The End of a Love Affair? Why I Despair About Legal Education

The End of a Love Affair? Why I Despair About Legal Education

(Part 2 of this blog is Making it Real: A Legal Education in the Public Interest)

When I became a law professor more than thirty years ago, I was convinced that legal education was a powerful tool to shape legal practice in the future by instilling a client-focused philosophy, and the skills and ethics that would foster this. Intoxicated by the possibilities of using education to change the adversarial culture of legal practice, I was a law school junkie – dropping in on the local law school wherever I wound up on vacation, writing my doctoral thesis on legal education, developing new curricula (in England, Hong Kong, and Canada), and daydreaming about “my perfect law school”.

On one matter my views have not changed – I remained convinced that the very best thing about legal education is our students, who come to us bright, motivated, challenging, resilient, and determined to do good. But my belief in both the capacity and the willingness of law schools to educate intelligent, humane, client-centred practitioners is tempered by three decades of disappointment and disillusionment.

In those three decades, a great deal has changed in legal practice (I describe many of these changes in my book The New Lawyer, whose second edition comes out this summer) – but little has changed about law school. To describe the pace of change in the underlying orientation and focus of legal education as g-l-a-c-i-a-l would be an understatement.

I believe – now as then – that law schools are in the service of our students and the public at large. Not personal fiefdoms of intellectual self-indulgence and elitism. I love research as much as the next law professor – obviously – but I believe that it should relate to real justice, real people, and actual legal practice.

Some of my colleagues in the academy believe that the goal of legal education is to teach “the law” as an intellectual system, and would argue that it is not the place of legal education to engage with or to confront the deficiencies of legal practice and the justice system. I disagree. If this foundation is not interconnected with the social goal of justice and the practicalities of legal practice, then it is intellectually impoverished.

Law school in Canada is publicly funded education. Its primary purpose and mission should be to produce lawyers who will serve the public. But it does not – and given its present structure and biases, it cannot.

Reality disconnect #1

The actual work of lawyers is either not discussed in law school at all, or it is presented as a fiction of constant trials and heroic fights against oppression and wrongdoers. Few, if any, law school classes allude to the realities of well-documented and hardly “new” changes in legal practice including: the “vanishing” trial, clients who no longer want to buy into the paternalism of the I’ll-take-care-of-it-for-you model, or the extraordinarily large number of self-represented litigants who cannot afford full representation.

Law schools need to offer an education that looks at the actual, rather than the glamourized, business of legal practice: dealing with clients, resolving matters by negotiation, using written advocacy.

Reconnecting legal education with reality would ensure that no law student graduates without knowing that almost every civil and family case will settle before trial, and that across Canada 50% or more of litigants in family court are now self-representing because they cannot afford counsel. Many of our students graduate from law school without even encountering these central facts of 21st century legal services.  This is unconscionable. We are public institutions and we take large sums of money from our students to prepare them to enter the legal profession. How can we not teach them about the reality of what lawyers really do?

Reality disconnect #2

Clients are effectively invisible in law school. Outside the (admirable but insufficient) limited-enrolment clinical programs that few schools properly resource, clients are reduced to names on the case header. They are not described or understood as real people.

Since we rarely talk about them as real people, it is self-evident that legal education does almost nothing to prepare prospective lawyers to work with and relate to clients. As one client put it bluntly to me: “Let’s face it, what in law school teaches a lawyer how to read the needs of the client? Nothing.”

Disconnecting legal education from the core function of the profession (the service of clients) has another consequence that I find disturbing. The last 10 years have seen the introduction of important new law school classes on human rights, discrimination, feminist theory, race and indigenous issues, and the subsequent recruitment of young scholars to teach such courses. But as tools for practice, they are often disconnected from the reality of people’s lives. However unique and remarkable the new theory development, however welcome the recognition of alternative narratives of justice, that is not enough – it is also important to address how these perspectives can be used pragmatically to make a difference in individual lives. And how can they be deployed to advance individual rights at a time when a majority of Canadians cannot afford to retain a lawyer for anything more than a brief period of full representation (and references to overstretched pro bono services doesn’t fill the implementation gap here – in any case, why should the protection of legal rights be relegated to charity?)

For most Canadians who have encountered the legal system, Access to Justice means a fair shot at being part of a legal action. Without expert representation, this is rarely possible. No amount of brilliant new legal arguments about race, gender or justice help the person who cannot afford a lawyer to argue for child support, or a wrongful dismissal, or a sexual harassment claim.

Reality disconnect #3

Law students and faculty members often develop important mentoring relationships – but at the same time students and faculty often co-exist in parallel, but separate, universes.

