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Preparation for the Practice of law—the Views of the Practicing Bar
Published online by Cambridge University Press: 20 November 2018
Abstract
The competence of the practicing bar has been subjected to substantial criticism in recent years. Since law schools have a virtual monopoly over access to the bar and licensure is granted without further training, legal education has been a particular focus of attack and reform efforts. Yet there has been little systematic study of what skills and knowledge are important in the actual practice of law or the relevant contributions of legal education. This study of practicing lawyers in Chicago examines the nature of the competencies important to the practice of law and the sources lawyers credit for contributing to their development.
Practitioners cite a broad range of skills, many of them not unique to the practice of law, with their importance varying by the predominant legal specialty practiced. The data further indicate that law schools play but a part in the development of skills and knowledge important to the practice of law and that experience, both prior and subsequent to graduation, plays a significant role. The evaluation of law schools' contributions is related to opportunities for further training, particularly in the context of law firm practice. There is, however, a strong general view that law schools rather uniformly concentrate on some skills to the exclusion of others and that the former are not necessarily those that lawyers think are most important to the practice of law.
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- Copyright © American Bar Foundation, 1980
References
1 Frank, Jerome, Why Not a Clinical Lawyer-School? 81 U. Pa. L. Rev. 907 (1933); id., A Plea for Lawyer-Schools, 56 Yale L.J. 1303 (1947); Deedra Benthall-Nietzel, An Empirical Investigation of the Relationship Between Lawyering Skills and Legal Education, 63 Ky. L.J. 373 (1975); K. N. Llewellyn, On What Is Wrong with So-Called Legal Education, 35 Colum. L. Rev. 651 (1935); Bernard Stern, Retrospection: What Recent Law School Graduates Think of Their Education: The University of Toledo Experience, Student L.J., June 1972, at 27.Google Scholar
2 Church, Virginia Anne, Bridging the Academic-Practitioner War Over Legal Education 1 (1975).Google Scholar
3 See, e.g., Frank, A Plea, supra note 1, and Llewellyn, supra note 1, for early commentary on this issue; and E. Gordon Gee & Donald W. Jackson, Bridging the Gap: Legal Education and Lawyer Competency, 1977 B.Y.U.L. Rev. 695, and Francis A. Allen, Resolving the Tension Between Professors and Practitioners, 1976 Learning & L. 50, for current views of the general problem.Google Scholar
4 Burger, Warren E., The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham L. Rev. 227 (1973); report of the Clare Committee, commissioned by Chief Judge Irving R. Kaufman of the U.S. Court of Appeals, Second Circuit, to recommend means to improve the quality of advocacy in the federal courts. A brief summary of this controversy can be found in Wayne Green, Lawyers' Competence at Court Work Stirs Growing Debate, Wall Street J., Feb. 24, 1975, at 1, 17.Google Scholar
5 In 1976 Justice Burger appointed a Committee of the Judicial Conference of the United States to Consider Standards for Admission to Practice in the Federal Courts. The Devitt committee, informally named for the judge who chaired it, commissioned the Federal Judicial Center to do a study of the quality of advocacy in the federal courts. For a review of the committee's work and conclusions, see Report and Tentative Recommendations of the Committee to Consider Standards for Admission to Practice in the Federal Courts to the Judicial Conference of the United States, Sept. 21, 22, 1978. The principal recommendation is that “minimum uniform standards of competency for attorneys in federal trial courts should be implemented by uniform district court rules providing for an examination in federal practice subjects and four trial experiences in actual or simulated trials.”Id. at 9. The committee also recommended the establishment of attorney-performance review committees in each district. Id. at 20. The Judicial Conference of the United States approved only pilot programs of the recommended changes. Judicial Conference Joins Push for Trial Skills Training, 65 A.B.A.J. 1466 (1979).Google Scholar
6 Savoy, Paul N., Toward a New Politics of Legal Education, 79 Yale L.J. 444, 446 (1970).Google Scholar
7 A few attempts have been made to determine the skills considered important to the practicing bar. See, e.g., Benthall-Nietzel, supra note 1, and Robert A. D. Schwartz, The Relative Importance of Skills Used by Attorneys, 3 Golden Gate L. Rev. 321 (1973). Comparisons with our findings are severely restricted by differences in the precise skills included as well as some methodological limitations.Google Scholar
