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August 30, 2011

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Matt

Interesting. I am pretty strongly sympathetic to the idea that people get better in practice with experience (though not everyone- in all fields people often spend as much time perfecting their bad habits as their good ones), and that this is likely the case for lawyers, too, at least in many fields. I'm not sure that the morals you draw for teaching are so clear, though, for reasons you give yourself.

Consider this remark:

"precisely because this knowledge is learned almost entirely inductively - through repeated experiences - it is extremely difficult to pack into a two year practice arc."

If this is so, why think that the desired knowledge can be imparted during law school, even by an experienced person? (If being experienced and skilled in a field is only imperfectly correlated with being a good teacher of the skill, this will be even more so the case. But there's lots of reason to think that's so in many areas. Think of sports coaches, for example, who were often not close to the top in their fields.) It seems to me that being a very good lawyer takes practical wisdom. But practical wisdom can only be gained through practice. If that's so, then having experienced lawyers (who may or may not have practical wisdom- see the bit about people perfecting mistakes) as teachers is an advantage only if experienced lawyers are better able to _prepare_ people to gain practical wisdom (since only practice can give it.) That argument hasn't been made yet, and I think there's some reason to think it's false. But I do think that that's the argument that needs to be made if this claim is going to be successful.

Doug Richmond

I practiced as a trial and appellate lawyer for a number of years before accepting my present senior position in an corporation. I think that experience allows you to spot issues that you would not otherwise, to recognize doctrines or tactics that you would not otherwise, and, as a result, arms you to share greater insight with students than a less-experienced practitioner would. Through substantial experience you also hone and develop skills that in many ways make you a better teacher. I would assume that someone with, say, a trusts and estates practice could make similar claims. I think that many attributes or skills or experiences other than substantial practical experience may make someone an excellent law professor or faculty candidate; practical experience isn't everything. Some classes do not require practical experience to be well-taught. As I read Jason's biographical information on his school's website, however, it appears to me that he has never practiced--his only non-academic experience is as a judicial law clerk. If that is the case, then he is not qualified to make the observations or arguments that he offered.

anon

Jason's bigger point, I think, is that it's not clear what benefit X years of practice experience has for teaching law students. In his view, law school isn't going to refine your skills as a (de)poser, motion-writer, or interrogatory-answerer. It's there to give you a basic set of tools. A professor's 10 years, as opposed to 2 years, of practice experience just isn't going to make her much better at teaching these skills. That doesn't mean practioners shouldn't be involved. They should. The point is that their experience isn't helping them train law *students.* And, depending on the mentoring that they give (typically little to none), it probably isn't helping in practice either.

There's also the problem of trying to train "practical" skills in law school. Most practice can't be learned in a classroom--you just have to go do it. For that, there should probably be a better apprenticeship system.

Emery

I think these comments are pretty spot-on. I work as a professional researcher, not as an academic or attorney (but I have training and experience in both). I work with junior colleagues on, say, putting together a survey. They often have more (and more recent) training than me on, say, the in's and out's of question wording, but having done lots of surveys, I usually see many angles on things that they don't. It's not rocket science, but being able to remember things, particularly 'what didn't work well that one time' is an advantage of experience. And it can't be taught, it can only be learned.

Ian Weinstein

I guess blogging is supposed to be provocative and I compliment Jason Mazzone for provoking me. I am flummoxed by his distressingly fact free assertions that law practice is not hard and practical experience has quickly diminishing returns. I suggest two areas of evidence one might consider in evaluating these broad claims.
First, the marketplace certainly values experienced lawyers and pays a very high premium for them. Perhaps the marketplace is wrong - wooly headed fools like me search for such examples - but sophisticated players, from in house counsel involved in bet the company litigation to Dominique Strauss Kahn, pay a hefty premium for very smart lawyers with a lot of experience. Heaven forefend anyone you care about should need a lawyer like Ben Brafman but even he, smart and talented as he is, was not always the lawyer he has become.
Second, there is a significant literature on expertise, from the wonderful insights of Donald Schon to the more data driven work of people like Anders Ericsson and Neil Charness. Most in that field believe it takes ten years to develop mature professional judgment and that expertise continues to develop for at least another seven years and often continues to build well into long professional careers.
I offer one last bit that might help explain the common claim from practice that teaching law is not hard, which is so often met with the claim from the academy that practice is not hard. We often underestimate the difficulty of things we don't know that much about. Unable to make an informed judgment about quality, we assume a child could duplicate a Pollock drip painting or that anyone with small motor coordination could perform brain surgery if they had a manual.
If someone I care about needs a lawyer, I refer them to folks with deep knowledge leavened by experience. Maybe a will drafted by a newbie will work out fine - most legal documents are never tested because no one disputes them. But that does not mean drafting is simple. And if someone I care about wants a legal education, I urge them to seek it from people who know what they know deeply and also have some feel for what they don't know and others do know.
Of course Dan poses other, interesting questions about the role of experience in teaching. It may well be that experience in practice is useful and experience teaching from practice is also useful. If you need a lawyer, find one with experience. If you need a teacher, you might also look for experience in that profession. Judgment, rapid recall, deep structured knowledge and skills honed to near automatcity are the stuff of expertise across domains. Identifying the appropriate domain in which to seek expertise is yet another part of the puzzle.

