Eduardo A. Maura, Attorney at Ayala Law P.A. from Miami, Florida discusses the gaps between legal education and practice and how to fill them...
The gap between what you learn in law school and what you do in the actual practice of law is still problematic. Sure, a gap will always exist. Experience cannot be taught. The type and size of the gap is the problem. This gap is unique to the law. Doctors and nurses go through extensive practical training that enables them to practice their trade at a good level from day one.
This gap is twofold. Firstly, there is a gap between what subjects are taught in law school and the areas where students will practice. Secondly, there is also a gap between the skills they are taught and the skills they will need in practice. There has been much written about it. One of the more substantive articles is a 2013 piece by Neil Dilloff. While I agree with most of his input, my approach tries to give the perspective of the solo/small practitioner.
What is the “practice of law”? The American Bar Association (ABA) defines it as “the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.” I find this definition tautological, perhaps because the practice of law is so complex and diverse that it is hard to define. There are, in fact, many types of practices of law. The volume-case, the paralegal-driven professional indemnity insurance practice has little to do with the “big law” corporate defense practice. Similarly, a small criminal defense or traffic ticket practice has little to do with appellate practice, or with the other practices mentioned before.
Given the diversity of what the “practice of law” is, we cannot train future lawyers for all types of practices. What we can do is train them for what is done the most. The majority of lawyers end up practicing professional indemnity (PI), insurance defense, family, immigration, commercial, real estate, or employment law—with professional indemnity insurance taking the spotlight. We don’t need a statistical study to know this. After all, who has ever seen a big billboard saying: “Got admiralty problems, call 1-800-ADMIRALTY”? Nine out of ten billboards for legal services contain some form of the word “injury.” Only a small minority of lawyers end up practicing fashion and design law, admiralty law, sports law, European Union (EU) law, land-use planning, water resources law, and other legal fields taught in law school. In short, if PI is what the majority of students will end up practicing, should law schools teach them more about PI? It would make sense to train them more on what they will likely end up doing.
The skills required to practice law are as diverse as the “practice of law” itself. Just like with the issues, we can figure out what are the most common skills needed for the average practice.
For starters, it is no secret that the practice of law is demanding. The Florida Bar News and Journal always has a section on lawyers’ well-being, mental health, mindfulness, substance abuse, or stress management. This is not fortuitous. The practice of law is intense. A typical litigation practice needs to maintain a certain number of active cases to be profitable. Each one needs time, dedication, and intellectual work—a task that is draining per se. Additionally, lawyers deal with opposing attorneys who are paid to defeat your case. Moreover, judges may have strict deadlines and detailed procedures that can be stressful to keep up with because the failure to comply with them can subject you to serious sanctions. Law students are not trained (or not trained enough) to keep pace with this demanding lifestyle. The practice of law requires you to do many things well, at the same time, and under strict deadlines and pressure.
Think of a legal writing class, for example. At law school, students spend an entire semester writing mock appellate briefs and preparing for mock appellate arguments. This pace does not resemble the pace law students will face in the real world. In a small practice, you cannot afford to spend four months writing an appellate brief. An appellate brief at our firm is one of the two-week assignments. In these two weeks, you have to research the docket, the law, the particular court rules, put together an appendix of documents, prepare the brief, the table of contents, the table of authorities, and submit it all in compliance with the detailed rules of the particular appellate court you are before.
This also applies to trial practice. Law students spend an entire semester in a moot trial. In practice, we may have a trial once a month. Of course, they are not all large trials, but the reality is that 95% of law students—if they ever try a case—will deal with small or medium-sized cases, where you prepare two or three weeks before or less, and then go at it. I don’t pretend to send a “law schools are doing all wrong” type of message. Rather, I’m trying to send a message from a point of view that it’s not often heard. So, my advice would be that, in addition to what they already learn, law schools should teach students:
Speed writing: Teach them techniques to write high-quality briefs fast; speed matters a lot in practice.
Problem-solving: Teach them to solve problems, to create something from nothing; this should be a higher priority in law training.
Hearing attendance: This is an art, perfected through practice. Most law students will not end up in front of an appellate panel but at the state court’s Uniform Motion Calendar. Establish a moot motion calendar once a week. Have students work out with “opposing counsel” to see if they can resolve the issues prior to the hearing, just like we do in practice.
Shorter motion writing: Less appellate briefs, shorter motion writing.
Persuasive writing: Teach them to write persuasive, succinct memoranda.
Case diagnostics: Elements, profitability, the likelihood of success, judge surveying, state of the law, etc.
People and communications skills: Emotional intelligence is not natural to all. Teach it.
Case logistics: In a complex case, the logistics can be overwhelming and take more time than briefing or hearing attendance.
Strategy and case planning: Teach them to focus on the big picture, to meaningfully prosecute cases, focusing on the ultimate goal.
Teach them passion: I love what I do, but I did not always love it. Passion can be nurtured.
Teach them logic: Solid logic persuades, in writing, orally, everywhere. New lawyers may never have been exposed to formal logic training, in undergrad, law school, or anywhere else. Solid logic skills are an important part of advocacy.
Teach them email etiquette, communicate and deal with judicial assistants and chambers, and deal with difficult opposing counsel or judges.
A lawyer once said, “you can’t yoga your way out of burn out.” I couldn’t agree more. What you can do as a law school is to train future lawyers to be efficient and to have the skills and the knowledge to do many things at once in a less stressful way.
Eduardo A. Maura is a practicing attorney at Ayala Law P.A.
Suggested Citation: Eduardo A. Maura, Bridging the Gap: Teaching Law Students What They Will Practice, JURIST – Professional Commentary, September 21, 2020, https://www.jurist.org/commentary/2020/09/eduardo-maura-teaching-practice/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org.
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