The 'think like a lawyer' approach to law school is outdated
I have been writing about change within the legal industry for a few years, but have held off commenting directly on the law school and bar experience for a couple of reasons.
First, I had not taken the bar exam until this February and second, I wanted the time to talk to people in other professions and in other countries. I believe we need to make substantial adjustments to the U.S. law school education and qualifications in order to better serve our clients.
THINK LIKE A PROFESSIONAL SERVICE PROVIDER
Anyone who has gone to law school knows about the infamous “think like a lawyer” mantra where we are taught to be adversarial. And while that can work for those involved in the small percentage of cases that actually go to trial, I would suggest that in a world where alternative dispute resolution includes negotiated settlements and mediation, we adjust and expand law school training. I just started taking a Masters-level negotiation class and two readings struck me as relevant to the needed change in law school curriculum.
Andrea Kupfer Schneider’s 2002 article, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiations Style, discusses this notion that we are training law students to wield power instead of knowledge. The idea is that lawyers view bargaining or adversarial negotiating as a risk-averse alternative to problem solving. Kupfer outlined that law students are taught to fight from their first year in law school. Additionally, students review cases and disputes at the highest courts using, of course, the Socratic method, which can led to more aggressive exchange than class debate. The notion that our professional rules ethically permit puffery and exaggeration means we are training new lawyers to represent clients and negotiate very close to the ethical line. Instead of conditioning lawyers to be adversarial from the beginning, we should mandate classes in alternative dispute resolution.
Next, law professor Joshua Rosenberg describes the shortcomings of the “think like a lawyer” approach with respect to problem solving in his article, Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, of Human Relationships in the Practice of Law. Published in 2004, these ideas were not reflected in my 2008 law school experience, and don’t appear to be widespread today. Rosenberg asked that students apply their fact-gathering, logic, and reasoning skills to problem-solving as opposed to adopting a combative approach. He comments on the need for teaching around learning and application of perception, communication and other relationship skills.
To me, that brings up the issue that new lawyers in the U.S. are not required to take a course on how to work with others or how to run a business, and there is no practical experience or internship necessary prior to practice.
ADOPT AN EXPERIENCE REQUIREMENT
I started my career as a professional accountant in Canada in the late 1980s. We had an articling requirement, which is a term for a supervised work experience. My friends who became lawyers in Canada at the time also had similar articling requirements. I am now married to a U.S. professional engineer who had to take an exam after school before four years of work experience and a final exam. A certified public accountant in the U.S. requires at least one year of supervised work experience. It’s common knowledge that doctors need to do residencies in most countries, including the U.S. Depending on the specialty, a doctor can spend between two and six years in a residency after a one-year internship. I believe that we need to adjust the U.S. law school experience to include a comparable, supervised practical experience component.
In Canada, to become a professional accountant, one must obtain a four-year undergraduate degree and then take a preparation course. That person must also pass a national exam that takes place over three days, as well as satisfy a work experience requirement that can last for two to three years. That practical experience is tailored based on chosen career path, for example those who wish to work as an auditor will work for an accounting firm.
This concept should also be extended to law school—but more on that in my next article.
LOOK TO OTHER COUNTRIES FOR GUIDANCE
From my many conversations on these topics and reading Gillian Hadfield’s Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy, I firmly believe we need to go outside the law. I think we need to look further than other professions and get over only considering the American approach to the legal industry. An attorney in Ontario must complete articling through either work experience or a course. The latter was created because there were not enough articling positions for new graduates. The description of the purpose of the articling program below outlines why we need this approach for U.S. law students:
Experiential training enables candidates to apply their formal learning and develop their skills, professional abilities and judgment, and to learn about what it means to be a lawyer. The experiential training component of the licensing process is designed to assist the candidate to become prepared for entry-level practice.
Looking to other countries, I could not find one that allows lawyers to practice without some type of supervised work practice after a legal education. Mexico has a non-mandatory one- to three-year internship, but requires some social work experience. The UK demands at least one year for barristers and two for solicitors and Australia has practical education beyond law school plus work experience ranging from three to six months. Other countries’ requirements range from six months in Chile; one year in France; one to two years in Ireland; 18 months in Italy; two years in Germany; and three years in both Hungary and the Netherlands. All of these countries have similar education requirements as the U.S., but supplement that with practical experience to better prepare graduates to serve clients.
I am by no means an expert on this topic, but I am passionate about trying to change our profession for the benefit of clients. Anyone interested in being interviewed on this topic, whether you have ideas or are implementing change at your law school, please reach out to me on Twitter @maryjuetten.
Mary E. Juetten, CA, CPA, JD is founder and CEO of Traklight. In 2015, Mary co-founded Evolve Law, an organization for change and technology adoption in the law. She was named to the ABA’s Legal Technology Resource Center 2016 Women in Legal Tech list and the Fastcase 50 Class of 2016. She is the author of Small Law Firm KPIs: How to Measure Your Way to Greater Profits. She is always looking or success stories where technology has been used to bridge the justice gap, from pro-bono through low-bono to non-traditional legal services delivery.