Larry Rosenthal

I commend the Carnegie Commission's report, which provides a very thoughtful approach to this problem. In brief, the report argues that the lawyer's most important skill is exercising sound professional judgment, and it is most difficult to acquire this skill except through long experience in exercising professional judgment. It is not much of leap from that to conclude that those who lack the experience necessary to acquire sound professional judgment will have difficulty imparting even the foundational skills involving the exercise of professional judgment to students, if only because they are likely to overvalue the importance of theory as opposed to experience in developing professional judgment. I have recently published on just this point, using the legal career of John Yoo as a counterexample to Professor Mazzone's refreshingly evidence-free assertions: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574

Larry Rosenthal
Chapman University School of Law

John Kang

Interesting issue raised by Professors Mazzone and Filler. I wonder if it's possible, though, or wise
to generalize about the value of practice across fields. Evidence, for example, seems like a field where extensive practical experience would be useful to illustrate, for example, the hearsay rule and its many exceptions. But I wonder if the same can (or should) be said for, say, con law. Much of what the Supreme Court and appellate federal courts do would seem pretty much the same thing that students do in the class: comparing and contrasting the cases with the instant facts and trying to convince the judge that one interpretation of precedent is better than another.

anon

One problem with limited practice experience is that one might not (or probably won't) get any significant experience at all in the first couple of years, aside from document review or due diligence. As a transactional lawyer, I worked across from counsel at other firms who were several years in, yet had not ever been given significant responsibilities.

Robert Pfeffer

I practiced for 8 years, mainly civil litigation, before I started teaching (in addition to two years as a clerk). I definitely found that my experience made me a better professor than I would have been with only 1 or 2 years experience.

It is true that under a very traditional view of law school, practical experience would not add much, and might even be viewed as a negative. That is, if one views law school as training the legal mind, ala Prof. Kingsfield, than one's practice experience would not necessarily be of much help.

I teach doctrinal courses, and take a fairly traditional Socratic approach. Even so, having been involved in numerous depositions, pleadings, motions etc in practice did allow me to be more effective in teaching civil procedure. After only 2 years of appellate clerking and 2 years of practice, I had been involved mainly in drafting memos and helping on briefs. I had not yet drafted a complaint from scratch, been fully involved in an SJ motion, or taken or defended a deposition. So while I would have still been able to teach those subjects, I would not have been able to as effectively impart to students how these things played out in practice. For example, one can read the rules about a deposition or discovery. But in practice, what goes on is generally highly situation specific. In some cases, a deposition and other discovery is done without much problem. Other times a discovery is highly contested and goes on for a very long time.

Jarod Bona

I graduated from law school in 2001 and after an appellate clerkship have been practicing antitrust, appellate, and commercial litigation. Five years ago, I would have said that there wasn't much of a difference between five years of experience and ten years. But now that I have reached ten years since graduation, I see a big difference. While five years ago, I may have had a good grasp of the law, I did not see or understand the nuances that I see now. Antitrust, in particular, is an area that just takes time to really "get."

While the added benefit of the five years translates better to practice than teaching, I think it would substantially improve my ability as a teacher. For civil procedure, for example, I now better understand that when you represent a client, your goal isn't to pursue or defend a case from complaint to trial verdict to appeal. Instead, each step along the way is an opportunity for settlement leverage. Your client is looking for a business solution not a legal result.

