Are Law Schools Teaching Practitioners What They Need To Know?

These days, to call law school a "trade school" is considered an insult to the establishment. Professors are firmly entrenched in their intellectual camps and pursue their academic agendas. Faculty members with "real world" experience are rarely hired on that basis alone--although it is quite common to hire professors who have clerked for judges but never practiced at all. The Carnegie Foundation is to be admired for advocating more clinical education, in which students will have an opportunity to learn some hands-on skills.

But at the moment law-school clinics are short-term experiences. Students engage in limited representations in a specific field of practice, usually with a liberal tilt. (When was the last time, for example, that a law school opened a clinic to help small-business owners deal with claims brought against them under the Americans with Disabilities Act?) A few more clinics will not change the fundamental prejudice against experiential training when the entire system is rigged against it.

If law schools really want to change the way they train young lawyers, they would look to medical schools. The latter require clinical "rotations" in the last two years of a student's education and then demand at least one more year of training after graduation. By the time your doctor is licensed, he has examined hundreds of patients.

While many new lawyers will start out at big firms where they will rarely get to meet a client, most still go to smaller firms where they will meet clients immediately. The state bars profess interest in protecting the public, but none seem to care whether new lawyers can actually do the tasks with which they will soon be confronted.

Of course, law schools do not have the luxury of large teaching hospitals, with a mostly compliant indigent population on which their greenhorns can practice. And lawyers can't perform needle sticks on a corpse, as doctors can (no jokes, please). They are also restricted by the accrediting rules of the American Bar Association, which limit how many clinical hours a student may take.
But law schools can still act. They could team with local practitioners and institutions and demand that their students gain sustained clinical experience--broadly defined to include anyone needing legal help, not just the usual (nonprofit) suspects. The state bars could refuse to license lawyers until they performed at least one year of postgraduate work, as some other countries require.

Law is not brain surgery. It is a skill that can be acquired through practice and repetition. This is perhaps the most interesting lesson from Brian Valery, the over-ambitious paralegal: He fooled those around him who ought to have known best. In the late 1990s, I litigated against another paralegal who later pleaded no contest to five criminal misdemeanor charges of unlicensed law practice. What struck me about him at the time was how good he was at his job. He blustered, bluffed, threatened and cajoled with the best of them. He knew the law and argued it capably. But then again, he learned his trade the old-fashioned way: He practiced it.


Indiana Law Blog brought this editorial from The Wall Street Journal by Cameron Stracher to my attention in a post "Law schools rarely teach students how to be lawyers." Mr. Stracher is publisher of the New York Law School Law Review and co-director of the Program in Law & Journalism.
Now about the brain surgery; retired Judge Richard FitzGerald often said that deciding the fate of abused and neglected children was not brain surgery, it was much more difficult.