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(323) 652-9451I was really pleased to come across this article in the ABA Journal about Drexel University Professor Karl Okamoto, who has created a moot court-type experience dedicated to helping students hone skills needed to practice transactional law. I know the focus of this blog is generally on litigation and trial skills, but I applaud Professor Okamoto for coming up with something new and inspiring to fill the huge void for students who don’t want to litigate, or maybe just want to get a taste for what deal lawyers do. I hope similar programs become more widely available.
I probably speak for a lot of litigators who feel that they did not so much choose to go the litigation route as settle for what was available. Certainly, when I dreamt of becoming a lawyer I pictured myself in a courtroom. And I spend a fair amount of time there. But I spend an equal or greater amount of time either chained to a computer drafting motions and discovery responses or taking depositions. If I had learned something about doing deals early on, who knows . . .
Almost every transaction lawyer I know enjoys his or her practice more than the average litigator I know. The only exception to this comes from the fact that transactional law, M & A, real estate deals, private placement, public offerings and the like, seems to be a cyclical practice. At least in the past two decades, it’s been feast or famine for a lot of the deal lawyers I know, particularly at BigLaw firms. That’s not to say that litigation isn’t cyclical. In fact, I’m told we’re in a down cycle in many litigation practice areas right now.
The number of students who spend their second year summer in a BigLaw summer associate program has been shrinking. I know that neither BigLaw nor these programs are everybody’s cup of tea. On the other hand, up until now such programs have been the only opportunity most law students (and many lawyers) ever get to experience how transactional law is practiced.
Here’s how Professor Okamoto’s moot transaction program, LawMeets, works:
“[S]tudents get fact patters for a deal and play the roles of buyer, seller and client. Over a period of months, they have conferences; draft, exchange and mark up documents; and then negotiate the deal. Prominent transactional lawyers judge their documents and negotiations, as well as offer feedback. Then the students get to watch the pros haggle over the same terms. ‘That’s when we think the “ahas” begin,’ Okamoto says.”
One added benefit I can immediately see to this program is how it forces students to complete a project over several months, which is much more similar to an actual law practice, where it is necessary to sustain focus on a deal (or a case, or several cases) over a longer period of time, often punctuated by short periods of frenzied activity.
The other interesting approach is asking the judges to demonstrate how they would handle the same situation. This could influence the way trial advocacy and moot court competitions are taught, though it might make it more difficult to find judges who’ll volunteer, not only to judge the competition, but also demonstrate their skills.
Kudos to Professor Okamoto!
The Wall Street Journal ran an article yesterday discussing the ongoing debate whether the traditional course of study for a law degree, which is a prerequisite in most states for admission to practice, should be reduced from three years to just two. Even President Obama, who is both the product of a traditional three-year Juris Doctor program and a former legal educator, weighed in somewhat in favor of a change. The biggest factor spurring this debate seems to be the skyrocketing costs of law school.
I approach this question with the following background. I graduated from a high second-tier law school in 1993. I paid my own way through law school, amassing about $80,000 in loans. I had accepted an offer at an insurance defense firm where I had been clerking for 2 years; my starting salary was $52,000. It took me about 11 (painful) years to pay off my student loans. I give this background to make clear that I don’t come at this issue from the perspective of the academic elite, nor did I finish school without a job.
My experience working for various small firms, mid-sized litigation firms, and now at an AmLaw 150 firm tells me that reducing the amount of training, whether it is Socratic classroom lectures or on-the-job clinical training, will not serve anyone’s interests. Beyond reducing the cost/debt of law school, it will not benefit newly-minted lawyers, who would spring from the costly but generally encouraging womb of law school with even less to offer than at present. It will not benefit most law firms that (unlike my own) do not or cannot afford to invest in providing their lawyers with systematic, ongoing training on how to write, argue, advocate at trial or negotiate. Most importantly, it will not benefit clients who find themselves saddled with a new lawyer that was not sufficiently trained before being ejected from the nest.
The rising cost of law school, and resulting debt for students who may or may not be able to secure a job that exploits their training and compensates them accordingly is a real problem. It’s a terrible problem. But I do not believe that the solution lies in grinding future lawyers harder during their first two years, then turning them loose to commit malpractice at the expense of unsuspecting clients any sooner.
I have written here and here that law schools should increase the amount of real-world experience students receive before they graduate. If this can be done in a way that reduces the expense of the third year of school, then it would be a win-win. Even after I secured my first paying job as a law clerk, I still did some pro bono work in a law clerk capacity, both because it made me feel good and I gained experience I could include on my resume. Providing there is adequate supervision, many third year students could earn credits performing similar activities, which should both reduce their education tab and boost access to justice for the underserved.
