Month: October 2017

Clinical legal educationCollaborationFact investigationLaw practiceLaw school

The hothouse of law school

The great law professor Larry Ribstein used to say that legal education has grown within a hothouse. Flora and fauna grow in different ways in a hothouse than in a natural environment.

-William D. Henderson, quoted in Katrina Lee, The Legal Career: Knowing the Business, Thriving in Practice (2017)

For sixteen years I’ve been teaching in the “hothouse” of legal education. I’m certainly aware of differences between how law and legal skills are taught in the hothouse and how they are practiced in the natural environment.

Some of these differences are unavoidable and in fact beneficial. Education is preparation, and preparation can thoughtfully sequence legal topics and legal skills in a way that law practice does not and cannot.

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But some differences between the hothouse and natural environment of practice are not necessary or helpful. It’s an essential part of the law professor’s task to be aware of this difference and make constant calculations about where to situate each assignment or discussion. A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

One key to making those calculations is knowing what happens in typical natural environment of law practice. Ann Sinsheimer and David J. Herring did a fascinating study of what lawyers really do at work. Of particular interest to the legal-writing professors, they found that lawyers they spend a ton of time meticulously crafting emails.[i]

Sinsheimer and Herring also found that lawyers spend a lot of time reading—no surprise there. But what they are reading is not nearly as case-driven as expected:

The scope of what these attorneys read was surprising to both the associates and the law student observers, particularly given the emphasis on reading judicial opinions in the traditional law school curriculum. In fact, our law student observers were surprised by the relatively few judicial opinions these attorneys read. Consider, for example, the following excerpt from the 2L observer who followed L, a third year litigation associate at a large law firm:

The types of documents L read varied based on what type of case she was working on and how big her role was within the case. What surprised me most about this was how little time she actually spent reading judicial decisions. While I was there, I witnessed her reading mostly treatises, statutes, case summaries, emails, discovery documents, and secondary sources. She did read some judicial opinions while I was there, particularly when she was researching a legal issue, but not as frequently as one would expect based on the strong focus on what seems like only judicial opinions in law school. A lot of L’s time was actually spent reading documents that most law students never see, such as discovery documents, business documents, contracts, and bids.

Thus, this study points out that legal education may in fact have a “hothouse” problem when it comes to reading. Classes on transactional reading and writing, administrative and procedural skills, and business skills would help bring their experience closer to what they will see in the natural environment.

I think there’s even more of a gap in how listening is approached in legal education versus how it’s practiced in the natural environment.

Yes, there is some excellent training in listening and communication, and I’ll talk about that in a moment. But what do most law students do, most of the time? This is what worries me because this is what I think the answer is:

Go to class. Sit somewhere between 5 and 100 feet away from the professor. Open a laptop. (Maybe) open a chat channel. Take notes. (Maybe) chat with classmates or others. Make eye contact—or not. Take good notes—or not. (Maybe) record the class and listen to it later. (Maybe) ask a question or be asked a question, every couple of weeks at best. Start to gather up books and electronic equipment in the last few minutes of the class as the professor wraps it up. Close the laptop. Leave. Get tested indirectly on listening skills during the midterm and final exam weeks or months later. Never find out if a weakness on that exam was the result of a listening, reading, or thinking deficiency.

This is bad training for listening in law practice.

A student may spend an entire semester never making eye contact, consistently multi-tasking, and never confirming whether the notes they took are accurate or complete. Not to mention the fact that these hundreds of hours spent staring at a screen conditions any human being to . . . want to stare at a screen.

This is a hothouse, big time.

There are some pockets of explicit preparation on listening—some places where legal education is closer to the natural environment of listening in law practice. Simulations and clinics present excellent opportunities for real-world listening skills. I’ve watched a video with Lyn Su of New York Law School where she brilliantly coached a law student on his interaction with a simulated client. That’s just one example of the helpful opportunities that are available for those who take advantage of them.

The Sinsheimer/Herring study did not explicitly address listening skills as such in the workplace. It did, however, suggest that preparation on listening to clients and judges, while better than nothing certainly, is not quite what many new attorneys really need:

Communication skills were fundamental to these attorneys, but the sort of skills they drew upon are not a key part of the traditional law school curriculum. Communicative acts in law school often involve preparation for courtroom appearances or client interviews. In contrast, the sort of communication engaged in by the attorneys we observed was usually intra- and interoffice or business communication. Despite what their law school experience might have suggested, these attorneys made few court appearances and had limited client communication.

So how to get out of the “hothouse” and into more of a natural environment for actively teaching these skills? Having more clinics and simulations is one solution, and the ABA’s new graduation requirement of six experiential-learning credits will definitely have an impact. But students need a lot more than six hours of credit to graduate and could still spend hundreds of hours staring at their screens and typing notes.

One highly promising solution is the idea of team-based learning, where students have to talk and listen to one another in small groups. Working in a small group that is accountable to one another means that each team member’s listening skills (and all people skills) will matter much, much more. Professor Lindsay Gustafson of University of Arkansas-Little Rock has spoken about using team-based learning not for a skills class or clinic but for . . . 1L property class.

