By now, you’ve probably seen the New York Times article, What They Don’t Teach Law Students: Lawyering which like some digital version of Helen of Troy, launched a thousand (well, maybe several dozen) blogs — though as Scott Greenfield points out here, there’s lots of fire but no heat; for all of the complaints about law school not teaching skills, nothing has changed. The lack of solution is explained partly by academic stodginess and sheer ignorance: one clueless prof quoted in the article claims that new grads can’t hang a shingle, apparently forgetting about the thousands of lawyers who’ve started their own firms since the beginning of time. Yet, the other problem is the lack of consensus on precisely what skills matter to the practice of law.
You’d think that as a solo, that I stand lock step with the position that law school doesn’t prepare students for the practice of law, particularly for solo practice. But I don’t (even though I do appreciate the shout-out from Victoria Pynchon in Forbes). No, I’m not an apologist for legal education like the academics quoted by Scott – certainly there are many ways to inject reality into the legal educational process. But as a solo – and from what I see all too prominently in solo practice – is that introducing students to forms and how-to’s and checklists won’t do much more than produce human (and more expensive) versions of LegalZoom. Even more dangerously, creating separate curricula to educate “Skadden lawyers” and solos will widen the gap between big law and small fry in our legal caste system while further marginalizing the solo majority in the process.
The experts quoted in the New York Times article use tasks like filing a corporate certificate or drafting a contract or completing forms or drafting a complaint as an example of the “skills” that law school needs to teach. Yet why do we glorify these tasks that can – and in fact, are performed by computerized, quasi-lawyer services like Legal Zoom. In fact, those solos who aren’t able to do more than fill out forms for clients are either (a) going out of business because they can’t compete with lower priced online services or (b) relegated to volume or unbundled service delivered online which though rewarding or compatible with work life balance, may not generate enough revenue to pay the bills.
Forms and checklists also become a crutch, with lawyers focusing on the structure itself rather than the knowledge and judgment that underlies them. Reviewing examples of forms and templates can be highly educational – and with free online services like WhichDraft and documents available on EDGAR and exiling, practical examples abound for those curious enough to ferret them out. But to blindly rely on them without understanding the principles underneath will simply reduce lawyers to human versions on automated products.
What’s worse about skills training, however, is that misguided notion that solos need a special curriculum and that they’re not served by what’s currently taught. This misconception pervades both the academy (where Jeff Kahn at Concurring Opinions suggests that there’s no one-size fits all education for Skadden lawyers and solos) and practicing lawyers (Victoria Pynchon takes issue with the relevance of merger checklists when solos focus on bankruptcy, foreclosure and divorce). Are we not all lawyers? Don’t solos need strong analytical, issue-spotting and writing skills? And couldn’t big law attorneys benefit from skills like learning how to prioritize and culling extraneous or weak arguments so that they can function if their clients have too limited a budget to track down every last argument. Our profession is already stratified enough what with big law attorneys turning down their noses at “lowly solos” and solos who trivialize the academic accomplishments of big law attorneys. Creating separate practice tracks for big law and solos would widen the chasm even further.
No, law school isn’t perfect but I’m not so sure that there’s a need for structural overhaul either. Most schools hire adjunct professors who are practicing lawyers and offer opportunities for hands-on training through clinics, moot court, internships and skills courses. Integrating practical skills (for example, contract drafting into Contract Law) would improve law school further, as would incorporating discussion of ethical issues into substantive law classes instead of ghettoizing it as an independent unit void of context. But other than that, we – particularly we solos – need to ask whether in a world where knowledge and judgment command the most value, we really want to focus on skills. In short, we should be careful what we wish for – because we just might get it and regret it.