NewLaw NewLegalEducation

By Justine Rogers

I was lucky to be part of an invigorating panel discussion hosted by The Australian recently, as part of their Legal Week initiative. I joined two colleagues, our Dean, Professor George Williams, and Associate Professor Michael Legg, as well as Gilbert+Tobin lawyer, Sam Nickless.

It was a wide, free-flowing discussion of the current and future changes to the profession, what Williams called ‘a once-in-a-century process of disruption in the legal market’, and the meanings these have for practice and for legal education. I thought I’d share here some of the main changes discussed and their significance for legal education and the law school.

The Changes:

1. Automation of legal services and its integration with services delivered by people.
2. The possibility for technology to increase access to justice.
2. Unbundling of legal services and flexible, ad hoc and assorted teams brought together for certain projects.
3. Professional ethics centred less and less in the profession and professional association and more in organisations and even the mode of legal service delivery itself.
4. Ethics of introducing new technology to clients or helping them with their artificial intelligence.
5. The globalisation of law – where clients, for instance, are from other jurisdictions.
6. The changes to law firms and their business arrangements, specialisations and recruitment practices, including firms coming from overseas to recruit UNSW Law (or Australian) students.
7. Cross-border disputes and the extent to which Australian courts can remain forums for litigation.

What They Mean for Legal Education and the Law School:

1. Urgent need to answer questions about the value that a person adds as a lawyer.
2. Law schools may need to focus on the ‘professional’ things computers can’t do (or can’t do as well): certain forms of problem solving and analysis, integrity, ethics, professional relationships, creativity and imagination.
3. Law combined with computer science, maths or engineering will add to classic combinations.
4. All law students must understand technology (coding and programming, for instance) regardless of their other degree.
5. Law students must develop capacities in team work and project management.
6. Law students need to be able to identify and address ethics and accountability issues in a range of contexts, when working with external lawyers, non-lawyer professionals and, crucially, with technology.
7. Law students need to understand not just other, non-Australian legal systems but also the cultures in which law operates.
8. Law schools need to help their students appreciate the range of different firms in Australia and the region in making their career decisions.

Without wanting to sound too home-team-y, we’re already doing some pretty fabulous stuff at UNSW Law to support each of these and, through a mini curriculum review, we’re about to do a whole lot more.

(The full video and an edited transcript of the discussion is here.)

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What lawyers actually do in practice (at least in the US)

SSRN has recently posted a great ethnographic study of young US lawyers in terms of what they actually do in the office.

Sinsheimer, Ann and Herring, David J., Lawyers at Work: A Study of the Reading, Writing, and Communication Practices of Legal Professionals (March 14, 2016). Legal Writing Journal, Vol. 21, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2016-11.

It includes great evidence of lawyers dealing with the following (SSRN pinpoints):

  • Using close reading and skimming strategies (pp13ff)
  • Strategic reading (p23, 30ff)
  • Reading from computer screens (p26) but using printed materials by preference (p24)
  • Huge use of email for written communication (p45ff)
  • Use of precedents (p48)
  • Reviewing and revising constantly (p49ff), being meticulous (p50)
  • Research/writing nexus (p51ff)
  • Interpersonal skills and stress in the office (p58ff)
  • Time-management (p60ff)
  • Cross cultural communication (p64)
  • Developing professional identities (p66ff)
  • Suggestions for curriculum change (p24, 71)

It’s a wonderful collection of vignettes and data that help to flesh out what we are often  trying to impress on students are the real skills they need in preparing for legal practice environments.

 

 

Managing the demand and supply of lawyers (pre and post law school obstacles)

After reading an interesting post over at the Faculty Lounge on Israel’s recent extension of their article/trainee period to two years from one year, a few thoughts came to mind. The first is about the Israeli legal education supply of lawyers context in comparison to that of the US, and the second is about the Australian (and other) legal system’s management of the supply and demand for lawyers.

1. Israeli Legal Education Context.  Consideration of the Israeli supply of lawyers context in comparison to that of the US raises a few issues: the fact that: the US has 40 times the population of Israel; that there are over 200 US law schools versus 10 in Israel; and that there are roughly 40000 US law grads versus 1800 in Israel.  In other words  – in comparison to the US, Israel is producing significantly more lawyers per population (almost twice as many)  from significantly more law schools per population (twice as many).  And most of us think there is excess legal education capacity in the US.  This suggests a legal education excess capacity problem in Israel.

