Developing competence

John Steele

We’ve been asked to write “about the implications of economic pressures on the way we teach our students.” I’ll focus on teaching the PR course. We need to get realistic, teach about ethics within practice settings, and teach competence.

First, let’s get realistic. Unless we believe that the law of lawyering is an autonomous, formalistic system, we need to teach the law of lawyering as it arises in specific economic and bureaucratic settings. To do that, we need to understand, for example, the finances and administrative bureaucracy of private practice (70% of all lawyers), in-house corporate settings (10%), government lawyers (10%), legal aid offices, etc. Early in the semester, I present a lecture on how private practice works, including PPP (M x R x U x L), billable hours, profit contributions by associates of various competence levels, the number of hours one must be in the office to meet one’s billable hour goals, partnership decisions, the “classical tournament” and the “elastic tournament,” how having kids and doing childcare affects a legal career, etc. We also talk about practice groups, supervisors and subordinates, and other aspects of the bureaucratic setting in firms. We do the same thing, albeit with less detail, about the economics and bureaucracy of cause lawyering. (I use my own materials. I’m not aware of any textbook besides Michael Downey’s that even remotely facilitates that approach. Let me know in the comments if I’m wrong about that.) As the semester rolls forward, that initial coverage permits the student to understand the real world forces that shape any given ethics analysis. In addition, most hypos and examples should have enough facts to facilitate a discussion of those forces.

That discussion about the economics of lawyering inevitably leads to students to ask why law schools don’t do a better job of developing competence, which in turns leads to a discussion of the economics of law school. It’s an important discussion, one that I’ve had in my classes in up cycles and down cycles, since the late 90’s.That dicussion, which I'll address more in my second post, has been far more pointed in the last few years.

Second, although 70% of US lawyers are in private practice, we must expose the students to enough practice settings to at least sketch what’s out there in the profession. Private practice includes a huge number of settings—from the solo practitioner doing personal injury work to the biglaw partner doing M&A work. By the time we’ve also discussed in-house and government lawyering, we’ve covered about 90% of legal practice, but there’s a lot of variety in those settings and we’d still want to cover Legal Aid lawyering, public interest cause lawyering, etc. There is a temptation to teach about the prestigious, glamorous practice areas or the ones that have political significance to us. But shouldn’t we situate the bulk of our examples/hypotheticals in the practice areas where our students are likely to work? One way to develop that approach is to correspond with a dozen “Main Street” transactional lawyers in your state and ask them, “What are the five events in your practice area with which all law students ought to be somewhat familiar?” You’re likely to hear about the incorporation event, the bank loan, the equity financing transaction, the employment agreement, and the ultimate sale. Build your ethics hypos around those events, construct a character (e.g., the “woman junior partner building her book of business” or the “3^rd year associate who can’t wait to leave biglaw”), place that lawyer in a concrete practice setting, and spread the hypos across the semester as you address legal topics such as confidentiality, conflicts, independent judgment, fees, etc. Do the same for legal aid lawyers, government lawyers, etc.

Third, all ethical lawyering is competent lawyering and our goal should be to develop our students’ competence rather than, for example, just rank them. For a number of years now, we’ve heard judges, students, clients, law firm partners, alums, journalists, economists, and the authors of the Carnegie Report complain that law schools don’t teach competence. (Just curious: is there anyone out there who disputes that?) Back in the days when law degrees cost only a fraction of their economic value, when the clients of private practice firms were willing—or were forced—to subsidize the on-the-job training of incompetent newbie lawyers, and when so many of us believed that most law students would earn that Tier A biglaw salary, law schools didn’t feel the need to develop their students’ competence. Back then, schools could “let firms teach lawyering” and could instead spend their time and money on the things that most interested the tenured faculty as they vied for the approval of tenured faculty in other departments and other law schools. But the economy has changed. Some faculty might believe that those good-old-days will return, which would counsel for a cautious approach to innovation while waiting for the opportunity to once again indulge in moral hazard (i.e., spending on themselves the money of students and the taxpayers who back the government loans) and enjoying the “quiet life” that is the best of all possible rents. (I apologize for tarring with a broad brush. There are some admirable innovations going on out there, but sometimes it takes strong language to make the point.) Teaching competence requires a lot more of us than that. Lawyers need to develop skills that are valued in a variety of real-world settings and those of who are paid with law student money ought to be committed to that goal—ought to be adding value. The PR course can build competence in the most fundamental of ways: competence in the law of lawyering itself, including structuring attorney client relationships, faithfully discharging our fiduciary duties to clients, fulfilling our professional duties to social systems like the courts and the markets, being more conscious of how economics and administrative settings can warp our ethical decision-making, and so on. The PR course should be one that the students understand is about their lives as lawyers.

