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Law Deans in Jail
March 13, 2012 5:28 AM   Subscribe

In a new working paper provocatively entitled Law Deans in Jail, Emory law professors Morgan Cloud and George Shepherd
examine the widespread reports of lying by law schools and their administrators, and the publication of these fabrications by U.S. News, and explain how the reported conduct could constitute federal crimes, [specifically] mail and wire fraud, conspiracy, and racketeering.
Advisory: 77-page PDF; click on the link on the top-left to download the full paper. [Abstract]. Previously. Previouslier. [Via the always trenchant Margaret Soltan].
posted by Sonny Jim (45 comments total) 11 users marked this as a favorite

 
The US government deserves a lot of blame here.

Just as easy, government-guaranteed money fueled the housing bubble by letting people bid up houses indiscriminately, government-guaranteed loans enabled people to drop any skepticism when deciding whether and where to enroll in law school. It doesn't excuse deans playing the USNWR game, but it sure does explain it.

If Congress and the Department of Education were to limit loans for professional schools to a certain percentage of a borrower's expected future income (based upon school in which enrolling and the individual's GPA and board scores), law schools (and other professional schools) would have to price their services much closer to their value. Schools would submit a data file with their graduates' SSNs, board scores, and undergraduate GPAs, and the government would map it to W2s, and create risk models that would be pretty darn accurate, with no concern over deans' desire to be promotional.

I'd like to believe that with the flourishing of the scamblogs, and the well-publicized struggle to gain employment of even top grads outside of the T14, and the real (and unprecedented) challenges that T14 grads with mediocre grades or bad interview skills are facing, that this problem may be "solved" even without government intervention, or at least reduced to the point that only the most reckless / heedless of people are being sheered.
posted by MattD at 5:58 AM on March 13, 2012 [4 favorites]


First link says abstract not found.

I would actually be quite surprised to learn that very many law schools were literally lying, outside of Villanova. Law schools have been gaming the reporting requirements, putting their graduates into 9 month fellowships and so forth, and having their "employment rates" as including part-time and temporary employment, but as far as literal lying goes? Well, I'd be surprised. Doesn't mean that I'm right.

For example, a bit ago, at least two law schools sunk like stones in the rankings when USN&WR changed its calculations to remove a reporting loophole. You used to be rewarded for judicious abuse of the "not seeking employment" category, but it no longer quite works that way. Other schools schools move on to pressuring students to declare themselves employed in their exit interviews; not in outright lies, but where you're in the middle of the hiring process, and they'll half-ask, half-tell you, "so basically, you're employed, right?" That's the sort of chicanery which seems much more common to me.

It's funny how gaming the USN&WR rankings has had such a deleterious effect on students and graduates. Campbell's Law in practice. It used to be that only the tippy-top schools were ranked, but then everyone else wanted to be ranked, because no one wanted to be in the unranked category. Surprise surprise, it was a poisoned chalice all along.

You wind up with all these silly games to claw over one another in races that don't matter; it's substantively meaningless, whether you're number 60 or number 80, yet nonetheless schools spend far, far too much trying to do those little somersaults. You waste tons of money: funds which could have been used on clinics, co-ops, scholarships, job placement centers, or other useful things are instead thrown at 9 month fellowships, fancy guest speakers, or at overpriced academic centers that are not worth more than a flotilla of quality adjuncts. A more effective law school would say "screw the rankings" and work to be smaller and more skills-focussed, entirely abandoning the idea that it should be run like a mini-Harvard.

USN&WR isn't the only problem. ABA accreditation, while it has many perfectly good and reasonable qualities, also adds to bloat and cost. Law schools are made to fit a model which makes no sense, prioritizing spending on extensive physical libraries and other accoutrements which are either outdated or more relevant to "elite" law schools. It's like the old story of those Irish Elk, who had developed ever-larger antlers as a by-product of evolution, until their antlers grew so large that they couldn't lift their heads, causing the species' extinction. The ABA is unwitting mandating and further encouraging law schools to develop similarly self-defeating spandrels.

Prof. Richard Tamanaha has written a book on this phenomenon, and while I haven't read it yet, I've read plenty of his shorter pieces. He makes a good deal of sense.

Even basically well-run, well-intended institutions get mired, unable to move in any real direction. It's not like the people who are running these places aren't reading these articles and these books. They are. Unfortunately, no matter how often these "exposés" come out, nothing will really change, especially not at already-established institutions. No one wants to be the first to change, especially when such a change would cause your institution to suddenly look weaker in the short term, or when you would necessarily have to lay people off or cut their pay, turning yourself into the "down-market" alternative to "real" law schools.
posted by Sticherbeast at 6:10 AM on March 13, 2012 [12 favorites]


@Sticherbeast: thanks for that. Looks like I linked to a session id rather a permanent URL there in the FPP. Hopefully a mod can sort it out. This is what happens when you post an FPP while home sick with a fever ...
posted by Sonny Jim at 6:19 AM on March 13, 2012


It's behind their paywall, but there's a fascinating article at the Chronicle of Higher Education about how some humanities departments are finally beginning to shrink doctoral enrollments. As with law schools, there has been a willingness to accept all comers even as they knew that jobs were not going to be there for many of the graduates. Some of that problem is institutional or structural, and certainly some responsibility needs to be borne by the students who made bad choices, but a fair bit of it rests, as this article suggests, with individual deans and administrators as well.

