More on legal education
posted by Frank Bowman
One of the commenters on my opening salvo on legal education raises a point I thought might come up – essentially the much ballyhooed assertion that clients are no longer willing to pay for the training of young associates. The implication being that because clients are less willing to pay for hours billed by ignorant or inefficient legal rookies then law schools must necessarily adjust curricula to provide training no longer available through law firms. Although I’m in favor of doing more to prepare practice-ready graduates, I’m not at all sure the “clients won’t pay for training” story really flies as a rationale for doing it.
First, I don’t think clients were ever consciously “paying for new associate training.” What may have been true is that, in flusher times, big firm clients more readily accepted the overstaffing of cases and the sometimes comically high hourly rates big firms billed for the low-value-added time of young associates. The result was that big firm clients “paid for” associate training in the sense that the associates were learning on the job and their firms were able to earn big profits from their time while they did so. Now, it appears that big firm clients are more sensitive to overstaffing and are unwilling to pay high hourly rates for inefficient or low-value-added associate labor. The result cannot be that big firms aren’t training their new associates. That would be suicidal. The associates have to be trained or they will be unable to produce the high-quality work for which clients ARE willing to pay and on which the firm’s reputation and long-term survival depends. Rather, to the extent a client rebellion against expensive associate billing is underway, the real effect will be to reduce the number of associates hired because they are no longer automatic profit centers. Which is pretty consistent with what we see in the marketplace.
Now, reduced big firm associate hiring is bad for our graduates because there are fewer job opportunities and bad for law schools in the sense that, as the market for lawyers shrinks, so too does the market for law training. BUT it is not at all clear that this market perturbation can be remedied, or even much affected, by alterations in law school curriculum. We can and should make our graduates more practice-ready, but no conceivable modification of law school curriculum would provide the highly specialized subject matter and skills training necessary to transform a Big Law rookie into a midlevel associate worth her $400/hour. That sort of refined training will always be performed on the job. The very best law schools can do would be to provide a better foundation that might speed the developmental process by 6 mos or a year.
Second, most of the talk about changed client willingness to “pay for” associate training is Big Law talk. In the less rarified regions where most students from non-top-20 law schools find jobs, clients have never been willing to “pay for” young lawyer training in any sense. So firms bill young associate time at low rates or bill for fewer hours than the new lawyers spend in order to avoid alienating clients. Nonetheless, such employers – like those in Big Law – know that they have to train their new lawyers if they are to become assets. And they do – some better than others – as an investment in future improved productivity and economic return. I don’t think there is anything new about this. The change, if any, in current circumstances is the overall decline in legal business with a concomitant lower demand for investment in new associates to grow practices.
Still, law schools may be able to help our students and their prospective employers (large and small) by shortening the interval during which they are unproductive assets of the firm. More practice-ready graduates can develop faster into lawyers worth their hourly rates. This in turn shortens the payout period on a firm’s investment in a new associate and raises its rate of return. All of which should, in theory,increase lawyer hiring (or at least give a competitive advantage to graduates of schools who produce practice-ready diplomates).
Does this make sense?
May 8, 2012 at 12:57 am
Tags: Legal Education
Posted in: Uncategorized
Print This Post
Responses (11)
Shag from Brookline - May 8, 2012 at 8:00 am
Perhaps before getting to the closing question:
“Does this make sense?”
there should be addressed the question of the big law firm model, whether it makes sense. Consider the current situation re: Dewey & LeBoeuf. “Too big to fail” does not apply to mega law firms but “creative destructionism” may. Are we perhaps approaching the commodification of the practice of law? Is income inequality in the practice of law an offspring of income inequality in general?
A.J. Sutter - May 8, 2012 at 11:14 am
Even in the Good Old Days, it wasn’t necessarily the case that big firm clients “more readily accepted the overstaffing of cases and the sometimes comically high hourly rates big firms billed for the low-value-added time of young associates.” Rather, it’s that they accepted more experienced lawyers’ high hourly rates enough that partners in big firms could afford, and were willing, to write off the low-value-added time of young associates. At least, that’s how it was in the mid-1980s, when I was told that my $42,000 Big Law salary was a “princely sum.” But at least I was mentored, and by folks who had spent 4 or 5 decades at that same firm. Your description was becoming more apt during the 1990s, and especially during the dot-com era (and maybe during the pre-Lehman bubble, too, though I personally wasn’t paying much attention to US law firms around that time). By that point, mentoring, firm loyalty, and willingness to write off time all were out the window at the larger firms.
Nonetheless, I didn’t make the comment to your previous post in the context of arguing that Big Law firms would hire more associates if they were practice-ready. Rather it was merely to dispute whether it truly was a reasonable idea to return to the pure Langdell model for legal education, as you had mused. Very possibly there would be fewer hires in that case.
As for the overall sense of this post, I think Shag’s question about commodification is apt. The Econ 101 story of cost-goes-down-demand-goes-up that you present in your penultimate paragraph is maybe both too mechanical and too micro in its outlook. A quarter-century ago, when I was looking to lateral as an associate, the L.A. office of an English firm told me that a position was available because they needed “to fill in the interstices of the pyramidal hierarchy.” Today, firms have many more options for how to do that, including folks in India, software, non-attorney contractors, etc. I would imagine these options aren’t confined to big firms.