BigLaw firms like my own have increasingly become involved in pro bono initiatives in which they “partner” with client legal staffs to tackle larger pro bono opportunities. This is clearly a win-win for the law firm, which gets to show off its lawyers’ skills, and for the beneficiaries of the pro bono projects, who enjoy enthusiastic, top drawer legal talent. Perhaps such “partnering” could be expanded to include third year law students, creating a win-win-win, as students get to interface with law firm leaders while showing off their enthusiasm and talent. Just a thought.
I applaud educators and others in the profession for trying to improve the situation for folks who want to practice law, a goal which should be pursued with boundless verve. On the other hand, snipping off that third year with no better substitute would be a regrettable choice.
The path from the first day of law school to an aspiring lawyer’s first job is an increasingly precarious journey, with a shrinking margin for error. I like to think others can learn from my mistakes, which is why I am going to describe the dumbest thing I did when I was in law school. (I also continue to be inspired by Jordan Rushie’s brutally honest post on the Philly Law Blog specifically on the topic of hubris.)
Like every law school, Loyola (Los Angeles), where I attended, offered classes in Trial Advocacy. Believing I wanted to be a litigator, I took “Trial Ad,” and had a fabulous adjunct professor (John McNicholas), who is a gifted trial lawyer and extremely successful fellow Loyola alum. I received a great education about how to try a case. The only problem is that the nuts and bolts training I received was not done in an actual courtroom, but in a posh new classroom constructed (at students’ and alumni expense) to look like a courtroom. Other members of the class served as judge and jury.
While I learned how to introduce evidence, lay a foundation, examine and cross-examine witnesses, object, respond to objections, etc., there was none of the extreme pressure, i.e., fear factor, that comes with trying to introduce evidence, examine a witness, etc. in a real court of law, in front of a real judge, with real facts, real victims, real defendants and real consequences. Plus, even though I “tried” a theoretical case during class, there were no bragging rights that came with completing my Trial Ad class; I couldn’t tell prospective employers in an interview that I had any real courtroom experience because, like most law students, I had no real courtroom experience. But imagine how impressive I could sound during an interview if I could say I’d cross-examined a witness in a preliminary hearing!
As it happens, one of the professors at Loyola (at least at that time) had created a special program in conjunction with his connections at the LA City Attorney’s office. Instead of one semester, this trial advocacy class was a full year, the first semester being classroom training much like I received, and during the second semester students would spend a day or two (I can’t remember which) “embedded” in a City Attorney’s office and acting as a prosecutor for criminal preliminary hearings. The cases weren’t all that sexy or complicated–drug possession, perhaps prostitution–but this was the perfect training ground for a future civil litigator or criminal lawyer to develop crucial skills, only with real victims, defendants, witnesses and judges. Even better, while the professor would determine students’ grades for the first semester of classroom training, it would fall to the Deputy City Attorneys to propose a participant’s grade for the second semester. (I never heard about anyone getting below a B, and As were the norm.)
The catch? Of course the program was only open to a limited number of students, and a student who wanted in had to interview for a spot. You know the rest of the story, right? You’re thinking I signed up, totally choked on the interview and didn’t get invited. Or that I missed the deadline to sign up. Or I got in but was kicked out for some ghastly reason or another.
Nope. It was none of these. Instead, even though I recognized it was a great opportunity, I purposely let the time come and go to sign up and interview. Why? Because I was insulted by the fact I was required to interview. I thought it was ridiculous–a needless imposition. It seemed to me that, if I was paying the same tuition as everybody else, I should automatically be allowed to take the class.
In other words, I let some lame, unrealistic expectation stand between me and an opportunity I knew even then was a golden one. Of course my law school girlfriend signed up, interviewed and got in. And she loved it. Learned a lot and had a blast. And she got an A both semesters.
Hear this: I made this mistake so you don’t have to. Don’t do it. Whether it was immaturity, hubris, unconscious fear of rejection (or fear of success)–whatever the reason–don’t let something stupid hang you up and prevent you from seizing a golden opportunity. Don’t disappoint me; I’m watching.
The blawg world was all abuzz recently about comments Justice Scalia made to students at a local law school in Laramie, Wyoming. When asked about the “best piece of advice” he could give to law students, he advised them not to waste time taking “frill courses.” More specifically, he said:
“The only time you’re going to have an opportunity to study a whole area of the law systematically is in law school . . . You should not waste that opportunity. Take bread and butter courses. Do not take, ‘law and women,’ do not take ‘law and poverty,’ do not take ‘law and anything.”
