A recent Wall Street Journal article with the cheery title, “What's a First-Year Lawyer Worth?—Not Much, Say a Growing Number of Corporate Clients Who Refuse to Pay” (Ashby Jones and Joseph Palazzolo, October 17, 2011), approaches the question of legal hiring from the perspective of the corporate clients who pay the bills. So Wall Street Journal of them, worrying about the corporations! But it’s a perspective in the running commentary about legal employment that is often absent. The biggest law firms traditionally have treated their most junior lawyers as apprentices to be trained, but paid them top dollar nonetheless. As the sluggish economy endures and corporations try to save money in every possible way, clients have expressed increasing skepticism about the value of the newest attorneys on their cases, and thus balk at paying their fees. The senior billing attorneys thus hesitate to staff cases with the junior lawyers, because who wants to argue with a client? And firms accordingly hire fewer junior lawyers. Voilà, a legal employment crunch is born.
According to the article, one of the issues with the skillset of the “newly minted lawyers” is the lack of “comfort and confidence with clients,” along with knowledge of “many nuts and bolts, such as how to prepare a witness for a deposition.” (Here’s another short piece with a related point.) What’s a new lawyer to do? How can you emerge from the law school cocoon with experience in working with clients and preparing a witness for deposition?
By taking a clinic. Now, for those not immersed in legal education, a “clinic” can sound like a bizarre thing for a law student to take, conjuring up images of flu shots and bandaged wounds. That’s not the kind of clinic I’m talking about. Corporate clients may be leery about the witness-preparation skills of new lawyers, but I’m sure those abilities are far more developed than their flu-shot-administration skills. Rather, the laws of many states allow law students to act as lawyers—appearing in court, counseling clients—as long as they do so under law school supervision. (In most states, students are allowed to participate fully in clinics only in their third year; in Michigan and Connecticut, they can do so as early as their second year.) In law school clinics, students represent real clients with real problems, gaining the confidence and skill decried as otherwise lacking. In their earliest incarnation, decades ago, clinics were typically viewed in exclusively social-justice terms; you did a clinic if you wanted to save the world. Clinics still often offer opportunities to save the world, but more commonly, people recognize the best reason to take a clinic is to take a major step toward coming out of law school with enhanced marketability.
But not all clinics are created equal. A first-year contracts class is going to be similarly structured everywhere; you’ll certainly have variation in the quality of instruction, to be sure, but the day-to-day mechanics aren’t going to vary a lot. In contrast, schools put the label of “clinic” on a range of quite different enterprises. Because clinics ideally have a very low student-faculty ratio, they can be an expensive component of legal education and, simply put, not all schools invest equally. Rather than talking specifically about our clinics (I try really hard in this blog not to sound like the Michigan-Law-Chamber-of-Commerce, and the complete transformations I’ve seen in students’ lives and future careers thanks to clinic experiences would make it impossible for me not to gush in a wholly unattractive way), I want to identify some variations in the experiences that commonly fall under the aegis of “clinic.” Your assessment should zero in on three key criteria:
Who’s supervising will determine whether the program is truly an in-house clinical program or, instead, something more akin to an externship. Is it a full-time member of the clinical faculty? Some law schools offer clinics in which local lawyers supervise the students, while clinical faculty only teach a class in conjunction with the experience. That model certainly is not without value, but it is vastly different than day-to-day supervision by an experienced faculty member. Being a lawyer who is very experienced in a particular field does not necessarily translate to being a great mentor and manager of less experienced lawyers. Clinical faculty, however, are trained in clinical methods to exactly that end. Likewise, practicing lawyers have 101,239,398,487 or so other responsibilities each day on top of making sure a student's experience is a good one. Clinical faculty members, though, are focused, laser-like, on the student. The training and exclusive focus gives them both the ability and the incentive to strive for constant improvement of the student experience.
(I am a good example of the potential deficits of the practicing-lawyer-supervisor system. This summer, I worked pro bono on a case for the ACLU, and the legal director told me I should rely for help on a Michigan Law student intern whom I already knew very well and thought very highly of. And she did great work whenever I figured out what to ask her for help with. But I was, on the whole, a complete failure at figuring that out, and likewise, with providing useful guidance and feedback. Happily for her, I was only one tiny sliver of her summer work portfolio, and she had more competent supervisors to train her.)
Some schools use staff attorneys or adjunct faculty to do hands-on supervision, while the clinical faculty function only to teach a seminar attached to the clinic. The staff attorneys, though, are likely to vary greatly in quality. When hiring clinical faculty members, the existing faculty at a law school will screen, review, and promote based on the ability to be an excellent teacher; adjuncts and staff attorneys, however, are expected to come and go, and won’t have to satisfy that level of scrutiny. They may be excellent, or they may not be. Quality is less predictable with this model of instruction.
Another key factor is the type of work students are allowed to perform. It is not usually considered key to career development that students take a clinic in the particular field of their future interest—future civil litigators, for example, can learn a lot from exposure to criminal litigation—but it is absolutely crucial that the work be substantive. If it’s a trial litigation clinic, are you actually going to go into court? Conduct witness interviews? Depose people? Pick juries? If it’s an appellate clinic, are you actually writing the brief, or merely cite-checking someone else’s work and writing, say, footnotes? Are you arguing the appeal? If it’s a transactional clinic, are you interacting with clients and giving them advice? Are you dealing with opposing counsel? Or are you sitting silently by while someone more experienced does the talking?
Overall, are you given the freedom to learn how to fail in the clinic? “Freedom to fail” may not sound like a winning slogan, but honestly, that’s a necessary component if the experience is going to be valuable. It’s unquestionably better to fail in small ways when you have a professor looking over your shoulder to help you course-correct than it is to fail in large ways in your first job.