  • Despite the fact that the most important topic on the minds of upper-year law students is obtaining a position in a reputable firm, many of their professors inhabit a universe firmly isolated from legal practice. The received wisdom is that faculty teach students to “think like a lawyer” (which seems to principally involve memorizing cases for three hour exams and a lot of mooting). This is conceived as an intellectual pursuit. Equipping students for a future job as a lawyer, on the other hand, is seen as something slightly tawdry that students are sent to career services to discuss. This bifurcation between “thinking” and “doing” assumes that a choice must be made between vocational preparation and intellectual development. The fallacy of such a dichotomy is surely obvious.
  • Despite the fact that law students consistently request (on those rare occasions when they are asked for their input on the curriculum) more skills-based training that will prepare them for legal practice and working with clients, law schools provide little, if any, classroom teaching directed at accomplishing actual tasks. In my own school, a week-long problem-based learning exercise in which students act as members of “law firms” working on a legal case with faculty coaching is consistently described by students as the most meaningful and useful experience of their first year. Trying to recruit faculty to teach/ facilitate this popular program is a challenge – their priorities are to write research papers that will further their careers as legal scholars. But this research is rarely addressed to the problem of the unaffordability of legal services for the majority of potential personal litigants, nor does it speak to law students facing the imminent challenges of legal practice for communities who cannot afford to hire them.

The issue here is not whether legal education has a special place in developing the intellectual capacities of future legal practitioners – the answer to this is obviously YES. At no other point in their careers are lawyers afforded the opportunity to study (for example) feminist legal theory, critical race theory, or legal history, all of which have the potential to significantly deepen and enrich their understanding of the role of law and lawyers.

The real question is the extent to which legal educators understand their intellectual mission encompasses the realities of legal practice, and the centrality of human conflict and dispute resolution to the mission of legal services.

I believe that law school is answerable to both its students – who rack up mountainous debt with an uncertain future – and to the public – who increasingly cannot afford lawyers but contribute to public education in Canada.

This means that at minimum (next week’s blog will explore what could be done if law schools embraced a proactive leadership role in bringing about change) legal education should reflect what has already changed in legal practice, including a focus on settlement-oriented advocacy and the increasing remoteness of the trial process and the services of a retained lawyer from the experience of the majority of the public.

Medical schools no longer teach bloodletting using leeches. Law schools should not be focusing on appellate advocacy but rather on delivering legal services to an increasingly disenfranchised public, and a corporate world increasingly skeptical about the value of outside counsel.

The law schools have a vast intellectual capital invested in their expertise in teaching and learning about law. If legal education is to remain relevant to the delivery of legal services in the twenty-first century, the law curriculum needs to be reoriented and refocused on the realities of legal practice.

Read Part Two: Making it Real – A Legal Education in the Public Interest

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Comments (6)

  • Andrew McGinn Reply

    I don’t think the problems you express are unique the legal profession. In medicine, research continues to demonstrate the ineffectiveness of various procedures and yet physicians continue to practice them. In part, the disconnect between the research and the professionals plying the trade are a generation apart. Changes take that long to become adopted and widespread. In the ecclesiastical realm, theological education for practitioners is very theoretical. It is believed that experience and expertise will come in the field, but as in law, the underlying philosophical and theological framework for the practice can only be taught during the three year seminary period. What practice is provided is often more trend oriented than truly skill developing. Once out of the class, most will never open a textbook again and the successful in ministry are those that can adapt to how the world is so unlike the classroom. Why should things be different in the law profession? Once ensconced in a practice, lawyers will follow the road of least resistance, which does not necessarily mean keeping up in the latest academic trend. Unless a decision is going to go to court, the profession is organized in a way to conduct negotiation and trade off risk. SRLs are a resistance they steer around using the old tools of insider trading and default to technical detail. SRLs are risk that can’t be quantified, either as partners or as opponents, and so many lawyers neither want to assist (represent) or stand opposite an SRL: It’s messy and it’s emotional.

    February 27, 2017 at 1:17 pm
  • Rob Harvie Reply

    Ok. From a contrarian point of view.. sort of.

    Back in the ancient days when I attended (UBC ’85), law school wasn’t easy. With minor exceptions, I would guess 90% of what I learned was important for me to know. Since then, we have added a steady assortment of additional areas of study – properly so – which cannot but water down the core of our legal knowledge to some degree, and if we further expand law school to include significant elements of practical experience, we are going to necessarily create students who know less about “the law”.

    I agree, wholly that “the law” is but a small part of being a lawyer – however, it’s the core of what we are and I worry when there is a suggestion that it should be watered down.

    Next, and perhaps, bigger problem.

    Is law school capable of developing a curriculum which helps students become better at the practice of law, while still making a good living? Keep in mind that with the advent of “market value” degrees, tuition is more expensive than ever, and students are coming out of law school with massive debt and an understandable desire to cut into that debt and get on with making a good living beyond that – sooner than later.

