Tuesday, October 28, 2014

Substance and Process and Efficiency in Law Schools

-- Posted by Neil H. Buchanan

Last night, I was talking with a professor who is the vice provost of a pharmacy school at a top research university.  She talked about the process of educating her students, and then she noted sardonically that she always hears the same things from her students' potential employers: "Your graduates can't write, they can't think, they're not ready to go to work.  You have to change everything you do."  I repeat, this was a pharmacy professor; but readers of this blog could be excused if they assumed that this was a law professor who was talking.  If misery loves company, I was smitten.

For roughly the past five years, legal academics have been running for cover, issuing mea culpas and promising to make their students "practice-ready."  The idea, in its extreme form, is apparently that having students learn substantive law is not the most important part of our job, but instead that they should be taught where to file forms.  I have written occasionally about some of the crazy, misinformed overreactions against "the law school model" (see, e.g., here), suggesting that the complaints are mostly a matter of misunderstanding what any professional school could or should do.  At long last, however, it appears that the legal academy is starting to find its voice, emerging from its defensive crouch, and making an affirmative case for what we do (and how we change).

For example, the new dean here at GW Law, Blake Morant, is the President-Elect of the Association of American Law Schools, and he is dedicating his term to mounting a strong, affirmative case for legal education.  Professor Jennifer L. Mnookin, who won this year's Excellence in Teaching prize at UCLA's law school, used her speech at the award ceremony for that prize to respond to the pernicious idea that law professors' "chief function is to make our students, as we often hear it put, 'practice ready on day one.' "

Similarly, Professor Dave Hoffman recently wrote a wonderful post on the Concurring Opinions blog in which he decried the "faintly defensive and catastrophic" tone of the response by law schools to the much-hyped downturn in legal hiring.  He notes that the practice-ready movement essentially surrenders a key claim, confessing that what we have been doing for all these years is (and maybe always has been) wrong, wrong, wrong.  As he notes, "that position is profoundly stupid, not to mention self-defeating."  Most importantly, it might cause us to stop doing things that we do well, and that are essential to training lawyers, but that somehow do not look like they make people "practice-ready."

A good example of what Hoffman (and Mnookin, and Morant, and I) are thinking about is a recent blog post by a legal consultant and former general counsel, who decries the "inefficiency" of legal education.  Before addressing the substance of his comments, I should note my delight in seeing him use the words efficient and inefficient in their common, everyday sense, rather than in the economic sense of "Pareto efficiency," which I have criticized many times here on this blog (see, e.g., here).  The blogger's complaint against legal education is quite simple: We are "teaching inefficiency" because we are supposedly training students to waste time.  That claim is wrong, but at least it has the virtue of being clear, and of not relying on an ultimately vacant notion of economic efficiency.

And let us be clear.  The practice of law involves a very large amount of old-fashioned inefficency.  For example, for nonprofessional reasons, I recently sat in on a "scheduling hearing" at a Maryland circuit court.  A motley group of clients and lawyers dutifully filed into a courtroom at 8:30am on a Monday, waiting while the judge dealt sequentially with each case, not on the merits, but simply asking the lawyers and clients if they would be available to meet on a particular day and time.  When any of the parties said "no," the judge said, "OK, then how about ... ?"  A lawyer told me that judges are very unhappy when clients do not show up at such hearings, so each vignette involved at least four people and a judge negotiating over times to meet in the future.

Obviously, all of this could be done online.  Even before the internet, doing this in a legal hearing was a wasteful way to proceed.  Having people add to the traffic nightmare in DC simply to sit in front of a judge for a few minutes of process is ridiculous, especially since the time sitting in the room (not just the time in front of the judge) is billable for the lawyers.  Yet the legal system persists in its inefficient ways, years after law schools have gone to online course registration, and professors use Doodle polls to schedule meetings and make-up classes.

