Putting Foundations for Practice into Practice

As stated at the outset, when we started Foundations for Practice, we identified three objectives. We have achieved the first: we now know the foundations entry-level lawyers need to launch successful careers in the legal profession.

  1. Identify the foundations entry-level lawyers need to launch successful careers in the legal profession;
  2. Develop measurable models of legal education that support those foundations; and
  3. Align market needs with hiring practices to incentivize positive improvements in legal education.

Initially, we saw the second and third objectives as distinct, but over the last two years we have come to understand that they are inextricably linked. If we want law schools to create or sustain existing programs that educate students toward the desired outcomes identified by this study, we need employers to hire based on the foundations they said they desired; and, if we want employers to hire based on the foundations they said they desired, we need to find a way for them to buy into the school’s plan to teach and evaluate students on this broader set of learning outcomes.

For Law Schools: Measuring Learning Outcomes

Law schools are not the first institutions of higher education to think about how to better assess student learning. In a history of learning assessment that begins in the early 20th century, Richard J. Shavelson notes that “[t]oday’s demand for a culture of evidence of student learning appears to be new, but it turns out, as we have seen, to be very old.”(34) The journey has been fraught with resistance and challenges. The foreword to Shavelson’s article warns: “One of the most dangerous and persistent myths in American education is that the challenges of assessing student learning will be met only if the right instrument can be found—the test with psychometric properties so outstanding that we can base high-stakes decisions on the results of performance on that measure alone.”(35)

When it comes to assessment, American law schools no longer have the luxury of pursuing the perfect at the expense of the good. The American Bar Association’s Council to the Section of Legal Education and Admissions to the Bar passed in August 2014 revised standards that included four standards that, broadly, require publication and assessment of student learning outcomes; utilization of formative and summative assessment methods; and evaluation of the program of legal education, learning outcomes, and assessment methods.(36) The new standards will be applied to the incoming class of 2016-17.

Standard 302 prescribes some of the outcomes law schools must set and measure, including:

     a)  Knowledge and understanding of substantive and procedural law;

     b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communications in the legal context;

     c) Exercise of proper professional and ethical responsibilities to clients and the legal system;

Standard 302 also leaves the schools significant room to define their own outcomes:

     d) Other professional skills needed for competent and ethical participation as a member of the legal profession.

Standard 302(d) has been further explained to “include skills such as interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency, and self-evaluation.”(37) It has also been further explained to allow law schools to “identify any additional learning outcomes pertinent to [their] program of legal education.”(38) The impetus to identify and measure learning outcomes and the identification of the foundations in this study creates an opportunity for law schools. Interestingly, many of the legal skills that actually are necessary right out of law school—like using techniques of legal reasoning and identifying facts and legal issues—are among the core legal skills that law schools already spend significant time developing in their students as they teach them how to think like lawyers.

For years, there have been debates between those who think graduates need to be “practice-ready” and those who believe that law school should not be a trade school—and it appears they are both right. Respondents to our survey were clear: new lawyers donot require the “nuts and bolts” immediately when they begin to practice, but they do require foundations that will allow them to build and grow over time.

Moving forward, we recommend that law schools use Foundations for Practice to:

  1. Work with employers and the legal community to develop measurable learning outcomes and create and reward law school programs and courses that develop the requisite characteristics, competencies, and legal skills;
  2. Build those courses into the curriculum;
  3. Encourage prospective students and law students to assess their own foundations to help them make informed decisions about whether to attend law school and to create individual learning plans that help them develop the necessary foundations through school and other opportunities, like work experience and extra-curricular activities; and
  4. Evaluate the current criteria for admitting students to law school and consider new criteria that paint a picture of the applicant’s characteristics and competencies beyond intelligence.

For Legal Employers and the Profession

To help law schools make meaningful use of the results of Foundations for Practice, we need to fix another gap: the gap between what the profession says it wants in new lawyers and the way the profession actually hires new lawyers. We know that legal employers tend to hire on traditional criteria—law school attended, class rank, and law review—that may tell them much about the intelligence of the job candidate but very little about the character quotient of the lawyer or about the whole lawyer. But when asked in our survey to indicate the criteria that would tell them if a job candidate had the foundations most important to them, overwhelmingly they singled out experience, including legal employment, clinics, experiential education. Law review was noted as the second to least useful criteria.(39) We will explore these results in full in a future report, but when taken together with the results presented here their implications are clear: if the profession wants law schools to prioritize these foundations in legal education, legal employers must prioritize them at every stage of hiring—from résumé review to interview to offer.

Endnotes:

34.  Richard J. Shavelson, A Brief History of Student Learning Assessment: How We Got Where We Are and a Proposal for Where to Go Next 23 (2007) available at http://cae.org/images/uploads/pdf/19_A_Brief_History_of_Student_Learning_How_we_Got_Where_We_Are_and_a_Proposal_for_Where_to_Go_Next.PDF.

35.  Id., at vii.

36.  Am. Bar Ass’n Standards and Rules of Procedure for Approval of Law Schools 2015-2016 §§ 301, 302, 314, 315 (2015), available at http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2015_2016_aba_standards_for_approval_of_law_schools_final.authcheckdam.pdf.

37.  Id. Interpretation 302-1.

38.  Id. Interpretation 302-2.

39.  After indicating the necessity and urgency of 147 foundations, respondents were asked “How helpful are each of the following in determining whether a candidate for employment has the qualities that you have identified above as important?” Gerkman & Cornett, supra note 10.