Lawyer Competency and Law School

What do lawyers do? What do lawyers need to do well in order to succeed? These are pretty key questions for legal educators, I think.

The amazing thing is, we know far too little about what lawyers do. In her foreword to the Kindle edition of John Flood’s look at the day to day life of a mid-sized Chicago law firm, What Do Lawyers Do: An Ethnography of a Corporate Law Firm, Lynn Mather notes that the question has “not been systematically explored.”

The lack of information astounds all the more when you stop to think about how large an industry law is. Back when Michael Kelly wrote Lives of the Lawyers Revisited, he noted that law was already a 150 billion dollar a year industry in the US alone, and I don’t think the figures he relied on were able to include all the places lawyers work. By my rough reckoning, just US legal education, which aims to prepare law students for whatever it is lawyers do, takes in somewhere between $1 billion and $3 billion annually in tuition alone.

Flood’s look at a midsize Chicago firm in the 1980s provides some of the answer. As he concludes, “In the practice of law one finds very little law.” What lawyers do instead, it seems, is talk, and mostly to each other. Flood’s ethnographic look, taken by sitting quietly amidst practicing lawyers as if he were investigating an Amazonian tribe with access to somewhat better restaurants, makes clear that as lawyers progress through their careers legal research and writing becomes less and less important.

Recently, Scott Fruehwald of the Legal Skills Profs Blog directed me in a comment here to an article by Neil Hamilton that looks at lawyer competencies. Law firm human resources departments, like human resources departments everywhere, have started using competency matrices in staff reviews. Hamilton looks at the forms used by 14 firms in Minnesota and then combines those with earlier studies going back decades to see what people think lawyers ought to be good at. He argues, in short, that law schools should move to a competency oriented curriculum based on what employers value, with a well-developed sense of professional identity as the envelope containing the individual competencies.

It’s difficult if not impossible to force rank the competencies, because different firms and different studies use different terms to describe similar or overlapping competencies, but a look at some of the most frequently used competencies gives sufficient sense of what firms think young to early-mid-career lawyers should achieve.

The list would include:

• Initiates and maintains strong work and team relationships
• Good Judgment/common sense/problem solving
• Effective written/oral communication skills
• Project management including high quality, efficiency, and timeliness
• Business development/marketing/client retention
• Dedication to client service/responsive to client
• Analytical skills: identify legal issues from facts, apply the law, and draw conclusions
• Initiative/ambition/drive/strong work ethic
• Legal competency/expertise/knowledge of the law
• Commitment to prof. development toward excellence
• Research skills
• Commitment to firm, its goals, and values
• Integrity/Honesty/Trustworthiness

A couple of things jump out at me from that list.

First, most of these are not law practice specific, and have not been taught in law schools. Some of those apply to all of daily life (“plays well with others,” integrity) while others would apply to any white collar workplace.

Some of those may be factors that law schools are somewhat effective as filters for – for example, work ethic and the personal ‘project management’ probably have some correlation with undergraduate and law school grades, especially as you mount the rankings toward the very top institutions. In my experience, anecdotal but not insubstantial, people who graduate from both an elite college and an elite law school with excellent grades tend to have a strong work ethic and are competent at getting things done. Employers may not be wholly blinded by status or just buying IQ when they gamble on someone who graduates from, say, Amherst with top grades and then does well at Harvard Law.

Others – team work, business development, commitment to the firm – aren’t part of the law school curriculum and are not effectively filtered by law school rank or the GPA+LSAT admissions process. As their position on the list indicates, these are nonetheless pretty important competencies for firms.

These may be things that law schools can teach if they make significant changes in what they do, but they are also qualities that law schools can select for in the admissions process. My oldest daughter is now a first year at NYU law, and while NYU has a state of the art lawyering program, my utterly unbiased opinion as my daughter’s doting father is that she isn’t going to need NYU how to teach her to work in groups, to write well, to be honest, or to network. Over the course of working at a couple of different consulting firms and for Elizabeth Warren’s TARP committee, not to mention part-timing at a friend’s start-up company, she has, I think, sorted all that out. If I am deluded by fatherly bias (and her mother thinks I am not), I’m also guessing that NYU will have a hard time teaching her what she doesn’t already know amidst a curriculum that still looks more like a law school than a business school.

Business schools already select for these sorts of competencies by requiring previous, successful work experience. The average student in an elite MBA program has been out of college for several years, and glowing recommendations from prior employers are a must have in the admissions process at any of the top schools.

