Lawyers have suggested many reasons for changing legal education. I have another one to add to the list. I think legal education teaches inefficiency. From day one in law school, law students are taught to be inefficient in the practice of law. By the time they hit the world outside academia and start practicing, they have three years of intensive inefficiency training. In a world that has moved towards reducing waste, at least in corporations, having someone join the workforce who has been taught inefficiency adds some complications. At a minimum, it means we will spend years re-training them, at the same time they are learning to practice. More realistically, we will end up with many lawyers who are never re-trained.
Legal Inefficiency Training
Think about your first year of law school. Were you ever taught how to analyze a contracting situation, a tort, or a criminal law situation as a process as well as a substantive law issue? Probably not. You were taught a way to analyze contract issues. Yet, in real life the situations lawyers handle are built largely on process, not just substance. Indeed, in many situations the law is relatively straightforward. Having a strong command of the process can mean the difference between doing well or just doing.
When I was a general counsel, I helped negotiate a complex arrangement with a licensor. The basic license agreement was straightforward. We had the license form worked out and most of the substantive terms were not changing. The real key to this license was the exhibits. 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. The license was worth a lot of money to our company so getting the process right (or messing it up) had significant consequences – as in, something that might require disclosure in our securities compliance documents. We also had time pressures to get the license done, putting further pressure on the process. At the end of the day, everything worked out, we met the deadline, and my client was satisfied with the result. Getting there, however, was 80% process and 20% substance.
The same teaching issue I talked about above carries through all substantive classes. Evidence is taught as concepts of law, and yet much of evidence revolves around process. Securities law is covered with process challenges, and the same is true for intellectual property, estates and trusts, and so on, but all of those classes are taught from a substance perspective with the hope, I guess, that practicing lawyers will retrain the students when they hit the real world.
Obviously, the substance of law is important. But, teaching substance as if it exists in a sterile world separated from process results in a very distorted view of law. It builds in the habit of thinking that substance and process are distinct, separate parts of law and not part of an integrated whole. Imagine if doctors were trained solely from books and without any laboratory or clinical component (and I’m not arguing medical school is the model, just pointing out a couple of obvious differences). Using clinical training as part of teaching lawyers, as Michael Dillon suggests, would help, but I don’t think it is the entire solution to the inefficiency problem.
Re-thinking how law is taught will be difficult for most law school professors. They have relatively little exposure to the practice of law, even less to the practice of law today (versus many years ago when they graduated), and virtually all of them have no exposure to lean thinking in combination with the practice of law. It would be interesting to see what percentage of law school faculty have gone through any training on modern legal services delivery, including project management, process improvement, and technology.
Legal Efficiency Training
The good news is that this one issue could be fixed at little or no cost. The first step is teaching law school faculty about the modern practice of law. Seminars, workshops, and other training tools can accomplish that goal. The second step is to have law school faculty start modifying existing courses to reflect these modern practices and incorporate them as part of the core learning experience. My son is taking accounting, yet they don’t have him using accounting ledger paper from the 1930s to learn double-entry bookkeeping. If he can learn the basics of accounting with Excel, I’m not sure why law students can’t learn the basics of contract law in combination with Word and contract automation. Third, law schools should start thinking about law in the context of problems presented by clients. This isn’t a novel suggestion, but it still is a good one. Some classes should be integrated classes where students confront problems that require cross-functional thinking. Three years of training students to think one-dimensionally creates habits that are difficult to break. Problems don’t come neatly sliced into property law, tax, or other substantive areas.
The last point involves a personal pet-peeve, so I’ll share a story about it. As a corporate general counsel, I spent a fair amount of time on tax issues. The companies where I worked had global businesses, so we had plenty of international tax “opportunities.” On more than one occasion, partners from whichever of the Big Four accounting firms my company used would come to us with a tax proposal. They would have spent a fair amount of time working on the proposal and consulting with our tax team. They would invite the corporate lawyers to an overview presentation. We would identify several fatal flaws in the plan almost immediately. Those flaws were missed because the tax practitioners knew nothing about and didn’t take the time to ask about, the corporate law aspects of what they proposed. We would suggest many ways to work around the problem, and usually, after much additional work by the tax practitioners, we would land on a solution. I would always ask why the tax practitioners didn’t come to us right at the start, knowing that the key to the entire plan depended on corporate work, so that we could develop an integrated solution that worked. They always responded, “we were taught to look at the tax issues and let someone else think about the rest.” Not very efficient.
A Different Type of Training
The type of training I’m advocating does overlap with what some others (e.g. Michael Dillon) have suggested. But, it is more. If you teach inefficiently and teach how to do things inefficiently, students pick up on that and model that behavior. Combining teaching with practical experience helps (assuming the practitioners are efficient). Nevertheless, teaching itself needs to change.
We all know the oft-repeated quote attributed to Albert Einstein, “Insanity: doing the same thing over again and expecting different results.” If we continue teaching law the same way (based on inefficient service delivery models), and yet expect different results, we shouldn’t be surprised when they don’t materialize. We should start teaching law as an efficient professional service, which will build change from the bottom up.