Pardon the Disruption: Law school shakeup—time to start teaching the business of lawyering

January 6, 2014

Legal educationIt seems like everyone now agrees that law school is a bad investment. Over the past five years, the unemployment rate for new grads has steadily risen, and you can’t swing a phone book (even if you hadn’t recycled/thrown yours away) without hitting a horror story about how hard it is to get a legal job. As one example, things have gotten so bad that a recent job seeker took to Craig’s List and offered (in an expletive-filled post) to let any lawyer haze him merely for the opportunity to get his foot in the door. It’s basic math: If you can’t get a job, why bother with a three-year/six-figure investment?

Law school applicants have received the message. Enrollment is at a 40-year low.

At the same time, in a 2010 study—going on Great Recession numbers—7% of the top .1% of income earners (those defined as making at least $1.7 million per year) were lawyers. Doctors came in at 6% and real estate professionals 4%. Even drilling below the upper crust, lawyers nationally average $80,000 per year—roughly double the rest of workers—and attorneys in private practice know that attaining six-figure compensation, at least with a few years of experience under one’s belt, is by no means impossible.

So, in the face of such earnings potential, how can law school be such a bad investment?

The answer, at least in part, is that law schools fail to teach students how to make money. Though their sins are many, schools fall particularly short in three key areas: (1) failing to teach negotiations and real lawyering skills, (2) a shortage of courses about business management and development, and (3) a myopic focus on BigLaw to the near exclusion of other meaningful work.

First, I concede that law schools do a good job of teaching the core curriculum—con law, torts, property, civ pro, crim, etc.—and that this is essential. As my colleagues, Jay Edelson and Chandler Givens, pointed out in their recent posts (part 1 and part 2) offering ways to shake up the law school model, even though many of us ultimately practice outside these areas, as lawyers, we should understand what manslaughter means, even if we practice tax litigation, in the same way that doctors should understand what surgery means, even if they practice psychiatry. The core curriculum gives everyone a shared experience and a shared foundation for what being a lawyer means.

The problem, however, is that the core curriculum ignores much of what it means to be a lawyer.

Real lawyering requires actual experience and practice. For that reason, law schools need to reform their clinical programs and make them meaningful. One way to do this is being done at IIT Chicago-Kent College of Law, where the clinic is a fully functioning law firm with practice areas that include criminal, immigration, tax, employment, health law, and a host of other legal services. And because clinical professors at Chicago-Kent are paid based on the business the clinic generates, students in the clinic gain the benefit of working on real cases with experienced practitioners who are incentivized to bring good cases—as opposed to junior professors who are waiting to move on to better things.

In the same vein, no student should be able to graduate law school without having taken multiple classes on negotiation. That skill, as much as any other, defines what it means to be an attorney. Litigators negotiate all the time (not just re settlement, but on discovery issues, etc.). Transactional lawyers negotiate all of the time. Criminal lawyers negotiate all of the time. Judges are often asked to lead negotiations (i.e., mediate). Yet rarely is it required subject matter—unlike the dormant commerce clause, we are expected just to figure it out as we go.

Second, and related, is that virtually every type of lawyer needs to have basic business training: We should learn how to work in teams, how to supervise and manage others, and how to take feedback. These skills are as important as legal writing, yet we simply ignore them.  Likewise, classes teaching marketing and risk analysis, the Business of Lawyering, or the Lawyer as Entrepreneur should be required courses, even for those bent on becoming prosecutors or taking other jobs where there’s less emphasis on rainmaking. New lawyers should be familiar not only with what an LLC is, but how to form and operate one as well.

Finally, law schools shortchange their students through their near obsession with BigLaw. At no point in law school (aside from one day in Torts class) did any professor even try to put personal injury lawyers, plaintiffs’ side employment lawyers, or class action lawyers in a positive light. Instead the overwhelming message was that only corporate defense lawyers and criminal prosecutors add social value—like advocating for consumers is passé but helping BP get away on the cheap is something to be admired.

Rather than pour all available resources into preparing students for how to interview so they land summer associate gigs, more emphasis needs to be placed on how to make money as a lawyer. This means that law schools need to abandon the idea that it’s BigLaw or bust. Classes on how to take cases on contingency and how to develop litigation should be offered. Schools should invite practitioners in these areas to come and not only explain the substance of the cases they’re working on and the current “hot” legal issues they’re dealing with, but to educate students on the particulars of their business models—how they find, service, and charge their clients, how they’ve grown their practices, and what the outlook is for the future.

The current consensus that law school is a bad bet will only hold true so long as schools continue to act like making money as a lawyer is something to be learned on the job itself. But if schools can adapt and help students realize their true earnings potential, there should be no shortage of applicants willing to invest handsomely in their journey to the top.