Adapting to Change in Legal Education
By Valerie K. Couch, Joseph Harroz Jr. and Janet K. Levit
This is an exciting time to be a law school dean. The push and pull of tradition and innovation makes every day a challenge as we try to meet our responsibilities to our students and our profession. We are working in a world undergoing exponential change every few years due to technology and globalization. And, in this rapidly changing context, we are striving to answer an important practical question: What is the best way to prepare our students for their future employment as a lawyer?
At the same time, we continue to address the compelling existential question of all times for all law schools: How can we best help our students become lawyers in the great traditions of our profession, committed to access to justice for all, courageous guardians of the Rule of Law, knowledgeable about the needs of the world, and endowed with the skills of sophisticated problem-solvers?
We are finding the answers to these questions by building strong partnerships with the communities we serve. It’s a creative work in progress — and well worth the effort.
Next time a law school dean asks you to be a “partner” in the education of our future lawyers, now you will know what the dean is talking about. We need you as a partner — to provide our future lawyers with practical experience, to identify the competencies they need for the jobs of the future, to help us measure the effectiveness of our legal education program, and to usher our students as brothers and sisters into our great profession, dedicated to the values of service and leadership in our communities. When a law school dean asks you to be a partner in this great and necessary enterprise, please say yes!
LESSONS FROM THE LAW SCHOOL CRISIS: FOUR WAYS WE CAN DO BETTER
The recent, record decline in law school applicants nationwide has created an unprecedented opportunity for law schools to better prepare students. This article provides a quick look into four ways law schools can improve.
Over the last few years, the legal profession and legal education have experienced dramatic change. After a period of substantial and successive growth, the number of law school applicants nationwide has fallen by nearly 40 percent in the past 48 months. From 2010 to 2014, the number of applicants has declined from 87,500 to 54,527.1
What caused this violent market reaction? While the most recent data reveals those with a law degree still out-earn those possessing exclusively an undergraduate degree by two-thirds and those with a master’s degree by one-third, skyrocketing tuition at many institutions and a decrease in the highest paying entry-level positions have led some to label law schools as a bad investment. Over the past several years, commentators, academics and journalists have fueled the flames of criticism of the state of legal education with works like Richard Susskind’s The End of Lawyers? and Brian Tamanaha’s Failing Law Schools as lead examples.2
The drop in applicants nationwide has been so sweeping that all law schools have had to assess the impact and take action. Even in the typically insulated academic realm, market forces will have their way and choosing to do nothing differently amid this rapid change is not a viable option.
The good news is that this crisis has created fertile ground for innovation and positive change. Many law schools are waking up, taking a hard look at what they have been doing and why, and embracing the alterations that must be made. The breadth of the change is vast, including even those aspects of legal education that have been in a relatively static state for almost 100 years — from the structure of the overall curriculum (fixed first year with an almost unguided second and third year) to the limited types of classes traditionally offered (lecture using the casebook method and few clinical offerings).
Here are four ways that law schools can change for the better.
TECHNOLOGY EDUCATION AND INTEGRATION
Our students are arriving prepared as “digital natives,” and they will graduate into a world that will assume they learned how to leverage those skills as lawyers. We must integrate technology into all aspects of their education. Law schools must train students to research, organize, create and present information online from the inception of their education. This is so because for the purposes of legal research, paper is soon to be a dead medium — publishers are pricing print out of existence and the search capacity of digital offerings is unmatched. The efficiencies and opportunity provided through online applications is quickly moving from a competitive advantage to a professional necessity.
We must use technology to reach students of all different learning styles. Digitalization has made course enhancement easy and affordable. While we may be assigning cases from decades ago, students should be reading them on a digital tablet and discussing them in “flipped” classrooms where students review the lecture material online before class and spend their in-class time working to deepen their understanding of the material. These mechanisms more directly engage the student in the learning experience. We should also use technology to bring other perspectives into the classroom in a dynamic way. Skype and other digital vehicles facilitate expert commentary and explanation with an efficiency never before possible. As an example, the OU College of Law has a semester-long course where our students work with students in law schools in three other countries in a live virtual classroom that helps all participants better understand the legal rights of the native peoples of their countries.