One solution to such an excess capacity problem is, as the post discusses,  to make it harder to become a lawyer – scaring off new entrants and demanding greater commitments from those that manage to make it.  The US does this through a few devices, including the demand for a first degree before starting law school (tuition and lost income during those undergrad years means a student investment up front of at least $100,000 if not many times that) and a post law school bar exam (that is passable by any conscientious law grad after putting in the four months needed alongside attending a bar prep program).  Arguably the Israeli two year internship costs the future lawyer less and may perhaps show what practice may be like, hence winnowing out those for whom it would be unsuitable.  But, as the Faculty lounge post suggests, neither is a perfect solution.

2. Applicability to Australia and beyond. The second thought that came to mind from the post was a result of my concern over a growing excess capacity problem in Australian legal education (and in other systems as well).  I thus wondered whether Israel’s proposed solution to their excess legal graduate capacity problem might have any relevance for Australia and others.  Australia, like Israel, also has too many law schools and too many law graduates (see my earlier post).  But, like all systems Australia also has barriers that might winnow out those insufficiently committed to the career or for whom the cost-benefit or risk analysis of securing that law job does not work.  Those barriers may include a double degree for LLB students or a prior degree for JD students followed by a relatively short trainee/study post law school requirement (e.g. College of Law plus some work experience).  Some LLB programs do not require the double degree, but the short post law school trainee/education period is still required.

There are many different approaches around the world to manage demand and supply of lawyers (another is the the strict limitations on the number of law schools).  But the diversity of approaches all have their own pros and cons.  Managing the demand for and supply of lawyers is complex and difficult.  Accordingly, it would seem to be a task for all of those involved in the process (the law schools, the different professional bodies, the regulators, and the courts) to work together.  It is also a task which should be informed through comparative consideration of foreign approaches (comparative consideration means treading carefully – considering the different contexts and functions and avoiding the usual pitfalls associated with transplantation).

Colin Picker

Inspiring Addresses to New Students

The new UNSW LLB and JD classes heard inspiring addresses from alumni, respectively, Sean Lau (recently awarded the Rhodes Scholarship) and Michael Rose (Chief Executive Partner of Allens).

Sean gave excellent advice on decision-making, in which he looked critically at clichéd advice students always get to ‘keep your options open’ and ‘do what you love’.

Michael Rose gave an inspiring speech on ‘why law matters’. He started from his experience of a child’s preventable death in PNG, which he saw as a product of a society lacking the rule of law. He went on to talk about how law will matter in the world you will be working in, and your responsibilities as lawyers.

Sean’s and Michael’s speeches can be found here.

The “Good Lawyer” Quiz

Two of my former colleagues from the UMKC School of Law, Professors Nancy Levit and Douglas Linder, recently published a book entitled “The Good Lawyer“, Oxford University Press (2013), which  “[t]akes the reader on a fascinating and insightful tour across space and time to uncover the qualities that make for the best lawyers” and “[o]ffers suggestions for concrete quality reforms while also exploring broader ethical issues.”

This book is, in some ways, a successor to their previous “The Happy Lawyer: Making a Good Life in the Law”, Oxford University Press (2010).

Levit and Linder have now provided in the ABA Journal a fascinating quiz (with answers) that highlights some of the  critical and at times surprising findings in the “Good Lawyer”.  It can also be taken interactively online.

While the book and quiz are necessarily US-legal practice focused, they will still be highly relevant to the practice of law outside the US, especially in other common law countries.

Colin B. Picker

Positive Professional Identities for Law Students

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Our own Anna Huggins (soon to be QUT’s Anna Huggins) has made a big contribution to a very important book in legal education. Co-written with Rachael Field and James Duffy, Lawyering and Positive Professional Identities (Lexis Nexis Butterworths 2014) is a book I think all teaching legal academics could useful study. Here at UNSW Law it is worth noting that the curriculum Theme ‘Personal and Professional Development’ is perfectly on point with this book which is aimed at students primarily but I think would be a useful read for most legal people.