I’ll say more in future posts about Gustafson’s work and team-based learning as an escape from the “hothouse.” Professor Anne Mullins of North Dakota has done good work on team-based learning as well.

And I invite comments about what are the right communication skills for the natural environment of law practice, as well as how to teach and promote those skills through legal education.

…….

[i] Legal-writing professors talk all the time about whether memos and appellate briefs are too much like “hothouse” assignments. The rise of the email assignment and shorter assignments in general are a sign that legal-writing classes are evolving to better represent the actual nature of practice. (It can never actually “be” the true experience but only a simulacrum for educational purposes. And that’s as it should be, since it is by definition education and preparation for that experience.)

In speaking, moot court is an excellent advocacy project that is also fairly criticized for being, at times, artificial. An example of a critique is Steven Berenson’s article in the New Mexico Law Journal, Preparing Clinical Law Students for Advocacy in Poor People’s Courts. He argues that students need to be ready to speak in a much less structured and more chaotic environment.

 

Client developmentClient relationshipsin-house counselInnovationInterviews

Review: Katrina Lee’s The Legal Career

511sXW1U++L._SX359_BO1,204,203,200_Katrina Lee’s new book on the business of law, The Legal Career: Knowing the Business, Thriving in Practice (West 2017), starts by exploring the design of a law-firm office. Lee points out that the law office can be seen as a microcosm of the legal industry: evolution, yes, but also persistent adherence to the old ways. Newer office designs place greater value on “flexibility, openness, and collaboration.” There is less of a differential between the size of junior associates’ office square footage and that of partners. Law libraries may look more like “a comfortable coffee shop,” or even (heaven forbid) be known as a “lounge-brary.” Less emphasis on space for physical books opens up more space for all employees. Despite these changes, some firms polish the walnut-grained panels the way things always have been.

The Legal Career goes on to chronicle law-firm billing conventions and salary structures, as well as the “precipitous” drop in solo practitioners’ salaries over the past 30 years, and a growing role for legal professionals who are not licensed attorneys. Lee cites research from Heidi Gardiner of Harvard that effective collaboration among law-firm offices and practices groups leads to increased revenue.

Lee now teaches at The Ohio State University Moritz College of Law; before that, she practiced law for 12 years including six as an associate and six as an equity partner. Her book brings together these two careers: it’s textbook for law-school courses in the business of law, with an admittedly heavy emphasis on civil practice. As Lee writes in her introduction, it is “law firm-centric.” It does include in-depth interviews with in-house counsel giving a helpful client’s perspective from within “the corporate law department.” Lee interviewed in-house counsel at a variety of companies ranging from Google to an Ohio-headquartered insurance company.

That is not to say The Legal Career is just a practical how-to manual for understanding the job market as it is and getting a job. That approach would simply replicate the current flaws and weaknesses of the legal industry; Lee’s book is more ambitious. For example, her interview with Dr. Silvia Hodges Silverstein delves into the Gender Billing study. Although female lawyers don’t work less than men and are not less productive, Dr. Silverstein’s study showed “clear” and “depressing” patterns: “[W]omen are assigned less strategic tasks, given more administrative work,” and “Male lawyers’ invoices were also less discounted than female lawyers’.”

The Legal Career explores other business problems and weaknesses such inefficiency and resistance to technological advances. Lee quotes D. Casey Flaherty: a client unhappy with a law firm’s advocacy or counsel should simply “get new lawyers.” But for complaints about the “content” and “production” of information as opposed to the underlying advocacy or counsel, a client may benefit from talking with their lawyer or law firm about better process and efficiency. In this regard, clients can drive change. Flaherty envisions the law firm as “long-term legal suppliers” and recommends more conversations between clients and lawyers to foster more efficient services for clients and more accurate, less discounted realization rates for firms.

Working efficiently raises the issue of incorporating project-management experts into the law-firm delivery model, and much broader involvement by professionals who are not licensed attorneys. Consistent with opinions of many in the law-firm innovation discussion, Lee questions the term “non-lawyer” as potentially “unproductive and unfriendly.” But what term should be used instead? And should lawyering be regulated differently to allow more “legal technicians” and the like? In this way, The Legal Career also takes on challenges with access to justice.

Near the end of The Legal Career, Lee explores the need for innovative legal education. Here again, the range of opinions offered is a strength of the book. One quote from William D. Henderson jumped out at me:

There’s a real opportunity here. Lawyers are always happy when they are solving their clients’ problems. It’s a great day when you solve your client’s problem. In this day and age, we’re going to solve a lot more problems better; that will bring a lot of psychic happiness to lawyering. The economic model for this is unclear, but it’ll sort itself out.

Lee doesn’t—and can’t—provide easy answers to such questions. She encourages creative discussion about the big issues facing lawyers, such as in a classroom setting. But a class on the business of law is not necessary to learn from this book. Anyone who reads The Legal Career will be challenged to reflect on their individual careers, the meaning and measurement of law-firm success, innovation in legal education and the legal industry, the role of lawyers in society, and the future of the profession.