Some thoughts on legal education and practice

The law in England and Wales is a vital place to be at the moment. Not only do we face the same economic chaos as everyone else, but there is the prospect of fundamental regulatory change as the Legal Services Act 2007 comes into force, coupled with a shift in the balance of power between firms and their clients (driven by economics, but also by other factors) and the rise of legal process outsourcing. As a result many firms are gradually reinventing themselves in a variety of ways — some public, some private. (Those that are not thinking about the future as a very different proposition from the past are destined to fail. Tony Williams made this point in his address to a conference I attended last week, and he is very right.)

So firms face serious pressures on their structure and downstream demand. Now there is a (related) challenge to the traditional forms of upstream supply. Baby lawyers are very likely to be created in different ways in the future. There are lots of places where more information can be found (here is a good place to start), but I wanted to concentrate on some things that occur to me from my own experience.

Some personal background (skip if you like)

I was lucky enough to study law as an undergraduate at the University of Warwick in the mid-1980s. From its inception in the late 1960s, this institution pioneered a different approach to the study of law — examining it in its social and human context, rather than as a disembodied corpus of statutes and cases. This is a more common view than it used to be — my Warwick generation was one of the last to be seen by the law firm market as somewhat unusual. Amongst other things, academics at Warwick promoted clinical education as part of an academic course. I didn’t take advantage of this opportunity, as I had set my sights on an academic career at a fairly early stage. (This was partly a reaction to my vicarious experience of private and in-house practice during a period of work prior to unversity, and partly a recognition that I didn’t have the right stuff to be a professional success.) I therefore spent four years (plus an additional master’s year in Italy) studying more law and becoming increasingly academic. One exception to this was the Summer that I spent attached to Wayne State University Law School. This short exchange programme opened my eyes to the different way that US lawyers are educated, and to the wealth of experience that JD students bring to their studies (and future careers) from their undergraduate degrees.

So then I started on my academic career, teaching subjects that students tended to undervalue and even to reject. Why? Mainly because, by the early 1990s, there was a growing attraction to legal careers in the City of London and other commercial centres where high legal salaries were becoming common. Put bluntly, many of my students didn’t have an interest in the law (especially not as a subject for academic study): they just wanted the kudos and financial reward of being lawyers. At the same time, I was aware that some of my fellow law graduates who had entered the legal profession were less than satisfied — they missed having studied subjects they really enjoyed (anything from Physics to History) as undergraduates. As a result, I became much less convinced than many of my colleagues that a law degree was a natural precursor to a legal career. (It is possible in the UK to become a lawyer with a non-law degree by taking a one-year conversion course.) I often stuggled with the regularly-expressed view of the late Peter Birks that legal practice and a law degree should be closely entwined.

On leaving the academy for legal practice (albeit in a support role), I found myself for the first time in the company of many lawyers who hadn’t had the benefit of a law degree. This has been a mixed experience over the past ten years. On the one hand, I do not think I could say with any certainty which of the partners in the firm I work for have a law degree. By the time someone has marked themselves out as an outstanding lawyer and worthy of partnership, their undergraduate degree is largely irrelevant — the expertise developed and experience gained in practice is more significant. On the other hand, I feel that some of our less-experienced lawyers may miss the breadth of legal understanding that comes from a law degree and cannot be replicated in a conversion course. As I said when I taught it, the insights provided by the philosophy of law are not worthless — they help good lawyers make the right intuitive leaps when faced with novel fact situations or legal scenarios.

(In case it needs saying, these observations are purely personal, do not reflect the views of my past or present employers, and do not reflect on any particular individuals.)

What do I think about the state of legal education currently (welcome back if you tuned out of the memoir)

In general terms there is a tension between the legal profession and legal educators (at university level anyway). This is exemplified in the recent remarks of Nigel Savage, Chief Executive of the College of Law (until about 20 years ago, the College had a monopoly on the training of prospective solicitors).

Let’s take the undergraduate LL.B law degree. What does it really prepare students for? It is taught largely by individuals who have never practised law and who increasingly have PhDs in a wide range of areas that bear no resemblance to the practice of law. Students are required to spend a semester – or if they are lucky an academic year – studying contract law, at the end of which they will never have seen a contract. Students will be told they are taught to think like lawyers. They are not. They are taught to wade through bizarre factual problems, which is a useful exercise, but what they really need is to think in terms of solutions.

Richard Moorhead (a fellow Warwick graduate) has dealt compellingly with a similar objection by the Legal Services Institute, that universities play no part in the creation of new law.