I don't know if I think tossing them all in jail is a great use of public resources, but I do hope that universities respond to the legal exposure by firing or demoting the worst offenders, for example.
posted by Forktine at 6:22 AM on March 13, 2012


rather than.
posted by Sonny Jim at 6:22 AM on March 13, 2012


Another unfortunate aspect of the law school ranking game: ranking is purely a competition for incoming students, and has virtually no impact on hiring of law school graduates as far as I can tell. At least at my firm, where I have participated in the hiring process, there is virtually no discussion of relative rankings of law schools. We hire the best students we can from the top national schools and the best regional schools near each of our offices. Indeed, outside of the rarefied world of the AMLAW 20 or so, most hiring by law firms is regional, and so national rankings of schools in different parts of the country doesn't make a lot of sense.
posted by monju_bosatsu at 6:23 AM on March 13, 2012 [4 favorites]


Sending deans to jail strikes me as being somewhat counter-productive. But assessing fines against schools that submit false data, the ABA who lets it happen, and USN&WR? Totally okay with that. My back-of-the-napkin perusal of the sentencing guidelines suggests that fines in excess of $15 million are entirely possible.
posted by valkyryn at 7:05 AM on March 13, 2012 [1 favorite]


While the ABA, USNWR, and deans share some blame, an incredible amount of scorn should fall on cultural problems that we just refuse to address.

1) Law & Order plus every other legal procedural have placed legal work on a pedestal that is just ridiculous. These bear no resemblance to the work that 90% of lawyers do and only a passing resemblance to the work done by the lawyers in these field. The latter is to be expected from entertainment, sure, but the damage is more profound that people think.

2) The LSAT is too easy. I know everyone thinks their a brilliant snowflake and there's a weird type of person who gets validation out of standardized tests, but it's contributing to the problem. The LSAT is easy to game and it's easy for people to incorrectly think they're going to do well in law school (which compounds optimistic bias). It should be two to three times harder, and longer, so there's more gradation between applicants and that people realize that they may not succeed in law school. I've seen people get a 158, rationalize to themselves that they just missed a 160, and then choose to go to law school. Huge mistake.

Here's a good example. I have a friend who got into Temple Law School, a decent school, but not one worth going to at 28 (or perhaps at all in this economy). He's convinced he can be a prosecutor in Philadelphia, no matter how much I and other attorneys tried to convince him that's not going to happen. Those jobs are sought-after, even the kids at Penn will struggle to get them as more and more kids are locked out of Biglaw and are looking elsewhere. Not only that, but I bet that over 50% of his graduating class never become attorneys at all and just get a useless degree that costs $150k and leaves them with the same job options or worse than they had when they started. Of course, he thinks that even if he doesn't get to be a prosecutor he can have any number of exciting legal jobs, or any jobs, because it's an all-purpose degree. It's not, but his parents think so and they couldn't be more excited.

I've seen this repeat again and again. When people tell you that they're going to law school, unless it's a very top school, you should treat this like they're spending $150,000 to get a face tattoo that says "never hire me." Of course, not everyone is as kind as I am. Some see these people and want to make a quick buck off them. That's why we still have third tier schools. And even if there are other contributing factors, it's these schools (and their deans) that are profit-taking off gullible and vulnerable individuals through deceptive practices.
posted by allen.spaulding at 7:07 AM on March 13, 2012 [7 favorites]


I would actually be quite surprised to learn that very many law schools were literally lying,

Got it, lawyers are paragons of virtue mostly.

Law schools have been gaming the reporting requirements, putting their graduates into 9 month fellowships and so forth, and having their "employment rates" as including part-time and temporary employment,

So doing things to create an illusion of reality isn't lying?

but as far as literal lying goes

So that upper paragraph where non truthful data is presented as truth is what?
posted by rough ashlar at 7:08 AM on March 13, 2012 [2 favorites]


*they are a brilliant snowflake...
posted by allen.spaulding at 7:08 AM on March 13, 2012


At least at my firm, where I have participated in the hiring process, there is virtually no discussion of relative rankings of law schools.

There may not be outright discussion, but on the other hand, there are certain schools that benefit tremendously from being very highly ranked (e.g. Harvard, Yale, and Stanford). The rankings are the main reason why people "know" that those are the best law schools in the country and not, for example, Columbia, the University of Pennsylvania, or Cornell.

We hire the best students we can from the top national schools and the best regional schools near each of our offices.

And how do you decide what the "top national schools" and "best regional schools" are? I suspect it ultimately comes back to the rankings, either explicitly or implicitly. If it's based on your firm's own experience with associates, then it's probably implicit: higher ranked schools attract better students (for some definition of "better"), who probably tend to do better at your firm.

outside of the rarefied world of the AMLAW 20 or so, most hiring by law firms is regional, and so national rankings of schools in different parts of the country doesn't make a lot of sense.

It also has a huge impact on academic hiring. Very, very few law schools will hire someone who went to that school. Everyone wants to hire faculty who attended a more prestigious school.
posted by jedicus at 7:14 AM on March 13, 2012 [1 favorite]


Sending deans to jail strikes me as being somewhat counter-productive.

Why? They arguably committed fraud for personal gain. That seems pretty jail-worthy to me. If they are jailed, do you think the fraud will get worse? That's what it would take in order to be counter-productive.

It's not like there's any shortage of replacement law school deans.

When people tell you that they're going to law school, unless it's a very top school, you should treat this like they're spending $150,000 to get a face tattoo that says "never hire me."

