Legal Commentary

The posts on legal education (both here and elsewhere) have been very interesting, particularly for a professor beginning her second year of tenure-track teaching. Like most people on the academic job market, my primary interests were theoretical, albeit with a practical bent.  I like to write about certain legal institutions with which I had practical experience, and think about how different theories (law and economics, behavioral economics, etc) inform our understanding of those institutions and the policies they generate.  I liked thinking about theory in college, and in law school, and even in practice.   One of the reasons I came to the world of teaching is that I found myself reading law review articles long after they were useful to me as a practitioner. 

But I also thought it important to learn some skills in law school, and I particularly enjoyed teaching an experiential simulation-based course in NYU's Lawyering program.  I won't go over all of the reasons for an experiential first-year Lawyering program, but at its best, it can allow students to see the shortcomings of both doctrine and theory.  Things don't work out the way we expect or predict them to, and then we have to come up with something else instead.  Such knowledge should improve both our scholarship and the legal training of students.

The problem is that beyond the skill of analyzing cases and constructing arguments, there are very few skills that can be generalized to all areas of the law.  So saying that we are preparing students for the practice of law is a very dicey measure because the practice of law encompasses so many things and changes rapidly. 

On top of that, it is not at all clear me that those AmLaw 100 law firms, the ones to which students still aspire, want well-trained entry-level lawyers.

Case in point: Twelve years ago, I became a litigation associate at Cravath, following a one-year appellate clerkship.  None of my law school classes were "skills-based" and none of the Cravath partners who interviewed me cared.  Now, this is only my perspective, but from what I could tell, the point (at least back then) was to take a smart attorney and inject them with a big dose of firm-culture.  In my opinion, the last thing Cravath would have wanted was to hear some 1st year associate saying, "Don't worry, I can do this deposition because I was trained really well in law school," because the reflexive answer would have been, "No, you can't do this deposition.  You need to learn how to do it from us." 

And just to be clear, this wasn't just Cravath's attitude.  Two years later, I jumped to the United States Attorney's Office in Manhattan.  Other than working on two pro bono criminal matters at Cravath, I had no experience with criminal law (and I certainly had no court-room experience).  I had not taken any criminal law classes in law school other than the required first-year class.  And I was hardly alone.  Very few of the starting attorneys at the USAO were former prosecutors and I can think of only one or two entering AUSA's who had been partners at law firms.  To the contrary, most came from either clerkships or were mid-level associates at law firms, many of them big firms like mine.   

Now maybe times have changed, and maybe the other big law firms (which aped the Cravath system for so many years) also have changed.  But my sense is that the last thing these firms wanted were well-developed attorneys with a solid skill base.  If they had, then they would have hired far more laterals than entry-levels and they would have compensated associates without regard to class year.  What they wanted were smart people who were willing to immerse themselves in the firm's culture and mannerisms.  They wanted people who would feed and support the firm's hierarchical structure.  People with the ability to develop skills, yes.  People with already-developed skills (as opposed to an already defined client base, which is an entirely different matter), not so much.

Which brings us to today.  Now, as their client base dwindles and their fees are attacked, what do those large law firms want?  Do they really want "skilled" first-year attorneys?  Or do they still want smart people who can quickly develop the firm's version of these skills?  I doubt they themselves know the answer.  Nevertheless, old habits die hard and "skills" are awfully difficult to judge among entry-level candidates.  For all these reasons, the large law firms - even if they say they value skills - may continue to cling to the old model, albeit in much smaller form.