I was talking the other day with a young lawyer about, guess what, the challenges facing new graduates. This lawyer had just started a new job and I was telling him how fortunate he will be to get some first class mentoring during his early years of practice. The conversation got me thinking about what the downstream impact could be of the drastically reduced hiring of brand new lawyers. I’m talking now about lawyers who in another time and a different economy would get a job with a law firm or government entity for at least the first couple years of practice. It seems like the news reminds us daily how this has changed and the market for newly minted lawyers is dismal. Others remind us that this is not just a consequence of the recession, but a more permanent trend resulting from a change in our clients’ collective attitude about paying–even reduced rates–for neophyte lawyers to learn their trade.
I don’t begrudge this change in client thinking–how could I? But I do think this shift in philosophy, which is changing hiring practices, not just for AmLaw100 firms and their triple digit first year “classes,” but also small partnerships that still occasionally hired a first or second year lawyer, will impact our profession in ways for which we are not prepared.
This is because the training and experience we receive in the first years are pretty important in our development as a lawyer. Law schools do a decent job of helping us learn to think lawyers, read cases and adopt an IRAC-centric* style of analysis and writing. But, with the exception of a few “skills” classes or the optional clinic, law school does not prepare students to immediately enter the marketplace, take on clients and effectively practice law. I know there are respected bloggers who would take issue with this assertion. And I’ll admit that there is plenty of hardware, software and other “products” on the market which make it logistically much easier to open and run a law office right out of school with a cell phone and a laptop.
I’m not talking about the ability or experience conducting legal research. Most law school graduates can open the right book or access Lexis and figure out the elements of a cause of action or defense. What’s missing, I believe, is a measure of judgment that is crucially important to a law practice, but generally takes at least a couple of years of supervised training and experience to gain. I’m referring to judgment about when to take a case and when to say no. Judgment about how long to keep working a case you know is a loser, just to avoid the difficult conversation you know you need to have with that client who took a chance on you. Judgment about how to shape and deal with clients’ expectations. Judgment about how to manage a client who is persistently untruthful about the facts. Importantly, judgment about when a question or case calls for the kind of special knowledge or training that just cannot be gleaned from reading cases or a practice guide.
It could be argued that very experienced lawyers–lawyers who should know better–demonstrate terrible judgment all the time! This is true and, while unfortunate, helps ensure that legal malpractice will thrive as a practice area. But the fact that experienced lawyers make lots of mistakes in judgment does not mean that brand new lawyers who enter the marketplace armed only with a law degree and maybe some moot court experience–without at least a year or two of supervised training at a firm, a government agency or even with a more experienced solo–won’t make more mistakes, more often.
What will be the impact to our practice and profession from this training vacuum? It could be significant. For starters, inexperienced new lawyers who are hungry enough will likely take anything–literally anything–that comes in the door. Our shrinking, already overstressed courts will become a repository for even more meritless cases. I’m not talking as a defense lawyer–but as a litigator interested in reducing, or at least controlling, the growing judicial log jam. Putting my defense lawyer hat on for a moment, when manufacturers and employers are forced to defend, not borderline, but absolutely spurious cases, it negatively impacts the economy through higher prices and reduced hiring.
The real victims, though, could be clients. Clients who are misled, overencouraged, underwarned or led down the wrong path. Clients who, had they visited a different lawyer, would have been told early on they have no case or needed to consult with an eminent domain (or tax, or probate) specialist. Or at least told that the odds of winning don’t look too good.
Enough. I tend to dislike writers who do nothing but diagnose a problem. A proposal for a solution, even something half-baked, is the least a writer should do.
Here, I put the responsiblity for filling this void of practical training back onto law schools and bar associations. As I’ve said before, law schools should, in exchange for the privilege of collecting tuition, strive to do a better job of enabling their graduates to join the legal marketplace upon graduation. If paid, new lawyer apprenticeships are no longer the norm in the legal marketplace, law schools need to pick up the slack. If economics dictate that tuition needs to increase to make this additional training possible, so be it.
Local, county, state and national bar associations should also help fill the void. There is no shortage of continuing legal education programs, at least in those states which require it. But as these tend to be lecture format, they are not interactive and probably ineffective as a training tool for brand new lawyers. I’m thinking more along the lines of the type of clinics, internships and externships that are typically only available to law school students. Perhaps these programs could be coordinated with pro bono opportunities. I’m just thinking out loud . . .
I’ve always felt fortunate that, although I didn’t earn an AmLaw100 salary right out of school, I did have an opportunity to work with and learn from some really great lawyers. It’s interesting, but also scary, to think about some of the mistakes I could have made if I had not received that early training. Not just sloppy lawyering or calendaring mistakes, but errors in judgment. I think it’s something everyone in the profession needs to consider, as the path from law school into the legal marketplace changes.
*IRAC = Issue, Rule, Analysis & Conclusion (but you know that already).