8 In an effort to characterize the emergence of legal counsel as a social institution, Dietrich Rueschemeyer cites three “core characteristics” of the attorney's role: “1) specialized knowledge of legal rules, 2) partisan advice to clients not related by kinship, and 3) representation of clients in relation both to other parties and to legal authorities.” Dietrich Rueschemeyer, Lawyers and Their Society: A Comparative Study of the Legal Profession in Germany and in the United States 1 (Cambridge, Mass.: Harvard University Press, 1973). Our definition, while implying all three characteristics, emphasizes the third as distinguishing the “practitioner” from others trained and identified as “lawyers.”Google Scholar
9 Auerbach, Jerold S., Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1977); Jerome E. Carlin, Lawyers on Their Own: A Study of Individual Practitioners in Chicago (New Brunswick, N.J.: Rutgers University Press, 1962); Jack Ladinsky, Careers of Lawyers, Law Practice, and Legal Institutions, 28 Am. SOC. Rev. 47 (1963).Google Scholar
10 Curran, Barbara A., The Legal Needs of the Public: The Final Report of a National Survey (Chicago: American Bar Foundation, 1977); Leon Mayhew & Albert J. Riess, Jr., The Social Organization of Legal Contacts, 34 Am. Soc. Rev. 309 (1969).Google Scholar
11 Carlin, supra note 9; Auerbach, supra note 9; Edward O. Laumann & John P. Heinz, Specialization and Prestige in the Legal Profession: The Structure of Deference, 1977 A.B.F. Res. J. 155.CrossRefGoogle Scholar
12 The list of items included was developed in pretests of the questionnaire. A number of them are similar to items in Stevens's consideration of law school emphases. Robert Stevens, Law Schools and Law Students, 59 Va. L. Rev. 551, 699–701 tables A.20-A.26 (1973). Lawyer activities can also be characterized and evaluated in broader terms as the “rapport-building” and “advice and consultation” discussed in Thomas A. Decottiis & Walter W. Steele, Jr., The Skills of the Lawyering Process: A Critique Based on Observation, 40 Tex. B.J. 483 (1977).Google Scholar
It should be noted that in all cases our inquiries have been phrased to elicit respondents' opinions based on personal experiences with the practice of law. When aggregated, these individual views will, we think, provide the most accurate picture of the practicing bar's view of law schools' contribution to practice. The most obvious alternative to this method would have been to ask each respondent to speak about law schools' contributions to the practice of law in general. However, since each attorney's experience is limited, the results have greater validity when respondents are asked to provide information about what they know best.Google Scholar
13 By using the mean or average of the responses as the basis for the importance ranking, the rankings of all the respondents are given equal weight. Since it is possible, however, for the same average responses to represent different distributions, table 1 includes the percentage of respondents who have ranked the skill important (including ranks 1 or 2 out of 5 possible ranks). The order of importance of the various categories of knowledge and skills varies hardly at all regardless of the ranking scheme employed.Google Scholar
14 The importance of facts to the practice of law has been documented elsewhere. In a survey of the 1969 graduates of the University of Toledo Law School, Stern (supra note 1) finds “dealing with facts” to be the single most important skill to practicing law. In her survey of the Kentucky State Bar Association, Benthall-Nietzel (supra note 1) reports that “organizing facts” is the skill ranked third in importance. Based on a skill list different from our own but also using a Likert scale, the mean derived was 1.71, somewhat higher (less important) than the 1.52 we found for the comparable capacity to marshal facts and order them so that concepts can be applied.Google Scholar
15 J. Willard Hurst, The Growth of American Law: The Lawmakers 339 (Boston: Little, Brown & Co., 1950).Google Scholar
16 Frank, Jerome, Courts on Trial (New York: Atheneum Publishers, 1963).Google Scholar
17 Pearson's r (Pearson's product-moment correlation coefficient) is a symmetrical measure of association appropriate to interval and ratio data. It measures the degree of straight-line relationship between two variables and can range from − 1 to + 1. A positive value indicates a tendency for respondents to score similarly, relative to the respective means, on both variables. A negative value indicates a tendency to score inversely.Google Scholar
