The American Bar Association’s MacCrate report sums up the problem in words that can equally well be applied to Australian legal training:
It has long been apparent that American law schools cannot reasonably be expected to shoulder the task of converting even very able students into full-fledged lawyers licensed to handle legal matters. Thus, a gap develops between the expectation and the reality, resulting in complaints and recriminations from legal educators and practicing lawyers. The lament of the practicing bar is a steady refrain: “They can’t draft a contract, they can’t write, they’ve never seen a summons, the professors have never been inside a courtroom.” Law schools offer the traditional responses: “We teach them how to think, we’re not trade schools, we’re centers of scholarship and learning, practice is best taught by practitioners.”
Too often these responses are thoughtless reactions to unfair criticism, and reflect an unwillingness of the academy and the practicing bar fully to understand the cultures, needs, aspirations, value systems, and accomplishments of each community. The community of over 6,000 full-time law professors does not consist of ivory-tower scholars removed from the problems of the profession and concerned only with their academic pursuits. Conversely, lawyers are not oblivious to the contributions of law schools to the quality of the profession or to a broad-based legal education system that extends beyond technical skills and the knowledge of certain substantive areas of law.
As someone who has practiced as a solicitor and as an academic, I am alive to the constant tension in legal education. I found that I was woefully underprepared when it came to practicing as a lawyer. I was expected to know how to draft a contract, how to run litigation and the like, but I had never been taught these things at university.
Is this the law school’s fault? One of the best ways of learning practical skills is by doing. I don’t think it is a university’s place to turn out a perfectly formed lawyer. Either you learn on the job, and firms have to put up with people being unable to be perfect lawyers straight away, or you set up a proper training course. I understand that the Legal Education Review undertaken last year in Victoria suggests certain mandatory training requirements (as outlined in my post here). When I see firms saying they want universities to turn out more practically oriented law students, I see laziness as the motivator. Firms want someone who can just slot into the job with no problems and no further training. And if universities have already softened students up to the realities of the law firm, then there will be no need to actually have to manage young lawyers either.
On the other hand, I have some sympathy with the view that law students come out of law school unprepared for practice. As I have outlined above, I had no idea what I was doing. I felt somewhat resentful that I had studied hard for five years and still didn’t have a clue about how to practice as a lawyer. I think it would have been good to get a little more of an idea about the practicalities.
When teaching, I always try to link in what I am teaching to real-life scenarios I have faced (eg, lodging a caveat, claiming a constructive trust over a property for a client, representing a creditor in a winding up, acting for an equitable mortgagee). I am lucky that I had a fair amount of time in practice before I became an academic. I think that legal concepts make a lot more sense if you link them to real life situations where they could be used. I am really glad that I had some years in practice before I became an academic.
I hope that if a new Traineeship programme is introduced in Victoria, as suggested by the Legal Education Review, it will help to provide standardised training for young lawyers. Universities should help provide some idea of what practice is like, but they should also be places where students can explore different ideas and subjects and look at questions like legal philosophy. It would be a great pity if law school became just another vocational course.