Some excellent posts have sprung from Scalia’s remarks. Professor Jonathan Turley, for example, pointed out that:
“My students will be better lawyers but [sic] not only learning about the practice but the philosophy of law. It is both possible and, in my view, essential to get both in your training. I am distinctly proud of my student’s [sic] in their ability to move seamlessly from the theoretical to the doctrinal in class.”
Simple Justice blogger Scott H. Greenfield contributed at least two valid points on both sides of the controversy. On the one hand, using the example of a hypothetical class on “Law and Potted Plants,” he writes, “Within the Law and Potted Plants course, there may be contracts, or property, or even criminal law (it could happen). There is no independent body of law that relates solely to potted plants, divorced from the more rudimentary practice areas.”
On the other hand, Greenfield seems to side with Scalia that “Theory, doctrine and practice can all be taught simultaneously in more rudimentary law courses, and for those scholars who desperately want to push their personal hobbies, example of law and women abound in discussions of property law and contracts. There are no shortage of pet opportunities.”
While I think these are some great points, the question for me is whether students are really choosing “Law And . . . ” classes at the expense of bread and butter courses. In other words, is Scalia’s advice misplaced, not because “Law And . . . ” courses are valuable learning opportunities that should not be disparaged, but rather because students are not choosing between, say, a course in Evidence or Civil Procedure and “Law And Potted Plants?”
Unless things have changed in the 20 year interval since I was a law student, most of the “bread and butter” classes are completed half-way through the second year. This leaves a year and a half to take courses that, hopefully, take the rudimentary skills learned in the first year, and apply them in ways that further cements that learning. For me, it was Trial Advocacy and Appellate Advocacy. These required me to use information and skills I previously studied in Evidence and Legal Research and Writing. Somehow, though, I still had time to take other elective classes in Legal History and Employment Discrimination, which gave me perspective on our profession and spawned my interest in employment law.
So are students who are interested in “Law and Women” or “Law and Poverty” really taking these “Professor’s Hobby” courses (Scalia’s term, not mine) at the expense of courses that address core competencies? I tend to think not.
The issue I struggle with, and have written about, has to do with the dearth of practical training many students receive before they are released into a legal marketplace that suffers from declining mentoring and training opportunities. As I said here, brand new graduates who would have received practical guidance from their first law firm or government employer are increasingly left with few alternatives to opening their own law practice out of a local Starbucks just to make their student loan payments. I’ve read that at least some schools are responding to this need with more practical, clinic-oriented course offerings.
Because nobody respects a fence-sitter, I’m going to come out against Scalia’s remarks. I think that courses on Law and Women and Law and Poverty are a worthy way to spend expensive law school hours. Unlike potted plants, these subjects are topical, timely and impact the majority of the world’s population. I expect they also require students to build upon core competencies, such as research, writing, oral and written argument, in ways that ultimately produce better, more thoughtful and world-changing lawyers.
I’m not holding my breath that anyone is going to ask my best advice to law students. If they did, however, I would highly recommend intern and externships. Oh, and keep in touch with every person you meet in school!
I don’t begrudge this change in client thinking–how could I? But I do think this shift in philosophy, which is changing hiring practices, not just for AmLaw100 firms and their triple digit first year “classes,” but also small partnerships that still occasionally hired a first or second year lawyer, will impact our profession in ways for which we are not prepared.
This is because the training and experience we receive in the first years are pretty important in our development as a lawyer. Law schools do a decent job of helping us learn to think lawyers, read cases and adopt an IRAC-centric* style of analysis and writing. But, with the exception of a few “skills” classes or the optional clinic, law school does not prepare students to immediately enter the marketplace, take on clients and effectively practice law. I know there are respected bloggers who would take issue with this assertion. And I’ll admit that there is plenty of hardware, software and other “products” on the market which make it logistically much easier to open and run a law office right out of school with a cell phone and a laptop.
I’m not talking about the ability or experience conducting legal research. Most law school graduates can open the right book or access Lexis and figure out the elements of a cause of action or defense. What’s missing, I believe, is a measure of judgment that is crucially important to a law practice, but generally takes at least a couple of years of supervised training and experience to gain. I’m referring to judgment about when to take a case and when to say no. Judgment about how long to keep working a case you know is a loser, just to avoid the difficult conversation you know you need to have with that client who took a chance on you. Judgment about how to shape and deal with clients’ expectations. Judgment about how to manage a client who is persistently untruthful about the facts. Importantly, judgment about when a question or case calls for the kind of special knowledge or training that just cannot be gleaned from reading cases or a practice guide.
