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Roundtable Discussion

Legal Education

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Roundtable participants pictured from left to right are: Benjamin S. Wagner, Habush, Habush & Rottier S.C.; James D. Friedman, Quarles & Brady LLP; David R. Saggio, Gonzalez, Saggio & Harlan LLP; Bernard J. Westfahl, Westfahl & Westfahl S.C.; Steven M. Barkan, University of Wisconsin Law School; Joseph D. Kearney, Marquette University Law School.

As the practice of law evolves, so does the way in which law schools prepared their students for that practice. Wisconsin Law Journal editor Tony Anderson sat down with a panel to discuss what the state’s two law schools are doing, what law firms are seeking from recent graduates, and how those recent grads feel about their education. The Law Journal brought together faculty members from Marquette and the University of Wisconsin, partners who help with hiring for two law firms, and two recent law school graduates. Part I of their discussion begins below.

WISCONSIN LAW JOURNAL: What direction is Marquette taking at this point with regard to its legal program? What do you see as some of your strengths and some of things that you’d like to do moving forward?

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Benjamin S. Wagner

Benjamin S. Wagner is a 2003 graduate of the University of Wisconsin Law School. Wagner is an associate at Habush, Habush & Rottier, S.C. in Milwaukee, where his practice primarily involves tort work on behalf of plaintiffs.

JOSEPH D. KEARNEY: We really focus, broadly speaking, on three things. One is the recruitment of a talented and diverse student body. As much as we legal educators would like to think that our standing in front of a classroom is the primary determinant in terms of the lawyers we produce, we recognize that, more than anything else, it is the innate talents and other qualifications and abilities that people bring to law school in the first instance that makes the biggest difference in terms of what they can do thereafter. So we certainly spend a lot of time with respect to recruitment.

The second thing that we do … is to try to figure out what to do with the students once they are at the law school. In some respects, the matter is straightforward because we want to remain in conformance with the Wisconsin Supreme Court’s rule concerning the diploma privilege.

Nonetheless, there’s a lot of flexibility within that. And we have done a number of things even in my time at the law school … to try to improve the program. Certainly the amount of specialization that upper-level law students can engage in now would not resemble the law school even 20 years ago. Alternative dispute resolution, intellectual property law, various aspects of the litigation curriculum, sports law, the list goes on and on at Marquette.

The third thing that we spend a lot of time is hiring faculty. We need to get faculty who will contribute to the national legal academy, but who will also recognize that an important part of being a law professor at Marquette — and, I believe, at Madison — is making a contribution to the state legal community as well.

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Bernard J. Westfahl Jr.

Bernard J. Westfahl Jr. is a 2004 graduate of Marquette University Law School. He works with his father and has a general practice with an emphasis in real estate, business entities, probate, and estate practice at Westfahl & Westfahl, S.C., in Elm Grove.

WLJ: Steve, can you talk a little bit about what you’re seeing in terms of the things that the University of Wisconsin is doing?

STEVEN M. BARKAN: I’ll say the same thing that Joe referred to; that essentially summarizes our enterprise as well. We’re recruiting a diverse and talented student body, a diverse and talented faculty … and we’re engaged in a program of teaching scholarship and service. Our teaching methods and goals are constantly changing and being revised.

We’re part of a major research university, and scholarship is extremely important in our culture and the contribution of that scholarship to the legal profession. We think we produce a particular type of scholarship that’s distinctive and different from most law schools. And we have a great tradition of service to the community in general and the legal community in particular.

In terms of particular applications and trends that I see, number one is this thing called the globalization of law. No longer do we see law as local, regional, national. We believe that we’re part of a global legal community.

So our curriculum is changing. We’re incorporating many more comparative aspects. We’re getting into dimensions of both private and public international law in ways that just weren’t there before. I think that’s a national trend as well.

The other thing that we’re focusing on and are very concerned about is what might be called our skills training — our clinical program. We’ve, over the years, had a very large clinical program. A very large percentage of our graduates graduate with clinical experience, whether it’s through our [Frank J.] Remington Center or one of the other programs that we have. Our students have very good clinical experience, and we’re trying to expand that. Also we’ve restructured our legal writing program, hired a new director of communications and legal writing and putting a lot of resources and energy into those kinds of skills as well.