It is inescapable that technology is now central to the practice of law, impacting communications with clients, attorneys and the courts. It has changed every aspect of the practice of law including research, litigation techniques, dispute resolution, document creation and document management. Law schools should be teaching our students to operate in a digital environment from the first day of classes.
PORTFOLIO OF OFFERINGS — SPECIALIZED WORLD
Law schools should provide more focused and specialized curricular offerings to meet the demands of a more specialized and competitive world. Traditionally, law schools set in stone the first year curriculum and then required only a few courses in the second and third years. This has led to students selecting their second and third year courses without much structure or guidance. Today, law schools should provide greater direction and focus to our students in the development of their education and career. Our goal must be to create a purposeful second and third year of law school for our students to enhance their education and to provide them with a competitive edge in the marketplace.
Schools are beginning to offer J.D.-enhancing certificates that provide a focused framework to students in the selection of courses, a better perspective on a concentration of law and a more compelling personal story to tell prospective employers. Certificates enhance a student’s law school experience through a unique blend of substantive legal knowledge, practical application and exposure to the field in a dynamic interdisciplinary learning environment. Law schools are also offering more joint degree programs, like the J.D./M.B.A. and J.D./M.P.H., which better prepare students to work in specialized settings in the business and health care industries. Law students can be the direct beneficiaries of leveraging the expertise a comprehensive university affords.
Many law schools have responded to the travails of the current economic environment by expanding their degree offerings beyond the traditional J.D. This approach has hazards that must be carefully navigated. If managed poorly, law schools can lose focus and dilute their J.D. degree. If properly managed, law schools can expand access to legal education, increasing their expertise and enhancing strategic areas that make their J.D. experience more valuable. Ultimately, pursuit of short-term economic advantage must be balanced against, and give way to, the impact to the J.D. program.
NEW BREED OF COURSES
We should meet the market demand by offering new types of courses. For the past 100 years, the delivery of legal education has remained essentially the same. The Socratic Method using casebooks in a lecture format followed by a comprehensive final exam has dominated the curriculum. There have been limited opportunities for clinic based, live-
client courses. Fueled partly by a growing reluctance on the part of law firms to provide practical, on-the-job training to new hires and partly by the desire to help law students build a portfolio of practice-ready skills, law schools are beginning to find innovative ways to give our students greater access to a broader range of experiences.
While certain “skills” courses, like trial techniques, client counseling, legal research and legal writing, have been an important part of most law school curricula for some time, law schools are beginning to explore how doctrinal courses can be paired with practical elements to create a wider range of “skills” or “how to” courses. Simulations, or “practica” as they are more broadly known in academia, provide a modern and efficient vehicle for such courses. For example, one course at the OU College of Law takes students through the process of acquiring a publicly traded company. Students receive hands on training in transaction skills such as due diligence investigation, client memo drafting, negotiation of agreements, and the preparation of SEC disclosure documents while also learning about corporate law, securities law, contract law, natural resource law and employment law in a real world context. These courses give students insights into the full range of activities related to a business merger and expose students to the key legal skills they must develop in the practice area.
Law schools should, and now must, more broadly embrace student opportunities for experiential learning. In fact, this summer, the ABA passed a new standard requiring law schools to provide more “experiential” education opportunities to their students. Schools must now provide six credit hours of experiential education to each student in one of the following settings: live-client clinics, field placements (like externships or internships), or simulation courses (like client counseling or negotiations).3 These experiential courses must integrate doctrine and theory with multiple opportunities for performance of a skill and opportunities for self-evaluation. This new ABA requirement is a positive step for legal education, but law schools should not simply settle for the mandatory minimum. A commoditized, one-size-fits all plan is not best for individual students. Schools should provide a broader set of such offerings and integrate them in a student’s specific academic career plan in a way (and in a quantity) that best serves the individual student.
The dramatic decline in applicants to law schools will soon find a leveling point and we are already seeing signs today that the most talented students are beginning to apply in greater numbers. But it would be a grave mistake for law schools to ride out the crisis until they can go back to business as usual. The decline was a reaction to law school business as usual. The market was sending a clear message that changes were needed, and in that message providing insight into how law schools could change for the better. Law schools that seize the opportunity will ensure our graduates of tomorrow, and the profession as whole, emerges better for it.