I would say that it almost doesn't matter which school they go to, as long as it has at least a whiff of respectability. What matters is that they get a full scholarship. That has two enormous benefits: first, they come out with little or no debt. Second, because almost all law school scholarships are based on merit rather than need, someone who is offered a full scholarship is likely to do very well at that school. Class rank matters more than school rank for most firms. It's generally better to be in the top 5% at a middle-tier school than in the bottom 25% or 50% at a top-tier school.
posted by jedicus at 7:21 AM on March 13, 2012 [2 favorites]


I'm really not sure how I feel about lawsuits and other legal action against law schools.

On one hand, I see the point of students who say they were misled. That sucks, and if a school deliberately misled students about their prospects of employment, then I see the argument that schools are liable.

On the other hand, these lawsuits seem to presume that these students have no options other than getting hired by firms. I see law grads straight out of law school go solo all the time. There are lots of under-served legal markets. Why are these unemployed grads not being more inventive and resourceful? Why are they not going to courthouses, pounding the pavement, and starting a legal practice on their own?
posted by jayder at 7:26 AM on March 13, 2012 [2 favorites]


jedicus - scholarship fraud is another real concern. Those merit scholarships are often tied to ongoing performance. A substantial number of schools award those scholarships in a manner that makes it impossible for everyone to keep it (ie giving 60% of the class a full ride if they are in the top half after 1L). This is done to lure people in, much like a drug dealer, and get them to pay for the last two years because they think they are so close, etc.

There are some schools that offer a guaranteed full-ride for three years, like the Hamilton fellowship at Columbia, or some of the NYU ones you have to apply for once you've been accepted. People who are receiving those awards tend not to need much advice (not like anyone ever listens anyway).

And I will challenge you about top 5% at a lower-ranked school. That may have been historically true and there are good studies that show that for people who have been out of law school for a number of years (although there are good challenges to these results). In this economy, I suspect that connections and networking will become even more important, as more and more people have hybrid careers and need peer support. There's good evidence that shows a significant class distinction between top schools and bottom-ranked schools. So the kid at the bottom of the class at Duke will probably have better opportunities 5 years out than the top 5% from Penn State, solely b/c his classmates will have more private sector and financial connections (from better undergrads, etc). That's my guess.
posted by allen.spaulding at 7:29 AM on March 13, 2012 [2 favorites]


Why are these unemployed grads not being more inventive and resourceful? Why are they not going to courthouses, pounding the pavement, and starting a legal practice on their own?

Because they don't have the capital to start a firm? At the very least you need to get malpractice insurance, even if you work from home. Or because their school completely failed to prepare them for the kind of work that someone can do in a new solo practice? Because the ethical rules make it very hard for a new solo practice to solicit business? Or because they tried that and it didn't work out, possibly because the market is terrible? I would give them at least some benefit of the doubt.

scholarship fraud is another real concern. Those merit scholarships are often tied to ongoing performance. A substantial number of schools award those scholarships in a manner that makes it impossible for everyone to keep it (ie giving 60% of the class a full ride if they are in the top half after 1L).

Oh yes, those kinds of scholarships are absolute scams. Any school that does that kind of thing does not have, in my mind, even a whiff of respectability. "Up or out" is a fine model in a for-profit business, but it's terrible when applied to a non-profit educational setting.
posted by jedicus at 7:53 AM on March 13, 2012 [1 favorite]


Why are these unemployed grads not being more inventive and resourceful? Why are they not going to courthouses, pounding the pavement, and starting a legal practice on their own?

Because when they do, shit like this happens. Law school teaches you little to nothing about the practical work of being a lawyer, let alone the difficulties of managing your own small business. Telling new graduates to put out their own shingle is only going to cause very great harm to anyone who would hire them.

Also, I see a fair number of lawyers' resumes for work purposes, so I can say that it isn't entirely true that recent graduates of mediocre and worse law schools can't get any work, it's just that they're only going to get mind-numbing short-term document review work. For that, they don't really seem to care whether you graduated bottom of your class at Cooley or top at Penn State.
posted by Copronymus at 7:56 AM on March 13, 2012 [2 favorites]


Any school that does that kind of thing does not have, in my mind, even a whiff of respectability.

Agreed. That said, I think this is the norm these days. Every time someone has told me "it's ok, I got scholarship money" it turned out this way.
posted by allen.spaulding at 7:57 AM on March 13, 2012


I see law grads straight out of law school go solo all the time. There are lots of under-served legal markets. Why are these unemployed grads not being more inventive and resourceful? Why are they not going to courthouses, pounding the pavement, and starting a legal practice on their own?

Unfortunately, it's not that easy. Law practice is more expensive than you think, and baby lawyers are not typically fit to fly solo until at least 3-5 years, under the supervision of their employer. Some fields are easier to fly solo in than others; some fields are almost impossible to fly solo in without a base level of experience. Also, running a small business is a job unto itself, and it has a skill set separate from that which goes into being a good lawyer.

...

Got it, lawyers are paragons of virtue mostly.

No, lawyers tend to be wilier than to outright lie. Dumb ones lie, smart ones dance.

So doing things to create an illusion of reality isn't lying?

Depends on the illusion, depends on what "doing things" means. Morally, it might not make a difference, but legally, it surely can, depending.

So that upper paragraph where non truthful data is presented as truth is what?

What upper paragraph? There are reports of lying, but there isn't much in the way of evidence of literal lying.

I'm going through the paper right now, and it's talking about how to successfully prosecute fraud, even when alleged misrepresentations are literally true. The paper appears to go in the direction that the obfuscations and system-gaming that many people engage in are prosecutable as wire fraud etc., not that people are outright lying in the "dog ate my homework" sense of a lie. Like it or not, there's a legal difference, and there can be an extremely gray area between clever phrasing and outright fraud.

