Maimonides had it Right: Law Schools Must Teach Students to Fish

According to a 2012 report from the ABA, approximately 70% of lawyers in the U.S. in private practice are in solo or small firm settings (including one lawyer to 10 in a firm).  While we know the number of jobs in large firms, government and corporate law office settings has decreased, we also know that we have a serious access to justice gap.  It is not that we have too many lawyers it is that we are not thinking about how to educate law students in a manner that will enable them from a value proposition and training standpoint to be community-based solo and small firm lawyers if they so desire.  Very few would disagree that upon graduation from law school and licensure following shortly thereafter, that the vast majority of new lawyers are not best prepared to hang out their own shingle and practice law. This may be an economic necessity for some, and yet well-planned and supported, it could present an opportunity for community-based legal services that could assist in helping to shrink the justice gap. There have been many creative programs designed to address post-JD employment challenges such as Lawyers for America  founded by UC Hastings School of Law and Legal Corps at Miami School of Law, and programs designed in this vein to also help underserved populations such as those who reside in rural areas.  

There is an oft quoted phrase from Maimonides, “Give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime.”  So, how should law schools respond and teach students to fish in the new normal? One of the most intriguing movements to accomplish this while instilling an access to justice ethic is the law school-based incubator program.  Through this effort, about three dozen law schools are providing curricular and/or shared office space arrangements for graduates to learn how to start, manage and build a law practice.  The second annual conference on Enhancing Social Justice Through the Development of Incubator and Residency Programs is scheduled for later this month at Cal Western Law School. The first conference was hosted at Touro Law Center.  The ABA is tracking the latest news on law school incubators. There are many related developments addressing infusion of more business related courses in law school and blogs and virtual mentoring and advice for those starting their own practice.  The business of law practice, well beyond the traditional law office economics course, is quickly becoming an important part of the law school curriculum.  As the law-school based/supported incubators begin to sprout new law firms (and, by the way, some of the incubators are supported by bar associations such as the Chicago Bar), it will be important to conduct a longitudinal study that benchmarks and assesses both new lawyer preparedness to be successful in this space and the impact of such efforts on access to justice.

Comments

[Skeptic]

Maimonides? What next--Ezra Cornell was Jewish?

[anon]

Now you're talking! This is refreshing and precisely on the right track. Tweaks? Sure. That's how progress is made.

[terry malloy]

How many fishing lessons cost (2014-2015 tuition+ fees 44,520*3) = $133,560?

How do you think Maimonides would view the way you make your living: monetizing the poor choices and access to debt of your students.

Dean Salkin's likely response: Most people don't pay that.

Terry: More than zero students pay that. You are cheating those people. Not to mention those most likely to pay sticker are least likely to succeed.

Just a shade over 50% of the students you currently graduate have anything that would approximate legal employment, no mention of whether that employment would pay down their dischargeable debt. .

Shame.

[Derek Tokaz]

I think Terry's criticism misses the mark. This isn't a $130k fishing lesson. These incubators are support for graduates, and are not part of their JD programs.

This fact raises (at least) two important questions:

First, who is paying for these incubators? Do graduates have to pay a fee in order to use them? Are they supported primarily by fees paid by clients? (If so, what's left over for the lawyers to pay for living expenses?) Or, are they supported primarily by tuition dollars, which is essentially asking current students to debt finance supplemental education for grads and to debt finance other people's legal bills.

Second, what can be done to integrate these programs into the JD program so that students are better prepared upon graduation? (And a natural follow up to such integration, I think would be to ask what would be cut from the school's JD program in order to mitigate increased expenses.)

[anon]

Derek and Terry

I read the summary as embracing curricular changes to support the post graduation employment, to mold better lawyers, and to foster better access for the vast majority. Combine this with a focus in law school on actually reforming and improving our adjudicatory and regulatory systems, and the enthusiasm and respect and inspiration might just return to legal academia.

The focus of the programs described above is so different from what we usually hear defended in the FL, no? We can all imagine, one suspects, a comment claiming that the author has always supported these practical solutions (while all the while he attacked "scambloggers" and denied that there has been any problem at all other than a bad economy (or a good economy, depending on which form of denial you prefer)).

I can thus share outrage at the reaction to pleas for reform we usually read here in the FL. But, there seems to be no reason to rail against bona fide, if not perfect, attempts to reform and remedy the glaring deficiencies that have so harmed the entire legal academic enterprise. Contrary to the sort of knee jerk emotional surmise in which most defenders of the status quo engage, I'd rather see the majority of law schools that do not feed BigLaw adopt a more realistic stance than close entirely.

[terry malloy]

"I'd rather see the majority of law schools that do not feed BigLaw adopt a more realistic stance than close entirely."

At what price?

At 30,000$ for a JD (10K/Year), go ahead, let the 145 LSATs spin the wheel.