In our first year program we have been targeting personal and professional development through attempting to enhance students’ understanding of themselves, and their ability to reflect on themselves whether through mindfulness activities or in other ways. One thing the literature emphasises is that ethical issues often are the tipping point before someone drops out of law school or the profession; and in Introducing Law and Justice we try to introduce the idea that you need to be able to articulate your own values and then be able to assess legal ethics and practice in that light. The latter is then very much developed by the later subject Law Ethics and Justice which Justine Rogers convenes.

So, as always, we like it when someone agrees with us!

Prue Vines

Continue reading “Positive Professional Identities for Law Students”

The teaching year has just started here, and for me personally, the teaching of a brand new course.

Beginning something offers the chance to see what we are doing as teachers of law close up, because for at least some period of time, it is not natural; it needs repeating and (re)getting used to.

Traditionally, legal education has been about training students to ‘think like a lawyer’; to develop supreme skills of analysis, meticulousness, reasoning and persuasion. Writers have identified the values that guide these skills, some of which, they argue, are harmful to the well-being of lawyers, the clients they serve, and their communities.

Indeed, for just and effective legal practice, what’s needed in legal education is a greater emphasis on broader cognitive, social, practical and ethical skills – indeed, an increased emphasis on competence and skills generally. Students also need opportunities to make these skills meaningful, in connection to others.

This isn’t ‘just’ the findings of a bunch of academics. The legal profession is beginning to support this thinking. The NSW Law Society is now restructuring its CPD program to reflect the contemporary reality that, as it states, these are not ‘soft’ skills, rather ‘fundamental’ ones that best serve the client. To do so, they’ve drawn on the analysis of Canadian lawyer and ‘legal futurist’, Jordan Furlong.

They ask, “So what exactly are the six new skills Furlong thinks need to be added to the [traditional] mix if we’re to create the complete modern lawyer?” They are:

1. Ability to Collaborate

2. Emotional Intelligence

3. Financial Literacy (adding a nice dimension to Colin’s recent post)

4. Project Management

5. Technology Affinity (um, not sure about this term and can hear the cries of gross commercialism from among more senior lawyers, – as with 3. – but it means being competent at using your computer, the internet and other mobile technology.)

6. Time Management

I would add ethics reflection and decision-making to the list. Also, I am fairly sure there are other aspects of justice and the law that, while more about substantive knowledge and attitudes, could be presented as related skills?

In any case, given its connections to mastery, social relatedness and the emotions of the individual, this set of skills has great potential to also support the well-being of lawyers and law students in ways that the traditional skills do not or do not do as fully. What do you think of the list? Whether we’re at the beginning of the year, or in the slightly wilder stage, does it seem like a useful and worthy guide for our teaching?

Justine Rogers

The best law school classes for practice: Harvard survey

The Abstract of this recent publication:

“We report the results of an online survey, conducted on behalf of Harvard Law School, of 124 practicing attorneys at major law firms. The survey had two main objectives: (1) to assist students in selecting courses by providing them with data about the relative importance of courses; and (2) to provide faculty with information about how to improve the curriculum and best advise students. The most salient result is that students were strongly advised to study accounting and financial statement analysis, as well as corporate finance. These subject areas were viewed as particularly valuable, not only for corporate/transactional lawyers, but also for litigators. Intriguingly, non-traditional courses and skills, such as business strategy and teamwork, are seen as more important than many traditional courses and skills.”

The full document is here.

In addition to the many other caveats that apply to such surveys (e.g., legal education is not just for practice or even big law firm practice, practitioners may not be the best judges of which courses are best, etc), for law students and law schools outside America the usual cautions apply to the applicability/relevance of such surveys in the different contexts of non-American legal systems and within different educational environments.  Nonetheless, the survey is interesting.

Although perhaps a minority view among the survey respondents, I particularly liked the following:

One self-identified Yale Law graduate with five to ten years of experience in a corporate department wrote:

What most matters is that students (i) develop deep analytical abilities, and (ii) can navigate accounting materials and technical literature (e.g., figuring out how the economics are working within a complex fund structure).

This commenter suggested, however, that Accounting and Corporate Finance were useful as “vocabulary” and to “help students identify issues,” but emphasized there was “value to having  students develop their analytical abilities both within those more practice-focused realms and within areas of more academic interest (e.g., Islamic law).”

By Colin Picker

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