New York Times: Great Article; Faulty Conclusions About Soloing Out of School

(Update: Victoria Pynchon has continued this conversation in her popular Forbes column in a post called ‘Occupy Law School at Solo Practice University‘)

To succeed in this environment, graduates will need entrepreneurial skills, management ability and some expertise in landing clients. They will need to know less about Contracts and more about contracts.

“Where do these students go?” says Michael Roster, a former chairman of the Association of Corporate Counsel and a lecturer at the University of Southern California Gould School of Law. “There are virtually no openings. They can’t hang a shingle and start on their own (emphasis added). Many of them are now asking their schools, ‘Why didn’t you teach me how to practice law?’ ”

While this New York Times article was spot on when discussing 95% of the problems with law school, the impractical education, the internal top-heavy, tenure-driven structures which prevent it from moving forward, the decreasing value of scholarship and the increasing cost of this depreciating intellectual asset, they threw in a quote which spoils their conclusion, ‘They can’t hang a shingle and start on their own.’

Now you may believe as I write this I have an agenda because I operate Solo Practice University®.  You are right.  I do have an agenda.  My agenda has always been and will continue to be that practical education is an imperative while in law school within the curriculum and should be mandatory for graduation. Students who are paying for the full pie should get the full pie, not half a pie. But practical education is not only not offered with very limited exceptions, but when it is offered it’s an elective and usually a two-credit Law Office Management Class.  I was hit with this like a bucket of ice water in the face when I started law school January of 1992!  And I have railed against the structure of law school and its priorities relentlessly since then. And it was, in fact, the impetus for creating Solo Practice University®.  And I am very proud of every faculty member who understands this and gladly participates and all the students who have trusted us to help them and the growing number of law schools who realize they need to help their students.

However, there is one illogical and unsupportable conclusion to this article; the erroneous assumption that even with the current curriculum, students can’t come out of law school and hang a shingle.  As a result, there is an automatic sweeping dismissal of all those students who DID come out of law school, hung a shingle immediately and did so very well. Those who will defend the article’s conclusion will usually pull out this old chestnut, ‘those who did  are an exception.’  They are only an exception because the law schools, alumni newsletters, national and local legal publications seldom have any data on the nearly fifty-percent of private practice attorneys who ARE solos.  They don’t publicize their successes as a norm, but as a novelty.  They are quick to publicize a solo’s failure or ethical misstep knowing full well the countless failures and criminal activities of those in large law firms but who have the money behind them to ‘make the problems go away.’ So, the world gets a very lopsided view of the solo practitioner from professional cradle to grave.

The article focuses on the failure of law schools to educate to practice.  They do fail to educate to practice.  The article, however, misses one crucial point: it does not look at the skills and talents and ambitions of the students who come to law school.  The article (as would be expected)  focuses on the lack of skills of first year associates who were hired by large firms at $150,000 upon graduation.

Those who fit the selection criteria of large law firms seldom have the skills and talents and ambitions of someone who wants to go solo and be an entrepreneur.  Someone who focuses on filling their law school resume with moot court, law review, and other employer-friendly activities seldom wants to go solo so they eschew (optional) clinical work, summer positions with legal aid, pro bono opportunities, or shadowing a solo practitioner while in law school.  Those who do want to go solo seek out these opportunities and get practical training without having to pay their law school an exhorbitant sum of money to do so. They may also opt to go to a more cost-effective school putting them off the radar of large firms. And unfortunately, many schools dismiss these students from further consideration when they say they are going to open up their own shop…but not before a parting shot assuring them they will fail.

I do encourage everyone to read this article if you haven’t already.  But pay attention to what is NOT being said about the majority of lawyers out there, that in spite of the lack of practical training solos succeeding right out of law school are not a novelty.  I’ve not only lived it but do not consider myself unique in any way, shape or form.  There are countless who have gone before me, with me, and legions more will follow.