It could be argued that very experienced lawyers–lawyers who should know better–demonstrate terrible judgment all the time! This is true and, while unfortunate, helps ensure that legal malpractice will thrive as a practice area. But the fact that experienced lawyers make lots of mistakes in judgment does not mean that brand new lawyers who enter the marketplace armed only with a law degree and maybe some moot court experience–without at least a year or two of supervised training at a firm, a government agency or even with a more experienced solo–won’t make more mistakes, more often.
What will be the impact to our practice and profession from this training vacuum? It could be significant. For starters, inexperienced new lawyers who are hungry enough will likely take anything–literally anything–that comes in the door. Our shrinking, already overstressed courts will become a repository for even more meritless cases. I’m not talking as a defense lawyer–but as a litigator interested in reducing, or at least controlling, the growing judicial log jam. Putting my defense lawyer hat on for a moment, when manufacturers and employers are forced to defend, not borderline, but absolutely spurious cases, it negatively impacts the economy through higher prices and reduced hiring.
The real victims, though, could be clients. Clients who are misled, overencouraged, underwarned or led down the wrong path. Clients who, had they visited a different lawyer, would have been told early on they have no case or needed to consult with an eminent domain (or tax, or probate) specialist. Or at least told that the odds of winning don’t look too good.
Enough. I tend to dislike writers who do nothing but diagnose a problem. A proposal for a solution, even something half-baked, is the least a writer should do.
Here, I put the responsiblity for filling this void of practical training back onto law schools and bar associations. As I’ve said before, law schools should, in exchange for the privilege of collecting tuition, strive to do a better job of enabling their graduates to join the legal marketplace upon graduation. If paid, new lawyer apprenticeships are no longer the norm in the legal marketplace, law schools need to pick up the slack. If economics dictate that tuition needs to increase to make this additional training possible, so be it.
Local, county, state and national bar associations should also help fill the void. There is no shortage of continuing legal education programs, at least in those states which require it. But as these tend to be lecture format, they are not interactive and probably ineffective as a training tool for brand new lawyers. I’m thinking more along the lines of the type of clinics, internships and externships that are typically only available to law school students. Perhaps these programs could be coordinated with pro bono opportunities. I’m just thinking out loud . . .
I’ve always felt fortunate that, although I didn’t earn an AmLaw100 salary right out of school, I did have an opportunity to work with and learn from some really great lawyers. It’s interesting, but also scary, to think about some of the mistakes I could have made if I had not received that early training. Not just sloppy lawyering or calendaring mistakes, but errors in judgment. I think it’s something everyone in the profession needs to consider, as the path from law school into the legal marketplace changes.
*IRAC = Issue, Rule, Analysis & Conclusion (but you know that already).
The Defense Research Institute (DRI) is seeking new members and I promised to do my part with this public service announcement.*
I’ve belonged to DRI since my first year of practice and I have found it to be a great resource and, at times, a lot of fun. Over the years, I’ve belonged to the Young Lawyers, Products Liability, Trial Tactics, Alternative Dispute Resolution, Commercial Litigation and Employment and Labor Law Committees. With a few exceptions, I’ve tried to hit at least one conference every year, often in Chicago, but sometimes in really exotic destinations like Scottsdale or Las Vegas.
The benefits of membership include well-planned, well-executed conferences, a monthly print magazine, For the Defense, which generally has focused and relevant articles, and multiple online e-newsletters. There are expert witness databases and certain substantive law committees have very active listservs. There’s also a blawg, DRI Today. The real benefit from my perspective, though, is the opportunity to belong to an (inter)national** network of thousands of practitioners who can serve as both referral sources and substantive law resources. I met some great people at the conferences and I’ve kept in touch and tried to refer business to many of them over the years.
Take a look at DRI. There’s a discounted membership for lawyers practicing 5 years or less. And if you’re interested in joining, let me know and I’ll hook you up.
*With guitar!
** Including Canada.
One of the illusions I harbored as a young defense lawyer was that it was a good idea to “paper” the other side with as much discovery as I could serve. This derived, I think, from stories I heard and read during law school how the biggest, most powerful litigation firms always practiced this way, which led me to think it must be the right thing to do. I think also that, as a young associate, I was always looking for ways to maximized billing opportunities. Actual strategy rarely entered the equation.
