Roundtable Discussion

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Legal Education

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.

Part II

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 II of their discussion begins below.

WLJ: When looking at teaching styles, the traditional law class has followed the strict Socratic Method. Is that the case today? How are teaching methods evolving?

STEVEN M. BARKAN: My impression is that the strict Socratic method is not widely followed. We have, in many situations, what might be called a benevolent Socratic method. We’re seeing a lot of different teaching styles in the classroom.

The biggest change that we’ve seen in the classroom is the incorporation of technology — more teachers using PowerPoint, more teachers bringing video into the classroom, taping classes for students, things like that. I think technology has made some inroads.

The danger with a lot of the technology is that a lot of classes that are three and four credits have been expanded to five and six credits because students have learned that they can get to their teachers through e-mail and effectively ask questions that they didn’t want to ask in class. It’s really changed a lot of the chemistry of the classroom.

JOSEPH D. KEARNEY: The comment that at times it is too easy … in one respect for students to get in touch with faculty by e-mail is an interesting and true one. There is no question that there are many benefits associated with the greater access students have to e-mail. But I do worry that at times the availability of the technology discourages students from wrestling with the issue themselves in the first instance or talking with their classmates about it. … When I go out and I talk to alumni, particularly from the ’50s and ’60s, but even into the ’70s, there is a bond among those classmates that I’m not sure exists to the same extent now.

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.

BARKAN: I agree with that, now that we have electronic reserves and we never have to set foot in the law school to get it. I think at the UW Law School that might not be the case the same way. My impression is that our students are still using study groups. We have something called the Small Section Program in our first year where every student is guaranteed to take one of the basic courses in a small group, a small group being approximately 20 students.

My impression is that in those small groups, they do the bonding. Those groups then carry over to their other classes and through the years. Students that I had in small groups three years ago are still best friends and studying in groups together. So it’s a huge investment to have full-time faculty members teaching groups of 20 in the first year, but I think it’s a real distinctive characteristic of the UW Law School that stands as well.

BENJAMIN S. WAGNER: I can vouch for that. My small group was in substantive criminal law and we formed some study groups that endured throughout the three years. In fact, we would work together to be in the same classes in the second semester and second year and so on.

As far as the Socratic method, it’s a dialogue-based methodology. Professors Whitford and Palay practiced the Socratic method just like you would see in The Paper Chase. It does create a camaraderie of getting prepared for those classes. Because there were always ideas on how a particular professor was going to call on someone, if they had some kind of direction or strategy as far as who they planned to call on. It made you prepared.

Then again, in the clinical-based classes at the UW, I still think that they use the Socratic method but in a different way. It encourages the students to do things, to talk among themselves in the classroom.

BERNARD J. WESTFAHL JR.: In terms of whether the group study exists and how technology has affected that, I know some of my very best friends to this day are from the study groups that I was involved in through law school. They were very helpful. I do agree that to a certain extent there has been a transition away from study groups. Do they still exist? Yes. But are they of the core importance that they may have been in the ’50s, ’60s, ’70s? No.

In terms of technology, I think that is one aspect that Marquette could improve on. I went from the business school where I had presentations in PowerPoint daily.

Things were posted on the Internet for review, additional materials, supplemental materials, or materials for class. And that didn’t necessarily exist during law school.

KEARNEY: I entirely agree that we could and must improve with respect to technology. The single biggest problem that faces Marquette Law School at this point is its physical f
acility. We have substantially less physical space per full-time equivalent student than the vast majority of other law schools. How to solve this problem is a matter that is occupying an increasing amount of my time.

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.

It is an interesting question how much one invests in a facility of the sort that we have right now to substantially enhance the technology or whether, instead, one simply has to conclude that what is needed is an altogether new physical facility. Of course, the individuals who would have to dispositively decide the latter include many more people than the dean of the law school. It would include the trustees of the university, alumni who might be asked to participate in the effort, et cetera. That’s something with which we’re really struggling, but, also, really trying to address at the moment.

BARKAN: I hear the same thing from our students too, that we really ought to be doing more with technology. And Joe shouldn’t be so hard on Marquette because it’s a legal education based phenomenon. And the problem is really very complex.

When you say “technology,” what are you talking about? Are you talking about the use of technology in the classroom to produce a better educational product? It’s a question of, do you do technology for the sake of technology? Or is that really the best way to deliver the product?

I think that one of the reasons legal education hasn’t really caught on with the use of technology is that the time-proven method of casebook instruction is better than a PowerPoint method. Are you using technology to teach students how to use technology in the office after they graduate and manage cases? We don’t do much of that at all. Maybe the clinical programs use technology to do that, but that’s a real marginal skill in terms of what we’re going to devote faculty resources to.

WLJ: As you’re looking at law school graduates, how important is that technology issue?