In addition, as you become more senior, especially between five and ten years, you are making more strategic decisions, rather than just implementing decisions made by more senior lawyers. The sort of thinking necessary to make those decisions is definitely something that you can pass on to your students, merely by asking them to think about the case law in various contexts.

John William Nelson

I think a point behind the clamour for more practical teaching is being missed.

Recent graduates do not necessarily want to be capable of handling complicated antitrust matters in a nuanced way that someone practicing 10 years or more can grasp, nor do they want (or expect) to be able to handle a high-stakes jury trial (either civil or criminally).

The desire for more practical skills comes down to the skills that will make these student valuable enough for the older lawyers to keep around long enough to be exposed to how others do it.

Recent graduates who don't know where to start when asked to draft a complaint, or answer, or interrogatories, or motion for a more definitive statement tend to have trouble getting jobs at firms or organizations that will allow them to develop the more nuanced skills.

Similarly, recent grads who don't know how to prepare for a simple hearing, or perform a simple cross examination, or perform a deposition that at least ticks the boxes so that a claim won't get kicked out in summary judgment won't get invited around firms that will allow them to develop more nuanced skills in these areas.

I think the complaint about law professors with limited practice experience is more based in the angst of new lawyers who do not have some of these basic skills. In turn, they look back and say "Well, Professor X didn't care to teach me this because he didn't practice much before teaching."

Law school can't prepare you for a specific jurisdiction, nor can it grant you the nuanced view of legal practice one gains after years of actual practice. However, it can (and should) provide enough of a foundation to enable a lawyer to hang out a shingle and serve clients. (And therefore be more worthwhile to have around in law firms and organizations because they won't have to hold their hand through everything.)

One of my professors liked to talk about how one of the ABA's goal is to ensure law schools teach their students enough to do accomplish practice basics, like writing a will.

I hate to tell you all that I've met many a grad from my time period and on who don't even know where to begin with a will. And, as much as my school did prepare me for other practical aspects of law, I never had to write a will. (I knew how only because of previous work as a legal assistant.)

There are even more recent grads unable to draft a sufficient complaint, or file appropriate motions, or know how to engage in discovery. Heck, even summary judgment—the one motion most law students actually have to draft—is a difficult effort for most recent law grads.

I'd argue that the low-hanging fruit in legal reform is to require, and provide, more courses that beat legal writing into the heads of students. Perhaps three years of legal writing, with courses given as much grade importance as other courses. And a variety of areas—contracts, wills, pleadings, motions, etc.

Do this and law students will come out substantially more prepared than they are today.

Of course, the gripes might continue. Students always gripe—and so do grads.

Adam

How much experience practicing law does Professor Mazzone have? Attorneys with 3, 5, 10, and 20 years of experience are not the same people. There is a reason it is described as the practice of law and advising clients one regularly uses one's professional judgment. What is stated as "the law" and how that plays out in practice are some times two very different things. So, the value a practicing attorney brings should be quite clear, the professional judgment and knowledge of where theory and reality crash into one another.

This can make the teacher better in his or her professorial engagements given that practice highlights areas that actually warrant academic attention as well informing the manner in which materials on a subject is taught to students.

Jennifer Bard

Practicing law is hard and the more you do it the better you get at it. There is no such thing as a "simple" anything, let alone a simple deposition. A well done deposition can do more to limit damages than the most dramatic closing argument. A transcript of a deposition that ends with: Q: "and how else were you hurt in the accident?" A: "No really, I've told you everything. Nothing else happened" is worth its weight in gold and that doesn't happen the first time you do it.

Having taught in both systems I seem to be making something of a career out of comparing legal and medical education. This is a rough version of an article which will be coming out in the Seattle Journal of Social Justice. http://ssrn.com/abstract=1894498 The bottom line is that legal and medical education are different but both law and medicine are complex crafts whose practitioners get better with practice. There are structural differences which prevent legal education from being just like medical education--for example it is very possible for a doctor to stay current by seeing patients only a few days a week or being "on service" in the hospital only a few months a year while it is much more difficult to practice law at a high level while doing something else. We just don't have the structure of handing off a case and then picking it back up that they do.
We also don't have the benefit of government subsidized apprenticeships (yes, the residency system is funded through Medicare)which extends the time between graduation and actual solo performance.
As in most things, the answer lies in moderation. There is room in legal education for the Ph.D. in economics who has never practiced law and the full time practitioners who are able to teach only at night (or in short session workshops).