18 The coefficients range from 0.3026 to 0.4817. Knowledge of political science, psychology, economics, sociology, and accounting skills have been omitted from the figure as the least important items (the mean importance of each is greater than 3 on a 5-point scale). Financial sense, not surprisingly, correlates with accounting skills and so was also excluded. In addition, understanding the viewpoint of others to deal more effectively with them was omitted because it correlated in an unsystematic fashion (as a quasi-universal skill) with a full 10 of the 21 items.Google Scholar
19 A factor analysis of skill importance yielded three factors that did not give dramatic results. Two of the factors closely matched the two groupings in fig. 1.Google Scholar
20 These analytic skills, central to the arcane knowledge and specialized skills that characterize a profession, are unrelated to another core characteristic of a professional the “contribution to the public good.” Issues of professional responsibility, of which this is a part, will be considered in the forthcoming book by Frances Kahn Zemans & Victor G. Rosenblum, The Making of a Public Profession (Chicago: American Bar Foundation, forthcoming).Google Scholar
21 Davis, James A., Undergraduate Career Decisions 141 (Chicago: Aldine Publishing Co., 1964).Google Scholar
22 Since only a small proportion of lawyers devote their time exclusively to a single area of the law, respondents were asked to rank, in order of their importance, the areas of law in which they do a significant amount of work. The first-ranked specialty—the area of law in which each lawyer spends more time than in any other—provided the basis for subsequent analysis.Google Scholar
23 The following categories of organizational context have been employed: solo, small firm, medium firm, large firm, government lawyer, business legal staff, and other.Google Scholar
24 References to statistical significance appear throughout this article. For those unfamiliar with that terminology it means that the relationship discovered would not be likely to occur by chance. Tables include a x2 figure that expresses the relationship between the variables as they have occurred as compared with the relationship that would be expected by chance. Along with the x2 figure is a level of significance, expressed as a probability. E.g., where p 0.01, the likelihood that the existent relationship would occur by chance is less than 1 out of 100. Explanations of other statistical measures employed in the data analysis are presented along with the interpretation of those data. Specific modes of analysis and operational definitions of the variables are also presented within the substantive context in which they are initially employed.Google Scholar
25 It should be noted that the differences that emerge from this analysis understate the actual diversity in the practice of law due to the breadth of the specialty categories. The limits of specialty as a variable for analysis are discussed in the forthcoming book, supra note 20.Google Scholar
26 The Scheffe test (0.05 level) for the difference between means was employed here. A two-way analysis of variance including both substantive specialty and organizational context of practice was also done. No interaction effects were revealed between the two variables.Google Scholar
27 One way of measuring the degree of specialization among specialties is to compare the number of areas of the law in which attorneys in each specialty spend a significant amount of their time. Considering the mean number of areas of concentration of attorneys who list different specialties as the area in which they spend the greatest proportion of their time, tax lawyers and criminal lawyers are the most specialized. That is, among the seven specialties practiced by the largest number of attorneys in Chicago, those concentrating in tax law or criminal law have the lowest mean number of areas of concentration. As groups then, tax lawyers and criminal lawyers are relatively “pure” specialists.Google Scholar
28 The measure of specialty prestige is derived from prestige scores developed by Laumann & Heinz, supra note 11. They are based on the responses of Chicago lawyers to a query about the “general prestige of each specialty within the legal profession at large.”Id. at 167 table 1, n.1. While similar to the general occupational prestige surveys, this is an intraoccupational scale calculated on the opinions of lawyers only.Google Scholar
29 For the analysis to follow, the specialties have been divided into prestige categories on the basis of the ranked scores. High-prestige specialties include securities, tax, antitrust, patent, banking, corporate, and administrative law; medium-prestige specialties include real estate, trust and estates, labor, insurance, bankruptcy, commercial, civil litigation, and municipal law; and low-prestige specialties include criminal, family, personal injury, poverty, and creditor-debtor law.Google Scholar