In my next post, I want to address some possible objections to my suggestion.

Comments

[Brad Wendel]

John,

What do you mean "law schools don't teach competence"? If you mean that our students aren't well prepared to learn the practice-area-specific skills they need, then I do disagree with that statement. It doesn't take much mentoring and supervision to get a first-year associate prepared to do basic tasks, and then the associate builds from there to become more competent. If you mean that our graduates aren't fully prepared to take a crucial deposition, negotiate a settlement, or run a deal closing without supervision, then I suppose I agree, but would ask why anyone thinks ANY professional school should be doing this. Even medical school, with two years of clinical training, doesn't really prepare graduates to be doctors. Rather, it prepares them to train to become doctors, in various specialty areas. (If you don't believe me, ask yourself whether you'd let a first-year resident perform even a simple surgical procedure on a family member unsupervised.)

These arguments about competence and skills turn on what we mean by competence and skills. Ideally a student would not graduate from law school never having seen a demand letter, a complaint and answer, a procedural motion, a summary judgment motion, an affidavit, a set of discovery requests and responses, some proposed jury instructions, a settlement agreement, and so on. (I'm a former litigator so those are litigation examples. I don't really know what transactional lawyers do in nuts-and-bolts terms.) All of the legal analysis we teach students should be situated in the context of practical lawyering skills. But we can do this much better than we're currently doing, and still not graduate students who are COMPETENT, in the sense of being ready to represent clients without much mentoring and supervision. There are just too many aspects of good lawyering that are specific to the type of practice, the norms and customs of the law firm and the overall legal community, and the specific problem presented by the matter on which the lawyer is representing the client. Llewellyn talks about "situation sense" as being a fundamental virtue of lawyering, and that can only be developed through experience. Competent lawyering necessarily requires experience, and there's only so much experience that can be acquired in a portion of a three-year graduate program, where the first year is necessarily committed to teaching basic skills and doctrine, and the second year is generally (and usefully) given over to teaching advanced core subjects like evidence, bus orgs, admin law, tax, and so on.

[John Steele]

Brad,

Thanks for commenting. I had tried to use the phrase “develop competence” rather than “teach competence,” and I see that I inadvertently slipped in a few “teach’s.” I want to defend the point as to “developing.”

By “develop” competence I meant the process of trying, getting critiqued, trying again, getting critiqued, trying yet again, etc., as well as the process of students then critiquing other students (under the supervision of the instructor). All of that should be in the context of specific practice settings. There’s too much “ranking” and precious little “developing.” In support of my own viewpoint on that issue, I’d cite the MacCrate and Carnegie Reports, as well as what strikes me as the broad consensus of judges, hiring partners, private practice lawyers, GC’s of corporate clients, students, and alums on that point. For that matter, many faculty agree and as far as I can tell the only people who disagree are a portion of the law professors.

Next, regarding the “competence” issue, I realize that there is a spectrum of competence running all the way from transitory minutiae to profound meta-skills. I want to return to that spectrum later in this comment. It’s not my intention to argue that law schools should be devoted to the “minutiae” end of that spectrum.

But, first, you suggest that “our graduates aren't fully prepared to take a crucial deposition, negotiate a settlement, or run a deal closing without supervision” In general I agree, but I want to point out that a few of our graduates are fully prepared and I want to suggest why they are. As just one example of several I could offer, I had a trial advocacy student who spent the summer after her 2L year doing three criminal trials herself and getting convictions in all three. She had had intense “development” training during her second year and was fully prepared to do trials from voir dire to summation. One defendant was sentenced to over a year in prison as a result of her trial. As you’d expect, she was supervised at trial, but only lightly so, and after her first trial the supervisor backed off almost entirely. The key, in my view, was the intense process of try-critique-retry-critique-retry-etc, which she had done scores of times as a second year student and mock trial competitor. Then, as a 3L student in my “Ethics in Trial” course, she was a real participant in the teaching of other students, as a graduate student should be. But, as I say, she had undergone rigorous “development” of competence. It wasn't easy for her to do that, but she got into my trial advocacy section a year before most students could and then she used her mock trial participation to build on that. She avoided “ranking” classes as much as she could.

[I will continue in two more comments. I couldn't get the whole thing to post, so I'm breaking it up.]

