Why Can’t Law School Graduates Write?

Volume 38 Number 6

By

About the Authors

Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises Inc. John W. Simek is the vice president of Sensei Enterprises Inc. He is an EnCase Certified Examiner (EnCE) and a nationally known testifying expert in the area of computer forensics. Together the authors provide legal technology, information security and digital forensics from their Fairfax, VA-based firm. 

Law Practice Magazine | November/December 2012 | The Client Service Issue
Ask judges and senior lawyers to identify the most disturbing aspect about younger lawyers, and they will reply in one voice, “They can’t write.”

Recently, author Sharon Nelson took part in an educational conclave convened by the Virginia Supreme Court and attended by a number of judges, law school deans and professors, and lawyers involved in bar leadership. The primary issue raised was the fact that recent law school graduates seem to emerge from their education with abominable writing skills.

FOCUSING ON WRITING

Some of the judges at the conclave said they are seeing an increasing number of legal briefs that are incoherent, rambling and full of pretentiously inflated writing. As one judge noted, “No judge ever finished reading a brief and wished it were longer.” Yet for those working by the billable hour, longer briefs are often more profitable.

The spelling is often deplorable, and the grammar wouldn’t pass muster in junior high. One young lawyer wrote something along the lines of “this is, like, not ethical.” When called on the carpet in the judge’s chambers, he had the temerity to say, “But judge, that’s, like, the way I talk.” He was summarily told to take his brief back and rewrite it.

One useful resource here: Writing to Win: The Legal Writer by Steven Stark. Its first edition was published 12 years ago, and the new edition includes substantial revisions, including several sorely needed sections on writing in the digital age.

Stark has taught legal writing at Harvard Law for over a decade, so he is well qualified to speak with authority. As he points out, lawyers who improve their writing also improve their credibility and their attractiveness to potential employers. We recommend his book for all lawyers, but especially young lawyers. It is a pleasure to read because Stark infuses his own writing with examples of excellent and terrible writing samples from real life, along with a good mix of memorable quotations that illustrate his points.

Almost every speaker at the conclave encouraged the Virginia law schools represented to target competent legal writing as a pivotal issue.

THE DEARTH OF PRACTICAL SKILLS

Writing is by no means the only problem. The vast majority of law school graduates have no idea how to run a business, how to measure profitability or return on investment, or how to reconcile a trust account. (It would help if graduates could balance a checkbook.) Setting up a law practice is problematic because they haven’t been trained in law office technology. Most have never taken a law practice management class.

Remember Professor Kingsfield in The Paper Chase? “You come in here with a skull full of mush and you leave thinking like a lawyer.” Well, that’s not good enough anymore. Critical analytical skills are needed, but the old way of teaching through studying judicial opinions just doesn’t measure up to the demands of the electronic era of law practice. As speakers noted at the conclave, law school needs to reflect “the world beyond the gate,” and that means practical skills, time management training, mentoring, business skills and the like. Focusing on merely passing the bar exam is a disservice to students and largely irrelevant to what they will be doing after graduation.

Can you imagine going through medical school without ever having seen an emergency room? Yet many law school graduates have never been in a real courtroom. And as high-tech courtrooms proliferate, very few graduates know how to use the available technology. Many of these young people are proficient at using social media, but are they aware of the ethical implications for a lawyer using social media? As we go to press, two New Jersey lawyers have been charged with ethical violations for instructing a paralegal to “friend” someone in a personal injury case to obtain Facebook information not publicly available.

One response to the failure of law schools to teach practical skills is that large firms are trying to fill in the gaps. McGuireWoods offers 150 to 200 classes a year, some of which do not qualify for CLE credit. They teach client relations, leadership, community service, writing and business skills, accounting and finance, work/life balance, the value of diversity and many law practice management topics.

The need for trial advocacy courses comes up often. Too many young lawyers seem perplexed by the courtroom and are unfamiliar with its rules. As judges noted, young lawyers must be familiar with the basic practices of the courts in which they appear. Judge Gerald Bruce Lee has been known to gently reprimand lawyers who don’t know the “rocket docket” of the Eastern District of Virginia by saying, “You want a continuance? You must not be from around here.”

THE CHANGING ECONOMY

More bad news for law school graduates. Clients are wising up and advising their lawyers that they are not willing to pay for the on-the-job training of first-year associates. So how are these associates supposed to get trained? Most law firms are struggling financially these days, and the last thing they need is to have first-year lawyers completely dependent on the firm’s resources without generating revenue.