(Remember, lying is not synonymous with fraud - you can commit fraud without lying, and you can lie without committing fraud.)

...

Law & Order plus every other legal procedural have placed legal work on a pedestal that is just ridiculous. These bear no resemblance to the work that 90% of lawyers do and only a passing resemblance to the work done by the lawyers in these field. The latter is to be expected from entertainment, sure, but the damage is more profound that people think.

Sweet baby Jesus yes.

...

At least at my firm, where I have participated in the hiring process, there is virtually no discussion of relative rankings of law schools.

There may not be outright discussion, but on the other hand, there are certain schools that benefit tremendously from being very highly ranked (e.g. Harvard, Yale, and Stanford). The rankings are the main reason why people "know" that those are the best law schools in the country and not, for example, Columbia, the University of Pennsylvania, or Cornell.


The problem is more outside of the T14/T20/whatever. Students think that people care about how Brooklyn Law ranks with regard to Seton Hall Law, but the reality is that most people don't know and don't care.

And how do you decide what the "top national schools" and "best regional schools" are? I suspect it ultimately comes back to the rankings, either explicitly or implicitly. If it's based on your firm's own experience with associates, then it's probably implicit: higher ranked schools attract better students (for some definition of "better"), who probably tend to do better at your firm.

This is a problem with ranking, not with the schools. You might not be able to generate reliably useful rankings as to how Brooklyn ranks against Seton Hall on a regional level. Hell, it's meaningless to talk about who's on top of whom within the T10.
posted by Sticherbeast at 8:01 AM on March 13, 2012 [2 favorites]


Why are these unemployed grads not being more inventive and resourceful? Why are they not going to courthouses, pounding the pavement, and starting a legal practice on their own?

I want to reinforce what Copronymus (and others said), especially with reference to the linked Washington Post article. The skills that make someone good at starting a firm are risk-taking, aggressiveness, and overconfidence. These are not necessarily the skills that make a good lawyer - especially for someone who has never practiced. That's why Joseph Rakofsky failed so miserably. People who hang up a shingle immediately out of school often don't know their own limitations - and without mentorship or ongoing training, they're at a disadvantage to improving their situation. It's a recipe for bad lawyering, far too often at the expense of indigent defendants.
posted by allen.spaulding at 8:04 AM on March 13, 2012 [1 favorite]


Anecdata: I was offered a full ride to a third-tier state school. I instead went to a top-20 school and graduated with six figure debt. I don't know how much the specific ranking of my school went into my decision, but the tiers definitely played into it.

Why are these unemployed grads not being more inventive and resourceful? Why are they not going to courthouses, pounding the pavement, and starting a legal practice on their own?

Been there. Done that. Got the nervous breakdown and the credit card debt. Seriously, do you have any idea how badly law schools prepare students to hang a shingle? The whole of legal education is geared toward the law firm and especially big law firm ecology. You can graduate law school without knowing the first thing about how to talk to clients, how to commence a lawsuit, how to market yourself, how to run a business, or manage your trust account. Hell, you can come out of it without really knowing how to write a contract. You can make it through law school without writing a legal brief after your first year.

Legal services are a long sell. People need to eat three times a day. They need to buy clothes and shoes and gas all the time. At the personal level, they need a lawyer maybe ten or fifteen times in their entire lives. At the commercial level, they need a lawyer more frequently than that, but in either case nobody says "I think I'll check out that new lawyer that just opened up." They go to the known quantity, the firm that they've heard advertising on the radio or that someone they trust has recommended. You talk about hitting the pavement. If someone fresh out of law school knocked on your door and said, "I'd like to write your will or handle your upcoming zoning hearing", you would be a fool to hire them and you know it.

For a new lawyer starting out, that means years of self-promotion and trickles of work until you finally have the reputation that will generate a steady stream of work. It means months of sitting alone in your office or second bedroom of your apartment, trying to promote yourself creatively and cheaply. It might mean waiting tables or whatever to keep body and soul together while you promote your practice and hope to get clients in. Oh, and you're still on the hook for $1,000 or more per month to your student loans.

And you can do it. Some people do. But the failure rate is very high and this is not the picture that anybody gave you of practicing law, before or during law school. You are not prepared for it, not psychologically, not financially, not professionally, and -- while some do succeed -- the odds are terrible.
posted by gauche at 8:15 AM on March 13, 2012 [4 favorites]


Because when they do, shit like this happens. Law school teaches you little to nothing about the practical work of being a lawyer, let alone the difficulties of managing your own small business.

I actually thought about including a jokey link to the Rakofsky case in my comment, with a quip about how newly minted grads could even take murder cases.

That fiasco was more than just inexperience, that was being a jackass.
posted by jayder at 8:22 AM on March 13, 2012 [1 favorite]


It seems the legal pros of metafilter agree that baby lawyers generally don't know how to practice law. Why don't we have apprenticeship-type arrangements for new legal professionals? Didn't it used to work that way?
posted by clockzero at 8:24 AM on March 13, 2012


That fiasco was more than just inexperience, that was being a jackass.

The fact that he went on to sue dozens of people for defamation when they reported on his incompetence, well, that seems to confirm this suspicion. I still stand by my comment that the skills that make one a good entrepreneur != skills that make someone a good lawyer, especially for young, unpracticed attorneys.
posted by allen.spaulding at 8:27 AM on March 13, 2012


Why don't we have apprenticeship-type arrangements for new legal professionals? Didn't it used to work that way?