[John Steele]

As you point out, there’s a spectrum from specific to generalized competencies and my point is that by and large law schools aren’t adequately covering the relevant part of that spectrum. I agree that students aren’t fully competent in the minutiae and I’m ok with that. Some of the minutiae is specific to local jurisdictions, is transitory, or is just trivial. It’s not my argument that that’s what law school should spend most of their time on. (A few of the examples from David Segal’s recent articles in the NYT fall into that “trivia” category.) At the same time, there’s no way to adequately discuss the meta-skills without getting elbow-deep in some the basic skills. It would be a false choice to suggest that legal education must be one or the other—and I’m not staking out the trivial end. Where do we strike that balance? And if the market changes significantly, don't we have to change where we strike that balance?

I started teaching PR and trial advocacy in 1997, and prior to the last few years, I often heard faculty say, and admittedly I’m paraphrasing, “We don’t need to develop those basic competence skills because law firms do that and they can charge the clients for it.” Or, "You can't teach legal acumen." Or, “For the most part, we’re research scholars who write for an audience of other scholars.” Or, “We’ve been hiring faculty with less and less legal experience and it’s just not possible for them to teach competent lawyering.” (I’ve read that for the recent tenure-track hires the median time in law practice is one year and that students who want to become professors need to start publishing academic articles as students and then immediately transition to VAPs.) I certainly don’t attribute those attitudes to you and I don’t mean to suggest that your comment reflects those attitudes. But I’d be surprised if you never heard views like that before. Unfortunately, the cost of law school has sharply risen and the market’s view of the value of new graduates has sharply dropped. In light of those two changes, it’s necessary that law schools re-evaluate how they develop their students. Those older views just aren’t suitable to the present situation.

As I hope has been clear, my argument is not based upon the need to focus students on the minutiae end of the spectrum. We need to develop students’ knowledge of a few of the details and of some the broader skills as well, ask them to try those competencies, and then to ask them to be reflective about those competencies. The legal academy hasn’t been doing that well for some time and now the market has made a step-jump in its evaluation of the usefulness of students. The academy’s approach is even less tenable than it was before.

[John Steele]

But I also want to discuss the very high end of the spectrum for a minute. You suggest that students are “well prepared to learn the practice-area-specific skills they need.” Being “prepared to learn” is at the abstract end of the spectrum. In my experience, almost all students are “prepared to learn the practice-area-specific skills” even before they step into their first class. My view, which I think is supported by the MacCrate and Carnegie Reports, is that the best way to prepare student to learn practice-area-specific skills is to teach them some practice area specific skills, have them try their hand at some of those skills, critique their try, and have them try again, etc. In other words, to develop competence in concrete settings and contexts. Once that’s done, students know that they can learn new competencies. In contrast, fourteen weeks of class followed by an exam written and graded by someone with little or no practice experience, followed by the awarding of a letter grade, does not prepare them to learn competence.

My approach does not preclude any cerebral, higher-end teaching. My student who had done three criminal trials was better able to discuss the Gorgias and Phaedrus when we covered them in class. And, for example, my students who work through multiple real-world ethical problems using practice-specific-skills are better able to participate in the Wendel-Simon or the Luban-Pepper debate. I’m not advocating the teaching of trivia or minutiae, but rather am advocating that in light of a changed profession we need to alter the balance of what we teach and how we teach it.

[Brad Wendel]

Thanks for these comments, John. I really don't disagree with much you say here. As you said about my position, I'm not attributing the "teach minutiae" position to you, but sometimes the general consensus of hiring partners, GC's, etc. does extend to skills that are fairly trivial. On the other hand, if law schools aimed to turn out graduates who performed like your student who ran three criminal trials, a truly radical reform is being suggested. There are good, dedicated trial ad and clinical faculty (some adjunct, some permanent) at many schools, and some subset of law students have opportunities to gain that kind of experience. If we wanted ALL law graduates to have that kind of experience, however, it's going to take a lot more than just shifting away from the Ph.D./VAP track for entry-level hiring. We're either going to need to hire rafts of adjuncts (and then how would we ensure that they're all competent teachers?) or hugely expand the clinical side of law faculties (which would be fine with me, but where are we going to find the money for that given the concerns about the spiraling costs of legal education). One solution might be to fire, or at least stop hiring all the Ph.D.s, but as I argue in my post for tomorrow, law schools have a research mission as well as an educational mission, and the legal profession would be giving up something important if moved away too decisively from research-oriented faculties.

