Class Action Countermeasures : Class Action Lawyers & Attorneys : McGuireWoods Law Firm : Complex Litigation, Mass Torts

 As Colorado Law Professor Paul Campos has observed, it has rapidly become a cliche that law schools are in crisis. They charge too much, and they don't prove adequate training or job placement in return.  As a result, they are losing enrollees quickly, which means that a number of them may have to start cutting back or shutting down in the foreseeable future.

And, rather than confront the problems, most legal academics have shrugged and talked about how the problem is systemic, and therefore likely insoluble.

Of course, there are solutions out there. They just require political will (itself a very scarce resource). Take one that's relevant to this blog, sitting there, right under our noses, like a $100 bill no one will pick up off the street. [http://www.litigationandtrial.com/2012/12/articles/the-business-of-law/if-it-was-easy/.]

So here's a modest proposal for law schools not in the T14. [http://lawschool.about.com/od/lawschoolprofiles/tp/T14.htm] Start a legal aid clinic, or retool your current clinic. Hire three to four disaffected class-action lawyers. Now, focus the clinic's work entirely on class actions, a nice diversified portfolio of mortgage work, civil rights work, consumer work, and maybe even the occasional securities case. Don't be afraid to object to outrageous fees in other cases. [http://www.pointoflaw.com/archives/2012/12/stop-complaining-about-the-legal-job-market.php.]

Now, here's the extra bit no one seems to have considered. Give any student willing to commit three years to a full-credit Clinic course a full ride. How do you afford this? Make actual fee requests. Underbid the 33% contingency, but you don't have to do so by much. The fees go to funding these scholarships, and then to reducing tuition for the remainder of the students.

Many of the costs of prosecuting a class action involve manpower. You need people to review documents, to take depositions, to research legal theories, to hunt down clients, and to appear at arguments. All of these are important legal skills, some of which are not currently taught. A clinic like this would teach them.

(Even the other large cost--expert fees--can be reduced in a university setting. Many experts are academics. Give those "experts" willing to be on-call for the clinic a break on other administrative duties.)

Sure, it would take a few years for the clinic to become "profitable" (read, sustainable), but a law school concerned with its own sustainability should be able to make the investment. This is a top-of-the-head idea, so there are likely many, many flaws I haven't worked out. But if class actions are really about promoting the public good (as many academics claim), and if plaintiffs' lawyers are motivated by more than just money (as Morris Ratner has argued), and if law schools really exist to provide practical legal training to new lawyers, then this proposal should be an easy, easy sell.

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 I've written before about the current crisis in legal education. And I write from the perspective of an interested bystander. I like the idea of well-educated lawyers, but I also think that legal scholarship is often impractical and insufficiently strategic.

Moreover, it seems that the standard complaints about law school at this point are that (1) it is too expensive; (2) it does not teach one how to be a lawyer; and (3) it turns out too many lawyers for too few legal jobs. One could characterize all of these objections in economic terms like this: a profession like law requires barriers to entry, both for the good of the non-specialist consumer and the sustainability of the profession. (Here, barriers to entry are just another term for a way of making people self-select for a limited number of slots.) There is no question that there are high barriers to entry right now to being a lawyer; it costs a bundle to go to law school. But making cost the barrier to entry focuses on the wrong thing. Instead, we want ability and drive to be the barriers to entry.

So here's another crazy idea: make law school more like the US Armed Forces War Colleges. For those who don't know what they are, the War Colleges (the US Army War College, the US Naval War College, and the Air War College) are institutions that train leadership candidates in strategic and operational disciplines to make US war fighting more effective. They offer one-year courses of study that focus heavily on basic strategy and cutting edge tactics. And they sponsor research and scholarship as well, but with a distinct bias towards material that can actually be deployed in conflicts. Like law school, they focus on training critical thinkers and inculcating some sense of a profession. Unlike law school, they largely can't afford to crawl too far up their own intestines.

So how would this crazy blog-post proposal work in practice? Well, we'd have to switch up the ABA Standards for Approval of Law Schools.

1. Candidates for law school would spend two to three years as paralegals or other legal paraprofessionals. (Professional document reviewers, perhaps.) They would do this in the employ of law firms, public interest law groups, or the government, which would pay them salaries at market rates.
2. Admission to law school would be contingent on paralegal experience, and would require sponsorship by the employing institution. (Some institutions might even agree to provide some monetary sponsorship, much as some business firms will pay some business-school tuition.)
3. Law school would be clinical from the get-go. The primary course would be a clinic. Basic first-year courses would be taught as well, but with a hard focus on practical applications to current cases.
4. Law school would employ mostly JDs with practice experience as faculty. It might also employ some specialized non-legal faculty, in areas like economics, history, psychology, and literature (practical rhetoric is, after all, a vital legal skill). And, of course, JD/PhDs would be more than welcome. But those faculty would also be focused on research that helped develop legal strategies.
5. The course would be either one or two years, and cost less than current law school. Fewer loans would be available, since there would be a presumption that the candidates could afford to pay some out of pocket from their previous employment.

This approach would offer some of the same benefits we supposedly get from the current model:

• It would keep the focus on critical thinking, making arguments, and legal strategy (to the extent those currently exist).
• It would continue to inculcate professional values into young lawyers, including a concern for benefiting society.
• It would allow for interesting, practical scholarship of value to judges and the legal profession.
• It would be agnostic about the kind of law practiced after graduation. Graduates could still work solo, work in-house, work for the government, work for public interest groups, or even--Heaven forfend--work for law firms.