In the late 19th century, the ABA had pressured the states to make significant legal education necessary for practice, as opposed to the previous system of having aspiring lawyers simply apprentice for a few years.

A handful of states still allow people to practice law without having completed law school. For example, I believe that New York allows people who have four years' legal practice and just one year of law school (viz. as a paralegal) to take the bar.

As it stands, people "apprentice" in their first internships and jobs. You learn just about nothing practical in your day-to-day courses, with some exceptions.

Sidenote: an ABA site supervisor once told me that part of the high financial and labor costs in legal education, as opposed to even medical education, is that there is no real equivalent as a "law hospital," where people stroll in off the street and have their problems evaluated by interns and residents, all under professional supervision. Law school clinics are a bit like this, but not really.

Sidenote: also in the late 19th century, the casebook method of instruction in law schools, in which students divine the law through reading cases and being interrogated through the Socratic method, replaced the more rote style of legal education which had dominated back in the day. So where do you see this rote legal education nowadays? In bar review courses.
posted by Sticherbeast at 8:37 AM on March 13, 2012 [2 favorites]


four years' legal practice and just one year of law school (viz. as a paralegal)

I mean, four years' employment in a legal practice (viz. as a paralegal) and just one year of law school.
posted by Sticherbeast at 8:42 AM on March 13, 2012


If someone fresh out of law school knocked on your door and said, "I'd like to write your will or handle your upcoming zoning hearing", you would be a fool to hire them and you know it.

And unless they were a family member or close friend they'd be committing a breach of the ethical rules to boot.

At the personal level, they need a lawyer maybe ten or fifteen times in their entire lives.

And what's more, they can virtually always forgo hiring one and either try to hack it themselves (e.g. buying a Nolo book or Quicken WillMaker) or just suffer the consequences. A quick perusal of AskMe will show dozens of examples of people who desperately need a lawyer—although they may not realize it—but cannot or will not hire one. Legal services just aren't seen as worth the money for people who aren't rich or a business owner. Whether they are, in fact, worth it is another question.

Why don't we have apprenticeship-type arrangements for new legal professionals?

To add on to what Sticherbeast said: These days law schools are complicit in this because they don't want to be seen as a trade school. The high end schools started focusing more on "law and X" than teaching people how to be lawyers, and everyone else followed suit. For example, "law and policy" (i.e. a kind of watered-down mixture of political science and economics) or "law and philosophy" or "law and neuroscience."

This is all well and good if law school is meant to be a research-oriented academic discipline along the lines of other soft-science or humanities graduate schools, but the reality is that the vast majority of law school graduates who find work go on to become practicing attorneys. Law professors and other legal academics only come from a comparatively small minority of law schools. Yet we have a "one size fits all" model of legal education where everyone from Harvard down to the bottom tier gets an education designed for people who end up becoming law professors mashed up with an education designed for people who become attorneys, with more and more schools emphasizing the former over the latter.

This is, of course, insane. In my opinion, law schools should offer two separate degree programs: a research-oriented degree for future professors (i.e. the SJD) and a practice-oriented degree for future lawyers. The former should be on par with a Ph.D, and the latter should be a one or two year program done in conjunction with an apprenticeship model based on medicine's resident match program, which basically guarantees a residency position somewhere in the country for each medical student.

Ultimately legal education won't be sustainable unless class sizes are cut by about half at most schools and tuition cut by a similar amount. Yet right now schools are expanding (and universities are building new schools) and tuition continues to skyrocket. I'm not sure what, if anything, can force the kind of change that has to happen.
posted by jedicus at 8:47 AM on March 13, 2012 [6 favorites]


Why don't we have apprenticeship-type arrangements for new legal professionals? Didn't it used to work that way?

At some level, yes, it did work that way. In a couple of states, it still can (I know in Vermont you can go to law school for a couple of semesters and then apprentice your way into the Bar Exam, for instance.) But law schools are a cash cow for universities, and law schools have a lot of sway with the ABA.

At another level, it is still working that way: firms have to train new lawyers to perform even basic tasks, and it often takes two or three years to really get a lawyer up to where he or she is truly valuable to the firm. The problem -- or at least one of the problems -- is that these "apprentices" come pre-"qualified" by their JDs and are already servicing six figures of debt. But you still have to train them.
posted by gauche at 8:48 AM on March 13, 2012


And unless they were a family member or close friend they'd be committing a breach of the ethical rules to boot.

Absolutely, but I suspect that argument seems somewhat artificial to non-lawyers. I suspect the thinking would be, if the thing keeping baby lawyers down is an ethical rule the reasoning for which is non-obvious, just change the rule, right?

It's my belief that even if that rule were relaxed, you wouldn't hire the pavement-hitting fresh-faced law grad because the costs of them not doing it right are enormous. If the shoes I'm selling door-to-door fall apart in the rain, you're out the price of the shoes and some minor discomfort. If I don't do your estate right, you spend your entire retirement on life support because your living will is ineffective, and Uncle Sam gets to throw your kid out of your house when you die.
posted by gauche at 8:58 AM on March 13, 2012 [1 favorite]


At another level, it is still working that way: firms have to train new lawyers to perform even basic tasks, and it often takes two or three years to really get a lawyer up to where he or she is truly valuable to the firm.

This is very true. And part of the problem is that the third year of law school rarely makes a difference in how long it takes someone to become a fully-functioning associate. That is, everything an attorney is usefully going to get out of law school could be taught in 16 courses instead of 24. As a law professor I know (who is now an SEC Chairperson) once said, "there's no substitute for actually doing it." Those extra 8 courses are no substitute for actually practicing law.

