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November 30, 2012

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Bill Henderson

Bernie, This is a serious reply to the Mitchell op-ed. Your career history makes you an especially credible person to speak to these issues. You look at these arguments through a litigator's eye. And you experienced these changes in the profession first hand. I am glad you are involved. Bill H.

John Nelson

There is plenty of legal need out there for the lawyers being produced today by law schools. Anyone who does not see this does not work with the members of their community who regularly need legal advice but cannot afford attorneys.

Which comes down to the real issues about law schools. Law schools fail to prepare students for the changing legal market. This is worse at the top-tier schools who have too long been dependent on large and mid-size law firms to hire their students and provide 3-5 years of training in practice post-law school.

In comparison, many second and third-tierUSNWR schools have smaller percentages of their students facing the problems of their top-tier brethren. This is because these schools have routinely served smaller markets and had to emphasize either smaller law firm placement, public law placement, or preparing students for solo practice.

How are law schools failing students? There are two big ways this is happening. First, law schools often do not guide students in understanding what the practice of law will be like when they graduate. Many schools have clinical programs which can provide valuable skills to their students, but many students do not understand some of the fundamentals of legal practice (or why they need to learn these fundamentals in law school).

This includes basics in contract drafting, drafting a basic will, drafting a complaint and answer, drafting and responding to discovery, how to file litigation-related documents, how to manage themselves in a courtroom setting, and more. Add to this the lack of courses in most schools which get into the nitty gritty of solo practice — finding malpractice insurance, setting up an office, technology needed for a law practice, the basics of marketing, working as an independent contractor for larger firms to help pay bills, etc — and you have students who are not typically prepared to hang out a shingle right out of law school.

Secondly, student debt handicaps graduates. It is absolutely incorrect that there are too many lawyers. There are not enough affordable lawyers. Otherwise, sites like LegalZoom and RocketLawyer would not exist.

Student debt handicaps students in trying to find a way to serve these underserved markets. Student debt models are based on older compensation models which are no longer the reality. Most students doing legal work in many legal markets are doing so as independent contractors with 1099 status, or they have their own firms.

The good students can end up making more than their compatriots working within firms. However, those first few years get very dicey when you also have student loan commitments of anywhere from $500 to $2500 a month. Add to that rent, overhead, and other necessary expenses and a new solo or small firm lawyer with profit sharing needs revenue of anywhere from $5,000 to $8,000 a month to make it. These revenues are possible if one plays their cards right, but usually won't appear for a year or two.

The idea that there is a disconnect between the value of a legal degree and opportunities in the legal market in the above post is correct. There is a disconnect. However, the root of the problem is not as simplistic as argued.

There are not too many attorneys. There are too few affordable attorneys. And one reason many attorneys are not affordable is the student debt load carried by recent graduates.

Bernie Burk

Alas, Mr. Nelson's Comment succumbs to precisely the failures of logic and empirical support I bemoan in the main post. There is no evidence that tens of thousands of unemployed new lawyers can all make a living doing $50 incorporations and $100 uncontested divorces. There is no evidence that one clinical class in law school (or several, for that matter) would spell the difference between unemployment and employment for any meaningful number of law grads. There is plenty of need among the needy for legal services, but no money to pay lawyers to assist them (and the Legal Services Corporation's budget has been cut drastically over the last several years). And there is no evidence that second and third-tier law schools are more successful in placing their graduates in law jobs than top-tier schools; in fact the very voluminous and detailed evidence on this issue is overwhelmingly the opposite. Stop blaming the victims of a sudden and genuinely unexpected market transformation; it is meanspirited and terribly unfair.

--Bernie

justme

Here's my beef with your argument: it smells like the cyclical argument. Things are bad now, but they weren't that bad before.

I graduated from a tier 1 law school in 2000. Even way back then, a sizable chunk of my fellow classmates had a very hard time getting real legal jobs. Those that did get jobs at good law firms only lasted a few years.

The market has been very bad for very long. The oversupply of lawyers is tremendous. The recession has only proven to me just how inoculated law professors are from the realities of their graduates. I'm not saying this to besmirch anyone but to state a simple truth: The fact that you folks only now realize how bad things are speaks to how much you really still don't get it.

Ray Campbell

The nature of the service lawyers are required to provide - a personalized, needs-specific service based on adequate factual and legal investigation - pushes against lawyers being able to meet low end needs. While lawyers can offer limited scope services (Stephanie Kimbro has some good how to do it materials out on that) it's a non-trivial challenge to do that in a way that keeps your malpractice insurer and the state bar content. Also weighing in against low cost services are the provisions against investment in law firms by non-lawyers - this makes it difficult for law firms to do what other businesses do, which is to grow to scale, using investment in systems and replicable processes, backed by investment capital. Gillian Hadfield, who has written on this before, has a new article up arguing, consistent with her prior work, that the issue is systemic, and will require reconfiguring the laws governing legal services. (Hat tip to http://www.responsivelaw.org/index.php?option=com_lyftenbloggie&view=entry&category=blogs&id=82%3Aprofessor-hadfields-excellent-new-work-&Itemid=115; her article is at http://works.bepress.com/ghadfield/49/). I have some nits with her argument (for example, if you are going to talk about innovation and Clayton Christensen, his more recent work has moved on quite a bit from The Innovator's Dilemma, and deserves notice), but on the whole she's on track and it's well worth a look. It's a lazy mind - or one controlled by cognitive dissonance - that waves away the problems with an assumption that unemployed lawyers can solve everyone's problems by offering cheap services to the poor.

anon

+1 on Bernie and Ray's comments

Ordinary language:

Debt doesn't change the young lawyer's decision whether to accept less for legal work. If there were paying clients at $20/hr, then lawyers would take the work. Isn't $20 better than $0?

If poor clients can only afford to pay less than $5/hr, then the poor will never get legal help. (Lawyers can always work at Starbucks for $10/hr.) Law school could be free, but clients who can only pay $5/hr will never find lawyers.

Law & economics speak:

After graduation, the cost of legal education is a sunk cost and therefore does not affect the profit-maximizing strategy for lawyers, young or old.

Legal need is not the same thing as willingness to pay.

John

"Legal need is not the same thing as willingness to pay."

Excellent point, and one not noted enough.

Poor people may need more legal services, but they CANNOT pay for them. That should be obvious to all.

But also, middle class people may need more legal services, but they WILL NOT pay for them. Other things take priority -- housing, food, education, etc.

henry

Look forward to the day when law professors are out on the street, like their grads, forced to look for anything and everything in work. We'll see how 'versatile' that law degree is then, bucko!

henry

Actually this is a spot on point. Its great to rabbit on about how there's unmet demand by clients for legal services, but really the shortage is for lawyers willing to work for free. When people have to actually pay physical money for legal services, they will bitch and scream and moan. I'd love to see these law professors have to make a living in private practice for clients who. just. wont. pay. for. things.

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