DAVID R. SAGGIO: As a general rule they’re leagues ahead of 99 percent of the attorneys in our office. It seems like they know how to find stuff right away. As an employer, I think that they seem to be pretty adequately prepared for what we do. So I don’t view it as a large concern.

JAMES D. FRIEDMAN: I was going to say, if students are unhappy with the technology they experience in law school, wait til they get into private law firms.

The investment in technology is tremendous. We’re in the process of changing our entire operating system and, as part of that, also changing hardware. … The last couple years, we’ve invested a huge amount of money in technology and infrastructure. You do that and it moves you ahead. Yet, the science of technology moves faster than you can move. It’s just not possible to have the latest and the greatest entirely, so it’s a constant battle.

WLJ: How significant are the cost of law school and the debt that comes out of law school to the decisions that the graduates are making as they’re deciding what they can do and where to go? What are the schools doing in terms of looking at those costs and trying to figure out how to provide the best education at the best price?

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.

WAGNER: Well, the University of Wisconsin, being a state school, has a significantly lower tuition rate than Marquette, being a private school. I took out loans. If the tuition were higher, would that have affected my decision on attending the University of Wisconsin Law School? Maybe, but probably not. I enjoyed taking classes with the practicing lawyers as the teachers. I know that some of them, if they do get paid, they get paid minimally.

That’s a tremendous professional and community service that they provide. As long as there are good, quality people who are willing to donate their valuable professional and community time to spend at the law school educating, I think that those costs can be controlled.

WESTFAHL: I think getting to law school, there are numerous resources out there to enable an individual to go to school, whether it be a private school or a public school. In my experience, funding was sufficient. Even if an individual needed to fund the education entirely on scholarship or loan, those sources were out there.

However, in terms of leaving law school and decisions post law school as to where to be employed, I think it is an extremely heavy burden that they carry in terms of loans. … To then decide whether you can take a public-service type position or a private-practice position, there almost doesn’t seem to be a choice for someone that is carrying $100,000 to $150,000 in loans.

I know there are certain programs out there in other professions that enable an individual to work in a community service type position and the government, or an agency, or foundation pay back a portion of their loans. … I don’t know if there are opportunities or foundations that sponsor something similar for practicing lawyers.

KEARNEY: The debt burden of graduates is usually topic number one when law school deans get together. … Our graduates do carry substantial debt when they leave Marquette. Ninety percent of our students take ou
t loans. The average debt is $76,000. And when you match that up against the median salary of our graduates, the debt burden is something that they’re going to feel for some time.

It is, without question, going to affect some of their decisions at least at the margins. Even if it doesn’t drive them into one line of legal practice as opposed to another, it will definitely affect the amount of pressure they feel, even if they’re at a small firm, to do billable work that can be entirely recovered in terms of client payments.

There are some things that can be done about it. Law school deans can argue with central administrations about the size of the appropriate tuition increase. I have that conversation at least annually, and I think that at Marquette the administration has become reasonably sensitive to this. But the reality is, with rising healthcare costs and other costs, that tuition is going to go up. So that can’t be the entire answer.

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.

There is at Marquette, and at the University of Wisconsin, and a number of other schools, a so-called LRAP program, loan repayment assistance program. At Marquette we named it after Howard Eisenberg, the late dean of the law school. And we have a corpus or principal of several hundred thousand dollars that we raised by fund raising. And we use the interest to pay part of the debt burdens of graduates who have entered into public interest work.

And that’s helpful. But 5 percent interest on even $400,000 a year is only going to pay so much of your graduates’ debt burdens. It is something that I think every law school dean and legal educator in the country is really struggling with. And there are some answers, but they’re all incomplete.

BARKAN: It’s a huge concern. We’re a state-assisted school. So for many of our students, the burden isn’t as high as it is at a private school. But at the same time, it’s all relative. For those students who are incurring it, it’s a huge debt burden. It can’t help but affect decisions that they make along the way. And as Joe noted, even if an LRAP program generates a few thousand a year, it doesn’t come close to paying that. It’s not just a school concern. It should be a societal concern as well.

Because it’s really working to restrict who has access to the legal profession in the long run.

FRIEDMAN: A lot of the debt students have isn’t just from law school. It’s from undergrad as well. So it’s a building debt.

SAGGIO: My own experience has been with some younger lawyers. We had one who left within the last six months to a larger firm, had a minimum of 2,400 hours where he could make a lot more money up front, out of town, in another state. Most recently, I was talking to a younger lawyer who’s also carrying about $200,000 in debt and the pressures he’s sort of feeling between getting married and now expecting their first child and these debt payments. So it’s a huge impact as far as I’m concerned.

WLJ: As we wrap things up, I just want to go around the table and have people touch on what you see looking towards the future with legal education.