    And – keep in mind – that the broader system in which law schools and students find themselves is, itself, broken. So – for a law school to make “better lawyers” while having to concede a broader system which is fractured is, well, difficult at best.

    The tension between cost/benefit of services to clients (how much due diligence and research is “enough”), and the ever-expanding costs of overhead make the financial strain of being a lawyer more difficult than ever. Particularly in high A2J demand areas (family, criminal) lawyers are already being paid at the lower end of the practice spectrum, while being much more likely to be sued or reported to their regulator – further driving lawyers from an area of high need to areas of less stress and more compensation.

    So – while I think your points are very well taken, as with much of A2J debate – they raise many questions, but not so many answers.

    Because – what we need, fundamentally, is to teach a lawyer the fundamentals of the law, and then from there, the fundamentals of serving clients better, while, at the same time, assuring that they earn an income commensurate with that level of sacrifice and responsibility.

    To put it bluntly: design a system where that trains a lawyer in the fundamentals of the “law”, and to also train them to deliver quality, affordable service to their client, while earning at least $150,000.00 per year, while reducing stress and the risk of suicide and addiction which are endemic in our profession.

    Or, from the client perspective, how do you design the $10,000.00 divorce trial – while maintaining high quality service and decent compensation for the lawyer?

    Are there law schools in Canada ready to roll up their sleeves and begin designing that curriculum? Seems like a daunting task to me.

    February 27, 2017 at 3:03 pm
  • Marnie Landon Reply

    A system software designer and SRL’s view of the Family Legal ‘System’

    I have made the following observations in the last 9+ years as a self-represented litigant:
    there is great economic incentive to ‘solve’ the family law problem;
    the legal monopoly is a substantial part of the problem;
    it is a global problem;
    Canada is a leader in developing solutions to address the many facets of this problem;
    incredible progress has been made with the NSRLP, CLEO (Community Legal Education Ontario), and stepstojustice.ca;
    education for the SRL is a critical component of the solution set;
    the Access to Justice problem is potentially the greatest social injustice of our time;
    AI (Artificial Intelligence) has the potential to help or exacerbate the problem.

    Legal services quickly become unaffordable to most people experiencing family law issues. When the price exceeds the market’s ability to pay, disruption results. This drives increased numbers of unskillful SRL to family courts. A downward spiralling effect results. The courts are overburdened; this creates costly delays and frustration for everyone involved: the parties, the Judges and the court administration; this causes prolonged and profound stress and productivity loss for the SRL collective; the impact on the children is ineffable; often health issues are caused by the high level of sustained financial and emotional stress; combined, this causes an immeasurable cost to society.

    Andrew McGinn’s comment above, “SRLs are a resistance they steer around using the old tools of insider trading and default to technical detail”, is an important one.

    Education is critical, both education for legal students and education for the SRL. I agree with the comments of Rob Harvie (above), reform within Law Schools is complex and costly, on many levels. From the perspective of an SRL, education and services that simplify the navigation of the processes of the legal system has a justifiable cost : benefit ratio. Many SRLs are highly capable and willing to educate themselves. Removing the ‘tools of insider trading’ and unnecessary complexity is a fantastic first step toward a better solution. Approaching the problem from many perspectives will also improve outcomes. Psychology, neuroscience, cognitive science, behavioural science, computer science, economics, dispute resolution strategies, and other disciplines can add insight and innovation to a solution set that addresses a problem that has been described as the ‘greatest social injustice of our time’. The focus of legal counsel is not on the Best Interest of the Children nor the best interest of the parties, and there is little incentive to change their adversarial ways. They are highly remunerated for their time and they have a total monopoly.

    About the author: I am trained as a computer scientist and have decades of experience in software development, including experience with AI (Artificial Intelligence) system development and design. I have been an SRL in Family Court since 2008. My case went to an 11 day trial. The Applicant had both a senior lawyer and a junior lawyer, and all the support staff that comes with the law firm. I represented myself. As an SRL, I have made many costly mistakes, but I have managed to navigate the unnecessarily convoluted, Kafka-esque ‘system’. If all the development that I see today had been available to me, I could have saved hundreds of thousands of dollars, literally. The work of CLEO and NSRP will be extremely beneficial to people facing family law issues.

    February 28, 2017 at 3:24 pm
  • Sylvia Basso Reply

    I am a mature student who left a long career in business to attend law school. I appreciate the earlier comments with respect to the value of learning “the law”, as well as the value of being immersed in the academic experience. Once out in the “real world” of any professional practice, the opportunity to engage in theoretical learning and debate is diminished as we become immersed in the doing of the work. However, I also appreciate the relevance of “Reality disconnects” #1 and #2. Law school seems to perpetuate the perception of legal practice as the “glamorized” trial lawyer; the super-hero who fights the fight and saves the day in the court room. As a mature student with significant life experience, I know this to be a very small part of what many lawyers actually do. Understanding that most disputes are not resolved by trial is something law students should know as they enter the profession.