30 See, e.g., Boden, Robert F., Is Legal Education Deserting the Bar? 3 J. Mar. J. Prac. & Proc. 179 (1970). a general discussion of the issue of making legal education more practical, and William T. Vukowich, The Lack of Practical Training in Law Schools: Criticisms, Causes and Programs for Change, 23 Case W. Res. L. Rev. 140 (1971), a general review of the issue. The major academic response to growing criticism has been the accelerating evolution of clinical training in law school. For a discussion of this phenomenon see George S. Grossman, Clinical Legal Education: History and Diagnosis, 26 J. Legal Educ. 162 (1974).Google Scholar
31 June Louin Tapp & Felice J. Levine, Legal Socialization: Strategies for an Ethical Legality, 27 Stan. L. Rev. 1 (1974).CrossRefGoogle Scholar
32 The question about the contributions of experience did not specify the time sequence. Later in the analysis, by comparing the competencies expected to be brought to the first job and the contributions of law school, it is possible to attribute credit to prelaw school experience.Google Scholar
33 The percentages for each item are based on the number of respondents ranking any sources for that item. For example, 76.2 percent of the 429 respondents ranking any sources as making a “substantial contribution” to the development of fact-gathering skills ranked “own repeated experience” as rank 1 or 2 of a possible eight rankings.Google Scholar
34 Respondents' evaluations of their law schools' contributions to their skills and knowledge were not related to their evaluation of the importance of the same competencies to their practices. In addition graduates of national and nonnational law schools differed in their evaluation of their law schools' contributions on only three items when nature of practice was held constant. Given the substantial similarity in law school curricula this is not surprising. For a discussion of the exent of that similarity see Ronald Pipkin, Student Responses to Law School Curricula (Paper presented to the Section on Legal Education and Admissions to the Bar at the Annual Meeting of the American Bar Association, Chicago, 1977).Google Scholar
35 An evaluation of the role of participation on law review in the acquisition of competencies for practice revealed the special perceived contribution of that experience to two particular skills: writing briefs and opinion writing. The other competencies for which law review is given substantial credit by its participants are the same for which law school in general is given a high rating.Google Scholar
36 Although the figures as they appear in the two columns are based on different populations, the comparison is appropriate because they do not vary more than a few percentage points when calculated for comparable populations.Google Scholar
37 The table also shows that some competencies (e.g., effective oral expression, knowledge of social sciences, and accounting skills) are expected to be brought to the first law job but are not learned in law school. These are apparently assumed to be learned before entering law school.Google Scholar
38 Based on cross-tabulations, the only exceptions are writing briefs, for which the more recent law school graduates give more credit to the law schools, and opinion writing, for which those out of law school more than 35 years are less likely to credit law school training than are more recent graduates.Google Scholar
39 In fact, new graduates are rated lower than their predecessors on only three skills, negotiating, letter writing, and financial sense, for each of which the mean response is 3.1, only one-tenth of a point below a response of “about the same.” The stability of the quality of new lawyers' abilities over the years is further illustrated by the modal response for each item; in every case the mode, or most popular response, is that new graduates are “about the same” as their predecessors with respect to skills and knowledge important to the practice of law.Google Scholar
40 There is no relationship between the belief that law schools can teach particular competencies and their importance to one's own legal practice. There is also no relationship between attorneys' opinions about the ability of law schools to teach skills effectively and the kind of practice in which they are engaged. This is particularly interesting in light of the fact that we see, infra, that whether skills have been learned in law school is frequently dependent upon the particular practice in which the respondents are engaged. This is of course consistent with the finding that importance of the skill does not predict to evaluation of the law schools' ability to teach it. There is, however, a highly significant relationship between having learned a skill in law school and believing that it can be taught there effectively. It would be surprising if it were otherwise. The significance level is 0.005 for 18 of the items, and 0.01 for another one. The relationship between “learned essentially in law school” and “can be taught effectively in law school” cannot be established for the two remaining items, negotiating and interviewing. These statistics compare variations in distributions and in both cases there is virtually universal agreement that the skills were not learned in law school; therefore, there is no variation in the “learned essentially in law school” variable.Google Scholar