Every law school (even Yale) offers the opportunity to learn as many practical skills as it is possible to absorb in the time available. But at some point, you just have to start and there will be things you don't know and that you won't do as well your first year as you will your fifth or your tenth.

I think we can improve legal education without underestimating how difficult it is to practice law and without minimizing the contributions of the scholar or the practitioner.

Anon

If I read his biography correctly, Professor Mazzone has never spent a day practicing law. This is why he can make the unqualified statement, "The reality is that legal practice isn't that hard."

Practicing law badly isn't that hard. Practicing law well is very hard. You don't start to master law practice until you have spent time doing the kind of skill based work second year associates are not trusted with, and you really don't get how the system works until you are counseling clients on their options in a way that draws upon psychology, costs and strategic goals.

In the rare cases where academics make the leap to practice, they sometimes find that it's not as easy as it looks. Irving Younger was an awesome professor of evidence at Cornell. When he made the leap to Williams & Connelly, he was, by all the scuttlebutt I've ever heard, somewhere between a flaming disaster and a big disappointment.

That doesn't necessarily mean it makes any sense at all to hired experienced lawyers to teach skills. There aren't that many general skills, beyond writing clearly and negotiating well. The skills tend to be practice specific, and also tend to be constantly evolving and changing. A skills based school could all to quickly devolve into something akin to a barber school teaching how to do 1970's mullets.

It would be a step forward with regard to scholarship, however, to have some folks on the average faculty who have some idea of what is actually involved in legal practice. If you think practicing law is easy, you don't really know how the legal system operates, and so you haven't a clue how ideas get translated into behavior. I think someone who writes on legal issues - whether from a traditional doctrinal background or a a "law and" background - is going to have a hard time writing something perceptive if they are imagining a legal system that is nothing like what exists in reality.

Brian Clarke

I am a new, tenure-track professor. Before entering academia, I practiced for 11+ years and taught as an adjunct for 2 years. It seems that Prof. Mazzone’s perceptions of practice are a bit naive. [I certainly do not mean to imply in any way that Prof Mazzone is anything other than a highly skilled and successful teacher (not to mention a respected and productive scholar).]

At the same time, it seems that Prof Mazzone's views are quite common in the academy, especially among those with traditional "elite" backgrounds [i.e., Harvard/Yale/Stanford/Chicago/etc., federal appellate clerkship, no or very limited practice experience]. The consensus on the web last year seemed to be that more than 10 years of practice experience meant you were per se unqualified to be a law professor because by then your brain had atrophied (with sizable numbers of folks placing the cut off at 3 years or 5 years). This notion is patently absurd and, frankly, offensive.

But back to the point here. If “practicing law” was limited to the document production and similar menial tasks many BigLaw associates spend their first 2-3 years doing, then yes being a lawyer would be pretty easy – long hours, but not mentally taxing. However, practicing law at a high level is extremely demanding intellectually and otherwise. As many others have now pointed out, no two depositions are the same and there is a marked difference between an average, a good and an excellent deposition. No two trials are the same, etc. However, what distinguishes the practitioner with 8-10+ years of practice from the one with 4-5 years is the strategic and tactical understanding of litigation, client needs, party motivations, etc. – and how to use that understanding to better serve your clients. Also, the longer you practice the deeper you understand the law in your area of expertise. This is what your clients expect. [The gulf between a 2-3 year attorney and a 10 year attorney too vast to even describe].

Are these insights into strategic and tactical understanding teachable to first year law students? YES! (on a basic level). Do they make be a better professor? Absolutely, YES. When I teach Civil Procedure, I teach my students to consider – in reading every rule and every case – the tactics involved in filing a particular motion, pushing a particular point, framing the argument in a particular way. We talk about litigation tactics every day and how they can (and should) view their Rule Book as both the litigator’s tool box and weapons chest. Plus, because of the depth of my experience, I give real world context and examples of application to virtually every issue we discuss – something students desperately want and need

Had I practiced for only 2 years – or not practiced at all – I would not have even realized these “deeper” strategic and tactical issues existed. I would not be able to provide any believable context (except when we got to Rule 34 and document production). I – personally – would be a far less effective teacher.