You teach yourselves the law, but I train your minds. You come in here with a skull full of mush; you leave thinking like a lawyer.4
In a recent seminar at the TU College of Law, bright-eyed, overly-eager 1Ls were shown some clips from The Paper Chase. In reality, while today’s contracts classes bear some resemblance to Kingsfield’s, law schools and law professors must now teach students a much broader range of skills. If every class mimicked Kingsfield’s, then many of today’s students would graduate unprepared to successfully navigate the legal market that they must face.
This moment is both a challenging and exciting time for legal education. The challenges are well-documented, impacting law schools throughout the country: a shrinking national pool of law school applicants, tighter university budgets, tepid legal job market, mounting student-debt loads, stagnant or declining salaries, and technological innovation.5 These factors indicate that the current downturn may have a structural as well as cyclical component. Challenges breed opportunity and positive change, and TU Law, OU Law and OCU Law have embraced this moment to reformulate and refocus curricula for the market our students face rather than the now fictional market that Kingsfield’s students faced.
For Oklahoma’s law schools, the urgency to prepare “practice ready” graduates is real. Graduate employment data for Oklahoma law schools reveals: 1) the majority of graduates enter private practice following graduation; and 2) of those graduates who enter private practice, the largest percentage work in firms with 2-10 lawyers with an increasing number of graduates entering practice as a solo practitioner.6 We know that new graduates who enter private practice will likely have client interaction and court appearances very soon after being licensed, and many may need to bring in their own clients and run their own law office. We have every reason to believe that these trends will continue for our graduates. Only 2 percent of law firms are located in rural areas, but one-fifth of the national population lives in rural communities.7 The demand for small-town attorneys is so strong that the Oklahoma Bar Association launched a small-town-practice mentoring program earlier this year.8 Graduates who engage in rural practice will undoubtedly work in solo or small law firms.
Smaller law offices can offer excellent training and fertile ground for mentorship. Yet, these young lawyers inevitably will need to hit the ground running on day one — they will not have the “benefit” of second- and third-chairing trials — they will not necessarily receive work and assignments from partners but will be expected to bring in their own work — and they will not get paid unless they send clients bills or hire someone to send the bills (and perhaps collect on the bills). If graduates are to be successful in this environment, law schools not only must train students to “think like a lawyer” but also must help students compile a comprehensive toolkit of skills, some quite familiar to legal educators and some more foreign.
In 2008, two University of California–Berkeley professors, Marjorie M. Shultz and Sheldon Ze-deck, released an empirical study, funded by the Law School Admissions Council, identifying those traits or skills that might best predict success in law school and law practice independent of performance on the LSAT.9 The results of this study identified “26 Lawyering Effectiveness Factors” which they in turn divided into eight umbrella categories.
1) Intellectual and cognitive (analysis and reasoning, creativity/innovation, problem solving, practical judgment);
2) Research and information gathering (researching the law, fact finding, questioning and interviewing);
3) Communications (influencing and advocating, writing, speaking, listening);
4) Planning and organizing (strategic planning, organizing and managing one’s own work, organizing and managing others (staff/colleagues));
5) Conflict resolution (negotiation skills, able to see the world though the eyes of others);
6) Client and business relations — entrepreneurship (networking and business development, providing advice & counsel and building relationships with clients);
7) Working with others (developing relationships within the legal profession, evaluation, development and mentoring); and
8) Character (passion and engagement, diligence, integrity/honesty, stress management, community involvement and service, self-development).10
These categories are a solid starting point for the design of law school curricula and young lawyer professional training.
In TU Law’s “Dean’s Seminar on the Legal Profession,” these lawyer effectiveness factors are shared with first-year students who are told if they develop at least competency in all of these 26 traits they will succeed in law school and as lawyers, and, if they constantly reinforce and strengthen these skills, they will advance further than they ever imagined. Students are asked how they can take advantage of their time in law school — with a tremendous array of classes, specialized programs, extra-curricular opportunities and services — to develop these skills.