41 The importance of the skills to the respondents does not affect their evaluation of the law schools' insufficiency of attention to them. Opinions about the adequacy of attention by law schools to competencies important to the practice of law are also unaffected by the respondents' class standing. Again we see, infra, that the nature of one's law practice does affect the evaluation of law schools' contribution to skills and knowledge important to practice.Google Scholar
42 Graduates of different law schools do differ in their evaluations of the adequacy of their law school training on a few of the items covered. Irrespective of the nature of their legal practice, graduates of national law schools are significantly more likely than graduates of nonnational law schools to believe their law schools paid sufficient attention to the following skills and areas of knowledge: legal research, negotiating, effective oral expression, and knowledge of theory underlying law.Google Scholar
We also inquired whether or not the bar thinks that too much attention was given to any of these skills and areas of knowledge, but no skill was seen that way by more than 12 percent of the attorneys. That “insufficient attention” was cited by so many and “too much attention” by so few is a strong indicator that the practicing bar wants law school to do more rather than different things.Google Scholar
43 Respondents' opinions about their law schools' indicating the potential value of various skills and areas of knowledge to the practice of law are unrelated to the importance of those skills and knowledge to their own practices.Google Scholar
44 On 7 of the 21 items, graduates of national law schools are significantly more likely than graduates of nonnational law schools to agree that the law schools indicated their potential value. However, in no case is the difference sufficient to affect the general picture; the law schools, regardless of their geographic appeal, are highly likely to indicate the potential value of some skills to the practice of law and highly unlikely to do so for others.Google Scholar
45 This criticism is not restricted to law schools. A similar point was made by a graduate of the University of Chicago business school. Interestingly the failure is similarly in interpersonal skills.Google Scholar
It seems to me the most important thing needed for success in business is personal magnetism. I can't understand why no one mentioned that to me in school. Without excellent skills in getting along with people you really can't get anywhere. What I learned in school is that you need to prove something with your credentials. I don't know if schools can teach you how to have a forceful personality, but they should at least mention it.
Interview by Andrea Frey with Judy Thornber, Chicago Business Year in Review (Graduate School of Business, University of Chicago), 77–78, at 9.Google Scholar
46 A humorous and perhaps extreme example of the discrepancy between formal training and its application in the practice of law is provided by the following anecdote related to us by a member of the Indiana bar who participated in an early pretest for this study. The following is a description of his experience while sitting as a special judge in a case involving a bailment for hire, where the plaintiff sued for $614.Google Scholar
When the clerk laid the file on the desk, it was at least two inches thick. In looking through the file, there were motions to dismiss, 12(b)6, there were requests for admissions eleven pages long, there were 200 and some interrogatories submitted by the plaintiff to the defendant and there had been all sorts of hearings, at least six on various pleading matters. And the defendant had not satisfactorily answered some of the interrogatories, and this motion was to—there had already been a motion to compel discovery by answering some 60 of these interrogatories, and this was on a motion for sanction for the reason that the defendant had not complied with the court's order compelling discovery. In discussing the matter, I asked the plaintiff's attorney who had been out of law school eighteen months how much he wanted. I said, “The prayer in your complaint here is for $614. Let's get down to the nitty-gritty. What would you take?” And he said, “Until I get the answers to these interrogatories, I can't advise my client as to what he should take.” I said to the defendant's attorney, “What would you pay?” He said, “We have twice offered him $614, the amount of the prayer.”
