More on Practice and Preaching, Part I

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Category: Legal Education
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In my earlier post on the long running debate about the proper emphasis of legal education, I wanted to suggest that there is more of a symbiotic relationship between practice and preaching.
Focusing on one part of the issue, Bruce Boyden wonders what relevant experiences an eight year practitioner might have not yet hand. Bruce says that stayed at Big Law to the cusp of partnership and then decided to leave (probably adding to his long term happiness and that of his family). He says he was doing a lot of the things that partners do and writes: 

One observation was that the transition from associate to partner in a large law firm is a transition from a larger proportion of hands-on legal practice (writing and filing briefs, doing research, advising clients on the content of the law, marshaling evidence, even appearances in court) to a larger proportion of business management: managing resources (associates, staff, and other partners) and managing clients–keeping current clients happy and bringing in new clients

These “partner” duties, he suggests, are not, in some sense, the practice of law and may be better informed by an MBA program than a J.D. He asks what law professors who leave the practice short of this stage are missing. It’s a great question and is answered, I think, not so much in terms of what someone has “missed” but by a consideration of what others may have “gained.”

First, I believe that the practive of law is sufficiently complex that one can’t fully suss it out in three to eight years. Irving Younger used to say that you aren’t really a jury lawyer until you’d tried thirty five cases. I don’t know that I quite agree with that- all trials are not equal – but the larger point – that experience matters – is well taken.

Second, in most large firms, one has little first chair experience prior to partnership. Being responsible requires the development of a certain type of judgment that is very much part of the practice of the law.

Finally, I am not certain that I would concede that “managing resources and clients” is not part of the practice of law and something about which legal education has little to offer. In fact, if it is an important part of being a lawyer and legal education has nothing to do with it, that’d be a failure of legal education.

But, more fundamentally, managing resources and clients often requires legal judgment. It requires the ability to discern what will and won’t work as opposed to what is technically feasible. It requires the capacity to translate a client’s concerns into legal terms. It requires knowing what is and isn’t worth worrying about.

If we believe that the legal profession is coming under increasing pressure to become more efficient and responsive to clients, then the develop of these capacities is relevant to the practice of law. While it would be unreasonable to expect law schools to graduate twenty five year olds who are fully formed lawyers in this sense, I do think that an important part of legal education includes contextualizing doctrine and relating both doctrine and skills to what will happen once we are out in the big world. This is one of the reasons that students appreciate war stories – although war stories ought to be told with a purpose.

This is not to say that one must have twenty years of practice experience to become a good law professor. I don’t believe that – and not only because I want to avoid the appearance of special pleading and self justification. They are all over the place and there are powerful and, I think, unavoidable reasons that three to eight years experience will and should be the norm for full time academics. My only point is that this type of experience may have more to offer legal education than is commonly presumed.

But there are ways in which experience can undercut both teaching and scholarship. Symbiosis requires interaction.

But that’s for the next post.

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2 Responses to “More on Practice and Preaching, Part I”

  1. Thanks for the lengthy response, Rick, and for raising this issue on our blog. Just a quick point of clarification: I didn’t mean to suggest I was acting as some sort of quasi-partner when I left practice. But I was working closely enough with a couple of partners to have a pretty good sense of what it was that *they* did.

    On the substance, I’m not crystal clear on whether I was reacting to something that may have been a throwaway line in your earlier post. In this post, you conclude by saying: “My only point is that this type of experience may have more to offer legal education than is commonly presumed.” I wouldn’t quibble with that at all. What I did want to quibble with was the statement from the first post:

    Three to eight years as an associate at a large law firm does not make an experienced lawyer. In fact, I would argue that, even in the rarefied air of a Big Law Firm, a person has no idea of what the practice is really about until they spend a few years as a partner.

    “No idea” implies that there is some sort of qualitative, not just quantitative, shift in a person’s understanding of the law after making partner at a large law firm. As I read this, the claim is that professors who have not been partners at a large law firm for a few years have no idea what the practice of law really is about.

    That doesn’t seem right to me. For one thing, it leaves lawyers with long-term experience in other settings (government, public interest, small firms, criminal) off the table. Surely someone with 15 years of experience as, say, a prosecutor has some idea of what the practice of law really is about.

