Can books and lectures really prepare lawyers for the real thing? Kate Gibbs questions the limitations of legal education.
Five or so years with your head buried in textbooks, high marks to prove your worth, and references that paint a well-deserved halo above your clever head. The way of the excellent student; enough to guarantee placement in one of the marbled high-rises of our top law firms, or a varnished desk in any of the city's chambers.
But all success seems to fall away when you meet raised eyebrows because you're late for an interview, or face shocked looks when you knock on a partner's door to ask where the bathroom is.
Horror of horrors, you find out too late that emailing a client directly is not the done thing and at least three partners should have checked the email first. Why didn't they teach you this stuff at law school?
Law firms traditionally train their graduate lawyers in the finer details of what it really takes to be a lawyer; extending the education they received at law school to include the broader matters of ethical lawyering - what to wear, how to introduce a colleague and how to write a letter to a client.
Whether this is part of a moulding process - in which an organisation will shape their intakes according to their will - or whether they are filling a huge gap in those individuals' legal education depends very much on the individual and the law school they went to.
According to an American education foundation, there needs to be a general overhaul of the way law students are taught. The Carnegie Foundation for the Advancement of Teaching, an independent policy and research centre, announced this year that not enough was being done to fully prepare law students for the practise of law.
Legal education, the foundation argues, should go beyond the teaching of black-letter law to include a much more broad-based study on ethics and practice skills.
"The calling of legal education is a high one - to prepare future professionals with enough understanding, skill and judgement to support the vast and complicated system of the law needed to sustain the United States as a free society," said Carnegie senior scholar William M. Sullivan.
"Unfortunately, despite some very fine teaching in law schools, often they fail to complement the focus on skill in legal analyses with effective support for developing ethical and practice skills."
In Australia, a focus on black-letter law in most law schools is complemented by ongoing education around ethical practice, and the non-legal side of lawyering during Practical Legal Training (PLT) and College of Law. Via mock interviews, mock letter-writing and mock presentations, lawyers rehearse for the day when they enter the legal fraternity.
Universities promise to go above and beyond with guest speakers, barristers-cum-tutors and actual practical experience in law firms, chambers and in-house corporate environments. PLT is, of course, touted as providing all the skills necessary to be a lawyer.
Despite all this, however, some employers say that even the bright things entering the workforce sometimes fall short in the delicate corporate environment of the legal industry.
On top of this, many recently graduated lawyers enter the world of law and are shocked by the reality of it. With so many recent grads finding careers elsewhere, are we to surmise that it's because they are not properly prepared for what being a lawyer really involves?
The question has to be asked: just how effective is the non-legal education of our law schools?
BLACK-LETTER LAW TRAINING TOO BLACK AND WHITE
A principal problem raised by the Carnegie Foundation is that law schools do not focus enough on what it means to be a lawyer. While schools are effective in teaching abstract concepts - including how to think like lawyers - students are not being trained in the skills and culture so necessary to actually being lawyers.
"I've worked with a number of graduates and new lawyers, and have been impressed by the quality of their legal and analytical skills," says Katrina Johnson, director of legal affairs at eBay. "However, the practise of law clearly entails more than just legal proficiency."
Lawyers are required to be strategic advisers and risk assessors, and must always consider the bigger picture beyond the law, says Johnson, who won a Young Gun of the Year award at the Australian Law Awards in 2006.
"Unsurprisingly, some graduates and new lawyers approach matters in a much more academic, rather than practical, manner," she says. "This academic approach can create difficulties for new lawyers in terms of other essential legal skills such as time management and responsiveness, managing client expectations, commerciality and advising on the most appropriate strategy or tactics."
Johnson says she has seen graduates who have been unwilling to budge or compromise during the course of a negotiation, simply because they feel the law is on their side. "While this may be true it is a tactic that rarely works well in the commercial world, where mutual give-and-take is often necessary to achieve your ultimate goal," she says. "I believe this approach is a product of the more academic, abstract style of training that is provided to students in law schools."
LAW SCHOOLS TAKE THE ADVICE
Acknowledging this common concern, some law schools have moved aggressively to remedy it. This year Melbourne Law School became the first all-graduate law faculty in Australia, delivering graduates with the global standard Juris Doctor (JD) degree.
