Being a lawyer is NOT about intellectual debate??
I guess it explains a lot of wasted meetings at Justice. It also explains why I incessantly get calls asking me to file amicus briefs—lawyers don’t engage in intellectual debate, they instead run to the halls of academe to provide it! (link to Stracher’s piece)
With respect to the proposal of postgraduate work (also known as the articling process), in the daze of my youth I wrote a piece entitled “why have a bar exam?” calling for the abolishment of the bar exam. For some reason the Utah Bar J. refused to publish it. One proposal I considered was the articling process. This is what I wrote:
A final alternative [to the bar exam, which I advocate abolishing] could be a return to the articling process. In the days of yesteryear, depending upon how far back one goes, budding lawyers studied for a year or more under the supervision of a more experienced attorney either just after leaving the farm, high school, college, or after graduating from a law school. These more experienced attorneys would work closely with the new lawyer, and would determine the new lawyer’s competency to practice law after a year. This articling method could work in Utah as well. New attorneys could apprentice either as a clerk for a judge, an associate in a law firm, or even in a government position. Their immediate supervisor(s) would write a letter to the Bar at the end of the year, commenting on the applicant’s ability to practice law.
There are two problems with this method, however. First, the articling system could be abused by senior attorneys, who could use it to force the candidate to be an indentured servant with the explicit sanction of the bar (rather than do so implicitly by the present practice of imposing indentured servitude by the device of calling the candidate an “associate”). Moreover, the training is likely to range from outstanding to wholly inadequate, or the useless by using the candidate as a runner for the supervising attorney or as office help in operating the copying machines, keeping the office clean and making sure the coffee is hot. There is even the risk that the candidate might be called an “intern,” and we all know what can happen to and by persons called interns. While a complaint process might be established to curb abuse and maintain some minimal level of competence of those who would train the young, the hassle of the bar doing so may be more than it is worth.
A second concern is that articling could result in a law firm not adequately training the candidate or simply passing along the incompetent to prey upon the public. It may be too much trouble to provide adequate training or to insure the less than competent do not become members of the legal profession. While the firm will likely not employ the unworthy candidate after the period of articling, some poor member of the public may well employ the candidate to their regret. On the other hand, the truly creative and independent candidate might find themselves at odds with the firm where they spend their year of servitude. Such a circumstance might deprive the public of a lawyer who will make a difference because the establishment does not often appreciate those who do make a difference.
Hmm, the most grating statement is that "law is not brain surgery" but rather a skill that is picked up with practice. Not only does it contradict what he says about medical school being superior in providing clinical education, but I think it sort of illustrates the point you're making.
Law does appear (from what I've seen of it) to be just like brain surgery or rocket science, or any other profession. I don't want a doctor who hasn't practiced on a corpse (but nor would I want one who hasn't studied!) I don't want to fly in a rocket ship that was designed by someone who never built a rocket before (but nor would I want a rocket built by someone who doesn't comprehend engineering on an intellectual level). And I don't want to be a lawyer who doesn't know what he's doing (either practically, or intellectually).
I'll now say something nice (but completely true) about UH, since this is the UH blog -- I think that a lot of professors have gone out of their way to make things practical. I like the fact that I got to screw up arguing a motion in Crump's civil procedure class (which made me realize that I needed to practice that skill), for example. Also, I love externing through the clinic program.
I think one of the problems that often comes up is that your average newly minted lawyer is often a 25 year old who has yet to hold a full-time job. So often they do not even have the customer service skills that a shift manager at McDonald's has. Law school does tend to focus on the intellectual side more than the practical in many ways but even what is considered practical training often does not deal with many of the aspects of serving clients.
You can be the smartest guys in the room and still lose your business if you expect your clients to only "care about how much you know" rather than also being concerned with "how much you care". If someone seeks out a lawyer chances are they are in a world of hurt and they want some legal medication not ivory tower meditation.
The reality is that lawyering does not have the kind of predictable results that many clients are used to in their professional lives, and having good human relations skills with your clients can often decide whether you get canned right away or conversely be selected for repeat business, especially if you don't prevail first time around, or at least don't prevail to the extent your client thinks justifies your fees.
The intellectual horn tooting, and ivory tower debate that may have felt like a good way to deal with your competitive classmates vying for those top 10% law review slots or a good way to impress the brilliant professors who you want a letter of recommendation from will probably get you into trouble when you are trying to work with "the other 90%" clients who feel they are paying your bills for your service not your elitism and fail to appreciate your intellectual snobbery towards them, especially when you can't even promise them you can win their case with the kind of certainty they think your "ridiculously high" fees should pay for.
I think more "business case" type studies describing how firms got it right or wrong along as far as working with clients, along with more "lessons from the real world" from professors or speakers from actual practice could go a long way towards helping with this in legal education. Perhaps a good survey course could be created for this.
There is so much about academia that I truly admire but the whole microcosm of "getting published" being far more important for a professor's career than high satisfaction marks in student evaluations, speaks volumes about how different academia is from the rest of the world where your clients decide whether or not your business even survives.
Your merit badges might help you get that initial legal job, but if your clients can't stand you, you will soon find yourself the smartest guy in the unemployment office, and the only court you will be practicing in will be the one conducting your personal bankruptcy proceedings.
Just the ramblings of a thirty something part-time student with an MBA who tries to put himself in a client's shoes.