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CRITIC’S CORNER: Two rules for educating tomorrow’s lawyers

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Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of two books and 15 law review articles on constitutional law, criminal law and procedure, and other topics. Visit www.CicchiniLaw.com for more information.

Our nation’s law schools are facing serious troubles, including widespread allegations of false advertising.

One California school, for example, is about to stand trial over accusations that it lured students with bogus graduate-employment statistics. Among other law schools facing similar allegations, many have won pretrial dismissals of their cases; success, however, was sometimes achieved only after convincing the courts that prospective law students should have known better than to rely on the schools’ published employment data — a hollow victory if ever there was one.

Then there are the real data. According to the group Law School Transparency, a full 40 percent of those who graduated law school in 2014 failed to land “long-term, full-time legal jobs.”

Grads who were forced into solo practice have perhaps encountered the bleakest economic reality of all: despite their staggering debt loads, real wages for solo practitioners have been falling steadily and significantly since the 1980s. The problem for law schools is that word of this dismal state of affairs has spread.

The number of law school applicants has fallen nearly 50 percent from its recent peak, and first-year enrollment is at its lowest level since 1973 — a time when there were 50 fewer law schools than today. The result has been a big drop in law schools’ revenues.

But perhaps the most serious problem facing law schools is that their graduates are often ill equipped to practice law. Arguably, this is partly because of law schools’ hiring habits: most of the new professors picked for academia have very little or no legal practice experience.

But regardless of the reasons, our own State Bar recently conducted a study and found that many new J.D.s were afraid to practice law because of their lack of training. Those who were practicing, meanwhile, lived in fear of being disbarred. Some of these newly minted lawyers used words such as “scared,” “terrified,” “depressed,” and even “suicidal.”

In light of these numerous problems, proposals for legal education reform have proliferated. And when it comes to eliminating the most significant problem — how law schools educate tomorrow’s lawyers — reform proposals typically call for adding more clinics or skills-based training. But that type of solution puts the cart before the horse and overlooks a larger, more fundamental problem: Law schools are failing to educate students in the law.

To illustrate this, consider a very basic topic in criminal law: the substitution-of-judge statute. In my own experience, this important but simple law is often misunderstood by lawyers and the judiciary. Our profession’s embarrassing and costly ignorance was on full display in State v. Harrison, 2015 WI 5, in which the Wisconsin Supreme Court ordered a new trial because at least two lawyers and two judges involved didn’t understand this basic statute.

The reason for the chaos is not the lack of clinical programs to teach practical skills. Most new lawyers can teach themselves how to draft a substitution-of-judge form and can figure out where to file it. Rather, the problem is twofold: (1) substitution-of-judge laws vary from state to state and are probably rarely, if ever, covered in a national casebook; and (2) many professors, even if they knew the law existed, would view it as too mundane to teach in class. Therefore, most lawyers aren’t aware of the law and, even if they are, usually don’t fully understand it.

This is just one minor example, but it illustrates that successful legal education reform is actually much simpler and cheaper than adding more clinics or adopting skills-based training. Instead, successful reform has two parts.

First, law professors should teach a real body of law from an actual jurisdiction, rather than the grab-bag, multi-jurisdictional mish-mash of cases found in the typical casebook. And second, law professors should teach the complete body of law in a rational, well-organized manner — even if it means adding an elective or two to make coverage available of the boring, but important, topics.

Currently, however, many law schools produce J.D.s that are not only unskilled in the practice of law — for example, drafting legal documents, effectively interviewing clients, etc. — but are also uneducated in the law itself. To make an analogy to medical school, this would be the equivalent of producing M.D.s who lack a basic understanding of human anatomy.

Admittedly, trying to deal with legal-education reform in 840 words can raise more questions than it answers. So for a deeper analysis, and bonus recommendations for reform, read “Three Rules for Educating Tomorrow’s Lawyers” — available on the articles page of CicchiniLaw.com.

But until some type of reform is adopted, newly minted J.D.s would be wise to follow the advice of the character Skippy in Noah Baumbach’s film Kicking and Screaming: “We didn’t learn enough in school, and now it’s up to us to educate ourselves.” How, exactly, new J.D.s should do that is another issue altogether.

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