One big difference in the offering, says Professor Cheryl Saunders, associate dean within the law school, is in the very fact that the school doesn't accept undergraduates. Rather than going into law because they got the marks or couldn't choose between medicine and law so just picked one, these students are university graduates who have had more life experience and time to consider what they really want.
Touting the new-world law course as the way forward, Saunders says firms will increasingly find they don't have to train their new lawyers as much as they have in the past. "So they're (graduate lawyers) very keen, they're committed, they're interested in how the law actually works.
"They're more mature when they get here, they come with established tertiary skills and often work experience, and they dedicate themselves to law while they're here."
The benefit is that the school is able to provide a range of offerings beyond the academic curriculum. Melbourne Law School labels its graduates "savvy and mature", with the skills necessary not just to practise the law, but to actually be lawyers.
Part of this has to do with the simple fact that the students are older and have learnt to deal with people. Says Saunders: "They know how to answer a phone, knock on a door or introduce someone." She says part of that knowledge comes from the students' life experience and part from the training the school gives them.
Practical training at the school includes being expected to write a letter of apology to a lecturer if a student cannot make it to a class, meeting with guest professionals and being able to conduct intelligent conversation with them, and classroom exercises in which students pretend to be syndicates of public servants and prepare memorandums for the Victorian Attorney-General on a problem arising from the Victorian charter.
Professional behaviour is also addressed, with some more "punctilious" teachers focusing on what students wear, for example. "We have some barristers taking the students for some of the mooting experiences, and they insist on ties and the whole box and dice if they're appearing for a five-minute moot," says Saunders.
Clayton Utz national legal education manager of learning and development Dr Michelle Sanson agrees that there are a wide range of standards which need to be met beyond the academics of legal practise that are taught at many law schools.
She lists the need for emotional intelligence from "kids who are coming from school" and have to make a huge transition. "Particularly for those who have come from private schools, where they have been spoonfed."
She argues that law schools are preparing students for the realities of legal practice via methods such as requesting letters and attached documentation for assignment extensions.
PRACTICAL LEGAL TRAINING?
For many students, the training gained in PLT and College of Law courses is enough to see them through most non-legal scrapes they can expect to face in the real world. As eBay's Johnson says, the PLT course is "necessary and desirable".
However, she suggests that PLT providers and law schools should more regularly engage guest speakers from different areas of the law to help educate students as to the realities of being a lawyer in each speaker's field of practice and work environment.
For many students who only do the undergraduate degree, PLT is not enough, she says. "In an ideal world, law students would also be required to complete a number of compulsory work placements prior to completion of their degree, in different work environments and legal practice areas."
Johnson suggests providing students with exposure to different areas of the law during their undergraduate studies to help them better understand which practice areas and types of practice are best suited to them.
While graduates in any of the top firms will receive rotations in order to give them an understanding of their strengths and interests, few will know what it is like to work in-house or in government sectors. The current order of things, she says, will often leave many graduates with little understanding of the options available to them.
But according to Clayton Utz's Sanson, people are doing law degrees for different reasons, only one of which is to work in a large commercial law firm. She argues, then, that it should be left to the law firms and various organisations to take the graduates with their general and practical training and adapt that to what the firms need.
"At the beginning of each rotation they get an intensive introduction around what to expect in each practice group. You can't teach them that at university, because if you are going into construction, they can't offer that specialised experience as part of PLT or within the course."
But Johnson maintains that more undergraduate hands-on experience would give students a better understanding of the realities of law. "It would provide the necessary reality check for students and assist in managing their expectations of what legal practice is really like," she says.
She gives the example of one young lawyer who joined her team recently: "He thought the more practical skills he developed while working in-house with my team really enhanced his academic studies."
Australia is ahead of this US scenario in which students are underprepared for real-life lawyering, says Sanson. "Ten or 15 years ago it was more the question they are asking in the US around whether students are being prepared holistically for the real world."
Depending on what sort of graduate an organisation is looking for, the education offered at Australia's law schools is often adequate. But as more and more recent graduates drop out of the law, and as firms, in-house teams and other organisations have to train and educate their new lawyers about the realities of what it takes to be a lawyer, law schools and lawyers alike are questioning how realistic and thorough that education really is.