ABA Journal

The New Normal

Why law schools need to teach more than the law to thrive (or survive)

By Chad Asarch and Phil Weiser

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The ongoing discussion on the future of legal education all too often misses the opportunities for innovation and re-invention.

In its most recent discussion of the topic, for example, the New York Times highlighted the impact of declining applications (down by around 40 percent from the peak six years ago), fewer jobs at larger law firms, and high tuition in an era of significant student debt. In the article, the Times asked when we will begin to see closings of law schools (in addition to the recent downsizing).

Chad Asarch.

In another recent discussion of the topic, the New York Times profiled one common response to the challenges facing legal education: Cut back on the number of students, faculty, and staff. This approach, in other words, keeps the traditional model and mentality in place, but downsizes it. We believe that there is a far better approach than the retrenchment model focused on by the New York Times: Develop a more powerful value proposition (while holding the line on costs).

The challenges facing legal education are not going away. To be sure, law schools finally hit the end of a five-year decline in applications with an almost 2 percent rise in applications this past year. And some major law firms have reported modest pickups in hiring. But these employers also make clear that their “new normal” is to hire far fewer entry-level lawyers than they did before the Great Recession.

For law schools interested in experimenting with new approaches, the opportunities and ideas for innovation are in plain sight, starting with engaging a range of employers (not just large law firms) in a conversation on what competencies (that is, what sorts of skills, whether it’s legal analysis, writing ability, effectiveness working in teams, etc.) matter to them. All too often, law schools focus on the larger law firms, which generally focus on law school GPA and hiring the top 10 percent of the class. Thankfully, there are emerging exceptions to this approach.

Tradition aside, it turns out that corporate America finds little value in the ability to do well on tests. Google, for example, reports that “GPAs are worthless as a criteria for hiring, and test scores are worthless. … We found that they don’t predict anything.” Google emphasizes instead that it wants professionals who are self-starters, can effectively work in teams, and who bring empathy and creative problem solving to their work. At our best, law schools can provide students with opportunities to develop these competencies, which are valued by a range of employers.

At Colorado Law, we are working to engage a range of employers and to develop experiments—on both the curricular and extracurricular fronts—to help students build key competencies and a portfolio of skills that will be valued by employers, including those who traditionally never hired from law schools. This strategy, as explained in this report (PDF), led the two of us to work together to create new nontraditional real estate transactions courses that developed important competencies. The results of this collaboration provide important lessons for the way forward. In particular, this case study underscores how institutions can:

• Identify important competencies.
• Experiment with new approaches for developing them.
• Evaluate and build on the results through new innovations going forward.

One of us (Chad) started as a lawyer in a traditional firm, moved to an in-house law department, and then started his own real estate development company.

Phil Weiser.

The other (Phil) took over the deanship at Colorado Law determined to engage the community and enlist seasoned professionals to help law students build key competencies through mentorship. The two new courses—Real Estate Transactions and Advanced Real Estate Transactions—underscore the range of opportunities open to law schools willing to experiment. These courses are important not only because they enabled students to learn through experiences with real-world situations, but also because they were designed to enable students to develop a number of valuable competencies, including how to work well in teams, learn from feedback, and approach their work with a positive attitude.

In designing both courses, the starting place was that actual real estate deal documents and issues would be front and center. In the foundational class, students began developing the skills necessary to read a real estate transactional document effectively, including an understanding of how the various provisions of the document work together and an appreciation for how different document revisions and additions were necessary to advance the cause of their client. For a more detailed description of this foundational class, please see this article (PDF) by Chad.

In the advanced class, students learned to take their burgeoning understanding of real estate deals to the next level by working on negotiation projects in teams. With respect to both classes, the goal was to build on the traditional “issue spotting” and critical thinking skill set developed in the first year and to focus on practical legal skills (drafting contracts), contextual knowledge (how real estate development works in practice), and professional skills (including working effectively in teams). In so doing, the courses helped students develop as more complete professionals and build key competencies sought after by employers.

The substance of the advanced class bears a brief discussion. In that course, students were divided into teams. The teams were then paired into sets of two, and each team was then designated to represent a particular side of a real estate transaction. Each set of teams then negotiated their own real estate deals as their homework (driven by stylized case studies) and presented in class the results of their negotiations. This collective review allowed all of the students to see what the other teams had accomplished or failed to accomplish in their negotiations. Importantly, the teams were not just attempting to reach “conceptual” agreement on the various issues, but had to present the final agreed-upon provisions in redline form showing changes to the original document that served as the basis of their negotiation. After sharing with one another, the class received feedback on their work product from the two co-instructors. (Chad enlisted his mentor, Gary Reiff, a successful real estate lawyer, to join the class.)