Law students themselves are suffering economically. They leave law school with six-figure debt and now have to compete not only with their peers but also with all of the out-of-work or underemployed lawyers. Recently, we learned that median salaries for first-year law school graduates have declined by 35 percent in the last two years. Only 55 percent of 2011 graduates found full-time legal jobs, according to the ABA. And yet we have rosy postgraduate employment statistics from the law schools, many of which have been charged with tinkering with the numbers by hiring their own graduates or not reporting those who are underemployed.

It’s no wonder that so many lawsuits are pending against law schools alleging fraud for using misleading employment data about their graduates as an inducement to prospective students. And it’s no surprise that graduates feel, under the current circumstances, like they are swimming in a shark tank. In 2011, the ABA passed Resolution 111B, which urges greater transparency by law schools in how they report the exact nature of their graduates’ employment and the actual cost of a law school education, including the cost of living.

FAILING LAW SCHOOLS

Many readers will recognize this boldface subheading as the title of a book by Washington University School of Law professor Brian Tamanaha. Failing Law Schools argues that going to law school is a bum deal for most law students, with rising tuitions and falling job prospects. The author holds law schools accountable for bloated faculties of overpaid professors and gaming the infamous U.S. News & World Report law school rankings. Many deans have acknowledged that they are trapped in a situation where they cannot afford to make a major decision without considering those rankings—they are loathe to be held responsible for a decline in the rankings.

How sharply have law school tuitions escalated? The ABA says the average public school tuition is now $22,116 per year, with private schools costing an average of $39,184. Let’s face facts: For years, universities have looked at their law schools as profit centers—no matter how high the tuition went, there were students clamoring to get in, believing that a law degree would ensure financial success.

Recently, applications to law schools have declined, which is unsurprising, given that a survey by Veritas Prep, a test preparation and admissions consulting firm, found in 2011 that only 68 percent of law students would have applied had they understood their grim job prospects. In fact, The National Law Journal reported this June that law schools have experienced a 25-percent decline in applicants over the last two years. As a result, the crazy escalation of law school tuition—far beyond inflation rates—has now been partially offset by sweetened scholarship packages offered by schools desperate to fill their ranks with students.

Law school deans are under a remarkable amount of pressure, being asked to keep rankings up, standards high, tuition in check, applications up and employment reporting accurate. Many are retiring or changing jobs. Of the 199 accredited law schools in the U.S., 32 hired new deans in the last year and another 55 hired new deans in the last one to three years. That’s an extraordinary percentage.

Among the most vocal critics of laws schools is the Law School Transparency group, which was formed in 2009 to push schools for the release of more and better jobs data and to lower tuition costs. Kyle McEntee, its executive director, says simply, “The way we train lawyers is not working for the students, it’s not working for the profession, and it’s not working for clients.”

So why are law schools doing (according to critics) such a poor job of educating students? To be sure, many have instituted practice clinics of some kind, and some—too few—have started teaching law practice management, professionalism, legal writing and legal technology. The process of changing what and how we teach has had all the impact of a river made of molasses. Like any large entity, law schools tend to lumber along on square wheels, hampered by layers of bureaucracy, turf wars amongst the deans and faculty, and inertia.

This has simply got to change. From our foxhole, the graduates emerging from law school are products of the digital world. Their research skills tend to be adequate, but they write in text message shorthand. They have no idea what kind of laptop to buy, with what specifications. They don’t know the risks and benefits of storing data in the cloud. They can’t reconcile an escrow account. They are incapable of writing law firm policies. They haven’t been schooled in virtual lawyering or in data security when on the road.

Another lawyer at the conclave noted that you cannot leave new lawyers alone with clients. They don’t know how to engage with them. And that makes them poor rainmakers as well. They seem unable to interact with opposing counsel in an amiable way. Mind you, we understand that one sometimes draws an unpleasant opponent. But as Judge Lee says, “Don’t wrestle with a pig; you’ll get filthy, and the pig will love it.”

Many lawyers at the conclave advocated for involving state bars and bar associations in helping to develop practice-based curricula, and we have seen a number of articles advocating for that involvement. Virginia is by no means the only state to hold something similar to an education conclave.

Another resolution passed by the ABA in 2011 was Resolution 10B, which is dubbed the “practice-ready” resolution because it urges legal educators to ensure that law school graduates have practical skills and knowledge, through clinical work and other avenues. In 2012, the ABA made several changes to the Model Rules, noting that competence includes knowledge of technology, especially in securing client data.

CONCLUSION

As many commentators have remarked, the conservatism inherent in the law is both a virtue and a vice. Certainly, law schools have remained stagnant in their curriculum for a very long time, making only trivial changes. One wag noted that perhaps, once every century, innovation is warranted. At this point, law schools are rallying to the calls for change—whether they will succeed in reinventing themselves remains to be seen. None of this is much consolation to the 2012 law school graduates—they are the ones staring into the abyss.

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