BARKAN: I think legal education is going to change. But I think one of the things that we really need to be aware of and guard against is what might be called consumerism in legal education. But it might also be the impact of things like the U.S. News & World Report rankings because — I’m not speaking for the law school on this. This is a personal opinion. I think the impact of these rankings borders on being pernicious.

It really distorts what law schools are about by putting emphasis on grade points and LSATs and starting salaries, it really can provide improper incentives for who’s getting into law school, where the students are getting encouraged to go, and the kind of work they’re doing. On the one hand, it’s good consumerism in that it lets prospective students and people know what the law schools are about. But, on the other hand, it really creates bad incentives. So I think that’s something, as we go on, that the bar and those concerned about education in general need to pay more attention to.

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.

SAGGIO: I guess what I just mentioned concerns me to a certain extent. The higher the cost, the more emphasis there is on making more money initially coming out of school and the more pressure there is to up that billable hour number. I’m sure that’s been a problem over the years. But we have limitations in our economic model in terms of what generates revenue.

I have concerns that more and more people, because of the debt they find themselves in, are being foreclosed in some of the public opportunities and some of the things they’d like to be doing just for the short-term needs that they have to survive, in essence.

WAGNER: I envision a healthy and integrative approach to law school beginning with the theory-based and substantive-based education one receives in the first year of law school. And as one matriculates from first to second to third year, the student will continue to become more involved in skills-based learning, hopefully by valuable practitioners who are willing to donate their time and educate law students. If students have the opportunity to develop their theory-based education and if they so choose to engage in the clinical-based education, I think that every
one who goes to law school can achieve what they want to do.

WESTFAHL: As Ben said, I see a more flexible and modern educational system, maintaining the core traditional aspects that we’ve seen in legal education, the core classes, core teaching methods, the Socratic method, use of textbooks. But also creating a very well-rounded student and lawyer through the use of technology, through the use of the clinical programs, and working with the community.

One of the major issues, as we talked about, going forward is finding a solution to debt burden and the rising costs of education and what’s required to provide a quality education.

FRIEDMAN: It’s always difficult to look into the future. But from a legal education perspective, I hope that the law schools keep their eye on the ball. It was good to hear Steve say before the value of the Socratic method. I think that’s true. I think it’s invaluable that, every day, students get tested. They have to show they have a grasp of the facts in a particular case. They have to show they understand what the outcome-determinative issues are. … Then they can be asked, “Do you think that was the correct outcome?” And they can be forced to defend their position. That’s an invaluable element of producing lawyers, people who are competent to practice law in any setting.

For a firm like mine, the issues to address in the future are diversity. Number one is to recruit a much more diverse workforce at the professional level. … Wisconsin’s not a terribly diverse state. These law schools have done a very good job attracting students from around the country and from different racial and ethnic groups.

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’ve even just recently have a full-time manager-level person who’s in charge of diversity. That’s how important it is to the future of our business.

The other big problem we face is retention of younger lawyers. This goes back to this disconnect on expectations. We’re like the NBA. We pay students out of law school ridiculous amounts of money for what they can really do and produce at the time. So we’re able to hire the best and the brightest, as they say. But we can’t keep them. Our turnover is … extraordinary.

Large law firm consultants will tell you with a very straight face, if you lose a young lawyer, it costs you somewhere between $200,000 and $300,000. So the retention issue is a big issue to address. Also trying to hire people who have a better understanding and expectation of what it’s like to practice in our environment and who will hopefully enjoy it, find it rewarding, will succeed at it, and stay.

KEARNEY: We are going to see more of the same. By that, I don’t mean that legal education is going to be static. I do not think it’s been static over the 17 years since I’ve been out of law school, but we’re going to see more iterations or variations of the same challenges that we’ve been talking about this afternoon.

I think that there will be continuing emphasis on the skills aspects of law school. Steve mentioned that the MacCrate Report has been with us for 15 to 20 years. And still today law schools are talking about whether they do an adequate job with respect to that. I am confident, we will not lose sight of the fact that to a very considerable extent it is the doctrine and legal precepts that people most need to walk away from law school with and a general desire to do good, or even knowledge of certain skills.

	Related Article Roundtable Part I

I think we will see more with respect to specialization, whether it’s ADR or whether it’s intellectual property. There will be a continuing push with respect to that. I think that the technology will continue to be a concern. We don’t quite know what the concerns will be because it is so difficult to predict how that will unfold. I think that Jim’s point with respect to diversity … is a challenge that’s going to remain with us.

I would like to think that we know what the basic challenges are going to be, although we don’t know what their specific manifestations will be in any instance. Now that I’ve said that with some confidence, if I had been the dean of Marquette Law School even as recently as 15 years ago, I doubt we would have been able to foresee what’s happened with technology. I am quite certain that we would not have identified the future of the law library as one of the most profound questions with which law schools have to wrestle. So I make my predictions with a great deal of humility.