Better Lawyer Licensing, Part 2: The Second Three Building Blocks of Minimum Competence

June 24, 2021

"hand holding a wooden block, stacking on top of other wooden blocks"IAALS’ report, Building a Better Bar: The Twelve Building Blocks of Minimum Competence, provides the first-ever empirically grounded definition of the minimum competence required to practice law. Our comprehensive study found that minimum competence consists of 12 interlocking “building blocks,” which reveal not only what it takes to be a minimally competent lawyer, but how current licensing systems must be improved to reflect what new lawyers—and those they work with—actually do in practice.

In a previous post, we covered the first three building blocks of minimum competence—the ability to act professionally and in accordance with the rules of professional conduct, an understanding of legal processes and sources of law, and an understanding of threshold concepts in many subjects. Now, we’re covering the next three, looking closer at more of the interlocking components of what it takes to be ready to practice law.

Building Block #4: The ability to interpret legal materials.

Although legal materials such as ordinances, statutes, and agency rules are available to anyone who’d like to access them, lawyers go to school to learn how to interpret them—and provide that value to their clients. So, it’s no surprise that our focus group participants identified proper interpretation of legal materials as crucial to a lawyer’s work.

Proper interpretation of legal materials includes a variety of abilities, not all of which new lawyers felt they had mastered. A majority of the new lawyers in our focus groups were comfortable with their ability to interpret judicial opinions. However, feelings were mixed when it came to how well they felt law school had prepared them for statutory interpretation. This was also true for contract interpretation: “They observed that law school teaches the principles of contract formation, but not how to read or interpret contracts.”

“Law school focuses almost exclusively on case analysis and my work is, I never look at a case, it’s all statutory interpretation and regulations.”

New lawyers need to enter their first year of practice knowing the difference between holding and dictum in judicial opinions, the role of precedent, and canons of statutory construction. They must also read carefully and pay close attention to details, allowing them to focus on fine distinctions in contracts, statutes, and opinions.

Building Block #5: The ability to interact effectively with clients.

Despite the fact that more than half of the new lawyers in our focus groups worked directly with clients in their first year, many expressed they felt incredibly unprepared for this aspect of work. They had difficulty identifying with clients of different backgrounds, whether that be race, gender, nationality, or socioeconomic status. In addition, some clients didn’t speak English, and almost none were familiar with legal jargon—making communication between new lawyers and clients even more difficult.

To overcome these differences, new lawyers need three sets of abilities:

  • The ability to gain a client’s trust, gather relevant facts, and identify the client’s goals
  • The ability to communicate regularly with clients, convey information and options in terms that a client can understand, and help the client choose a strategy
  • The ability to manage client expectations, break bad news, and cope with difficult clients

Lawyers need more than mere people skills—they have to balance dealing with clients on a human level with getting all the information they need, as well as figuring out how to accomplish the goals of their client’s case. Lawyers also have to communicate frequently with their clients, especially those who aren’t familiar with the often-slow pace of the American legal system, and must successfully handle clients who may be under tremendous stress.

“Somebody can know the black-letter law inside and out, and then their first day on the job they are sitting in front of somebody who is incredibly worried, incredibly anxious. . . [There] hasn’t really been any formal training on what do you do when this person’s on the brink of tears and you have to take him in front of the judge.”

Building Block #6: The ability to identify legal issues.

Resolving a single client matter can require identifying dozens of legal issues—and this process isn’t always intuitive. Many focus group members noted that identifying legal issues in practice is different from the “issue spotting” they did throughout law school and during the bar exam; being able to walk through clients’ stories, which are often complicated and incomplete, required three related abilities and sets of knowledge:  

  • The ability to think critically, with an emphasis on the word critical
  • An understanding of threshold concepts in a wide range of legal subjects
  • The ability to interact effectively with clients

Critical thinking skills were necessary in order to break down client issues—and, in fact, focus group members related that new lawyers skewed toward finding too many issues rather than missing them. Additionally, new lawyers need to understand threshold concepts in order to see clients’ issues through a series of “lenses” (as one supervisor put it) rather than as part of one comprehensive list of problems. Broad understanding, our focus group members concurred, is more beneficial to new lawyers than detailed knowledge of a single area.

And, new lawyers need the ability to interact effectively with clients, whose complex stories may reveal that more than one issue is at hand:   

“You start with people’s lived experiences. So someone comes to you and they are pregnant and are being discriminated against because they’re pregnant. You’re going to look to what laws cover pregnancy discrimination, and then kind of build out from there. . . . But your job also is to identify all of the other issues that are arising, right? Like maybe they come to you for that, but there’s also race discrimination. There’s also caregiver discrimination. . . . And so it’s really more the skill of issue spotting and then learning the law based on those issues that you saw.”

Our study found that lawyers who remained flexible were best able to serve their clients. And, the skills required to interact effectively with clients could be applied to supervisors, too, who may have issues that are of particular importance to them. “The best new lawyers,” one supervisor related, “Are the ones who . . . understand the end goal and are then thinking broadly as they’re doing the research.”

The knowledge, skills, and judgment laid out here work in tandem with the first three building blocks of minimum competence—and these, in turn, go hand in hand with the remaining building blocks, the next three of which we’ll explore in more detail in an upcoming post. Together, these components provide a foundation that ensures new lawyers are actually practice-ready and can serve clients with confidence.

Our full findings and recommendations, including the 12 building blocks of minimum competence, our 5 insights for assessment, and our 10 recommendations for better licensing, can be found here.

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