Wednesday, November 23, 2011

New York Times on the gap between theoretical learning and practical application

What They Don’t Teach Law Students: Lawyering

Laura Pedrick for The New York Times
Drinker Biddle & Reath, a Philadelphia firm, trains its new associates to be lawyers. Here, Matthew McDonald, a partner, passes out instructions.

PHILADELPHIA — The lesson today — the ins and outs of closing a deal — seems lifted from Corporate Lawyering 101.

Josh Anderson for The New York Times
Updating is needed, says Edward Rubin, ex-dean of Vanderbilt Law.
A Possible New Curriculum
What do corporate clients wish associates were taught in law school?
  • A better understanding of modern litigation practice, which is about gathering facts and knowing how to settle a case.
  • Greater familiarity with transactions law, including how to draft, evaluate and challenge a contract.
  • Deeper knowledge of regulatory law and the ability to respond to a regulatory inquiry or enforcement action.
  • Basic corporate legal skills, like how to perform due diligence.
  • Writing skills. Partners at law firms say they spend a lot of time improving the writing of their first- and second-year associates.
  • A stronger grasp of the evolving economics of legal practice, which will rely less on leveraging the time of new associates and more on entrepreneurship.

Laura Pedrick for The New York Times
MOOT COURT | At Drinker Biddle, Eric Kassab and Jennifer Kissiah, both first-year associates, in a training session. Law schools emphasize theoretical work, rather than lawyering.

Readers’ Comments

Readers shared their thoughts on this article.
“How do you get a merger done?” asks Scott B. Connolly, an attorney.
There is silence from three well-dressed people in their early 20s, sitting at a conference table in a downtown building here last month.
“What steps would you need to take to accomplish a merger?” Mr. Connolly prods.
After a pause, a participant gives it a shot: “You buy all the stock of one company. Is that what you need?”
“That’s a stock acquisition,” Mr. Connolly says. “The question is, when you close a merger, how does that deal get done?”
The answer — draft a certificate of merger and file it with the secretary of state — is part of a crash course in legal training. But the three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.
What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”
So, for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime.
“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”
Last year, a survey by American Lawyer found that 47 percent of law firms had a client say, in effect, “We don’t want to see the names of first- or second-year associates on our bills.” Other clients are demanding that law firms charge flat fees.
This has helped to hasten a historic decline in hiring. The legal services market has shrunk for three consecutive years, according to the Bureau of Labor Statistics. Altogether, the top 250 firms — which hired 27 percent of graduates from the top 50 law schools last year — have lost nearly 10,000 jobs since 2008, according to an April survey by The National Law Journal.
Law schools know all about the tough conditions that await graduates, and many have added or expanded programs that provide practical training through legal clinics. But almost all the cachet in legal academia goes to professors who produce law review articles, which gobbles up huge amounts of time and tuition money. The essential how-tos of daily practice are a subject that many in the faculty know nothing about — by design. One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they’d be filled with professors who had never set foot in a hospital.
But sticking to the old syllabus has had little downside. The clients of law firms may be scaling back, but the clients of law schools — namely, students — are spending freely. Or rather, borrowing heavily. It is hard to imagine a 21-year-old without a steady income securing a private or federally guaranteed loan to buy a $150,000 house, but sums like that are still readily available for just about anyone who wants a doctor of jurisprudence degree. And while word of grievous job prospects is finally reaching undergraduates — there was an a 11.5 percent drop in applications this year — there were no empty seats in any of the 200 law schools in the country.
“I gather change is afoot at some law schools,” Mr. Connolly says, “but it’s going to be very slow.”
So at Drinker Biddle, first-year associates spend four months getting a primer on corporate law. During this time, they work at a reduced salary and they are neither expected nor allowed to bill a client. It’s good marketing for the firm and a novel experience for the trainees.
“What they taught us at this law firm is how to be a lawyer,” says Dennis P. O’Reilly, who went through the program last year, and attended the George Washington University School of Law. “What they taught us at law school is how to graduate from law school.”
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