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6 comments on “New York Times: Great Article; Faulty Conclusions About Soloing Out of School

  • Law schools will revise their curricula and incorporate more practical skill-building courses into legal education when there is sufficient market pressure to do so, or when the presidents of law schools finally see the light and replace theory-faculty with practice-faculty. Will that happen any time soon? It’s hard to say.

    The American model of legal education has long assumed that an essential part of learning “how to be a lawyer” actually takes place outside of law school. Law school was not/is not designed to provide “the whole pie.” Since the invention of law school, it has been understood that one becomes a lawyer by serving as a kind of apprentice to older and more experienced lawyers as part of the professional journey. Field-based learning is part and parcel of the road to practicing law. Just as a new med school graduate becomes a full-fledged doctor by first serving as an overworked resident in a hospital, a newly minted law school graduate becomes a full-fledged lawyer by serving as an overworked junior associate in a firm.

    This “extended apprenticeship” model worked quite well so long as there were positions for junior lawyers to fill. But now that the junior positions in law firms have disappeared, the NY Time article asks an important question: Where will new grads go to learn the ropes? While hospitals still need residents, law firms apparently no longer need junior associates. Shifts in the economy have resulted in apprenticeship doors being closed. Without “apprenticeship” opportunities, this generation of law school graduates is receiving only a partial legal education.

    It is hoped that law schools will begin to recognize the need to ensure that their graduates receive the full complement of educational opportunities, and do more on the apprenticeship side. Since the the market can no longer provide the hands-on training, the schools need to find a way to fill the void.

    But in the meantime, one fact is clear: a person can not, by themselves, as a soloist, learn what they need to learn all by themselves, or by going to seminars. Why? Simply because there is too much to learn, especially about the business and client side of practicing law. Furthermore, half of what a professional needs to learn falls into the category of “tacit knowledge.” Explicit knowledge can be passed along in the classroom or on blogs. But tacit knowledge is passed from generation to generation by people working side-by-side. You learn to deal with a difficult client, or learn to pick a jury, or learn how to finesse a settlement agreement by being present while those things are taking place. It is crazy to expect a lawyer to pick up such skills by themselves, in the absence of guidance and feedback.

    The practice of law is not a “techne.” It is a craft. As such, law must be practiced in the company of other practitioners who are invested in each others’ success, and who are willing and able to provide each other with real-time feedback about their performance. Trying to do to much alone is a recipe for frustration and failure.

    • Jennifer, I appreciate what you are saying from a historical perspective. But from a practical perspective it is about law schools passing the buck to Big Law firms and Big Law firms passing the ‘tuition’ costs of the apprenticeship to clients who are no longer willing to make payments. However, you don’t need to be an employee to learn how to be a practicing attorney. And being a solo doesn’t mean you don’t have mentors and those providing good counsel. You are just doing so as a peer rather than a subordinate. The skill comes in assembling colleagues around you to create your own working apprenticeship so you can avoid the landmines and pitfalls that accompany any new business. Smart soloists do just that. There is an overabundance of more experienced attorneys ready, willing and able to help for a variety reasons. I never had anyone train me on the art of the deposition in my first major case against a vice-president of a corporate giant and being tried in front of a ‘celebrity’ judge. I figured out how to do it and used my ‘human’ skills – the ones you don’t learn in law school but just learn in life. When it was over the other 20 year veteran complimented me. When I told him it was my first deposition he was absolutely floored and offered me a job on the spot. Obviously, I declined. Again, this goes back to the nature of those who choose to go solo. They are very, very different then one’s who choose associate positions (which I was also offered upon graduation). We want to get in the game, we learn the rules and we make sure we have someone spotting us at all times.

    • Unfortunately, the practice of law is not learned by osmosis, nor is it learned by carrying the senior partner’s briefcase to trial. It is learned by doing and all too often new attorneys in Big Law do not even get a chance to meet a client until their third or fourth year let alone develop strategy.