Some law schools have started to turn that way – notably Northwestern, which advantages work experience in admissions. I’m not privy to the whole theory behind why they do what they do, but it appears that they think giving up a fractional decimal point or so in GPA is offset, so far as employers are concerned, with being able to select from a pool of job candidates who have proven before law school that they can work successfully in organizations, and have therefore shown that they work well in teams, can get their projects done, have integrity, and interact well with clients. Not all law schools will want to or know how to make this effective as part of admissions, but with employment outcomes now part of the ranking process this is bound to become an approach attempted by others.

I think Hamilton’s list of competencies, and the lists in the previous studies he references, are worth thinking about. Schools can decide what they want to look for in the admissions process, what they think they can teach, and what they just want to warn students about before they emerge into a world demanding competencies they may not have yet developed.

I think there is another way to think about what law schools can and should teach lawyers to be, and I will get to that in my next post.

Comments

[MacK]

One of my earliest law school experiences was a legal research and writing assignment in a small-section sub-class; pass/fail. We were to do the assignment entirely on our own - no help from anyone else, no helping other students. I am pretty good at case research and have a skill that was very useful in the late 80s - I read 100-200+ pages an hour with fairly total recall - I'm told it is a side effect of being mildly dyslexic (it makes up for my typo problem.) It turned out that there was an obscure case, Lemon, probably not known by the legal research and writing instructor (a 3L with awful Yale-perfect English but turgid writing skills.) Naturally with a few classmates who were having a hard time - I hinted broadly how and where they might search for something they would find very useful.

There were two results - possibly involving the same person. First a hyper competitive member of the sub-class found out that people were sharing and tried to make a complaint (so much for team building.) Second, there were several copies of the reporter in question scattered around the library - 1 or 2 were hidden and 7 had the Lemon case cut out. (inter alia, I later had my class-notes swiped from my bag in the library.)

So one of the things I encountered in law school is that the hyper-competition encouraged especially amongst 1Ls leads to quite bizarre behaviours - and in my opinion fosters personality traits that ill serve the legal community and the practice of law.

[Former Editor]

I'd add that some of the interpersonal/dedication related skills that are not taught in a strictly curricular are taught, or at least rewarded by, other optional aspects of the law school experience. In particular, I'm talking about membership on the editorial board of a well staffed law review (probably the flagship at most schools). I always find it a bit disheartening when that gets ignored in conversations about legal education or the value of law reviews.

[JohnAFlood]

I think you have this right, Ray. One of the more thoughtful pieces in this area is Randy Hertz's ABA report on outcome measures as opposed to inputs into legal education (http://migration.nyulaw.me/sites/default/files/ECM_PRO_062606.pdf). Hertz's committee borrowed extensively from UK work in this area, especially Julian Webb's (now at Melbourne University and author of Legal Education and Training Review-http://letr.org.uk). And this leads me to my second point that US style legal education is one of several forms of legal education in the world. And a number of these are at undergraduate level rather than graduate. For educators this creates a different realm of pressures, needs and expectations. I think because of this the really big law firms are now taking on considerable amounts of education and training themselves, either inhouse or outsourced. There's a raft of private providers moving into this market now and they are focused on competencies, skills, more than knowledge.

[twbb]

MacK:
I think law school in the U.S. does seem to attract far more people with mild-to-severe emotional dysfunctions than you'd find in the general public.

JohnAFlood:
I think the larger law firms in the US might have finally just pushed into some semblance of efficiency. The process you detail definitely makes more sense from that perspective. Also, are you the guy at Westminster?

[James Durham]

I recall one of the 'aha' moments in law school was when I was working in the legal aid program. You had to meet with people, learn what their problem was, give practical advice about how to solve it, and, in many cases,follow through with them to implement the solution. I thought, 'wow, that is really cool, and I didn't see it coming.' Why? Because the education was all about the law -- not people. Over 20 years later I wrote a book on how lawyers need to interact with and service clients, and couldn't get one law school to use it! Over 12,000 lawyers have purchased it, but apparently it isn't relevant in a law school curriculum.

[twbb]

MacK: Anyone who's gone to law school knows that it attracts a high level of emotionally dysfunctional people as compared to the general population.

JohnAFlood: Makes sense; biglaw in the US seems to have been forced into manifesting some semblance of efficiency. Also, are you the John Flood from Westminster?