But it would also offer some distinct advantages over the current model:

• The focus would be on training actual practicing lawyers, instead of baby law professors or baby federal judges.
• * Young lawyers would go into law school with a much better idea of what practice looks like. Law school would no longer be the default for lost liberal arts graduates who test well.
• Becoming a lawyer would be more a question of opportunity cost than up-front funds, a more reliable method of sorting the truly committed from the trustifarians.
• Young lawyers would graduate with significantly less debt, which should in the long run reduce the costs of hiring a lawyer.
• There would be more competition for paralegal jobs and document review, which would lower the costs of discovery and routine legal tasks.
• There would be a renewed focus on law as a learned profession as opposed to a path to owning a private jet. (So it would be harder to get rich as a lawyer, but much easier to make a living.)

I am under no illusions that the ABA will adopt this suggestion any time in the near future. And I am sure there are a number of distinct disadvantages, too. (Feel free to share them in the comments.) But when a system is as broken as the current legal education system is, people should be considering all kinds of oddball ideas. And you can't deny, this is certainly one of those.

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 In the past year, there has been a spate of criticism of legal education. The upshot: it's too expensive, it doesn't actually train new lawyers, and it produces a lot of scholarship of no use to practitioners or judges. Pair this rising criticism with rising educational costs and rising legal unemployment, and it is hard to deny that law schools are facing a real crisis of legitimacy. As a very large consumer of legal scholarship, and a big fan of well-educated lawyers, this worries me.

From what I've seen, there are a few questions that espouse a few occasionally conflicting goals:

1. How do we reduce the cost of legal education so law remains a career available based on merit rather than money?
2. How do we make sure that the teaching of law remains relevant to the practice of law?
3. And, not to be underestimated: how do we make sure that law remains a learned profession that produces high quality thinkers?

So, in the spirit of trying to help out with "good strategy," [] here are five suggestions, some new, some floating around, for how we might reach these three goals with a coherent plan of action. (What's the "nugget"? Produce well-trained, well-educated lawyers.)

• Require briefs instead of exams. I'm sure it's easier to grade exams. But--except for the bar--lawyers don't take exams. We write briefs (or deal documents). We argue in court. We advise clients. We negotiate with people. Start teaching to what the lawyers actually do. (This wouldn't just help the students; it would also give a small leg up to all of those professors who envision themselves someday becoming federal judges.) Might this require reducing class size? It might. I'm not sure that's a bad thing.
• Ditch casebooks; teach out of current cases. The best education I ever received in my field (and I was lucky to learn from some great lawyers) was writing a book on class actions, and then starting this blog. Why? Because it forced me to read through many many cases, mostly current, but also working my way back through older ones with lots of influence. I have no doubt casebooks are helpful to professors. But they're also very expensive. Why not just teach the students out of both the classic and the current cases? Just like young lawyers learn? Get them straight to the primary sources. It will hone their research skills at the same time as it reduces their expenses. 
• Cut the ABA's physical library requirement. Look, I love books. I am a huge fan of books. But, particularly in the law, I have been cutting the number of books I actually own. And you know what? I don't miss them. I can do most of my research (both for cases and for my other writing) either online or at least onscreen. Electronic books and cases are easy to search and annotate, and are increasingly where most people turn. So why do we still need--particularly for newer schools--these large buildings that are expensive to maintain and full of physical books no one uses? I'm not saying we should get rid of the D'Angelo Law Library, necessarily. But for smaller schools further down the rankings, this would be a cost-effective way to provide the same services the bigger schools use.
• Fewer tenured faculty; more practitioner adjuncts. This one has been a popular suggestion. And we are lucky in the class-action field that we have a number of good professors who have been class-action practitioners.  But we could certainly use more people who have spent significant time in the trenches. At least some deans have complained that one of their schools' largest fixed expenses is tenured faculty. There's a simple fix for that. (And let's be clear; I know and like many fine tenured law professors.  And the ones I know are--to a person--good people doing good work. It does not please me to suggest cutting their jobs. But it also does not please me that many younger lawyers I know are struggling, or that many students I know are considering going into a profession that will bleed them dry with educational debt.) How would I envision doing this? Require a Ph.D. and J.D. for the tenured faculty, and reduce their ranks accordingly. (This allows you to maintain the "research institution" where possible.) For your adjunct faculty, take high-achieving J.D.s. Sure it's disruptive, but the high-achieving J.D.s who wind up displaced are well-placed to (1) get Ph.D.s of their own or (2) go back into law.
• Cut legal education to two years (or fewer); bring back the apprenticeship. It may be the effect of living in Britain, but the idea of less "education" and more lower-paid "on-the-job training" appeals to me at this point. It allows for a period of training that does not have to be subsidized by clients. And the addition of a few years of training (think like a medical residency) would raise the perceived barriers to entry to the profession. Of course, I say this as someone who got to jump into a biglaw job out of law school during a boom period, so salt this suggestion to your taste.

Short-term, it's easy for us all to point fingers. But longer term, finding scapegoats doesn't help nearly as much as finding solutions. (Plus, if one tries to look in an unbiased way, it's hard to find anyone really to blame. This is one of those times that the problem is truly systemic.) There's a lot about legal education to like; but there's no question that the current model is simply not sustainable.

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