Last updated: 14 June, 2018
Many law schools are failing to adequately prepare students for the profession. Historically, students were not required to participate in legal clinics, complete internships, or take practice management classes. In 2015, the ABA issued a guidance memo that clarified that schools must offer experiential learning. However, that still means that Courtroom arguments receive disproportionate attention in legal education compared to how often students will be using those skills in their initial practice of law. In some cases, the most “practical” training that law students encounter is the legal writing class. And the legal writing class bears little relationship to legal writing as it exists within real-world legal practice. There are no time or budget constraints—the only limitation is how much time a student is willing to invest in the assignment.
Introducing practical constraints, as well as weaving discussions of technology and law practice management, into legal writing classes can help make legal education more practical. And it can make sure that legal writing classes meet the ABA Standards and Rules of Procedure for Approval of Law Schools 2016-2017 which now require that every student complete six credits of experiential learning.
Working on time and to budget is the key to successful practice of law in the real world. But neither time nor budget is currently taught in law schools.
Associates must plan, execute, and polish a project within a specified time. However, in law school, students neglect other school work and pull several all-nighters to produce a single memo or brief. This obscures the appropriate amount of time for the task, and creates an environment where students expect to work without interruptions or shifting priorities. It also doesn’t teach students to consider the value and necessity of the research question as compared to the value of the case and the client’s budget.
Associates often forget about the “invisible” cost of research, and that too can be traced to habits developed in law school. Students become accustomed to unlimited free LexisNexis and Westlaw research, and they develop their research habits accordingly. They do not see how much each “click” costs or develop an understanding of what is within a firm’s pre-paid LexisNexis and Westlaw plan. While in law school, students rarely consider using free resources such as CaseText or Google Scholar to get an understanding of the topic and refine their search before using paid services. Students also develop the habit of accessing an incredible number of cases and secondary sources that they would never have the budget to purchase, or time to review in real practice. Further, students do not organize their research, so they often re-access the same information, which would be costly at a firm!
In short, students are taught to work without constraints, which does not prepare them for successful practice. When students become associates, they quickly learn the lesson that a lawyer who does beautiful, perfect work but takes forever to do it, and runs up a $100,000 research bill, isn’t a good lawyer.
Legal education has the laudable goal to train every student to think and write like Justice Holmes. However, the work of lawyers is both a business and a practice. So, in addition to learning the substance of the law, students need to learn to understand the business of law.
The classroom learning experience should reflect the real world—with budget and time constraints that would exist in practice. Practicing lawyers need to meet deadlines, produce work within a budget, and develop solutions that are appropriate for the problem. Since writing is how lawyers spend most of their time, legal writing classes are ideal for introducing these concepts. Imagine the better associates that law schools could produce if half of all writing assignments were carried out with these constraints built into grading.
Legal writing classes should be modified to require students to produce a well-researched, completely polished, error-free legal brief or memo within a specific research budget and within certain time parameters. The submission should be both electronic and in print, so that students can learn about metadata as well as technology competency in MS Word and PDF. To add additional, real-world training, students should be required to keep and submit time records for their work.
This practical spin on the standard legal writing assignment would teach students how to write, research, and Bluebook; it would also help students learn how to effectively and efficiently practice law. Important, yet secondary skills that would be developed from this revised approach include learning to consider billable rates and alternative billing structures, how to allocate and compartmentalize workflows, and how to leverage institutional knowledge and forms.
Some parameters for these practical writing assignments could include limiting paid research to a certain number of hours, expenses, or clicks to access different primary and secondary legal texts. (Yet there should be no limit to free resources, such as CaseText, Google, or Google Scholar.) Additionally, students should be required to keep time records, use case management software, and submit bills to “clients” (the instructor). This would also provide an opportunity for comparing bills and discussing the students’ choices. Further, students should be required to learn and use standard features of MS Word that will be used in legal practice including applying styles, creating a table of authorities and contents, using track changes, cleaning the document properties, and turning the document into a PDF.
Finally, students should have a limited amount of “billable” time to produce a spotless legal memo. The time limitation would encourage students to research and use technology to help them achieve their goals. Such technology could include PerfectIt with American Legal Style to produce consistent, error-free work and WordRake to write in plain language and to meet page limits.
It’s time that legal education reflects the practice of law. Not every assignment needs to be carried out with time and budget constraints built into grading. There is still a benefit of the pure research assignment that students do now. However, if half of the assignments had time and budget constraints, then students would learn to produce great legal writing that is error-free, on time, and practical. These are the skills that students and young associates need immediately. And these are the skills that will help law schools produce better lawyers.
Even if you’re not involved in legal education, you can get some of the benefit of improved legal writing classes by learning some of the technology involved. PerfectIt with American Legal Style is an ideal educational tool for re-imagined legal writing classes. It helps students to discover and fix errors, yet trains them to develop judgment and recognize errors by requiring them to participate in proofreading. It reinforces Bluebook rules and advice from the leading legal writing style guides, and helps find and correct consistency errors and legal-specific typos. There’s a fully-functioning free trial that you can download here.