    As well, the reality of being a service provider to a real live client who is engaging your help at significant personal expense, does not seem to come up. I expect many of my classmates will be working in a commercial/governmental environment where the client is an organization rather than an individual. For those who will serve the public, they may be in for a rude awakening as they are presented with a middle class who can’t afford to retain them, but who need professional help when confronted with legal matters that can’t be ignored. I don’t know that changing the law school curriculum to teach the mechanics of legal practice is the answer, but discussing the reality of legal service from the perspective of how much it costs the client, versus how much we can earn as lawyers might be a good start.

    Within our existing system, you can’t design a divorce “trial” that costs the client $10,000 unless that client is unrepresented. What I wonder is how much public funding goes toward a trial with an unrepresented party, and is that an effective investment? What systemic change is necessary to make it possible for an individual to spend $10,000, have sufficient representation, and resolve their issue? If that is a reasonable objective, what needs to change to achieve it? Law students should graduate with these questions in mind, knowing that our system is in many ways not meeting the needs of the public, and turning their very able and well educated minds to finding ways to improve it. Ideally this kind of thinking should occur while they are still in law school, in an environment that fosters research, theoretical thinking and debate.

    February 28, 2017 at 4:05 pm
    • Rob Harvie Reply

      Sylvia,

      Thanks for your thoughts. To be honest, the number $10,000.00 is rather arbitrary, but it struck me as the kind of number that a middle class person could handle, with some pain – vs. $50,000.00 or more that is just impossible.

      I think you hit the nail on the head with your comment, “What systemic change is necessary to make it possible for an individual to spend $10,000, have sufficient representation, and resolve their issue?” Much current A2J debate centers around ADR – which can and often is more productive and cheaper – however, the fact remains that many, many matters do not resolve through negotiation – and in such a case, we have three choices:

      a) Status Quo – where the bulk of the middle and even upper-middle class simply can’t afford a lawyer to take the matter to resolution;
      b) Change the fundamental dispute resolution mechanism, so that we no longer have access to a judicial system to resolve personal litigation, and we operate within a government framework of resolution – much like, perhaps, Workers’ Compensation, which while cheaper for parties, greatly reduces the availability of a “personal response” to dispute resolution and, likely, results in outcomes which deny effective due process in favor of reduced expense and efficiency (and is likely to be more greatly influenced by political considerations than mere considerations of equity between the parties);
      c) Change the existing system – to allow for a more streamlined, but still litigated, resolution process – which maintains access to due process, but in a more limited and controlled manner – “the $10,000.00 trial”.

      Options (b) and (c) are hardly within the ability of any lawyer, let alone a new graduate, to change by themselves, regardless of how well-intentioned the faculty may be to encourage them – but I do believe that the potential of the academic environment (students and professors) with assistance of government, the profession, and the public quite likely can work together to design better solutions that we have come up with to date.

      February 28, 2017 at 4:38 pm
      • Marnie Landon Reply

        Innovation and Re-design

        There is a great deal of room for innovation and redesign of the existing system (c) and the development of an ecosystem that funnels into the court system for extreme and specific issues (d). I agree that the status Quo (a) and removal of personal of personal litigation from the judicial system (b) are both non-viable alternatives for Family Law. “Effective due process” is critical. However, the ‘litigated resolution process’ should be a very last resort. Many people are fumbling around in the Family court system that do not belong there, with issues that could have been resolved through the utilization of other services, and issues that are not solvable through the application of the law nor the enforcement of the law. The litigation process can structure the collection of evidence, design and enforce rules that increase the probability of something close to fairness, in theory. There is a great deal of room for a filtering process of both clients and issues, education, and innovation.
        The problems I encountered were: (1) obfuscation ensured lawyers were the only conduit into the system (the process is now easy to understand with all of the new services and interactive flowcharts); (2) most of my legal fees where for services that did not require a law degree; (3) the most expensive errors were legal errors and there was no reasonable recourse for recovery; (4) the court administration was unable to handle the volume; (5) simple but essential administrative tasks, like filing documents, required either half a day or $100+ for every single filing; (6) Security and privacy are completely ignored, unlike every other profession; (7) there is no incentive, nor is there a governing body to ensure the matter is handled in an ethical, humane, timely manner; (8) lawyers have a monopoly and charge more than the market can bear for personal litigation. Paying $400-$700 per hour to have someone do work that can easily be done by someone without a law degree was like paying your dentist to clean your teeth without any insurance. We would see a lot of people with oral health problems. I have trouble with the statement, “assuring that they earn an income commensurate with that level of sacrifice and responsibility” – Hockey players’ salaries vs doctors’ salaries? Engineers? Teachers?

        March 1, 2017 at 1:50 pm

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