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David R. Saggio

David R. Saggio is a partner at Gonzalez, Saggio & Harlan, L.L.P. in Milwaukee, where he handles litigation and tax law. Saggio, a 1990 graduate from the University of Wisconsin Law School, is involved in some of the administrative aspects of his firm, including hiring.

WLJ: Let’s turn to the people who do the hiring. What are some of the key things that you’re looking for law school graduates to bring from their experience when you’re considering them as applicants?

JAMES D. FRIEDMAN: You’re looking for a well-rounded person in a variety of respects. I think one is scholarship. We would like to see someone who has achieved well in law school, demonstrated an intellectual ability to practice law and deal with complicated matters. We look for character — people who are ethical and attentive to that. We look for people who are highly motivated. And we look for people who have strong personal skills, the ability to interact well with others, communicate. That includes a variety of things: writing well, as well as communicating orally. So it’s sort of a package that one looks for.

DAVID R. SAGGIO: Much of what Jim said is accurate. I think you look at the drive of the individual, the ability to interact with real-world clients, and the intellect. I think if you have those three qualities, you’re likely to succeed.

Also, the expectations that they have coming out of school, that they understand that, from a practical standpoint, they’re new lawyers and we expect them to work hard and to learn for a period of time. I think the practical experience is good. … It really helps to actually do the stuff as opposed to just reading about it in the books and getting a sense of what it’s really like in a practical sense. So I think the clinical thing is a good thing.

FRIEDMAN: You were talking about clinical programs. The one thing that helps a great deal is dealing with the expectations. I think a big disconnect for employers is that students coming out of law school don’t always have realistic expectations sometimes. And their expectations are far different than the employer’s.

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Steven M. Barkan

Steven M. Barkan is a law professor & Director of Library and Information Services at the University of Wisconsin Law School. Prior to joining the UW faculty in 1995, Barkan was a member of the faculty at Marquette University Law School.

Someone who’s participated in a clinical-type program, the legal-aid program, someone who has actually dealt with human beings and the difficulty of communicating, to understand the individual’s problems, then try to put it into a legal context and explain what rights exist is a talent. Anybody who’s been exposed to that starts to get the idea that this is a personal service business.

BERNARD J. WESTFAHL JR.: I had clerked with my father throughout law school, more heavily towards the end of law school. I knew sort of what situation I was falling into in terms of my role there, whether it be figuring out the IT situation, bringing things up to speed there, bringing in clients, holding the hands of clients, working on projects that were not my own, bringing the client in from base one, working with the client, to the end of billing that client and making sure that client’s happy with the service we provided and so on, the hours that were also included and all that.

WLJ: Were there things that the law school did to help prepare you for that?

WESTFAHL: Absolutely — the summer traditional clerkship and practicing procedure classes, which for me were very helpful. While certainly academic, they were very practical and helped me get going right off the bat with client’s cases.

BENJAMIN S. WAGNER: I had a tremendous experience at the University of Wisconsin Law School. They have an extremely strong foundation of clinical legal programs available to the student body, and I think it’s the backbone of that program. The intellectual pursuit of being involved in clinical legal education is the law in action, the last vehicle of law school where they focus not on what’s just in the law books, but also how law is applied on the street, in the home, and in the courtroom.

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Joseph D. Kearney

Joseph D. Kearney is in his third year as Dean of Marquette University Law School. Kearney has been a member of the Marquette faculty since 1997. Prior to coming to Marquette, he practiced for six years at Sidley & Austin in Chicago.

My expectations for working where I work now, at the Habush law firm, were based on my employment there during my third year of law school. I worked in the Madison office of the Habush law firm, and I had an opportunity to get a taste of what was coming. So I wasn’t entirely surprised. But as Jim pointed out, the law business is a personal service business. Dealing with clients is something entirely different than learning cases and then doing the analysis. It’s dealing with real life situations, personalities, different circumstances.

FRIEDMAN: These two aren’t typical either. Ben’s father is a circuit court judge in Milwaukee. I think they both grew up in the law. … They were exposed throughout their lives.

WLJ: Clinical programs were mentioned by just about everyone. Let’s talk about what
is happening in the law schools with regard to clinical programs. It seems that that is something that is growing.

KEARNEY: There is no question … that over the past 20 years there has been considerably more emphasis in legal education generally, on skills training as Steve referred to it earlier.

