Under ABA Accreditation Standard 301, law schools have two educational objectives: prepare their students “for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.” There has been much concern lately over declining bar passage rates, focusing attention on whether some schools are admitting students who may not be capable of passing the bar exam and whether a school’s program of legal education adequately prepares its graduates for the exam.
In focusing on the bar exam, it’s important not to lose sight of legal education’s primary duty of ensuring that law school prepares students for entry into the legal profession and a successful career. If studies of practicing lawyers and recent law graduates matter, it is clear that law schools are failing, even worse than in preparation for bar admission, to adequately prepare their students for legal practice.
A 2012 study by the National Conference of Bar Examiners (NCBE) analyzed the job activities of newly-licensed lawyers to determine which knowledge domains and professional skills and abilities are most significant to their job. Acquisition of professional skills and abilities were deemed significantly more important to newly-licensed lawyers than legal knowledge — 25 skills and abilities were deemed more important than the highest rated knowledge domain. The percentages of lawyers using these 25 skills in their work (all rated between 89% to 100%) also were all greater than the percentage using the highest rated knowledge domain (86%). Yet these skills and abilities generally are not developed in traditional doctrinal law classes but in the experiential and first-year legal writing courses that, under the ABA standards, need only account for ten percent of a student’s legal education.
These important skills and abilities are also a small part of the bar exam, which purports to measure competence to begin the practice of law. Although the NCBE study was promoted as the basis for further development of the exam, since the study’s completion the portion of the exam devoted to testing skills remains the same (the 3-hour Multistate Performance Test). The NCBE’s only apparent response to the study’s dramatic finding that professional skills and abilities are what new lawyers need most for competent practice was to add civil procedure (the study’s highest rated knowledge domain) to the Multistate Bar Exam.
A report released this year by Educating Tomorrow’s Lawyers reinforces the disconnect between legal education’s overwhelming focus on legal knowledge and the competencies new lawyers need. A study of more than 24,000 lawyers in 50 states sought to determine the foundations entry-level lawyers need to launch successful careers in the legal profession. The study found “that characteristics (such as integrity and trustworthiness, conscientiousness, and comment sense), as well as professional competencies (such as listening attentively, speaking and writing, and arriving on time), were far more important in brand new lawyers than legal skills.” Yet, again, only in clinical and first-year legal writing courses are there efforts in the law school curriculum to address the “soft skills” so necessary for the success of new lawyers.
These two studies mirror the findings of decades of earlier studies. In a 1978 study, mid-career lawyers rated the importance of 21 types of legal knowledge and skills in their daily work and the role of their law school training in attaining that knowledge or skill. With the exception of knowledge of statutory law, none of the eight areas of legal knowledge was considered very important for their work. In contrast, six of the methodology and skills areas were deemed of great importance. When then asked to rate their law schools’ role in developing skills, two-thirds said their school had been “not helpful” or “played no role” in their ability to develop essential practice skills like interviewing, counseling clients, and negotiating; more than 40% said law school failed to train them to draft legal documents or effectively communicate orally.
A later study of Montana lawyers came to similar conclusions. It asked what level of competence a lawyer should have to perform in a professionally competent manner and what level of competence they observed first-year lawyers to have. The results indicated the need for greater emphasis in law school on the development of professional skills and the importance of character traits to a new lawyer’s successful transition to practice. A 1993 study of Chicago and Missouri lawyers found large gaps between the skills lawyers deemed most important to their practice and the attention law school paid to those skills, especially in the areas of oral and written communication, drafting legal documents, problem solving, negotiation, fact finding, counseling, and litigation. The lawyers believed that a majority of these practice skills could be learned in law school, if the focus of legal education were changed. A similar study of Minnesota lawyers found most did not believe they were well prepared immediately following law school on nine of seventeen important practice skills. Like respondents in other studies, those lawyers believed these skills can be effectively taught in law school.
More recent studies have not reflected any improvement in the role of legal education in preparing graduates for practice. The American Bar Foundation’s After the JD study tracks the careers of a sample of lawyers who passed the bar in 2000. It asked lawyers three and seven years of out of school if “law school prepared me well for my legal career.” On this fundamental objective of legal education, law schools failed miserably — 40% of lawyers after three years of practice and 50% after seven years said that law school did not adequately prepare them. Both groups overwhelmingly agreed that law school was too theoretical and unconcerned with real life practice. In another study of early-career lawyers, only 28% believed that law school prepared them to practice law.
Two studies by LexisNexis reinforce this view. In a 2009 survey, 90% of attorneys in private practice and corporate law offices said that law school does not teach the practical skills needed to practice law today. A similar study six years later found that legal education has not improved, contrary to the claims of some legal educators and regulators. In the 2015 survey, 95% of hiring partners and senior associates who supervise new attorneys responded that recently graduated students lack key practical skills at the time of hiring. The lawyers also believe its not a matter that law schools cannot teach these skills but that they simply refuse to do so: “Most attorneys involved with hiring and management of new lawyers agree practical skills can be effectively honed through clinics, internships, clerkships, and experience in actual or simulated application to a case.”
Law students who just graduated realize their need for more practical training — 87% say legal education needs to undergo significant changes to better prepare future attorneys; 97% favor a law school model that incorporates clinical experience. Judges agree. When asked what change would most benefit law schools, judges of all types of court (federal and state, appellate and trial) rated more coursework on practice-oriented skills the highest, far exceeding support for expanding the core curriculum.
Fifty years ago the dean of the University of Chicago School of Law stated that the aim of law school “is not to train lawyers, but to educate men [and women] for becoming lawyers.” If the attitude of the ABA and law school deans has changed since then, it isn’t reflected in the readiness of law school graduates for practice when over 90% of lawyers give legal education a failing grade. So while educators worry about declining grades on the bar exam, isn’t it also time to fix legal education’s longstanding failure to meet its duty to adequately prepare it students “for effective, ethical, and responsible participation as members of the legal profession”?