Issue #14 of Equipping Our Lawyers eNewsletter

Editor's Note: Maybe it's the long, hot summer but debate--even litigation--on everything legal and law school has certainly been heating up.
- Chuck Bingaman, Editor

“The Case Against Law School and the Case Against the Case”

Former Northwestern Law Dean David Van Zandt’s July 26 New York Times article “The Case Against Law School”--subtitled “Should the standard three years, followed by the bar exam, be the only path to a legal career?”--tosses out a raft of thorny, disturbing issues. See http://is.gd/hHiy1G.

Northwestern adjunct faculty member Stephen J. Harper’s response challenges Van Zandt point by point and hurls back equally disturbing issues in law school education. See Harper’s July 25 posting, “Unfortunate Comment Award”, in his acclaimed blog “The Belly of the Beast”. http://is.gd/vDCQXb.

Van Zandt and Harper clash on what should be taught in law school and how long it should take. What are and should be the proper interests of law schools? What futures should law students be prepared for? “Big law”? “Small law”? Public interest law? And what, if any, elements those futures share.

Editor’s Note: One tries--and it’s not easy--to separate event reporting as set out above from opinion as follows here! Van Zandt seems to have led a strategy at Northwestern to cave to the U.S. News rankings--not an unusual strategy for elite and not-so-elite law schools--by focusing heavily on catering to large firm hiring. Harper, a 30-year litigation veteran of Kirkland & Ellis in Chicago--”big law” by any definition--says that strategy has been of little benefit to students career-wise and has resulted in skyrocketing tuition fees.

Perhaps there is so little in common between the needs of “big law” focused graduates and “smaller law” or even public interest law focused law grads that seeking a common curriculum or even direction is futile. Harper even suggests that big firm recruiters pay no attention to curriculum--traditional or innovative--because they simply seek “the best and the brightest” who can support partners’ lavish incomes for a while before losing faith in the their futures with the firm and moving on only to be replaced by the next wave of bright and eager young JDs with heavy loans to pay.

The Summit Recommendations, on the other hand, do argue that core competencies can and should be defined and taught, that core values, including service to the underserved, must be identified and taught, and that law schools should serve the total bar and the public, not just “big law.”

Making just that argument--teaching core competencies should be law schools’ focus--is SMU Law Prof. Bryan A. Garner in the New York Times series. For Garner’s plea AND the list of the series’ other legal education debaters and their articles, see http://is.gd/dQcbJQ. CCB

Law Firm Pro Bono Programs Slipped in 2010 But Not as Quickly as Some Have Reported

Ester F. Lardent, President and CEO of the Pro Bono Institute in Wasington, DC, reported in the Amercian Lawyer July 12 that fears of a catastrophic drop in hours law firm lawyers devoted to pro bono work in 2010 were exaggerrated. In fact, while the hours DID drop significantly from the prior two years, 2010 saw the third highest number of pro bono hours recorded by her organization.

“What we see,” reports Lardent, “is that the profound pro bono transformation that has characterized law firm pro bono during the past decade is, for the most part, intact. Pro bono at many major law firms is institutionalized, with active support at the highest levels of firm leadership.... The business case for pro bono service is an article of faith at most firms--perhaps even more so as pro bono’s role in enriching corporate client relationships and enhancing lawyer skills and competencies becomes more evident.” See Ms. Lardent’s full article at http://is.gd/jP9bcB.

Additional information on PBI is available at its excellent website, www.probonoinst.org.

Editor’s Note: Summit Recommendation #16 urges “the legal community...to develop programs that will prepare and encourage law students and all lawyers to serve the underserved.” CCB

Competence: Its True Meaning and the Only Proven “Bridge” From Here to There

Barbara Bichelmeyer

“Competence”. A loaded word/concept valued by the bar, the public, the legal education community. But what is it really? According to University of Indiana professional education guru Dr. Barbara Bichelmeyer in her August 1 presentation at ACLEA’s Annual Meeting, we should define it as “the consistent ability to take an action that results in valued accomplishment.” Lawyers’ actions can be overt--getting needed information from clients, writing letters or arguments--or they can be covert--developing an evidence strategy or a jury selection plan. Education, she argued, is an “increase in competence”--when someone can do something he/she has not previously been able to do.

Development of a competency, Bichelmeyer argues, absolutely requires two things: practice and feedback. They are “uniquely educational and NO PROGRAM can be defined as ‘quality education’ unless both are present.” She offered the example of learning to shoot free throws in basketball. Being lectured on free throw shooting CANNOT produce competence. Rather, only the process of action--practice--and feedback from outside can lead to competence. The same necessary process, she argues, applies to any legal competency.