But that blogger's claim is that law schools uniquely teach lawyers to be inefficient.  What is the substance of that claim, which includes the assertion that law professors supposedly give our students "no exposure to lean thinking in combination with the practice of law" (emphasis added for ironic effect)?  The author of the blog post tells us two things.  First, a very important project on which this lawyer once worked "was 80% process and 20% substance."  What does that mean?  "We had a complicated, large set of exhibits. A lot of the work in getting the license done related to these exhibits, which meant a lot of process control."  Plus, "[w]e also had time pressures to get the license done, putting further pressure on the process."

As someone who teaches 99% substance, and who has never been a practicing lawyer, I am either the least qualified, or the most qualified, person to respond to this claim.  Certainly, if my JD had included classes that were all like my Federal Income Taxation class -- a doctrine-filled class that involves statutory interpretation, case reading, and working through examples -- then I would not have been trained in "process," whatever that might mean.  (But my classmates and I certainly did learn about time pressures, I must say.)  Fortunately, my law school (like all law schools) provided a variety of different types of courses.  In my final semester, for example, I took a Trial Advocacy class that was taught by a top death-penalty litigator, where I learned how to organize and argue a case for trial.

Is it possible that there are people who never take a law school class with any "process" involved?  I suppose, but it seems unlikely.  Moreover, even if -- and I will have to take this on faith -- law is 80% process, that does not mean that legal education should be 80%, or even 20%, process.  Frankly, if law schools devoted large amounts of time to instructing students on where to find the forms in a courthouse to file a motion, or even to creating and organizing exhibits, I would think that we would then actually be guilty of not giving our students their money's worth.  We teach them how to know what to put in their exhibits, which requires doing what law schools currently do, and do well.

The complaining blogger/lawyer then shares a "pet peeve," in the form of a story about how accountants for a Big Four firm would consult with the lawyers in the tax department of his law firm, without consulting with the corporate lawyers in his law firm.  When the groups finally met, the corporate lawyers would "identify several fatal flaws in the plan almost immediately."  Why had that happened?  "[T]he tax practitioners knew nothing about and didn’t take the time to ask about, the corporate law aspects of what they proposed."  Why were the tax lawyers so bad at communicating with non-tax lawyers?  "They always responded, 'we were taught to look at the tax issues and let someone else think about the rest.' Not very efficient."

Well ... yeah!  It sounds like that firm was set up in a rather wasteful way, especially because this scenario supposedly played out "[o]n more than one occasion."  I suppose that it is possible that the firm's longstanding compartmentalization of lawyers into practice areas was originally caused by the way that those lawyers were taught in law school, but I cannot fathom how it is law schools' fault that a firm can continue to lose money (and be "not very efficient") by not learning from costly errors.  No professor can claim to know how things are done in every law school, but I simply find it implausible that tax professors teach their students that they will serve their clients well by ignoring the questions raised in corporate law, or vice versa.  My students can certainly testify that I spend a lot of time talking about contract law, family law, corporate law, and so forth in my basic tax class.

In the end, however, I need not claim that all law schools are doing this exactly right.  Maybe the blogger's suggested CLE-type seminar for law professors, encouraging us to remind students that real-world problems are not pure tort questions, or con law questions, or crim law questions, would do some good.  That, however, still leaves us with the ultimate message from Professors Mnookin and Hoffman: If this is the worst that law schools are guilty of, then we should be proud of what we do.

There is inevitable tension between what practitioners in any field want to see in their new hires, versus what the professional schools can and should teach their students.  As I have surveyed the complaints against law schools, however, I cannot help but get the sense that there are a lot of grand assertions -- law schools teach inefficiency, for example -- that are merely the latest version of the age-old complaint that not all lawyers come out of law school perfectly formed.  They do not, and they never will.  We can improve what we do, but on the evidence thus far presented, our substance-heavy focus is standing up very well indeed.


t jones said...

a. I always thought that court practices like requiring attorneys to appear to set future dates were intended to protect the local bar by making practicing in that jurisdiction inconvenient for outsiders. And, conversely,
b. So long as clients just pay, what looks like inefficiency can be be profitable; so what's your blogger really complaining about?

Evin Terna said...

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