Interestingly, part of the discussion centers on taking classes that we associate more with business schools than law schools — basic management, marketing, project management, risk management, accounting and finance. More and more, law schools are either offering these classes — accounting for lawyers, finance for lawyers, law firm management — or partnering with their business schools to facilitate cross-listing of courses and joint degree programs.
The remainder of class discussion focuses on the various ways to “practice” the skill. Traditional law classes and law exam writing, legal writing classes, moot court and law journal, all provide training in one or more of the “lawyering effectiveness factors.” However, offering students the opportunity to serve and/or represent clients directly rises as the premier opportunity to develop, hone and integrate the menu of skills that enhance lawyer effectiveness. Indeed all law students, beginning in the fall of 2016, will be required to successfully complete six hours of experiential learning courses, which “must be a simulation course, a law clinic, or a field placement.”11
Thus all law schools, including Oklahoma law schools, are grappling with ways to accommodate practical skills training in live-client environments, supervised by competent attorneys interested in a student’s success. Undeniably, legal clinics, directed by resident faculty, are the gold standard for learning to practice law. However, law clinics are costly to develop and staff as small group instruction is considered the best instructional practice; most U.S. law school clinics only accommodate 8-10 students per professor.12 With the fiscal pressures on law schools and universities, it is improbable that legal clinics will be the sole, or even the primary, vehicle to provide students with the type of practical training that effective lawyering, and now the ABA, demands.
Increasingly, law schools are developing an alternative to the clinic experience through externships. Externships allow students to receive academic credit for working in a supervised capacity under a licensed attorney. Through an externship, the supervising attorney develops an academic plan for the student-extern and trains the student through a variety of hands-on experiences. Obviously, this is no small service on the part of supervising attorneys, as we all know the value of time in the legal profession. However, this model of training young attorneys is not a new concept to American legal history. It was customary for decades in the United States, and centuries before in England, for lawyers to earn their accreditation by apprenticeship under a seasoned attorney.
So it seems we have come somewhat full circle in our profession. The valuable skills our law students need are best learned in live-practice settings, requiring the supervision of a dedicated and patient supervising attorney. While I see this as a relatively new challenge as a law school administrator, as a bar member this is an incredibly exciting opportunity. At-torneys are truly in a position to control the future of their profession by ensuring that the next generation of lawyers is as prepared and practice-ready as possible upon graduation.
I encourage each of you who read this article to contact your closest law school, or your alma mater, and offer to supervise a law student in an externship. Although it will require commitment of time and energy on your part, you are truly “paying it forward” to your profession.
Law schools are changing. Dramatically. And in classic chicken-and-egg fashion, new ABA accrediting standards for law schools reflect a shift toward an era of experimentation and innovation as law schools respond to the rapidly changing realities of the legal market.
RECENT CHANGES IN ACCREDITING STANDARDS
For decades, accredited law schools followed a stable model for traditional legal education: one year of required doctrinal courses (torts, contracts, property, criminal law, civil and criminal procedure, constitutional law) followed by two years of mostly advanced doctrinal courses (tax, securities, corporations, energy law, family law, wills and trusts, UCC, employment law, etc.), with only limited opportunities for practical skills development, real client contact, pro bono service or experiential learning built within the curriculum itself.
This summer, the ABA House of Delegates endorsed a package of reforms that reflects a significant shift in expectations. Outlined here are some of the significant changes. And the word to hold in mind as you consider the changes is “partnership” — because the dynamic and positive effect of these changes will be to place legal education in strong interdisciplinary partnership with the community — the legal community, the business community, the non-profit service community and other university communities.
This shift has already begun to shape the future of legal education. The recent changes to the ABA accrediting standards simply underscore the permanence of that shift and reflect changes that are well underway at law schools across the nation.13
EXPERIENTIAL LEARNING REQUIREMENT
Law students in accredited law schools will now be required to take one or more experiential courses totaling at least six credit hours.14 An experiential course can be a simulation course, a law clinic or a field placement such as a supervised externship in a legal environment. To qualify for this requirement, the work in the course must integrate doctrine, theory, skills and legal ethics, and it must engage students in the performance of professional skills. A qualifying experiential course must also provide multiple opportunities for student performance and multiple opportunities for self-evaluation.
Most law schools, in varying degrees, have already incorporated experiential learning into their curricula, at least in elective components. The new standard now requires that all law students obtain at least a minimum level of practical real-world experience before they graduate.
