Should the California State Bar Add a Skills Requirement?

The California State Bar has apparently formed a task force to explore whether to “develop a regulatory requirement for a pre-admission practical skills training program” for new lawyers.  Is this a good idea?

I think requiring a prospective new attorney to complete some kind of practical skills training is a really good idea.  With some caveats.
First, the requirement  shouldn’t be one-size-fits-all.  In the perfect world, every prospective lawyer would get some exposure to various practices before he/she focuses, by choice or necessity, on a single area.  Many of us litigators will wonder until we retire what it would have been like to practice as a transactional lawyer (and vice versa).  That said, it would take a major overhaul of  the American style of legal education to expose everyone to a little bit of everything.  A more palatable approach would be to give prospective admittees a range of reasonable options for fulfilling the requirement.

The second caveat would be to avoid attaching a mandated proficiency level to the skills requirement.  In California, at least, passing the bar examination is hard enough.  Of the 4,382 people who took the California bar exam this past February, only 42 % passed and only 53% of those taking it for the first time passed.  Those kind of statistics can be really discouraging to someone who invested  3 or 4 years of their life and roughly $100,000 toward a professional career.  We don’t need to make the admission process more intellectually challenging.

I would argue that we do, however, owe both new practitioners and the consuming public an obligation to help ensure someone who holds a license to practice law has some basic practical skills.  By the time I graduated law school and passed the bar examination in 1993, I had already “clerked” for two litigation firms.  I had been exposed to depositions and court (as an observer), I had written, copied, blue-backed (remember those?), served and filed pleadings and motions.  In short, I had a decent idea what courtroom lawyers did for a living.  Although the early 1990s are typically remembered as a “challenging” job market for students and new admittees, most of my classmates who desired experience during the summers and their second and third years of law school found it.

From what I read and hear, the present legal job market makes the “challenging” early 1990s look almost like a “boom” period.  At a time when new admittees who graduated at the top of their class from a top-tier school are struggling to find a position as an associate anywhere, it makes me believe the opportunities to gain practical experience before passing the bar examination are more limited.  This will need to be addressed or our profession (and reputation) will (further)erode.

The major criticism of a skills requirement is that it will increase the cost of legal education.  I fail to see the link between ensuring that bar applicants have some skills to go along with their theoretical training and higher law school cost.  It may be necessary to adjust the nature of what is taught, meaning more clinical programs.  Or, the solution could  be training through volunteer or pro bono programs which, in addition to fulfilling the skills requirement, provides the disadvantaged with greater access to needed legal services.

Without the training I received during my two years as a “law clerk,” I still would have received training at the first firm who hired me as a lawyer.  The problem now, as I see it, is that many are graduating law school, passing the bar and entering the marketplace without a job, forcing a great number of those who intend to enter private practice to open a solo practice without any skills training.  These newly minted professionals will learn, eventually, by a process of trial and error, but woe to those who hire them!