I once even made a ridiculous statement to a senior partner, when we were up against a legendary plaintiff’s firm, that we would “serve the other side more discovery than they had ever seen.” Quite correctly, the partner responded that no, we would not be serving more than the other side had ever seen, and no, we were not going to waste our time, energy and client’s money trying. He was absolutely right.
My view on written discovery has evolved to where it should be a tool used more like a scalpel than a weapon like shotgun. As I’ve grown from the associate who has no connection to the bills that go out to a client to the relationship partner who actually sends those bills (and has to manage the client and its expectations when the bill is outrageous), I realize that we don’t (or shouldn’t) do anything just for the same of doing it, or because that’s how it’s done by others (even others at prestigious litigation firms).
I’ve also learned that most clients have a somewhat fixed budget for dealing with a matter. Whether the budget is hard or soft, it’s not there to be exceeded–unless you want to lose the client. There is never spare money in any budget to cover tasks that aren’t calculated to lead directly to a better result. So every task, not just discovery, needs to be calculated to advance the ball.
On the receiving end of written discovery (I’ve been there a lot, too), I’ve never in 20 years been “intimidated” because the other side served an onerous set of discovery. In fact, quite the opposite is often true. An opponent who serves 100 “shotgun” questions or requests that are unfocused and a pure waste of time is revealing to me that he/she has not developed their strategy enough to know what they need to find out.
My view has evolved to where I try to limit discovery to information that I believe will directly benefit my effort to win the case for my client. If I’m on the plaintiff side, I will look for information that will help me establish the elements of my client’s case. I focus heavily, too, on trying to establish that my opponent does not have any evidence to prove one or more elements of his/her/its defense. The same holds true, only opposite, if I’m representing a defendant. This is elementary, but I’ve seen a lot of discovery (and written some over the years) that strayed pretty far off topic.
If I’ve limited the discovery I’ve served to information I really think is important, I have no problem going to the mat (meaning all the way through motion practice, if necessary) if my opponent gives me BS objections and/or provides an insufficient response. Back when I was writing loads of unfocused discovery, the other side did the obvious (objected, refused to respond, etc.) and I found myself having to decide if it was worth the time and expense (and risk, if I lost the battle) to go to court over it. If it wasn’t worth that effort and cost if the opponent balked at responding appropriately, how could I justify having written the discovery in the first place?!?
This is just another example of how we (hopefully) learn and evolve in how we practice our craft as we gain experience. By making this fundamental shift in my attitude about discovery, I’m not only giving my clients far better value, but I’m also not telegraphing to the other side–with a huge, random set of shotgun discovery questions or requests–that I don’t have a clue what I’m doing.
Learn MoreI ran across this post by Karen Koehler, at a blawg I really like, The Velvet Hammer, which highlights something I’ve known for a long time: you’re far better off trying a case against an experienced, high quality lawyer, than someone who’s a newbie or careless, or both. Karen draws on her experience trying a case against a really poor defense lawyer. She won, but in the post-verdict discussions with the jurors she learned that they felt so sorry for the defendant because she had such a bad lawyer that they felt they had to “even things out.”
I echo this sentiment, but I would also broaden it to include everything from the filing of a complaint through trial. “Challenged” lawyers make our job harder–and the case more costly–from day one. They don’t know the value of the case, its strengths or weaknesses, so they can’t every talk realistically about settlement (forget about actually reaching an early resolution). They don’t follow the rules, so it’s up to the responsible lawyers to comply with the rules, including venue-specific or judge-specific procedural nuances. It seems like they’re never available to address anything substantively. They fight battles over the wrong things–again wasting time. They file improper briefs, like sur-reply briefs, complete with brand new evidence, which fouls up the entire process.
We all started somewhere. I was fortunate to have great mentors and some really great training (which didn’t prevent me from still making some stupid mistakes). But the goal should be to improve and try to learn from mistakes, not to keep making them.
Lawyering is like tennis in that the quality of your opponent brings out the best in your game. I’ll take a Federer or Nadal any day.
Learn MoreFollowing my post yesterday about the California Bar’s exploration of a possible skills requirement, I was pleased to see that my alma mater, Loyola Law School, has rolled out a new “Concentration” program which, according to the Loyola Lawyer, will require students participating in the program to “participate in at least one semester-long simulation or live client experience.” The Concentrations are in Civil Litigation and Advocacy, Corporate Law, Criminal Justice, Entertainment/Media Law, Environmental Law, International and Comparative Law, Public Interest Law and Tax Law.
Nice work!
Learn MoreThe 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!
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