A related change requires an accredited law school to establish “learning outcomes” that must, at a minimum, include competency in knowledge and understanding of substantive and procedural law; legal analysis and reasoning; legal research, problem-solving, and written and oral communication in the legal context; exercise of proper professional and ethical responsibilities to clients and the legal system; and “other professional skills needed for competent and ethical participation as a member of the legal profession.”15
The professional skills contemplated by this requirement include competencies such as interviewing, counseling, negotiation, fact-development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.16
The new standard does not direct that a school adopt a particular set of professional skills or competencies to be achieved through its program, but instead leaves that task to each school in accordance with its mission. It would be difficult for a school to accomplish this task alone. Bar associations, alumni, practitioners, adjunct professors, industry leaders and other community resources will be crucial to the important task of identifying competencies needed to prepare students for particular aspects of legal practice. Simulation courses that track real-world transactions, negotiations, or other client-centered activities will create powerful interdisciplinary learning environments. Externships will require the engagement of knowledgeable supervisory partners in agencies, courts, governmental units and non-profits. Clinics will require the input of the community regarding the needs of under-served populations and other resources complimentary to the legal services provided. Skilled clinical professors will supervise students in alliance with other non-profit or governmental providers, and sometimes the clinics will be embedded in the community itself. The community will be an important player in the day-to-day lives of law students.
More and more, law schools will become vitally engaged with community partners to identify the knowledge and specific professional skills and competencies needed for the legal jobs of the future.
Law schools will also be required to use assessment methods to “measure” learning outcomes. Under a new standard, schools have an obligation to use assessment measures to provide feedback to students to improve student learning.17 A law school is required to use both formative assessments (measured at points during a particular course, for instance) and summative assessments (measured at the culmination of a course, such as final examinations).
This new requirement to “measure learning outcomes” will require a shift of resources and emphasis in law school programs. There will be less reliance on the “inputs” of LSAT scores and undergraduate GPAs to measure the quality of a school’s program and more reliance on multiple assessments of student outcomes or “outputs.” Tools of assessment may include student performance in capstone courses, student performance in courses that assess a variety of skills and knowledge, surveys of attorneys, judges and alumni as well as continuing to use bar passage and employment placement rates to measure the quality and effectiveness of the legal education provided.18
Some law schools may have a steep learning curve in developing assessment methods suitable for their programs, and the ABA contemplates a transition period as schools decide how to meet this requirement. Law faculty and deans will be required by the ABA standards to conduct ongoing evaluations of the law school program, student learning outcomes and assessment methods, and then use that information to make appropriate changes to im-prove the program. In other words, law schools will be required to spell out specifically what they expect students to learn — including the professional skills that can be developed in experiential settings — and then establish effective ways to measure how well the students learn.
DISTANCE LEARNING FLEXIBILITY
Under the new standards, law schools will have greater flexibility to offer distance learning opportunities. A distance education course is defined as “one in which students are separated from the faculty member or each other for more than one-third of the instruction and the instruction involves the use of technology to support regular and substantive interaction among students and between the students and the faculty member, either synchronously or asynchronously.”19 Law schools may now permit students to take up to 15 credit hours of distance courses, an increase from the current 12 credit hours. Further, the rule prohibiting a law student from enrolling in more than four credits of distance learning at a time has been eliminated.20
This change reflects the growing and persistent pressure on law schools to find ways to make law school more affordable. Also, the change permits schools to engage in more experimentation to determine the value of distance learning for their particular programs and faculty resources. Technological advances and more sophisticated distance teaching methods make these options more attractive as schools move toward incorporating some distance learning into their curriculum. This relaxation of the prior rules will support and encourage law schools to enter into partnerships and consortiums with each other — to share their faculty resources and avoid duplication of course offerings in highly specialized fields.
EMPHASIS ON PRO BONO SERVICE
The new standards require accredited law schools to provide “substantial opportunities” for students to participate in pro bono legal services and law-related public service activities.21 Of course, most law schools already provide such opportunities and keep statistics of the hours of pro bono service provided by their students. It’s impressive how much law students at all three of Oklahoma’s law schools contribute to pro bono and public interest activities.