I want to be clear, though, that I'm quite sympathetic to your position, and I would love to see more students getting the experience you describe here. I'm just not sure how to do it without giving up something else of value. Maybe the answer is to hire fewer Ph.D./VAP types and bring on more lawyers with substantial practice experience but underdeveloped research agendas, but that would lead to hellacious battles over tenure and academic standards down the road, particularly if the ABA continues to require a certain percentage of law school faculty members be tenured or tenure-track. What you're suggesting here is utopian in a good way -- you're asking us to imagine something like the medical school model, with half of the time in school being spent in clinical rounds. I like that idea, too, but I have no idea how to make it work given the very different funding models of legal and medical education (i.e. law schools can't attach themselves to publicly funded institutions like teaching hospitals). So I think it's more than just altering the balance, although I'm not opposed to altering the balance somewhat.

[Mitchell Simon]

Brad and John, I think you reach the proper end result in your discussion and have found more areas of agreement than disagreement. We need to define competence without trying to teach every small skill a lawyer might need (e.g., how to convince the sheriff or marshall to serve your pleadings today). However, we may also need to revisit the role of scholarship to be sure that our research agendas (supported in no small part by student tuition dollars) are advancing important societal objectives and advancing our teaching. I believe scholarship, properly conceived, does that. Of course, that begs the question of what that means (see this month's ABA journal for one description of this debate).

[John Steele]

Brad, thanks. I agree that my suggestions would involve a trade-off -- as you say, "giving up something of value." It would probably include a reduction in the types of tenure hires I've been seeing on those lists of new hires. But some of it can come from simply adjusting the material by, for example, building the class discussions around pertinent materials. That would mean far fewer edited appellate opinion and more realistic materials.

[Michele Neitz]

I agree about the need for realistic materials in PR classes, and John is correct that the PR class should focus on various types of practice. Discussing the specific ethical challenges of BigLaw practice vs. government work vs. public interest work will prepare students to face transitions in their careers. As a former Legal Aid lawyer and a former BigLaw lawyer, I find that students become more engaged when I can frame the discussion as "here is what you are likely to see in real life."

[John Steele]

Michele, I had a great instance of that "here's how it works" last week. We were covering the fiduciary duties of "abide & consult" (1.2(a)) and communication (1.4). We had dealt with examples from trusts and estates, high-tech start-ups, etc. One of the students had worked in a criminal defense setting and was able to describe for her fellow students the practice of emphasizing the more negative outcomes when the defense lawyer knows that the accused habitually wants to wager decades of his life on wildly optimistic possibilities that just aren't going to happen.

[John Steele]

Mitchell, thanks, I too see a lot of agreement in my position and Brad's.

As for scholarship, I'm all for it in the broad sense. However, I do have a worry. I read a list of newly hired tenure track professors and noticed what school they had been hired at. There were a lot of theoretical, no-practice-experience-at-all non-law-Ph.D and similar hires headed to schools where the students are taking on massive debt for a degree that the market is not valuing. It seemed to me that the disjunction may be greater today than in any time in the past. That is, I'm worried that the hiring trend is hitting a peak when the market and the broad social consensus have moved in the other direction. I could be wrong. But I wondered what those new profs would have to offer the newly enrolled students in schools where the market proposition is already fallen off.

[Brad Wendel]

For what it's worth -- and since this is completely anecdotal it's not worth much -- I'm sensing the pendulum beginning to swing back the other way on hiring. I've always been the person in appointments committee meetings who has pushed to consider more seriously a candidate with several years of relevant and real practice experience. Over the years I've made quite a nuisance of myself doing that, but recently the arguments have seemed to have a bit more purchase, and others are acknowledging the importance of real-world perspectives in both teaching and scholarship. I'm hearing from people at other schools that they also are getting away from the model of hiring only JD/Ph.D.'s. As I said in my post today, I think we should all be aware of confirmation bias. When we scan the new-hires list, if we're predisposed to see hiring as being out of whack (too much in the theoretical direction), we tend to notice Joe Schmo, Ph.D., or Jane Doe who did nothing after law school except a clerkship and a VAP. I wonder if a more systematic look might reveal a number of new hires with practice experience.

[John Steele]

Brad, I'm glad to hear that. I want to add, though, that non-practicing lawyers could do some homework and present materials that develop competence. As I suggested, if a law school prof asks the practicing lawyers what the most important events/transactions are in their practice areas, or asks them about what law students need to know, and then dig in and learn some of that, the non-experienced prof could teach her meta-issues through the vehicle of issues that students are likely to encounter in practice. As just one example, I believe that David Luban has no law degree at all and hence has never practiced law. But it's obvious from his writings that he has taken the time to dig in and familiarize himself with real lawyering.