Solos Don’t Need A Separate Education
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.
Well, I agree and disagree.
I agree in the sense that solos don’t require any more of a legal education than someone going to work for a firm: we are all lawyers and we all pass the same bar exams. A new lawyer can, and should, learn much from more seasoned attorneys in a firm environment. But frankly, just because someone has made partner at a firm does not mean they have the skills or temperament to be a good mentor. Young solos can often do as good–if not better–finding other skilled and experienced solos to advise them as they develop their careers and their practice.
That said, there are simply practical matters that solos have to learn to deal with that attorneys at a firm don’t. The little things about running a business, like cash flow, renting an office, (hopefully) hiring auxiliary staff, etc. There are also business aspects that are unique to running a law firm: billing matters, trust accounting, etc.
Being a solo *is* being a business owner–and those skills are not often taught in law school, but given that many attorneys go into practice for themselves, they should be. And that’s one area I think legal education could really use some tweaking. To me, the debate about law schools teaching the right kind of *legal* skills is a straw man: there are so many areas of practice, no law school will ever be able to teach students adequately in them all. That’s the nature of our increasingly more specialized workforce. So that, to me, is not where law school is failing students. But it is failing to prepare them for some of the non-lawyering skills they are probably going to need in the real world.
David – it’s probably not fair but I added a paragraph since this post. It’s true that lawyers need to deal with these aspects of business and a basic How to Start a Law Firm course might not be a bad idea (though it should be optional) But even there, practices vary so greatly – managing a trust account and client practice management for a volume practice is going to be vastly different from a solo who runs an appellate practice and further, trust accounting in particular is going to vary state to state. Also, how far should a law school be required to go – as I ask in the post, should law school teach social media, marketing and typing skills? With the exception of trust accounting, it would seem that many of these skills could be acquired in general business courses.
Thanks for your thoughtful post, Carolyn. I was not and do not recommend separate training for solos nor how to fill out forms. I do recommend practical skill training like negotiation, trial practice, litigation skills and business courses taught by people respected by the academy and students alike for the unique blend of intellectual rigor and business savvy that practicing lawyers have to offer. Drafting contracts, as you know, isn’t about filling out forms – that kind of comment usually comes from the academy as a way of devaluing and denigrating lawyers’ work. Negotiating and drafting a partnership agreement takes as much intelligence, skill, and intellectual ability as writing law review articles about esoteric subjects with the additional burden that the lawyer is actually responsible to a living human being or organization for the quality of the result. So far in legal history, no one has been injured by a poorly drafted law review article. Nor was I suggesting that solos handle bankruptcies, etc. and so only need to perform those presumably automated tasks. I was suggesting that the NYT article was put of step with reality to assume the practice of law primarily involves BigLaw practice. You certainly wouldn’t know by the article the critical work solo and small to mid-size firm lawyers are performing everyday of the week without the training offered by Skadden-level firms. I had this conversation with my 35+ year BigLaw attorney husband who clung to the necessity of 3 years of esoteric “critical thinking” education. I say one year of that is enough but let’s agree on two. I don’t know anyone but Mr. Yale Law who doesn’t believe the third year of law school is a waste of time and with today’s tuitions, a shocking waste of money. I spent my third year working full time for a law firm, skipping class, borrowing outlines and still graduating in the top 10%. That shouldn’t have been possible. Talk about formulaic tasks. A computer could spot the issue, apply the rule and draw a conclusion. Rambling on your blog – sorry. The fact that I could remain irritated about a third wasted year of law school at a time when tuition was only $700 per year should give us great sympathy for the students going into debt to the tune of an additional $25-$40K for that year alone. End rant.
I think that it is MORE important to actually teach big law practice areas than small law practice areas.
I person can stumble around and eventually pick up how do do a DUI or 7/13 bankruptcy by trail and error. You can’t stumble around with deca-million dollar litigation.
Big firm lawyers don’t actually begin to learn to practice law until after about 5 years in; and don’t actually get the big picture until after at least 10 years. The first few years of big law are actually secretarial work (doc review are research) billed at high rates.
I can’t believe no law professors are “intellectually interested” in how law is actually practiced. I supposed they had any such interested, they would have survived as lawyers past a few years as junior associates.
In my opinion, the actually skills that constitute an excellent litigation attorney (whether in a big or small firm: i don’t know why your blog makes such a big distinction between the two) are: 1. Marketing the practice, 2. Pre-filing investigation, 3. Knowledge of applicable legal theories which can be applied; 4. Mastery of the rules of procedure including all important case law constructing the rules; 5. Mastery of discovery tools (interrogatories; RTA, RTP) AS APPLIED TO THAT PRACTICE AREA; 6. Mastery of how to take and defend depositions AS APPLIED TO THAT PRACTICE AREA. 7. Jerking around with motions to compel; 8. Summary Judgment motions AS APPLIED TO THAT PRACTICE AREA; 9. How to conduct a trial with appropriate questions AS APPLIED TO THAT PRACTICE AREA. You must know all of the rules and case law about appropriate and inappropriate questions and arguments within that practice area; you must know what types of questions to ask to make points in that practice area. 10. JMOL and appellate matters. 11. Valuation of the case and negotiation.
David Boies, Joseph Jamal, Peter Angelos and others are great lawyers simply because they know and can apply this detailed knowledge. This is a huge body of knowledge that is not formally taught anywhere. Law school is just esoteric nonsense. Practicing lawyers generally keep their actual knowledge very secret. CLEs can be great but only teach bits and pieces.It is also a great opportunity for lawyers who have the ability to teach themselves; though law school and law firms train people to be sheep.
The NY Times article mentioned many other antiquated / faulty aspects of the law school model, such as the propensity of law school professor to churn out largely obscure and unread law review articles, the high cost of tuition, and the indebtedness of many students. In my opinion, the model is costly / inefficient, and does not bring value.
As far as law students not being taught practical skills, I tend to agree with you that this is not what law school ought to be about. All this is learnable after graduation. The real problems are (1) oversupply of lawyers / law schools, (2) high cost of tuition, and (3) lack of mentoring in most firms.
It’s not about different schools/curricula for different lawyering specialties. You’re right; basic legal education can and should be essentially the same for all law students. But that education should be founded in what lawyers really do, the core of which is–like it or not–litigation. All the drafting, dealmaking, client counseling, etc., is done against a background of rules related to resolving disputes in court.
Doctrinal law and legal analysis can be taught (I know–I do it) far better, more cheaply, and more effectively through direct and reality-based (clinical, or skills-based if you like) teaching. Socratic dialog is a vital part of the legal educational process, but there is no reason that every substantive-law course should be taught that way.
You might think that you can draft a complaint after a course in civil procedure, copying a model, or filling out a form, but until you see how a complaint ties in with the rest of the litigation process and the appeals process under what may be a myriad of local rules, supplemental rules, and special rules, you don’t really know what you’re doing. Simulations afford an unmatched opportunity to give meaning to studied words and phrases that students (unwittingly) understand only on a superficial level.
It’s all readily doable in three years, and it can be done affordably, but doing so is either not in the interest of the various stakeholders or not within their (rankings, tiers, U.S.News ) frame of reference as an alternative.