Cutting a year off of legal education is probably the easiest way to dramatically cut the cost of law school attendance without affecting law schools' bottom lines. The law schools will just make the 1L and 2L class sizes larger. Of course, students will tend to concentrate on practical courses for their 2nd year rather than puff courses like "law and film," theoretical courses like jurisprudence, or courses they'll likely never use like "international human rights mediation." But in my opinion that's only a good thing.
posted by jedicus at 9:01 AM on March 13, 2012


Ain't nearly as bad as the Times of Higher Education's completely bullshit world university rankings, which serve solely as false advertisement for U.K. universities. Those idiots literally rank the University of Manchester above France's École Polytechnique in Engineering, that's roughly like claiming that U.C. Santa Barbara is better than M.I.T.
posted by jeffburdges at 9:03 AM on March 13, 2012


You can graduate law school without knowing the first thing about how to talk to clients, how to commence a lawsuit, how to market yourself, how to run a business, or manage your trust account. Hell, you can come out of it without really knowing how to write a contract. You can make it through law school without writing a legal brief after your first year.

For the room, gauche and I went to the same law school and were there at the same time. Our experiences post-graduation have been drastically different, because I essentially lucked into an in-house gig at an insurance company, a job which, while it was pretty crappy, I was able to leverage into my current position as a litigation associate at a mid-sized firm. I'm more or less okay for the moment, but I'd really like to move about 500 miles closer to my family, only I daren't get off the horse for fear of never being able to get back on again.

To add to his diatribe, it isn't just that new graduates don't know how to do stuff. Even if they did, there's really only a few kinds of law practice that you can just walk into as a solo practitioner, e.g., plaintiff-side personal injury, family law, criminal defense, individual bankruptcy, estate planning, and individual tax consulting (though you should really be a CPA for that). Maybe a few others, but not many.

This isn't simply a matter of experience either. It's a matter of resources. My firm, for example, is pretty much the go-to for a good percentage of all civil defense cases which might possibly be covered by insurance in this part of my particular state. We do a lot of car accidents, slip-and-falls, alleged municipal civil rights abuses, medical malpractice, and lower-end construction cases, which together account for a good chunk of the civil docket in the county.

But we don't do toxic torts or all that much in the way of products liability. Why? Because those tend to be big cases, the sort of thing that my firm can't efficiently work. We've got about two dozen lawyers in this office, with maybe another two dozen across three others. There's just no way we can turn around a ten-thousand-page document drop in a reasonable amount of time, let alone retain and work up half a dozen experts while doing so. We don't have the manpower, and we've got full-time assistants and paralegals on the payroll, something no solo is going to be able to manage, at least not right away.

And we're a firm that's been around for more than fifty years! With lawyers that have been practicing longer than I've been alive! It's not a question of experience--not entirely anyway, as I don't think anyone here has done a serious toxic tort case--it's a question of resources, resources we don't have. And resources a solo practitioner certainly doesn't have, no matter how long he's been practicing.

Which brings me back to the few types of law that you can actually do by yourself, most of which have a glaring problem in common: it's hard to get paid. Family law? Many people having custody disputes over their kids don't have any money, especially if one spouse hasn't been working, and it's not permitted* to take those cases on contingency. Personal injury work? Sure, you can get a big payday. But you lose a decent amount of the time, which means you don't get paid at all. And even if you do, it takes, at the minimum, months to get a claim from intake to payment. Criminal defense? Please. You learn pretty quickly to demand cash, in full, up front, because if you don't, you're never getting paid. Bankruptcy? You're targeting the one demographic which has no money by definition. Estate planning? Okay, maybe an exception there, but the real money to be made there comes from the administration of the estate--writing a will takes a few hours, and most people only update their will every decade or so at most--and normally comes at the end of a long relationship with the client.

So this is what you're looking at. You're completely locked out of the most lucrative lines of business, because even if you were a successful partner that decided to quit and go solo, you simply don't have the resources to work those kinds of situations. You can't do any transactional work, because you've got no experience or connections. And the few lines of business with low barriers to entry on the resources and capital side have significant reimbursement issues. The best option, plaintiff-side personal injury work, takes months and months to build up a pipeline adequate to support one's self, and with student loans bearing down like a freight train, that's just not an option for most people.

It's not a fun situation.

*For good and compelling reasons.
posted by valkyryn at 9:04 AM on March 13, 2012 [4 favorites]


or courses they'll likely never use like "international human rights mediation."

One of my law school roommates clerked on the 8th circuit, near where he grew up. While clerking, he served as an adjunct and co-taught a class on International Dispute Resolution at the fourth-tier law school in town. It was his specialty and he now lives in DC (me too) building a practice on the topic. And he'd love to go home to his small town and teach.

But he says he couldn't do it, because he knew that literally none of the students would ever get close to the topic, that few will ever become lawyers, and he was just teaching them something that would never be of use. Sadly, many thought they had a shot because of what they incorrectly believed were idiosyncratic aspects of their life. I wonder how people who teach these classes resolves these feelings - he couldn't.
posted by allen.spaulding at 9:06 AM on March 13, 2012 [3 favorites]


>Sending deans to jail strikes me as being somewhat counter-productive.

Why? They arguably committed fraud for personal gain.


Only kind of. It's not like their salary was based on hitting recruitment or revenue goals. They got paid to do a job, and they did it.

Furthermore, it seems unjust to me to jail people for not being the first mover in a Prisoners' Dilemma situation. Most law school deans hate the rating system, but none feel they can afford to be the first to buck said system. And remember, we're talking about what amounts to marketing here, an area which is chock full of spin and half truths. Law school administrators aren't even the worst offenders here. The people at the University of Phoenix should be in bars long before we get to the legal academy.