[JohnAFlood]

My apologies but my links above to the ABA report and LETR were incorrect. Here are the corrected links:

Randy Hertz's ABA report on outcome measures in legal education: http://apps.americanbar.org/legaled/committees/subcomm/Outcome%20Measures%20Final%20Report.pdf

Legal Education and Training Review, which has extensive literature reviews and other interesting documents on legal education: http://letr.org.uk

[MacK]

twbb -

I don't disagree - but - I'd suggest that law school makes many worse, while encouraging some behaviours which the post above would suggest law firms find undesirable. However, I'd suggest that BigLaw particularly may be a little shall we say inconsistent in how it values many of the character traits it claims to favor - competition to survive being pretty savage in many large firms associate ranks, not to mention increasingly partners.

[anonq]

This list is so much like all the other lists we see.

What would you like to see in a good lawyer?

Answer: prepare a list of all the traits good lawyers may possess, without regard to the fact that NO ONE POSSESSES all the traits.

Generally, there are minders, grinders and finders. Sometimes a person may have skills that relate to more than one category, often not.

The list above assumes law school can reform every human to possess all the skills that an attorney might conceivably find useful. It can't. And, conceiving of humans in these terms is useless.

The most brilliant and inspired researchers/writers are less likely to be the sort of glad-handing, souless smoothies that tend to attract a lot of clients. The greatest advocates in jury trials are often definitely not intellectual powerhouses (though of course, exceptions prove the rule).

The confusion about "practice ready" legal education doesn't need to be as confused and confusing as the list above. Conceiving a law school curriculum that serves to meet and shape the demands of the legal MARKET does not translate into seeking a wish list prepared by persons in law firms that have "human resource" departments that waste enormous amounts of time "using competency matrices in staff reviews."

One doesn't need this sort of navel gazing to measure competency at the DIFFERENT levels and in the DIFFERENT roles attorneys play in the practice of law. The sort of thinking that goes into this sort of clueless approach will disserve baffled legal educators who likewise have not a clue about how to meet the demands of legal market we have, and how to shape the legal market we NEED.

[Ray Campbell]

Former Editor - point well taken.

MacK - When I was at U.Va., people used to claim that things like that happened at (fill in the name), but I didn't believe them. I certainly never saw that kind of behavior in my school, although I was exposed to plenty of disfunctional personalities once in practice.

anonq - I'm not sure I see the actionable point in your comment. I also have to say your description of who generates business does not map to my experience at the firms where I practiced. Generally, the folks with big books of business were really extraordinarily good lawyers. Some were introverted, some extroverted, but the common thread was that they inspired trust by solving important problems for clients. Having been in practice long enough to have been equity partner at a major firm, I certainly would not tell students that the way to generate lots of business is to be a glad-handing, soulless smoothie. I'm also going to quarrel with the notion of great trial lawyers being intellectually challenged. That might be the case in some small stakes courts or in certain types of practice, but having practiced alongside and against some pretty big name trial lawyers, they all seemed pretty smart to me. As for what law schools teach, I don't think law schools are in a position to decide who is a finder and who is a grinder, and tailor the education accordingly. I think the task is to equip all students as much as possible to succeed in practice wherever they end up. The list lifted from the article isn't tight, because the sources aren't consistent, but I'm not seeing why thinking about what law firms want lawyers to be good at is a useless thing to think about.

[JohnAFlood]

twbb--Yes I was at Westminster. I'm now at the UCD Sutherland School of Law in Dublin, Ireland. But I keep a connection with Westminster.
www.ucd.ie/law

[twbb]

Ok, I was in one of your courses during a summer law program many years ago; thought I recognized the name!

[anon]

"As for what law schools teach, I don't think law schools are in a position to decide who is a finder and who is a grinder, and tailor the education accordingly."

Exactly. The list above is pretty much useless. That was my point. I take it you would concede that point, because your response just tries to nit pick at some of the generalizations about actors in practice.

That's an always easy dodge. Here in the FL, a frequenct response to a point on the merits is to say "But, I know some people, and those people don't fit the generalization." or "But I heard that ..." Or : "Well, I practiced alongside some really brilliant lawyers." So?

Problem is: the persons with whom you are speaking generally spent only two or three years at the bottom of the barrel in a BigLaw firm getting paid big bucks to do scut work.

This is the audience to whom you are speaking. Let's not mislead them by representing that the list above is useful for any purpose in shaping legal education. We can think bigger and better than that.