At133K, with the knowledge that the non-dischargeable debt students take on will cripple them for the rest of their days: you are a monster. full stop.

If a law school below T14 can't operate with 10K per year tuition sticker (not average, where 10 smart kids ride for free, and all the dumb kids pay dearly), it should close. full stop.

[Patricia Salkin]

In response to the question of who pays for the post-JD experience in the incubator, it is by and large the attorneys who choose this experience. Each school/bar association has their own version of this, but I will share what we have done: One large office space leased to the Law School by the owner for below market rate. Every lawyer in the incubator pays a monthly rent that covers the total cost of the leased space. The Law School got donations for the office furniture - cubes, desks, bookcases, books, wall hangings, a photocopy machine/scanner/fax. Lawyers in the incubator space contribute to a small monthly "office kitty" to cover the cost of paper and other incidentals. Each participating lawyer has their own phone and computer set-up that they are responsible for. Each lawyer is responsible for their own business cards, letterhead, etc. The idea here is not to run any aspect of the lawyers' businesses, but to provide mentoring support so they can do it themselves. Guest speakers come in and talk about various aspects of running/owning a business, setting up lawyer trust accounts, getting on assigned counsel lists, etc. All of this is done by volunteers. We have also secured a Foundation grant to enable some training and some additional low bono work by the incubator attorneys. In my opinion, little or no JD tuition should support post-JD incubators. Not everyone agrees with me on this point.

Part of the curricular reform/buy-in in the JD program is the opportunity to take courses in the solo and small firm concentration. It is simply reality that most lawyers do not go into Biglaw, and community-based lawyers will always be in demand if lawyers can run an efficient practice that enables them to earn a fair living and meet the demand for reasonably priced legal services in whatever community they serve.

I plan to write future posts about law school debt issues, but I'll reiterate in the context of the main post that the ability to learn how to run a viable law practice (like the quintessential "country lawyer" who was a general practitioner)can enable law school graduates who want to be lawyers, to be entrepreneurial and earn a living in the law. There is always going to be a demand for routine legal matters - people will need help navigating through the criminal justice system, family and matrimonial lawyers will be needed, for the foreseeable future there will be lots of immigration work, people will buy homes, small businesses will be created, etc. These types of matters, and dozens of others, do not demand the legal services of Biglaw. They do demand delivery of legal services in a more cost-effective manner. Technology is and will change the practice of law quickly. Law schools have an obligation to keep up with demands, innovations and opportunities to best prepare tomorrow's lawyers.

[anon]

"While we know the number of jobs in large firms, government and corporate law office settings has decreased...."

How do "we" know this, exactly?

[anon]

Patricia

Where have you been in this forum? Your analysis is refreshing.

[Just saying...]

The incubator seems like a wonderful concept, but why can't law students learn how to do a simple will, set up a trust, do a basic residential real estate closing, handle an uncontested divorce, draft a simple pre-nup, etc., etc. during their THREE YEARS of law school??

Is it because tenured profs refuse to teach these things or an incapable of teaching them and would prefer to teach another Law and Whatever, Law in Literature, Law in Film, Legal History course?? I think so. There is certainly room in the third year for an incubator-type program. No need for it to be post-degree.

Many have argued that law schools need to become more like dental schools. Dental school students work for the beginning on real patients. In fact, so do dental hygiene students who are in two year programs. Why can't law students do the same.

I went to paralegal school before going to law school and learned how to do a real estate closing there. If a paralegal can be taught the practical aspects of doing such a deal, law students can, too.

[Derek Tokaz]

Patricia,

Thanks for the details. Since one of the incubator's key goals is filling the justice gap, are there any limitations placed on the lawyers regarding the kinds of matters they can take, or the fees they can charge?

Also, do the lawyers get any sort of reduced cost when it comes to accessing Lexis or West? Those services can be a huge expense for lawyers, and I wouldn't be at all surprised to learn one or both of the companies are willing to trade access for 8-10 lawyers for some really nice publicity.

[JM]

To teach a man to fish you must first know how to fish. I have an awesome idea: the next time each faculty member is up for a sabbatical, instead of writing articles that no one reads, they will open a law practice from scratch or join a 2-10 attorney firm. When they return to teaching, they will have a better idea of which doctrinal law is important to practice and can orient their lessons in that direction.

In other words, put your money where your mouth is.

[Patricia Salkin]

Dear Just Sayin, I agree with you completely about the types of documents students should be writing. In fact the faculty at my school adopted a strategic plan in May that includes a writing portfolio for all students along the lines of what you suggest. As an aside, my first teaching job as a lawyers was at a paralegal school. Also, there are glimpses of my long-help belief in this vein in the introduction to the inaugural issue of the Journal of Experiential Learning - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561529

Dear Derek, while we do not put limitations on the incubator lawyers, we do tell them we expect them to take on some pro bono matters. Although we have not specifically tracked it yet, there is mandatory pro bono reporting in NY and the reality is, while they are learning, they are getting referrals of clients who cannot afford rack rates. Also, the Foundation grant we have is for immigration. In exchange for training provided under the grant, the lawyers who choose to participate commit to some pro bono hours on immigration matters. Also, the grant provides some funding for low bono work for clients who cannot pay anything.