Editor's Note: The Summit Recommendations seek to raise the effectiveness of legal education, that is, lawyer competencies, from law school through legal careers. Following Bichelmeyer's thinking, that means that ALL legal education must be reverse-engineered from identifying the competencies effective lawyers need to educational planning that includes practice and feedback leading to their development. NITA, for instance, has long modeled such educational approaches and competency development. e.g. Students/practitioners stand on their feet and delivery opening statements, question prospective jurors, examine witnesses and get feedback from qualified lawyers and judges. And then they perform again. Too little of law school and traditional CLE has even tried such performance/feedback approaches, let alone insisted that they dominate their courses to insure that competencies are, in fact, developed. CCB

PA CLE Annual Provider Conference Notes

Recognizing the power of face-to-face interchange, Pennsylvania CLE held its 4th annual Providers Conference on June 20, 2011 in Harrisburg. Sixty-five attendees representing 50 accredited providers participated. New Mexico Continuing Legal Education Board was represented by a staff member. Guests included Pennsylvania Supreme Court Justice J. Michael Eakin as well as 4 PA CLE board members.

Paul Gilbert

Guest speaker Paul Gilbert, CEO of legal consulting firm LBC Wise Counsel, spoke on the topic: “Soft Skills: Importance for Lawyers - Importance for CLE?” Gilbert advocated integration of “soft skill” training into CLE programs, making the case that attorneys can be taught to develop stronger communication and organizational aptitudes.

Editor’s Note: This note was contributed by Cynthia Sharp, an attorney and professional CLE instructor, who attended the Pennsylvania conference. Says Sharp, “While a CLE program devoted solely to “soft skills” does not currently pass accreditation muster in Pennsylvania, the PA CLE board, administrator and staff demonstrated willingness to open the dialogue by opening the meeting as well as their minds to Gilbert’s perspectives...As a fully accredited provider, I can personally attest that the Pennsylvania Board on Continuing Legal Education (PACLE) continuously demonstrates adherence to its stated ‘partnership approach with Accredited Providers of CLE.’ The staff is informed, respectful and accessible.” Summit Recommendation #6 urges all mandatory CLE regulators to “create communication frameworks for mandatory CLE rules to ensure that all parties share an understanding of the content of the rules, their needed evolution, and their effects”. The annual Pennsylvania program is a great example of the type of framework Summit participants had in mind. CCB

Insights for Legal Innovators

Implementing the Summit Recommendations requires, to put it succinctly, a lot of sophisticated planning and innovative thinking. Here are three mind-expanding yet very practical resources for innovators in legal education...

*SIMPLE LESSONS FOR CHANGE LEADERS AND TEAMS by Karen R. Brown, MSW, and Yvette L. Harms, PMP, both of the staff of the Institute of Continuing Legal Education (ICLE) at the University of Michigan, Ann Arbor. Brown and Harms, who have led impressive innovation in CLE services to Michigan lawyers, provide a wealth of guidelines, checklists and good, old-fashioned know-how for embracing the age of collaboration, initiating change, planning and executing change and managing follow-through. Every law school, bar association, law firm and CLE leader will find priceless guidance here! Get this 2010 publication for $39 from www.icle.org.

*REINVENTING PROFESSIONAL SERVICES: BUILDING YOUR BUSINESS IN THE DIGITAL MARKETPLACE by Ari Kaplan. (John Wiley & Sons, 2011). In this detailed new look at 21st century practice, Kaplan lays out his sense of how successful lawyers will organize their practices, their communications and their marketing efforts to succeed in the highly competitive world of wired and mobile technology. Whether you’re managing a law firm, a law school, a bar association or a CLE provider, Kaplan offers specific ideas that will help you reach your markets. USA $29.95/Canada $39.95.

Peter Sloan

*FROM CLASSES TO COMPETENCIES, LOCKSTEP TO LEVELS: HOW ONE LAW FIRM DISCARDED LOCKSTEP ASSOCIATE ADVANCEMENT AND REPLACED IT WITH AN ASSOCIATE LEVEL SYSTEM (2007 ED.) by Peter B. Sloan. This over-sized, softbound report with extensive appendices details how a large midwestern firm successfully created its associate development/compensation program--called the Level System--to replace a traditional, “lockstep” structure. And it includes a wealth of forms and competency checklists for those wishing to adapt the system to their use. The report is available for $235 ($195 for Professional Development Consortium and ALI-ABA members) plus applicable tax and shipping. Contact Mary Meyer at Husch Blackwell at 816-983-8685 to get an emailed brochure or to order.