Think of proposals to improve the curriculum medical school?

Someone comes up with a list of things some group thought doctors should be good at:

Be careful
Work hard
Communicate well
Be nice to the nurses
Improve handwriting
etc.

As I said, pretty much useless.

[Ray Campbell]

anon, I don't think the list is useless, either for students or for people who run law schools. There's been a perception for a long time that success in law is all about having top grades from a top school. The data show that the link between success and top grades from a top school is pretty weak. The link, I think, is pretty weak in part because law school doesn't either teach or filter some of the factors that matter a lot to successful practice - working well in teams, having a problem solving orientation, and so on. Since before the Maccrate report back in the 90's people have been doing some pretty high quality thought about the gap about what law school either teaches or measures and what is needed for successful practice, and it's all pretty consistent with this look at what law firms say they want.

There are a number of ways schools and students can respond, but it all starts with knowing what successful lawyers are going to need. This list isn't the final word or all we need to think about as we design the next generation of legal education, but given that we are still in a world where almost all law schools center their curricula around reading and analyzing appellate cases, I think it's a timely reminder that good lawyers are going to need skills and traits that the traditional law school doesn't teach.

As for critiquing the comments you made about glad handing rain makers and stupid litigators, I guess I wasn't clear - from the perspective of someone who actually practiced for a while at a major firm, it looks like you don't know much about successful lawyers. I'm not cherry picking counter examples. From a position of experience, I'm saying your comments reflect a lack of knowledge of the field. I would hate for some of the students who read this blog to go away thinking that rain making in law firms requires people to summon their inner Willie Loman or that trial work is a refuge for the dimwitted.

[anon]

"Rain making in law firms requires people to summon their inner Willie Loman or that trial work is a refuge for the dimwitted."

Overstatement, but getting closer, actually.

I think I know enough about practice and practitioners (actually, more than enough)to critique the wish list above.

What I also know from your comments is that you are coming at this subject from an elitist pov about what is "successful," ([I] "practiced for a while at a major firm") and therefore disparage the vast majority of attorneys.

This is precisely the failing of the law school academy in general. Your objections to the training in law school mean nothing to those at the top of the pile who aspire to be "successful" at a "major law firm" in your terms. The lawyers you hold up as the epitome of success were all trained in the manner you critique, and yet you seem to think them to be wonderful and brilliant and successful. There is the fundamental contradiction in your point.

I agree with almost everything you say about the failure of the legal academy, but not insofar as you are so enthralled by that part of it that trains the lawyers you seem to admire so much. Their "success" (in your terms) is based on the manner of law school education you seem to want to change.

It is the vast number of other persons in law school, and the vast majority of the society served (and disserved) by the product of those schools (and, IMHO, also by the product of the schools whom you deem to be so "successful" as well!) that are desperately in need of major reforms in legal education.

Sorry, but I don't think a wish list of attributes is meaningful or even relevant.

The list fails to distinguish in any way what generally constitutes lawyerly skills from what law schools can actually train persons to do. Perhaps you will address this in another post.

[Ray Campbell]

I think the criticisms of how law school trains people do apply to people at the top of the pile. When I came out of an elite school and elite clerkships and joined an elite firm, my elitist young self didn't know jack about quite a few things that were to prove important. I think I would have been better served if someone had sat me down and told me what was going to matter - some of which I proved to be quite good at, some of which I struggled with, but all of which would have gone easier had my training been more complete.

I think a lot of the most successful lawyers I knew owed a big part of their success to experiences other than law school. I can think of one that went to West Point, and to this day what he learned there probably matters at least as much as what he learned on his way to being first in his class in law school. I can think of another who went into the Marines between college and Harvard Law, and seemed daily to bring to bear what he had learned leading a group of soldiers. Others had worked throughout high school or college, and brought all that to bear.

Now, some of the really smart ones who washed out, and there were plenty of those, did not have those experiences, and thought that legal analysis would get them through. Even at elite law firms with the resources to dig deep into legal issues, that was not really a complete strategy.

Some of what matters law schools will have a hard time teaching. Some of what matters I think they can teach. Other elements, to be honest, I don't know. What's more, despite having practiced for a while, I don't think for an instant that I've got the inside skinny on everything good lawyers do that makes them good lawyers. I think sorting that out is a lot harder than either practicing lawyers or academics seem to think.