The ABA accreditation standards encourage law students to perform 50 hours of pro bono service while they are completing their legal education. This standard, in addition to emphasizing the legal profession’s traditional value of pro bono service, also reflects the shift toward the value of real-world experience in becoming a lawyer. The new standard will push law schools to institutionalize their commitment to both experiential learning and pro bono and public interest service. This aspect of a high quality legal education further contributes to the fertile ground for law school-community partnerships.
1. Law School Admissions Council, “End of Year Summary: ABA Applicants, Applications, Admissions, Enrollment, LSATs, CAS” (2014), www.lsac.org/members/data/lsac-volume-summary; Law School Admissions Council, “Three-Year Applicant Volume Graphs” (2014), www.lsac.org/lsacresources/data/three-year-volume.
2. Richard E. Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, 2010); Brian Z. Tamanaha, Failing Law Schools (2012).
3. American Bar Association, “2014-2015 Standards and Rules of Procedure for Approval of Law Schools” (2014), available at www.americanbar.org/groups/legal_education/resources/standards.html.
4. The Paper Chase (20th Century Fox 1973).
5. Susskind, Id.; Lincoln Caplan, “An Existential Crisis for Law Schools,” New York Times, July 14, 2012.
6. ABA Standard 509 Required Disclosures: http://goo.gl/
Ui9lwE; www.law.ou.edu/content/aba-required-disclosures; www.utulsa.edu/law/abarequireddisclosures.
7. Ethan Bronner, “No Lawyer for Miles, So One Rural State Offers Pay,” New York Times (April 8, 2013).
8. Julie A. Evans, OBA Law Schools Committee (2014).
9. Marjorie Maguire Shultz and Sheldon Zedeck, Final Report - Identification, Development, and Validation of Predictors for Successful Lawyering, SSRN-id1353554 (2008).
10. Id. at 26-27.
11. Standard 303, ABA Section of Legal Education and Admissions to the Bar, Revised Standards for Approval of Law Schools (August 2014).
12. David A. Santacroce and Robert R. Kuehn, “Report on the 2007-2008 Survey,” page 14, Center for the Study of Applied Legal Education (2008).
13. The ABA Section of Legal Education and Admissions to the Bar is tasked by the U.S. Department of Education with the accreditation of law schools in the United States. The section began a comprehensive review of the law school accreditation standards in 2008. The Council of the Section of Legal Education established final revisions to the proposed standards, subject to approval by the ABA House of Delegates. On Aug. 11, 2014, the ABA House of Delegates approved the set of reforms. The revised standards may be found at the ABA website, www.americanbar.org, in the Section of Legal Education and Admissions to the Bar under News and Announcements.
14. See Standard 303(a)(3).
15. See Standard 302(d).
16. See Standard 302, Interpretation 302-1.
17. See Standard 314.
18. See Standard 315 and Interpretation 315-1.
19. Standard 306(a).
20. See Standard 306(e).
21. See Standard 303(b)(2).
ABOUT THE AUTHORS
Valerie Couch has served as dean of the OCU School of Law since 2012. For 13 years, she served as a federal magistrate judge in the Western District of Oklahoma. Prior to her service on the federal bench, she was in private practice for 16 years. She has served as president of the Oklahoma County Bar Association, Federal Bar Association, Oklahoma City Chapter, and the William J. Holloway Jr. American Inn of Court.
Joseph Harroz Jr. has served of dean of the OU College of Law and director of the OU Law Center since 2010, having served the university in various capacities since 1994. He is also currently university vice president, and he teaches in the area of employment law. He received his J.D. from Georgetown University Law Center. While in Washington D.C., he served as legislative director and legal counsel to then-U.S. Sen. David L. Boren.
Janet K. Levit has served as dean of the TU College of Law since 2007. She frequently writes and lectures about issues related to international finance and international human rights. She earned her J.D. in 1994 from the Yale Law School, M.A. in international relations in 1994 from Yale University and an A.B., magna cum laude, in 1990 from the Woodrow Wilson School of Public and International Affairs at Princeton University.
Originally published in the Oklahoma Bar Journal, OBJ 85 2247 (Nov. 1, 2014)