      Years ago, I met with an alum from my law school, the highly respected Judge Phillip Pro. Judge Pro sits on the Federal bench in Las Vegas, Nevada, and he told me that the reason he went to Nevada as a new lawyer was for the simple reason that he could practice law, on big cases, from Day 1, an opportunity he never would have had in San Francisco.

      The very idea that other attorneys (especially in the same firm) are invested in a new attorney’s success is a pipe dream to anyone who has ever been caught up in law office politics. Until clients started pushing back on fees, the only thing that mattered was the 2,000 to 2,500 billable hours a new attorney generated per year.

      Simply put, if you don’t know what you are doing, you are shown the door. And, if you are very good at what you are doing, you threaten the senior associates and junior partners.

      If this is the balancing act you crave, then go for it. But, it is not necessary to be a good lawyer, much less a successful lawyer.

  • I’ve been out of law school for more than twenty years and I still get furious when I think about my law school experience. As far as I’m concerned, it was simply three years of hiding the ball, and I don’t mean in the traditional way of trying to figure out the holding of a case.

    For example, not once did a law school professor show us what an actual document was suppose to look like. Oh, we discussed pleadings ad nauseam in our first year civil procedure class, but never did we see the real deal. To me, it is analogous to spending a year locked up in a room with one hundred people discussing how to play a game of bridge without ever seeing what a deck of cards looked like.

    The same for my third year civil appellate writing class of all things. I would have been completely lost had I not scrounged around for documents from outside sources. … Whenever any of us asked a professor for a copy of a certain document, we were told that that was something that concerned secretaries.

    Regardless, yes a very, very determined law student can go from law school to solo practice providing s/he self-educates. (I doubt “self-educates” is a word, but it works for me here.) The biggest hurdle, however, is giving yourself permission to succeed. Yes, I do mean “permission”.

    Often, law students are so beaten down by the law school process and then the bar examination that they revert back to a helpless toddler mindset. Instead of reminding themselves what got them thus far, they obsess on perceived shortcomings.

    As far as I’m concerned, the best nugget of the NYTimes article discussed hiring of law school professors at top-tier law schools since 2000; the median amount of practical experience was one year, and nearly half of faculty members have never practiced law for a single day. … And, these are the people who do not believe that a law student can go directly into solo practice. Perhaps they are projecting their inadequacies on their students and recent grads?

  • Corinne, I agree. Big Law is not the best place to get hands-on experience practicing law. One would be better served at a smaller firm, perhaps in a small city, where one is afforded the opportunity to take a deposition, serve as second chair, etc. The loss of prestige, status and salary is balanced by gains one makes in confidence and ability. Perhaps if law school tuition wasn’t so (bleeping) high, lawyers wouldn’t feel such pressure to join Big Law.

    Susan, I agree with you wholeheartedly: “The skill comes in assembling colleagues around you to create your own working apprenticeship so you can avoid the landmines and pitfalls that accompany any new business. Smart soloists do just that.”

    Yes, absolutely. This is essential. And yet quite a challenge. Many soloist aren’t getting feedback on their performance, and thus make the same mistakes time and again. How does one go about “mak(ing) sure we have someone spotting us at all times”?

    • Jennifer, I’m not so sure it’s about feedback but support. However, you ask a good question and I’m just going to give you some ideas. I’ll probably flesh this out in a future post, too. Examples of ways to be ‘spotted at all times’ takes some creativity. One possibility is an Of Counsel’ relationship which you can read about in this post: http://solopracticeuniversity.com/2011/10/06/adding-an-of-counsel-to-your-practice/
      Another possibility which has multiple purposes, is creating a mastermind group for your practice area within your jurisdiction. Reaching out to fellow graduates and more recent alumni (and possibly even an adjunct faculty member from your law school) and creating a group which can communicate both in person and online in reasonably protected communities can benefit all involved while providing spotting on issues. Concerned about performance in front of a judge? Since in the beginning you have more time than clients, why not watch each other in the court room and offer critique while learning from others appearing before the court? When you start thinking along these lines you will have your ‘spotters’ while also serving as a spotter and learning and never being ‘alone’.

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