It's not like there's any shortage of replacement law school deans.

Which, if anything, is a reason putting some in jail isn't likely to be an effective solution. I think it would be far more effective to fine the schools directly, because that'd get the attention of the university in a way that losing a single administrator might not. Besides, that fine could be used to pay down law student debts. Disgorgement is a legitimate goal of criminal proceedings, and individual deans simply don't have that kind of money.
posted by valkyryn at 9:24 AM on March 13, 2012


It's not like their salary was based on hitting recruitment or revenue goals.

This is not quite right. Deans sometimes get fired when their schools drop in the ranking. Also, who knows about the side deals that exist that may provide incentives. There's not a lot of transparency in this market and even when schools do publish the salaries of their deans, there are bonuses and side-arrangements that remain hidden.
posted by allen.spaulding at 9:37 AM on March 13, 2012 [1 favorite]


-- At the personal level, they need a lawyer maybe ten or fifteen times in their entire lives.

-- And what's more, they can virtually always forgo hiring one and either try to hack it themselves (e.g. buying a Nolo book or Quicken WillMaker) or just suffer the consequences. A quick perusal of AskMe will show dozens of examples of people who desperately need a lawyer—although they may not realize it—but cannot or will not hire one. Legal services just aren't seen as worth the money for people who aren't rich or a business owner. Whether they are, in fact, worth it is another question.


Yeah, it's funny, the most frequent consumers of legal services are the rich and the poor. The middle class doesn't need lawyers that much.

There are lots of people on here saying new grads can't do well as solos. Yes, it's tough, and maybe I'm in a good market, but I see fresh grads succeed as solos all the time. It takes a thick skin, resourcefulness, you can't be shy, but you CAN do it in those areas that someone above laid out (yes, that list of areas appropriate for small firm practice is exactly right).

It can be done. And making a go of it is better than being unemployed.
posted by jayder at 10:18 AM on March 13, 2012


It can be done. And making a go of it is better than being unemployed.

It can be done, but I would argue that it's risky and expensive enough that someone with six figure debt is better off getting a non-legal job than chasing sunk costs.

Of course, I also think that anyone outside the top third of their class after the first semester should just quit law school then and there unless they're Harvard/Yale/Stanford, have a full scholarship, or have an extremely reliable personal connection that guarantees them a job.
posted by jedicus at 10:30 AM on March 13, 2012 [2 favorites]


I see young people become movie stars all the time. It can be done.
posted by gauche at 10:34 AM on March 13, 2012


It takes a thick skin, resourcefulness, you can't be shy, but you CAN do it in those areas that someone above laid out (yes, that list of areas appropriate for small firm practice is exactly right).

To elaborate a little, the above are necessary but insufficient conditions for even the most modest of success at starting as a solo. I think that a strong referral network is probably the best indicator of success, but even this introduces its own complications when you consider that the average legal grad has just spent a third of a decade (including post-grad bar study time) more or less completely ignoring his or her social network outside of professors and other law students, who are weak sources of referral at best.
posted by gauche at 10:42 AM on March 13, 2012


But we don't do toxic torts or all that much in the way of products liability. Why? Because those tend to be big cases, the sort of thing that my firm can't efficiently work. We've got about two dozen lawyers in this office, with maybe another two dozen across three others. There's just no way we can turn around a ten-thousand-page document drop in a reasonable amount of time, let alone retain and work up half a dozen experts while doing so. We don't have the manpower, and we've got full-time assistants and paralegals on the payroll, something no solo is going to be able to manage, at least not right away.

The opposite problem exists as well. My firm has about 1000 lawyers, and we are actively looking to shed smaller cases (or at least smaller clients). Why? Because it's difficult to efficiently staff and supervise small cases when our hourly rates make it prohibitively expensive to hire us on anything but high stakes matters. (Oh, and conflicts. Lots of small clients really gum up the conflicts system, and Fortune 500 clients don't like it when we get conflicted on a matter because we represent an adverse individual or small business.) Getting rid of all but the premium work can be good for the bottom line, but the result often is associates, even fairly senior ones, doing a lot of grunt work and not getting great courtroom or deal experience.
posted by monju_bosatsu at 11:20 AM on March 13, 2012 [1 favorite]


Legal education is, indeed, a mess. I doubt significant changes will be made to legal pedagogy in the US, or that prospective students will become meaningfully better informed about their prospects. It just seems like such a respectable (more or less) and lucrative career--particularly for those who were not science majors and didn't want to become doctors. People will continue to flock to law school, despite the Cassandras out their giving fair warning of its risks.

I'm taking steps to quit the law, myself, hopefully within a year. I've been at this a while and have had the great fortune to go to a very good school and then get very good jobs at firms fawned over by Vault and AmLaw.

And yet I doubt I would be any better prepared to be a solo than a newly minted JD. There is a world of difference between the education I received in law school and at my firms and what I think of "actual" lawyering. I think my law school trained me better than most to be a corporate lawyer, but I'd be totally lost in a courtroom (I had to ask a friend where the local federal courthouse was the other day, despite having practiced here for four years--he laughed and laughed).

