requires clinical rotations during medical school and postgraduate internships and residencies for specialty fields to assure competency; veterinary licensure requires a full clinical year of training during veterinary school; and dentistry requires clinical training during two of the four years of dental school and both written and clinical components to postgraduate licensure testing.
These intensive on-the-job training programs are viewed as invaluable to reaching acceptable levels of competence and confidence to begin practice. It is something that needs a very thorough review and debate throughout bar associations in our country.
Revisions to bar exams
Bar exams also should test practice-ready skills as well as familiarity and competency with application of black letter law. The traditional approach of testing the ability to memorize and regurgitate the elements of a tort or crime is a waste of time in the legal education process. Although I still remember some of my bar exam acronyms, I surely would not rely on them today without researching current law and controlling statutes—because malpractice is such an ugly thing.
Or maybe—and I know this is very controversial—bar exams become unnecessary after mandatory and rigorous apprenticeship programs. The recent pandemic-related debates about the necessity for bar exams and the popularization of the Wisconsin diploma privilege concept make me think that it is time for a serious discussion on this topic. One thing is certain: We should be more concerned about effective preparation for new lawyers than about lining the pockets of bar exam prep providers.
Effective mentoring for entry-level lawyers
Without the kinds of reengineering initiatives proposed here, the predictable path for many entry-level lawyers is fraught with panic, insecurity, frustration, disappointment and regret.
I recall similar frustration on a particularly bad day years ago when I was an entry-level associate lawyer:
Partner: A “proposed order”? Really, Susan? That’s how you captioned this order? Don’t you know that judges do not sign “proposals?” They sign final orders.
Susan: Yeah, I know that (sheepishly backing up and out).
A continuous film loop of experiences like that still repeats itself in my head many years later, and the ending is always the same: humiliation. No one taught me those things in law school; I did not learn them in an apprenticeship; and they were not covered on the bar exam.
In my associate days, positive mentoring and tough love were present in equal proportions. Both were delivered with the devotion and knowledge that developing young lawyers was the professional responsibility of seasoned practitioners.
However, the failure of effective mentoring in the profession today leaves young lawyers unnecessarily vulnerable and also exposes organizations to loss of talent and uncertain succession plans. The need to address these issues is especially urgent in highly impersonal large law firm settings.
There are no water coolers anymore. There are few conversations in the hallways, and there are not many hallways in these pandemic times. And even when our workplace experiences included offices and hallways, partners’ doors were shut, and junior lawyers were shackled to their desks trying to make minimum billable hours and avoid embarrassing mistakes.
Today, too many entry-level lawyers struggle singularly and in isolation, afraid to show vulnerability to those could-be mentors who fail them. Young lawyers are humorless because they are intimidated and afraid to expose the chinks in their armor, unable to gain all of the benefits of learning from their mistakes in a supportive setting.
Why does it matter?
It matters because the path from law school to premature departure from practice for reasons of disillusionment, dissatisfaction and loss of self-respect is littered with serious cases of anxiety, depression, addiction and thoughts of suicide. It has sparked the need for programs dealing with these afflictions, including mindfulness and meditation programs, self-help books and programs addressing subjects like “the anxious lawyer.”
The more serious challenges will require employer awareness of the problems through effective mentoring and support for mental health and addiction interventions, as recommended by a recent American Bar Association initiative. The toll that these challenges are taking on the well-being of our young people is alarming.
So we must become proactive and reengineer the profession. We must be diligent and scrutinizing in our approach, and we cannot settle for less to avoid the appearance that we have failed.
We will not have failed. We will have evolved.
Susan Smith Blakely is a former partner, law career counselor and author of the Best Friends at the Bar book series for female lawyers. Her most recent book is What Millennial Lawyers Want: A Bridge from the Past to the Future of Law Practice.