Another good set of questions is raised by your phrase “practice-ready.” Early in my career, my mentor complained to me about a mid-level associate (whose work he actually very much appreciated, it later turned out), “I just don’t understand … Didn’t her father ever sit down with her and talk with her about BUSINESS?” I said nothing, because my own father knew very little about business, and we never spoke of it, either. But understanding business — in particular, the client’s business — is the second-most important skill a transactional practitioner needs. (The first is an eye for sizing-up people; and substantive legal knowledge is #3.) The problem is, “understanding business” has a different meaning today from what it did back then. If we expect law schools to provide young lawyers with an understanding of business today, we can expect that they’ll be fed a very neoliberal story about what business is, because that’s the academic understanding of business. Should we be training law students to serve this ideology? There was some discussion of this point on this blog a couple of years ago when Michelle Horner was a guest blogger, though the question remains pertinent.
A.J. Sutter - May 8, 2012 at 11:21 am
Sorry — Michelle Harner, of course.
Anon - May 8, 2012 at 3:15 pm
I would appreciate hearing about particular, concrete programs that make students more practice ready.
Given that Brian Tamanaha has already made nearly every point you’ve made in this and your other post, you may well be unwittingly illustrating your earlier argument about legal scholars producing duplicative and unnecessary work.
It might also be instructive for readers if you could explain how your own work escapes such condemnation, so they might better avoid “shouting into the well.”
Frank Bowman - May 8, 2012 at 7:22 pm
Dear Anon:
Several of your questions, despite the studied rudeness of your tone, are fair enough.
As for programs that make students more practice ready, I listed in my original post the basic pedagogical approaches to enhancing practice readiness – broadly, experiential learning course and simulation courses. For perhaps the leading operational example of how to integrate these approaches into a law school curriculum to produce practice-ready graduates, I’d refer you to the program at Washington & Lee. Here at Missouri we are considering a concentration plan that would construct subject matter course sequences incorporating both doctrine and skills culminating in a capstone course. For a less ambitious approach see the forthcoming article by Michael Cassidy in the BC Law Review titled, “Beyond Practical Skills: Nine Steps for Improving Legal Education Now.” It’s on SSRN. And if you are really serious about learning how such reforms might work, contact me with your real name and I’d be happy to share some of the work we’re doing here at Missouri.
As for my own work, I make no claim that it amounts to more than shouting down a well. To the extent I have had good fortune in placements, I attribute that largely to happy choices of hot topics. But whether much of anyone reads law review articles, mine or anyone else’s, even those in fancy journals, is an entirely different question. And the older I get, the more I doubt it.
I do have some ideas about how to make academic legal writing better, more accessible, and more useful to the profession. But I’m not sure they amount to much more than my personal preferences. Again, if you’re serious about this, let me know, and I’d be happy to offer what thoughts I have.
Orin Kerr - May 8, 2012 at 11:05 pm
Frank writes: “For perhaps the leading operational example of how to integrate these approaches into a law school curriculum to produce practice-ready graduates, I’d refer you to the program at Washington & Lee. ”
That raises an important question: Does anyone know if the W&L program is working?
Joe (not that one) - May 9, 2012 at 12:16 am
“I do have some ideas about how to make academic legal writing better, more accessible, and more useful to the profession. But I’m not sure they amount to much more than my personal preferences. Again, if you’re serious about this, let me know, and I’d be happy to offer what thoughts I have.”
I’m not the anon from above, but I’m interested in this. Mind if I contact you (with my “real” email)?
Jim Moliterno - May 9, 2012 at 9:36 am
Orin Kerr asks: “Does anyone know if the W&L program is working?”
It is off to an excellent start. We have just completed our first year of requiring the new curriculum of all 3Ls after two years of providing it on an opt-in basis. During those two years, about two-thirds of students opted in.
We have been refining various elements of the curriculum and continue to do so. The two, two-week immersions that begin each semester (one litigation and the other transaction-oriented) start the students off with a basic skill set and mental picture of practice. The clinics and externships require each student to engage with live clients. The practicum courses provide a wide variety of practice-setting specific, elaborate simulations (The Lawyer for Failed Businesses, Poverty Law Litigation, Corporate Counsel, IP Practicum, Family Law Practicum, E-commerce Practicum, Criminal defense Practicum, etc.). And the one-credit Legal Profession course exposes students to a range of current issues regarding the legal profession’s economic systems, culture, and nuanced relationships. Finally, each student engages in one-credit’s worth of law-related service.
We did what evaluation can be done at this early stage and are pleased with the results of our consultations with law firms and judges, the focus groups of students, and the interviews with teachers of the new courses. We are seeing a subtle change in student culture during the third year. Students move from the attitudes and habots of students to the attitudes and habits of lawyer-professionals.
We have evaluated the costs associated with the curriculum (not more expensive than our prior standard third-year curriculum) and the bar pass rates of our students who have participated in the curriculum (no statistacally significant difference to date).
The students appear to be more ready for practice, but not “practice-ready” to the extent that term now means “ready to practice without further guidance.”
We will, of course, continue to monitor results.
Frank Bowman - May 9, 2012 at 9:36 am
In response to Orin’s question, my impression from talking with friends at W&L is that their program (in which most of the third year is devoted to teaching the integrated cluster of skills employed to engage in complex legal problem-solving) is working reasonably well. As I understand it, they’ve made some modifications in light of experience, but remain committed to the program. But only someone from W&L could really answer this question knowledgeably.
Dave Hoffman - May 9, 2012 at 10:30 am
Jim,
That all sounds great! Though it is rather impressionistic except for pass rates & costs. Have you built in non-focused group methods to measure inputs and outputs (or even alumni perceptions of the same)? I guess I had heard different information – again, totally an impression – and would like to know more.
Dave
Jim Moliterno - May 9, 2012 at 12:45 pm
Dave, we will certainly monitor our alums (and the the greatest extent possible, their employers’) reactions. It is still a bit too early to know much on that front because we just last week graduated the first full class through the curriculum.
Jim
Leave a Reply