    But also I just don’t see any reason why there would be this cliff effect in the value gained from experience. It seems likely to me that in terms of pay-off as a teacher, practice experience — any form of practice experience — is going to be a curve bending down at a relatively constant rate. I.e., steep climb initially, then gradually tailing off. At some point, the slope of that curve will bend past 45 degrees, such that each additional year of practice does not have that much payoff as a teacher. (Among other things, there’s only so much time to teach stuff in a 3-year curriculum.) I’m willing to concede that that point may occur above the eighth year of practice.

    But as I understand your statement, you are (were) saying that the payoff from experience *flatlines* from year 0 all the way through and above year 8, and even a few years into partnership — year 11 or so. During that time, a lawyer is gaining *no idea at all* what the practice of law is about. Then at year 11, the light bulb goes on and there’s a spike, at which point the curve starts to climb above the floor.

    Assuming that’s what you meant to claim, I don’t understand why that would be true. The sorts of judgement that only partners at large law firms typically exercise, while interesting, important, and difficult, just don’t appear to me to constitute the fundamental essence of the practice of law.

  2. Bruce, thanks for continuing the conversation. I fear that I may have implied – and wonder if you may be reading more than I intended – into the notion that being an associate gives one “no idea” what it means to be a partner.

    First, my comment was limited to what I called the “rarefied” air of Big Law and what it means to spend one’s life there – about 80% of which will be spent as a partner and not as an associate. It obviously cannot apply to legal practice outside of that environment which, as I wrote, is largely beyond my own experience. I hope that, by qualifying my statement to that context, I avoided a claim that people with years of practice experience in other areas bring “nothing to the table.” Nothing could be further from the truth.

    Nor did I did mean to suggest that one who spends a few years at a large firm knows nothing – “flatlines” – about the practice of law generally – as opposed to what practice within that context will be over the course of a lifetime (and, even there, I admit to a certain poetic license.) But I do believe that there is a qualitative difference between being a partner and being an associate. I remember how excited I was to make partner and how clueless I was about how my life was to change. Recalling that experience, I might say I had “no idea” of what was to follow. That may not be literally true, but it sure felt true to me.

    Finishing the point, I don’t see those changes between being an associate and becoming a partner as “business matters” about which legal education has little to say. There is not, in my mind, a sharp divide between the “extra-legal” aspects of building a practice (in big firm terms, “finding” and “minding” as opposed to “grinding”) and the practice of law. “Finding” can mean identifying legal needs that are not yet appreciated and figuring out how they can be met. “Minding” can require the capacity to translate client needs into legal terms. Cf. Nadelle’s comments about the misfit between doctrinal categories and client needs. It is, of course, more than that, but it is that.

    One of the things that has struck me about the organization of the medical profession is the extent to which it privileges technical expertise over holistic knowledge. The technician dominates the generalist and this often leaves the patient – who must live holistically – with no advocate that anyone in the system respects.

    We don’t do that and, ironically, one of the reasons that we don’t is that we recognize that law school is not trade school. We need to prepare students to exercise authority that is general and diffuse. This, in my view, justifies much of what some see as an “overly theoretical” approach.

    I don’t disagree with your suggestion that – for teaching (and for that matter for everything else) – there is, at some point, diminishing utility from from an additional year of experience – and as I am about to blog there may be negative impacts from those years.

    I don’t know where the line drops below 45%. My guess is that no generally applicable statement can be made about that. So I would never claim that one needs to have X years of experience to be a law professor. Two of my best law school professors – Alan Dershowitz and Duncan Kennedy – practiced for no years before joining the faculty at Harvard. (Alan, of course, practiced while he was teaching. I doubt Duncan ever took a bar exam.)

    But I do feel confident in claiming that the value of experience is seriously undervalued by many in the academy, i.e., there is an assumption the other way – that the line goes flat rather quickly.

    Again, I don’t attribute that view to Marquette, I do, after all, work here as opposed to many other places and that says something.

    But it is why that statement that “this type of experience may have more to offer legal education than is commonly presumed” in my post was not a throwaway line. I am glad – and not surprised – that you wouldn’t quibble with that. But there are those who would.

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