While that’s not the only thing that clinics are intended to do, it certainly is one of the things that they do. They ensure that the doctrinal, at times abstract, concepts that are in Steve’s torts class really are brought home to the students in such a way as to remind them that the law is not merely a learned profession. It’s also equally at least a helping profession.

At Marquette one could divide the clinics up a couple of different ways. The easiest way is to distinguish between the clinical opportunities that are part of the curriculum and the extracurricular clinical opportunities.

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James D. Friedman

James D. Friedman is a partner at Quarles & Brady LLP here in Milwaukee. His practice is primarily business-oriented with an emphasis on banking. He has chaired the firm’s recruiting committee and has been involved in the past with recruiting law students, lateral experienced associates, and partners. He now works with lateral moves for partners.

We have the small claims clinic that Janine Geske teaches every Monday morning over at the courthouse. … It is very much a hands-on intense baptism for students into the realities of the legal profession and, in some ways, given that it’s small claims court, some of the realities of the broader society as well.

We also have what we call supervised field placements that are clinical opportunities. … And we have what I would call extracurricular clinical opportunities that probably are designed as much to help the students develop a service ethic as they are to help the students focus on particular skills.

BARKAN: The history of it goes back years and years, back to the ’30s when they started talking about more clinical education. But back about 15 years ago, when the ABA came out with the report called the MacCrate Report, law schools started to think more seriously about clinical training and skills training and the relevance of legal education.

That’s been a steady trend over the past 15 or 20 years. We got on that boat early on and … we’ve had a really extensive clinical program. One area is criminal law related, where we have our legal defense program in our Remington Center. And the other is in the consumer-related clinics and housing, landlord/ tenant issues.

I think clinical education is something that’s often misunderstood. The whole basis of legal education was not set up for clinical education. It was set up for mass education with big classrooms and casebook instruction. It’s often misunderstood outside of the legal academy that clinical education is an extremely expensive form of education to deliver.

The amount of oversight that the law school really needs to provide for these programs to ensure quality is huge. … So it’s not the kind of thing that we can just start proliferating without making sure that we’ve got the faculty to back it up and supervise it.

WLJ: How important is clinical experience when you’re looking at candidates?

SAGGIO: I don’t think it’s critical, but it’s a plus to the extent that they have been able to get some exposure to that. One point that was raised earlier about the handholding, actually interacting with clients, is probably a huge part of the law firm experience that I don’t think law schools necessarily are geared to prepare for where you don’t have that (clinical) experience.

FRIEDMAN: As I said, we’ve tried to look for this package, the whole person. So I wouldn’t say there’s anything that gets rated higher. Some students participated in journals and do research and writing. And that’s valuable too. Whatever they do contributes to them as a person and contributes to their abilities and experience, and those things are all good. I think it’s good that the law school offers options and has a lot of programs available.

As I said before, the one thing I think that these clinical programs do is to put the student into a realistic situation. And that does help shape their expectations. And that’s important, the fact that they understand the context in which they will actually function as a lawyer and how it’s not just scholarship. It’s dealing with a human being and human beings’ needs.

KEARNEY: I agree with that. The nature of legal education, because it is preparing students for entrance into a profession, really requires something of an immersion in the profession. … Steve’s point that it’s extraordinarily expensive to do this because the law school is warranting that setting the student up with this lawyer would be a good thing and a good experience is absolutely correct. And I have no doubt that you are correct that this also helps to adjust the student’s expectations for what the profession is going to be like once they are out there on a daily basis and there’s not the four walls of the law school to retreat back to.

FRIEDMAN: It still should be emphasized that it’s important that students are taking significant substantive courses.

WLJ: I was going to ask you about that. You have three years; a limited amount of time. If more time is being put into clinical programs, is something else being lost?

BARKAN: Well, that’s the big balance. That’s what we’re trying to find out here. I think it’s mythic just to say that we’re going to put a person in law school for three years and at the end of three years they
’re fully equipped and prepared to practice law. So what we need to do in law school is give them something that’s going to serve them well through the years.

You can joke with the students about you’re going to forget everything you learned in this class the day after your final exam. I hope it’s not everything. But, really, what’s retained is not the black-letter issues or the specific how to do things or the doctrinal points. It’s the thought process. It’s the analytical skills. It’s the writing skills.

