Professionalism in the 21st Century

Volume 1 • Issue 3 • March 2015
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Preparing Lawyers for Practice

Legal education for the real world

Legal education hasn’t substantially changed in nearly 150 years. It’s an odd state of affairs, considering how much actual practice has changed in that time.

Educators increasingly believe law school education needs a refresher course of its own. In the complex global and technological practice of the 21st century, they say, law school education should combine theoretical and practical teaching, incorporate more business skills, and focus on inculcating a range of leadership, ethical, and reasoning skills.

Below, we explore innovative ways law schools are helping to create practice-ready professionals.

Fostering legal imagination

One approach in need of a serious update is the “case method” study of appellate court decisions, invented in the late nineteenth century by Christopher Columbus Langdell.

In “A Case for Another Case Method,” Martha Minow, dean of Harvard Law School, and Todd Rakoff, professor at Harvard Law School, write, “When we think of what students most need that they do not now get, we think: ‘legal imagination.’ What they most crucially lack, in other words, is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions to which they could apply their very well-honed analytic skills.”

Learning from case studies, they say, could help bridge this gap. The factually accurate studies of contemporary business and ethical problems used in business and public policy schools help students learn how to approach the problems individuals or institutions face and the roles lawyers play as professionals and citizens addressing those problems. “For this is a good part of what lawyers actually do: formulate unique assessments of options based on specialized knowledge about the institutional, conceptual, and practical benefits and difficulties of each,” Rakoff and Minow write.

In the complex global and technological practice of the 21st century, law school education should combine theoretical and practical teaching, incorporate more business skills, and focus on inculcating a range of leadership, ethical, and reasoning skills.

Together, the two faculty members have been instrumental in developing case studies that are now in use in Harvard Law School’s Problem Solving Workshop. Rakoff, who is co-director of the workshop, says case studies turn traditional legal education on end. “I would say the most important reframing is to go from the end of the story in the appellate opinion to the beginning of the story, where the case is much more inchoate.”

Taught between the first and second semesters of the first year, the required workshop is an intensive three-week class that presents students with numerous real-world examples of practice. Working in teams, students put themselves in the shoes of a variety of legal roles—public interest lawyer, solo practitioner, general counsel—to learn to identify and solve client problems.

At the end of the course, they present their work before a practicing lawyer in Boston. “There are lots of ways in which [traditional legal education] is truncated compared to what lawyers need to know,” Rakoff says. “And that’s true even though its slogan is that we’re, quote, ‘teaching students to think like a lawyer.’”

Taught by Harvard Law School faculty and practitioners such as Andrea Kramer, partner at Hirsch, Roberts & Weinstein; Amy Schulman, former general counsel of Pfizer; and William F. Lee, co-managing partner of WilmerHale, the workshop acquaints students with the professional decisions they’ll make every day when they graduate. Rakoff notes, “There’s quite a lot of introducing students to … what thoughtful practitioners do when faced with the kinds of situations we’re talking about. In that sense of the word ethics, we do quite a lot.”

Law without walls

Another experiential program offers experience in solving real-world problems. For three months each spring, students from 30 different U.S. and international law and business schools meet virtually and in person in Miami for the LawWithoutWalls program. A variety of other workshops combine in-person and virtual learning. One 2015 program will focus on compliance; another, on arbitration.

“Research shows the best problem solvers are actually the best problem finders,” DeStefano says. “That’s what lawyers do.”

“LawWithoutWalls is designed to teach what traditional law school classes don’t teach,” says Michelle DeStefano, professor at the University of Miami School of Law and founder and director of the program. “I think we need the traditional law school classes,” DeStefano says. “I think we always will want our students to understand theory and critical thinking and problem solving as it relates to traditional law. But what LWOW does is teach those skills that are really hard to teach in a traditional law school format, like cultural competency, project management, leadership, creative problem solving, and teaming, and, of course, technology.”