We regularly engage with the judiciary, are cited in their judgments from time to time and train them on current developments. In other words, our research activity is regularly shared with industry, public bodies, government and governmental agencies and it informs our teaching. If the reader will permit me a rare moment of modesty, I should also say we are by no means atypical.

A legitimate question is to what extent does this benefit students? This is one of the many known unknowns of legal education. I believe it does (indeed I have a little data suggesting it does) but I cannot really prove it. I believe that being taught by someone who is working (I hesitate to use the phrase but I can find not other) at the cutting edge is an experience which has significant motivational benefits for student learning but also teaches them important lessons about how law is constructed and fought over and the context which law and lawers operate within. Much of the best research being conducted in law also ensures they understand how contextual law is. A lot of law depends on personalities, politics and money. It is a human system. Understanding the social, economic and political contexts within which law is created and functions is, in my view, an essential part of a modern legal education. Context is everywhere and needs to be better understood. One reasons is that students have to better understand ‘facts’: to my mind legal education focuses far too strongly on the rules that are handed down. Another is that context is vital to understanding the utility of law: in some contexts this means developing a better understanding of philosophical constructs like justice in others this is about starting the development of commercial awareness. Of course commercial firms commonly request this from applicants but I believe it has a broader significance. A key lesson which will be learnt through the Legal Service Act reforms is how justice and business rub up against each other. One of the reasons the professions may be about to hit trouble is they have largely been unprepared for this because they have focused on the internal norms of the legal system rather than the political and economic forces that shape it.

I agree entirely with Richard. The examples he gives of the ways in which he and his colleagues influence the law fit perfectly with my experience in a different university. One of my former colleagues was largely responsible for the creation of the enduring power of attorney, which fixed a fundamental problem with the management of the affairs of the mentally incapable. Another became and still serves as a judge of the Constitutional Court of Bosnia and Herzegovina, whilst remaining an active academic.

However, I think we still have to deal with Nigel Savage’s concern that undergraduate lawyers are unreasonably promised that they will become able to think like lawyers. I recall being uneasy about making such a statement myself. What does it mean to think like a lawyer? Do academic lawyers think in different ways from practising lawyers? Do academic lawyers address their subject material in a substantially different way from academics in politics, history, sociology or literature? Is ‘thinking like a lawyer’ just a pig in a poke when sold by the academy?

It is often useful to see what others think of us, and this is certainly true of the Lord Upjohn lecture given by David Edmonds, Chair of the Legal Services Board, earlier this month. Edmonds is not a lawyer, but is hugely experienced in public and private sector leadership roles. The LSB is responsible for overseeing the whole range of regulators of legal professions in England and Wales. That is the context from which Edmonds spoke about the challenges facing legal education.

Let me, as a layman, suggest some areas that education and training needs to cover:

• Navigating the law
• Professional skills – particularly in applying legal principles to the facts of the case, but also the procedural knowledge applicable to different areas of law
• Functional skills, such as drafting and advocacy
• Client-handling and other wrongly termed soft skills – every other part of the economy regards those as professional and rightly so.
• Management skills and commercial awareness
• Ethics – last, in this case, implies anything but least.

Ethics is an tricky one — John Flood always has interesting things to say about this issue, but I haven’t had the chance to grapple with it yet.

The others are more familiar to me. Unsurprisingly, I am confident that degree courses in law can cover the first point and most of the second. Navigating and applying the law is at the heart of any law degree. They may struggle with some of the procedural details, but many students will acquire that knowledge in optional courses. The rest is a challenge: functional, soft and management skills, or commercial awareness, are rarely at the core of any undergraduate programme. And in fact I do not think they would be well-placed there anyway. It is important to know and understand the context of the work being done to get to grips effectively with such topics.

I am not even sure that these elements can be effectively assimilated during the period of vocational training that students undergo before joining law firms. Although it is far more progressive than the old Law Society Finals course administered by the College of Law decades ago, the Legal Practice Course is still usually distinct from real legal practice — few firms actively engage with this stage of legal education. It is only when trainee solicitors arrive in the firm that they can start to understand properly what clients require of lawyers — because they are finally faced with real clients expressing their requirements in clear and certain terms. What better learning experience could there be?

If the training contract is where our lawyers really start to become lawyers (not just thinking like them, but being them), should we not focus on making this period the best learning experience possible? Can lawyers learn from the professions where learning really works on the job?