As our legal educational institutions are affected by economic factors, so the study of law changes. But, as we abandon certain forms of legal training and grapple with new and ‘better’ methods, it may be time to question whether current legal training is good enough for Australian firms, as well as for our young lawyers. Kate Gibbs reports
Twenty-first century Australian legal graduates are entering a more complex and structurally different professional environment from that of their predecessors, even just decades ago. As all organisations are bullied by global factors, they are being affected by matters of competitiveness, competition, and technology, amongst other things. Legal commentators are now asking whether legal education institutions have been able to keep up with this transformation, and whether the product they are creating is good enough for our law firms.
Queensland University of Technology Associate Professor Sally Kift says the content, methods and foci of legal knowledge are quickly changing in the current economic environment so that in many areas of law, “the doctrinal law learnt at Law School is no longer current, even on graduation”.
The traditional sectors of legal education and the legal services industry have been changed by pressure from globalisation, communications and information technology and “a determined move away from the adversarial system as the primary dispute resolution method”, Kift says. As well, a growth in higher education participation has contributed to greater student diversity in terms of demographics and preparedness for tertiary study, she says.
Speaking at the LAWASIAdownunder2005 conference on the Gold Coast in March, Kift explained there had been significant growth in Australia’s legal education since the Pearce Report was published in 1987. Despite its recommendation that no new law schools be established beyond the then 12 in number, the years leading to 2001 saw a further 16 set up. The 29th law school in Australia, Edith Cowan University, is to commence operation this year.
But, as this growth is set against the contemporary higher education agenda that requires they operate more like businesses, “especially that they be cognisant of economic rationalism, management efficiency and the economic imperative to increase non-government funding”, many law schools have been forced to reinvent themselves, says Kift. They are being forced to seek competitive market advantage by differentiating themselves and the courses they offer to their local competitors in particular.
Since the Pearce Report in 1987, positive change has occurred in legal educations, Kift argues. Although Australian law schools have been “starved” of adequate resourcing since Pearce, law schools and their teaching academics have worked hard to understand what good learning and teaching is, and how student learning outcomes might be improved. “I know, for example, that my Faculty is committed to and has invested heavily in providing quality learning and teaching environments for its students,” she says.
Legal educators are increasingly offering a shared learning experience between teacher and students, says Kift, in an aim to produce graduates who are able to practice as reflective practitioners, “Such graduates should have acquired the necessary skills, knowledge, understanding and sense of community responsibility that they will need to function effectively and ethically in the diverse and globalised discipline that law has become,” according to Kift.
Gadens managing partner Michael Bradley says the product that universities offer law firms, that is graduates, is “good”. They are motivated and smart and the quality generally is “quite high”. But Bradley says he is often surprised by graduates’ research skills, including basic web searching, “which is not as good as I would expect”. “They seem to get through university without doing any [research] at all, so we do more training in this area than we’d expect”. Generally, he says, the practise of law is very different to its theory.
It is hard for firms to gauge the quality of legal education offered in universities, according to Bradley. He suggested that one weakness, however, was that “it seems easy to get through without studying black letter law”. Conceding that it varied from university to university, depending on the way they structure their subject, he says property and company law, for example, are essential.
Bradley’s recommendation is “bring back articles, get rid of colleges, they are a complete waste of time”. The “artificial” experience in colleges is aimed at a base level of practice, he says, adding that “a lot of stuff they do at college they are never going to do in a firm”.
“Article clerks actually do the work, while I don’t think college is very useful and I don’t think the redesign over recent years has been good — it doesn’t achieve very much,” Bradley said.
Article clerkships received some praise recently in Victoria, where the Law Institute of Victoria (LIV) released a survey of articles following a request from the State’s Attorney-General in November last year to “evaluate the level of education, training and guidance” that articled clerks experience. Seventy-seven per cent of respondents felt their training had at least met their expectations.
According to LIV president Victoria Strong, there is strong support in the legal profession to retain articles because the system provides a very effective method of training young lawyers. Although the LIV’s survey had revealed some instances of bullying and harassment, these were relatively few in number. Strong says that while the LIV would obviously have preferred there were no negative experiences, “the results acknowledge that some firms provide a high quality articles program but at the other end clearly there are some serious shortcomings”.
The next step, says Strong, “will be to concentrate on the bottom end so that we improve the training and education of all lawyers”.
Minter Ellison partner Anne Trimmer says the articles system in the ‘70s and ‘80s was seen to be highly variable. Smaller firms often didn’t have the resources to provide adequate training, she argues. But one of the reasons larger firms brought in their own programs was to capture the best PLT training offered by universities, while bringing an “in-house flavour” to the education.
A lot of Minter Ellison’s graduates come in through a summer clerkship program, “a soft introduction” to legal practice, says Trimmer. The programs are well structured and young lawyers have the opportunity to work in different parts of the firm. “That probably gives them a better sense of what it’s like working in a law firm than doing a PLT program and finding themselves in a firm”. For the students that never have that practical experience there is a gulf, says Trimmer.
However, feedback from all graduate programs suggest they need to create a rewarding experience for new entrants, Trimmer suggests. The common theme, she says, is that young practitioners want supervision, which is important not only to the success of the program but also in launching the young lawyers’ careers. At Minter Ellison and in most of the large firms, “a lot of effort is put into making sure there is adequate support from young lawyers”, Trimmer says.
The more diverse the work for the graduate, Trimmer stresses, the more rewarding the experience. “[Graduates] seem to be wanting — and none of this is rocket science — to be involved at the coal face, to understand the project at the beginning.” “I think perhaps with larger matters there is a tendency to have young lawyers perform roles without seeing the big picture,” she says.
In terms of the quality of the “product” that law firms are getting, it varies between firms, according to Trimmer. She says the large firms are receiving high quality entrants because their selection process is so rigorous. “When you think about it, law schools are taking the top high school students and then through the law school process law firms are recruiting from the top. There are high standards,” she says.
But an interesting question for law deans, argues Trimmer, is whether this is the best method of selecting law students, that is, based on their University Admission Index (UAI). Perhaps law schools should do as they do in medicine, where they look at other components. But, she conceded, “as long as law schools are producing graduates that law firms are happy to take, then there is no incentive to consider this”.
While universities grapple with transforming into business entities, law firms tend to agree that the best legal training is hands on. Gadens’ managing partner argues that universities are providing a good result regarding students, however he says the firm is also forced to provide training where there are gaps. Minter Ellison partner Trimmer says that this is a good thing, and that law firms have a responsibility to provide lawyers with high quality legal education, no matter what previous training they may have had. The point, she says, is about investing in your lawyers to produce better practitioners, but also about launching young people’s careers into law.
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