I agree wholeheartedly with Professor Bard that the legal academy should embrace moderation and diversity of experience on faculties. We all need to recognize that it is beneficial to our students, to our faculties and to our institutions to have a variety of voices and a variety of perspectives. I certainly recognize and respect the extremely valuable contribution that “law and . . .“ scholars, empiricists, esoteric theoreticians, and the like make to legal education and the law. On the flip side, I think that the never-practiced-a-day Ph.D., should recognize and respect the valuable contributions that experienced (former) practitioners can and do make to legal education, legal scholarship and the law in general. As a result, I am a strong believer that there should be folks from both groups on ALL faculties.

John Steele

Prof Mazzone's argument certainly isn't the one you hear from most academics when there is discussion about loosening accreditation standards and freeing young lawyers from the grip of the pro-faculty standards imposed by the ABA. In those discussions, we are told that successful law practice requires deep thinking, creativity, and interdisciplinary skills -- the stuff that only the current crop of tenured faculty (and current hopefuls) can provide.

But if it's the case that legal practice is as easy as Prof. Mazzone suggests, then one wonders why we require our students to take seven years of higher learning and rack up $100k or more in debt just to enter a field that's pretty easy. We ought to let students by-pass the ABA accredited schools and move straight from college to law practice.

The reality is that there are segments of the legal profession that are as easy, or even easier, than Prof. Mazzone describes. But not too many. The bulk of lawyering in the US -- family law, civil litigation, transactional law for closely held and small companies, criminal litigation, in-house lawyering, employment law -- is a lot more complicated than that and successful practice requires the kind of judgment that usually comes from experience. And there is a relatively small segment where innovative thinking is paramount (i.e., the so-called "gray matter" areas). For those who are interested in the topic, David Maister wrote about it a couple of decades ago.

I've often spoken to young faculty who say they never practiced law or "practiced" law for 9-24 months, but upon drilling down you realize that the ones who "practiced" never had to make the key judgment call that would lead to success or failure on a matter. It's in making those calls and living with the consequences that can lead to judgment. It's hard to get unless you've practiced a while. (As one example, I asked a new faculty member about the biggest responsibility she had had in her 18 months "practicing" at a prestigious firm and she said that she had "second chaired" a meet and confer telephone conference about a document production issue.)

Finally, just because a lawyer has practiced a number of years doesn't mean that she's really developed that judgment and it doesn't mean that she can communicate that usefully in the classroom. Presumably, though, that's why you have both students and faculty evaluate the adjuncts.

Frustrated in Houston

To answer the questions in the title: (1) Yes; and (2) all other things being equal (publications, academic credentials, etc.), I would think yes. As a 20-year IP/litigation attorney who wants to teach but has gotten no interest yet (despite many publications and solid, if not A+ academic credentials), I am likely biased on question (2). But I would go further and ask, why do faculty hiring committees seemingly discriminate -- as a few recent high-profile age discrimination lawsuits have suggested and my personal experience confirms -- based on the assumption that experienced practitioners would be WORSE professors than an equally-credentialed and equally-published 2-4 year lawyers?

Heidi Anderson

I couldn't agree more with Ian and Brian. With respect to Ian's comment, the fact that lawyers with more experience routinely demand and receive higher compensation via higher billable hour rates rather convincingly demonstrates that they at least are perceived as more valuable. Brian then connects the dots and shows how that more highly-valued practice experience translates to the classroom. Many professors with zero to few years of experience make excellent law teachers. But there is a lot that they cannot offer to students, just like there's an end to how much my practice experience can help students. As Brian notes, a faculty composed of individuals with varied experience levels across a multitude of disciplines seems like the best way to go yet few schools seem to embrace this kind of diversity. Of course, I understand why that's the case. A decisionmaker who hires someone who possesses the same combination of credentials (or lack thereof) as the decisionmaker possesses further validates the decisionmaker's life choices and ego. When interviewing potential BigLaw associates, I'm sure that I was guilty of the same bias (at least sometimes). But it sure would be nice if some decisionmakers made more of an effort to get past that "we should hire more people just like me" bias. I think we'd all stand to benefit from it. And who knows? Maybe hiring more practice-experienced professors would finally help address that long-lamented problem of faculty scholarship having little practical application.

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