KEARNEY: The doctrinal specifics may be lost, but the doctrinal framework needs to remain if the students are going to go out there and practice competently. I would not want any of my comments concerning clinical education, even broadly speaking, to be taken as necessarily even putting that on the same level as ensuring that the students walk away from law school with an adequate doctrinal framework such that, when they do get individuals’ real problems, they have some sense of where to start.

WLJ: It was noted that in three years you can’t develop and release this ready-made lawyer who is complete in all aspects. What was still needed?

WAGNER: What was missing from the law school experience as far as what couldn’t be fit into the three years?

WLJ: Yes.

WAGNER: I thought three years was a perfect timeframe for legal education. I don’t think it should be any shorter. I think that … the first year you learn theory-based law. It teaches you how to think and how to analyze. Second year is a healthy blend. And then the third year, you have an opportunity to become an individual and make that step from being a law student to being a lawyer. I think that third year is a healthy bridge to make that step into becoming a lawyer.

WESTFAHL: I agree with Ben that cutting it short to two years you wouldn’t be providing the product that we see. Extending it to four and five years, especially nowadays with the law being broken down into so many specializations … all I could see is creating someone who is supposedly a specialist in more areas or trying to create a specialist in all areas of the law. … I think Ben broke it down very well. … I haven’t seen any propositions that would provide a better mix.

FRIEDMAN: The thing that was missing when I graduated from law school was judgment based on experience. All lawyers can find — and today you can find it faster — what pertains to the particular matter. Any lawyer will be well-equipped coming out of law school to find sources and find authority and the like. Now the question is, what do we do with this? What are we going to tell our client? What are we going to recommend to our client? And that requires judgment.

WAGNER: To go back and fully answer your question about what, if anything, was missing, I would say that a strong legal research and writing program at the law school, during my time there, was missing. But I know that Susan Steingass, who is a colleague and also a fantastic scholar and educator, has taken over the communications program at the law school and is turning that around 180 degrees. … So that was one thing that was missing from my education.

BARKAN: There’s an old adage among law teachers that every school has actually three legal research and writing programs, the one we had last year, the one we have this year, and the one we’re going to have next year. So it’s a common issue.

FRIEDMAN: There seems to be somewhat of an undertone in the discussion that maybe there’s something wrong with law school education, and I don’t think that’s the case. I think law schools — these two law schools in particular, and certainly many others in the country — do an excellent job educating students. They come out of school very well prepared in the sense of having an understanding of the thought process and understanding legal issues and knowing how to go about finding answers.

There are some things that you can’t necessarily teach in law school. You can implement clinical programs, and I think that helps. But it’s really the ability of the person to develop, based on experience, some judgment as to how are we going to handle this; what are we going to do with this; and, in litigation, analyzing how to tell the story, how to present something. That requires judgment and experience.

WESTFAHL: When we talk about improving programs and I look back on my law school days, one thing that I might say is that we all write a significant amount. We have two semesters or three semesters of very intensive legal writing and research. … Maybe instilling a program that legal writing and research would be required throughout all of the years, perhaps not as rigorous as in the first year, but at least to keep those ideas and talents alive more so. To me, that would be an interesting program.

WLJ: Any comments on what you’ve just heard?

KEARNEY: There is a requirement of two semesters of legal writing, then in the upper-level curriculum, there are courses that one can take that will underscore or reinforce some of these concepts. A pretrial practice workshop, where you will be writing a memorandum in support of a discovery dispute would be one example. It’s always an interesting matter to figure out whether a particular experience should be required for students or they should have the option for it.

Related Article

Roundtable Part II

With respect to workshops, we have mandated a workshop experience for our students. But there are a variety of workshops, and some of them involve writing and some of them do not. … We now have six full-time legal writing faculty members. When I arrived at the law school in ’97, we had one. We had conversations with alumni and non-alumni who are employers of our graduates, and we heard comments to the effect that they thought that we could do a better job with respect to legal writing. The way we did that was to abandon the system in which we had one full-time person complemented by a host, maybe 12 or 14, adjuncts and went to all full-time people.

Of course, in hiring five additional legal writing faculty members, we expend dramatically more dollars on the legal writing program than we did as recently as five or six years ago.

That’s where we’re currently striking the balance. But Steve’s comment that next year maybe we’ll be in a different place is right on the money with respect to legal writing more than most things. I do think we’re, at least at Marquette at the moment, at sort of an equilibrium for the foreseeable future.

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