Students work on teams with an entrepreneur, a lawyer, and an academic to create a business solution to a problem. They’re “given a very broad topic—it could be increasing access to justice for vulnerable client populations using technology,” DeStefano explains. “They have to find a very discrete problem for a very discrete audience, and then they have to develop a business plan.”

 

The program teaches real-world skills in a dynamic setting. “Research shows the best problem solvers are actually the best problem finders,” DeStefano says. “That’s what lawyers do. I think the biggest mistake lawyers make, when they work with their clients, is to jump to try to find a solution. Their job, actually, instead of finding a solution, is to help their client understand their problem better. Often what the client thinks is their problem is maybe a symptom of the problem, or maybe the problem needs to be fine-tuned a little bit more to really find a solution that actually works.”

Mentoring and jobs are a natural outgrowth of the program, which sees participation from a large network of experienced professionals and maintains a partnership with the U.K.-based firm Eversheds. DeStefano’s newest project is LWOW Inc., an incubator to secure funding for the best ideas that come out of the program. Some student business plans are taking off as a result of startup funding—one app under development helps students and lawyers track pro bono hours, partnering with the website Probono.net to find a match for pro bono interests.

Participants emerge with skills it might take years to develop within a more standard career path. “They say they look at their job very differently,” DeStefano says proudly. “They look at problem solving differently than they did before. And,of course, they think differently from a cultural perspective. They have learned so much about people from around the world.”

Building a better legal education

In “Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century,” Ben W. Heineman Jr., William F. Lee, and David B. Wilkins suggest students should be taught the following six skills, which they call “complementary competencies,” in reference to the “core” competencies of traditional legal education.

  • Business literacy. All law students, but particularly those who will have careers in law firms or in-house legal departments, should have a basic understanding of the tools managers use to evaluate business opportunity and risk. Financial literacy (including accounting), firm economics, market definition, competitive strategy, supply chains, and risk assessment should all be emphasized in legal business courses.
  • New technology. The increasing speed and sophistication of information technology is reshaping virtually every aspect of our world—and by every account, the rate of change will increase exponentially in the coming years. Lawyers who expect to operate in this new environment must understand how technology is reshaping the markets in which their clients compete, as well as the practice of law itself, including the “big data,” artificial intelligence, and process management used to analyze, structure, and produce legal outcomes.
  • Decision making. Lawyers both assist others in reaching sound decisions and are frequently important decision makers themselves. Law students should receive at least an introduction to the processes and metrics of sound decision making in a variety of legal and non-legal settings, including decision theory, behavioral economics, and the uses—and abuses—of statistics, economics, and other social and natural sciences.
  • Institutional design. The majority of lawyers in the United States now work in or with institutions of significant size and complexity. Understanding lawyers’ responsibilities within these organizations is one of the profession’s core ethical duties. In addition, virtually all of the work these lawyers perform is done in the context of public and private institutions—courts, legislatures, administrative agencies, business, NGOs, international organizations—that have themselves become increasingly large, complex, and, at times, dysfunctional. Finally, lawyers are often called upon to create new institutions of private or public ordering. All of this places a premium on law students gaining at least an introductory knowledge of institutional incentives and design.
  • Teamwork across difference. In virtually every sector of legal practice—and particularly in large law firms and in-house legal departments—lawyers work primarily in teams. Moreover, these teams are increasingly diverse in every way, including demographic characteristics such as gender, race, nationality, and culture, and disciplinary characteristics, since issues lawyers confront often require collaboration with professionals from a wide range of disciplines. Research demonstrates that these diverse teams are likely to produce superior outcomes, provided that team members know how to work effectively across differences. Law schools should devote significantly greater attention to teaching students how to understand and evaluate team dynamics and to work in—and lead—diverse teams.
  • Professionalism and ethics. Lawyers will often be required to make decisions in situations that go far beyond what legal and other formal rules describe. Teaching students the variety of methods for generating choices about what “ought to be” is therefore vital to their ability to act as wise counselors and effective leaders.
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Professionalism in the 21st Century Volume 1 • Issue 3 • March 2015

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