I don't know many people who are happy at my firm, and my firm's pretty nice as these things go. Everyone would rather be doing something else. Sure, you could surely say the same about a lot of jobs, but this is supposedly the brass ring people reach for, but it's not worth it (even at $300,000+ a year). That's obviously gauche to admit to (sorry, gauche), but I say it for the sake of people who think they have the big firms in their grasp. Once more, with feeling:

It is so totally, totally not worth it.

posted by 5845(f)(1)(D) at 11:36 AM on March 13, 2012 [2 favorites]


And yet I doubt I would be any better prepared to be a solo than a newly minted JD. There is a world of difference between the education I received in law school and at my firms and what I think of "actual" lawyering. I think my law school trained me better than most to be a corporate lawyer, but I'd be totally lost in a courtroom (I had to ask a friend where the local federal courthouse was the other day, despite having practiced here for four years--he laughed and laughed).

I agree, I am not sure any experience outside of actually being a solo would do much to equip you.

My story: I had a year of experience in a plaintiff's product liability firm focused on automotive defects, and a year of experience clerking for an appellate court judge, prior to going solo. I had heard rumors of attorneys "making it" as solos just by hanging out at the courthouse in my city. These rumors were very much like the rumors of a pristine, unspoiled beach that propelled the plot of Alex Garland's The Beach. I got desperate to take another path after things went sour at my products liability firm. Fortunately, the rumors proved to be true. Attorneys do make it that way. Lots drop out and give up, but it doesn't take a genius, it really just takes steady application. I am willing to accept that the ability to do so may be a peculiarity of my city (for example, I've heard that in Los Angeles it simply is not possible to get started by hanging around a courthouse). My work is not fancy, but I have handled first degree murder cases, jury trials, bench trials, appeals, post-conviction matters, and countless smaller cases. I'm in court every single day except when I take a vacation.

There's a decent book, Anthony Kronman's The Lost Lawyer, in which, if I recall correctly, he argues for a return to a smaller scale of law practice as providing the best chance of professional fulfillment and satisfaction. He contends that big-firm lawyers, because of the very nature of that kind of firm and the clients they serve, face unreasonable expectations and terrible work conditions that drive them into depression and make it unlikely that their work will be fulfilling.

I still think that there is a place for resourceful law graduates to go out on their own. It will be rough, no question, but there are resources to help them. I just think the out-of-hand rejection of that as an option is a mistake. Law graduates do not give themselves enough credit for being able to figure stuff out. There's a Nutshell about starting a law practice in which the author tells new lawyers something like, "You may feel like you know nothing, but compared to your client you are an expert."
posted by jayder at 11:59 AM on March 13, 2012


Here in Quebec Law's a 3-year degree if you come out of cégep (at 19), with tuition the same as any other undergrad education (in my days, ~$3000/year). There's a mandatory (usually paid) six months internship under the supervision of a lawyer once you've passed the bar exam, after which you become a full patch for-real lawyer. I know of a few people who've hung their shingle after their internship, or plan to, sometimes in relation to a field where they have special expertise -- e.g. patents for the guy who also has an engineering degree.
posted by Monday, stony Monday at 4:50 PM on March 13, 2012


Sidenote: an ABA site supervisor once told me that part of the high financial and labor costs in legal education, as opposed to even medical education, is that there is no real equivalent as a "law hospital," where people stroll in off the street and have their problems evaluated by interns and residents, all under professional supervision. Law school clinics are a bit like this, but not really.

If there was a "law hospital" in town -- or even better, a "law urgent care clinic" -- I would totally use it. It would solve the scale problem, where I occasionally have a minor legal question (the equivalent of "my finger itches, I wonder if it is serious?") that doesn't seem quite worth going through the multiple steps of getting referrals, making an appointment, figuring out how legal services are charged (by the hour? by the job?), etc. A one-stop shop that functions like the urgent care clinic would be great. I'm sure there's all kinds of reasons a place like that doesn't exist, but I do think it's interesting how as a middle class person I have much more convenient access to medical care than I do legal services.
posted by Forktine at 4:59 PM on March 13, 2012


If there was a "law hospital" in town -- or even better, a "law urgent care clinic" -- I would totally use it.

This terrifies me. I think lawyers are remarkably incompetent, but thank God we're not as bad as Doctors - few professions are. Thousands of people die in the US every year because Doctors can't be bothered to wash their hands. Anyone who has spent extended time in an emergency room or hospital knows exactly how terrible care can be, at all levels. As messed up as lawyers may be, there's no way I would ever accept that level of competence as something to which lawyers should aspire.

Seriously. When a lawyer forgets to "wash his hands" it becomes a big joke, like Joseph Rakofsky above. That level of incompetence is shockingly commonplace for Doctors and the AMA refuses to discipline the subset of doctors responsible for a shocking amount of malpractice. You know what won't make lawyers better? Forcing them to work 16 hour shifts for no reason, refusing to look at peer-reviewed research in favor of "acceptable practice," treating everyone as lesser than we are (as if we don't have enough of this without the MD God complex), and circling the wagons whenever someone messes up. Look at the glee with which other lawyers attacked Rakofsky. You'll never see that with anyone who ever works in a hospital.
posted by allen.spaulding at 5:43 PM on March 13, 2012 [2 favorites]


The entire academic ranking system is bogus. Will you get a "better undergraduate education" at U Davis than you will at Harvard? Or, a "better undergraduate education" at Vanderbilt than you will at Stanford? Not necessarily. What you WILL come away with is a Rolodex filled with names fo future high profile leaders in government and commerce, because people tend to hire those who come from the same "club", so to speak. Look at Google, where hiring among graduates of the "top" schools has led to an inbred culture of exclusion for those who haven't come from the lower-rung universities.
posted by Vibrissae at 6:12 PM on March 13, 2012 [1 favorite]


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