Not surprisingly, this little vignette caused a good deal of laughter from the other lawyers in the group. The speaker was, however, trying to make a very serious point. “Here's a fellow,” he went on, “who has learned all about requests for admissions, all about interrogatories and procedure, he's learned what they were, he's learned what is required and all of this and that, and yet he has spent hours and hours and hours when the defendant has twice offered him the amount of his case.” Whether apocryphal or not, this vignette makes an important point regarding experienced lawyers' perceptions of more recent law graduates' abilities to translate legal rules into practice.
47 Many law students also seek summer and part-time employment with law firms before graduation to gain this kind of experience.Google Scholar
48 The derivation of firm size parameters was based on the respondents' own categorizations. The actual mechanism used was a simple scatterplot of the size category of firm practice by the number in the firm. Although there was the occasional odd response (e.g. a respondent who checked “large” firm and then noted less than 10 persons in the firm), the lines between the categories were visually quite clear. The groupings are as follows: small firm, 2-8 lawyers; medium firm, 9-49 lawyers; and large firm, 50 lawyers or more. The points of division would certainly be different in smaller cities. Since size of firm data are available only for current employment, the results provide a conservative picture of the contributions of firms of different sizes to the development of legal skills.Google Scholar
49 No data are presented with respect to attorneys outside of one's own office because they receive so little credit for the development of competencies. They are mentioned as a source by more than 100 respondents on only six items: negotiating; drafting legal documents; instilling others' confidence in you; effective oral expression; getting along with other lawyers; and understanding the viewpoint of others to deal more effectively with them. Only for negotiating do they receive more than 15 percent (21.0 percent) of the ranks 1 or 2 for a particular competency.Google Scholar
50 Lawyers who did or do work as counsel on the staff of a business firm are not included because we cannot determine whether other attorneys worked in the same office.Google Scholar
51 Lawyers in own office was counted as an important source of a skill if it was ranked first or second most important among the sources ranked. A z-score was calculated for each subsample for every skill. See Bruning, James L. & Kintz, B. L., Computational Handbook of Statistics 197-98 (Glenview, Ill.: Scott, Foreman & Co., 1968), for a discussion of this test for the significance of a proportion.Google Scholar
52 With the present data we cannot determine whether the same is true for the first job after law school.Google Scholar
53 Cognizant of both the importance of the nonanalytic skills and the failure of law schools to deal with them, the ABA Task Force on Lawyer Competency recently recommended that in admissions decisions “law schools should consider a full range of the qualities and skills important to professional competence.” In particular they encourage giving greater weight to “such factors as writing ability, ability in oral communication, work habits, interpersonal skills, dependability, and conscientiousness.” See American Bar Association Section on Legal Education and Admissions to the Bar, Report and Recommendations of the Task Force on Lawyer Competency: The Role of the Law Schools, recommendation 1, at 6 (Chicago: American Bar Association, 1979).Google Scholar
54 To the extent that law school attended and nature of practice are related, there is a statistical connection between school attended and evaluation of schools' contributions to skills important to practice. However, once the nature and context of practice is held constant, the effect of law school loses its significance.Google Scholar
55 The unwillingness of the practicing bar to support elimination of courses or shortening of current curricula is documented and discussed in the forthcoming book, supra note 20.Google Scholar
56 An example can be found in Richard Danzig's contracts textbook entitled The Capability Problem in Contract Law (Mineola, N.Y.: Foundation Press, 1978). The readings concentrate on well-known contract cases with an emphasis upon the practical problems involved in pursuing real cases up to and beyond judgment. A curious response to this approach is reflected in a recent review of Danzig's book. While the reviewer has no quarrel with the author's objectives, he worries that the student not be demoralized completely, noting that “no rehabilitation of student morale is provided” by the book. James C. Oldham, Contracts, Capability, and the Classroom, 77 Mich. L. Rev. 949, 951 n.56 (1979).Google Scholar