For both elements of the class (the individual negotiations and the class feedback sessions), the emphasis was on collaboration, meaning that the goal was for each individual to do the most to help others improve. To accomplish this goal, each student was required to give each other student involved in their specific negotiation, on both their own team and the opposing team, a plus, minus or check. Students were to award a plus to any participant in their negotiation, whether on their own team or the opposing team, who served as an especially valuable player during the negotiations. This could mean the student was exceptionally well prepared and versed in the issues, the student played a strong positive role in managing the logistics of the negotiations, or the student who routinely came up with creative solutions to problems or issues. Students who proved a detriment to the negotiations were to receive a minus. Such students could be absent from the negotiations, ill-prepared, excessively argumentative, and otherwise a hindrance to resolution of the issues, etc. Students who performed adequately in the negotiations were to receive a check. The results of these peer-to-peer evaluations served as the primary basis for final grades in the class. And while this model might not work in environments where students view success in law school as a “zero sum” game (where students penalize others so they might do better), it worked very well in the collaborative culture that exists at Colorado Law.

The limits of the traditional law school approach—and the limits of a single-minded focus on GPA—came through after students took both classes. Notably, the students who had received high grades in traditional law school classes did not receive the highest grades in the advanced class, receiving among the lowest marks in some cases. Based on the student comments that accompanied their reviews of the other students, some normally high-performing students struggled to succeed in the advanced real estate transactions class precisely because such students (perhaps emboldened by prior success in traditional classes) tended to be more argumentative, less willing to consider the ideas of others, and dismissive of the ability of fellow teammates to help advance the negotiations. Moreover, such “smart” students often failed to participate in preparatory meetings with fellow teammates before negotiating with the opposing team, perhaps because of overconfidence in their abilities as predicted by grades in other classes. Of course, in the real world, failure to prepare and failure to work together with others proves detrimental to any transaction-based negotiation. Furthermore, a reputation as a “difficult” or “abrasive” lawyer makes it less likely that others will want to work with you. For such a student, who receives regular positive feedback in the form of high grades in law school, the feedback from this course—that a range of competencies matter and success will not result automatically because one has a high GPA—is particularly valuable.

Through this class (and complementary efforts), Colorado Law students discovered the importance of professional skills (including emotional intelligence) that they might not have previously viewed as important to their success. As students tried to figure out what success meant in this course’s different environment of peer-led grading, they commented repeatedly on how traditional law school classes had not prepared them to work effectively in teams. Instead, students fell back on prior work experience and their interpersonal skills. Students who had a more difficult time in the negotiations, even after being counseled at the midpoint about behaviors that were not serving them well, found it harder to change course from behaviors that otherwise had served them well in law school. For some students, professional skills like working in teams, listening to others, and taking a creative problem-solving mindset do not come naturally. For those students, the class was a valuable reminder of the importance of such skills and an opportunity to start building them. For other students who did not do as well in traditional classes but who thrived in this one, they received validation that they possess and are continuing to develop important and marketable skills.

The world of legal education needs to move beyond a traditional model that has never worked for many of our students. In that sense, today’s challenging environment for law schools is an overdue wake-up call to ask ourselves what competencies matter for our students—that is, what competencies will help them add value as lawyers, policymakers, and leaders—and how can we best teach and deliver those competencies. With a range of promising experiments in new curricular and extracurricular offerings (some prompted by the ABA’s call to articulate key competencies developed by law schools), there are compelling reasons to believe that a reimagined law school experience is a worthwhile alternative to simply shrinking down the traditional law school model.

The new model we suggest is not an easy one to implement, as it will take considerable experimentation, the education of a range of stakeholders on what it means to build a portfolio of skills, and hard work with faculty members (as well as members of the community) to develop strategies for teaching competencies and skills that go beyond the traditional model. We are convinced that this is the right model because it will train professionals for the jobs of the future and open up new opportunities for law school graduates. This model also requires law schools to engage a range of employers—particularly those who have not hired law school graduates before—and convince them to look at law students in a new light. For those law schools unable or unwilling to do this work, there is, of course, the option of simply shrinking their size and continuing to train students for the traditional jobs that are increasingly harder to come by.

Chad Asarch, an adjunct professor at the University of Colorado Law School, is a principal of both Steele Properties, a national low-income housing development company, and the Monroe Group Ltd., a property management company. Previously, Chad was associate general counsel at Apartment Investment and Management Co., practiced real estate law at Brownstein Hyatt & Farber, and clerked for Judge David Ebel on the Denver-based 10th U.S. Circuit Court of Appeals.

Phil Weiser is the dean of the University of Colorado Law School and executive director and founder of the Silicon Flatirons Center for Law, Technology, and Entrepreneurship at the University of Colorado. He has also served as the deputy assistant attorney general at the U.S. Department of Justice’s Antitrust Division, and as the senior adviser for technology and innovation to the National Economic Council director at the White House.

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