As to Westlaw, yes, we have negotiated a deal with them for all of the incubators across the country. We hope to be able to replicate it with other types of vendors.

JM - the reality is that depending on the school, a substantial majority of the faculty had practice experience. There are faculty who teach in the clinics who do this every day. I encourage (but do not require) the faculty at my such to do pro bono work, in part for this reason (though not exclusively the reason) and ask that in their annual faculty report they indicate any pro bono work they did in the previous year). Also, the ABA could soften the restriction on outside employment for full-time faculty members as well.

[JM]

Patricia - And what relevance does the typical faculty member's practice experience have for the typical non-elite law graduate? Faculty members were either, 1) associates at large law firms, or 2) attorneys in prestigious government or nonprofit jobs. As such, they wrote complex legal memos, conducted intensive fact investigation, performed elaborate cite-checks and helped senior attorneys prepare for hearings. When I worked at an AMLaw 50 firm a few years ago, I knew a fourth year litigation associate who had not even read a case in the last year because he was so consumed by factual investigation of a RMBS fraud case which he did full time. They had no responsibility for generating business, paying the bills, maintaining the office, etc., which are major concerns for any small firm attorney. They also typically have little or no first-chair trial experience, no experience collecting judgments, no experience obtaining attachments and the like.

The fact is, if law faculty were to attempt what they are asking their students to attempt, namely start a practice from scratch, they would fail at the same rate. They would sit in an empty office with nothing to do bleeding money, and they would find that their in-depth doctrinal skills are no use is this domain.

[Scott Fruehwald]

Practice experience is only half of it. Law professors should come to law school wanting to be teachers. Someone is not a teacher just because they are subject matter experts; they have to know how to teach. While no law school provides classes in how to become a teacher, there are many sources that help one to learn to teach and to understand learning. For example, every new law professor should read Susan A. Ambrose et.al., How Learning Works: 7 Research-Based Principles for Smart Teaching (2010). Also, the Touro law library has just produced a wonderful bibliography on legal education resources. Finally, law schools must support professors in acquiring teaching skills through in-house seminars, conference grants, and summer grants.

[[M][a][c][K]]

The trouble with teaching law students to fish is pretty well the same as letting everyone buy a trawler.

[terry malloy]

real question: who pays for the malpractice insurance?

[Patricia Salkin]

JM, I thought your statement is overbroad. I don't doubt that is the case in some places, but many (not all) of the faculty I work with came from legal services, DA and PD offices, AG/DOJ and other offices where they did in fact engage with clients and courts, drafting documents and appearing in court. I have worked with faculty at two schools who moved between private practice and full-time law teaching...meaning they taught for a while and then went back to full-time practice. Again, this is not everyone, but I think we should be fair and not assume every faculty member is the same.

Scott, I agree 100%. I often speak about the training that K-12 teachers have to go through to be licensed to teach. Higher education imposes no such requirements. It is our responsibility to offer ongoing training, not just at expensive national conferences, but on campus multiple times a year, and to use the tools you note.

Terry,in order to participate in the incubator, each lawyer must have their own malpractice insurance and their own expense.

[Derek Tokaz]

Patricia,

"I don't doubt that is the case in some places, but many (not all) of the faculty I work with came from legal services, DA and PD offices, AG/DOJ..."

I take it this refers to the clinical (and other experiential) faculty. But, if you look at the doctrinal faculty, you're going to see a whole lot of folks from federal clerkships and BigLaw ranks. That's not really the work Touro grads are getting (class of 2013 placed 0 grads in firms with 100+ lawyers; most private practice grads were in 2-10 firms).

I think it's pretty reasonable to ask what the benefit is of having your Contracts or Crim Pro professor come from a BigLaw job rather than the trenches. It seems like these faculty, while maybe perfectly fine at teaching the courses, would naturally be limited in the sorts of extras they bring to the position, such as practice tips and career advice. The result would be that "teaching how to fish" is done only in a few classes, rather than something that is a part of every class a student takes.

[JM]

Patricia, jobs in a DA, AG and PD are just as sheltered for the all of the real life issues faced by solo and small firm practitioners, except for trial experience. Let me remind you of the first line in your OP: "According to a 2012 report from the ABA, approximately 70% of lawyers in the U.S. in private practice are in solo or small firm settings (including one lawyer to 10 in a firm." That does not say PD, AG or DA.

Tell me why having law profs set up solo shops during their sabbatical is not a good idea to achieving your goals?