As I always say, when my favorite anomaly, Susan Cartier Liebel speaks, I listen. We had the pleasure of a discussion yesterday about the angst-worthiness of Kirsten Wolf’s message to new lawyers, that the law offers many a future of poverty and misery. Susan took issue with this message. No, Susan completely rejected Kirsten Wolf as the poster child for law student disenchantment.
In the course of this discussion, Susan and I found ourselves squared off on whether brand new lawyers had the professional skills necessary to hang out their own shingle and engage in the practice of law. I contended that these fresh-faced lawyers did not possess the knowledge and ability, the day after their bar admission, to competently fly solo.
Susan, on the other hand, asserted that not only had she done so, but so did “countless others.” I responded that in my 25 years of practice, I was still waiting to meet one of these success stories (Susan aside). In fairness, there was likely some conflicting assumptions underlying our respective positions. I think in terms of litigation, rather than, say, preparing simple wills or residential real estate closings. I also think in terms of New York City, with probably the most lawyers per capita in the world, as opposed to some rural county where there are a grand total of three lawyers within 100 miles. So I do concede, under certain circumstances, that a new lawyer can open a solo practice and succeed, though by default more than anything else.
One tendency that has long been a hallmark of the new lawyer is the belief that they have learned enough in law school to make them a lawyer. Both Susan and I agree that law school does little to train students to practice law. Indeed, most lawprofs, if they have a few beers in them, will readily concede that law school would be great if it wasn’t for all those whiny, snot-nosed students. The notion of teaching them the practice of law is anathema, both because it conflicts with the lawprofs self-image as scholar and because the lawprofs don’t actually know a whole lot about practicing law.
Thus, my view that these newly minted lawyers are not ready for prime time isn’t meant as a condemnation of them, but a simple fact of life. In my experience, there is a huge gap between what they take out of law school and what they need to competently represent living, breathing people. Susan agrees that law schools drop the ball, but we part again on the issue of whether law schools, even if they had practicing lawyers teaching how to engage in the real practice of law, would be able to turn out lawyers competent to be trusted with real people on day 1. In my view, they will still need to hone their skills, get a little experience under their belt, before they can competently go solo.
The reason, by the way, for this difference of opinion is that Susan supports the proposition that going solo offers a terrific alternative to the lawyer as employee mentality that gives rise to so much disenchantment within the profession. Again, I agree in part, though each has its up and down sides. Susan tells me that she doesn’t claim it to be a panacea. I’m not sure I buy that entirely, since there isn’t much discussion of the many issues and problems that accompany solo practice.
But I am a dinosaur. I don’t have a clue what students face today, or what paths are available to them because I’m so far removed from those fresh-faced days when my legal career was all in front of me. I could be absolutely dead wrong about all of this, and Susan may be entirely right.
So, here’s your chance: Am I out of my mind, and totally off-base that brand new lawyers lack the competency to hang out a shingle and represent people the day after they get their ticket? If you’re going to respond and you’re a lawyer, please include a bit of info as to how long you’ve practiced (for statistical purposes only).
Update: So the votes are in, and it appears that I am out of my mind and totally off-base, as per Bennett, Susan and to some extent Carolyn. I remain a little unclear that we are all talking about the same thing, since Mark chose to qualify his endorsement of newly minted lawyers, which Susan then embraced. There are also a number of areas of agreement, such as law schools not doing enough to prepare law students to practice law, and the helpfulness of “adult supervision and mentoring” in bringing a new lawyer into the fold of competency. But my consternation was that this added additional layers to the issue, which may or may not be present and available.
I remain a firm believer that a brand-spanking new lawyer does not yet have the competence to stand alone and represent people. I suspect that most clients would agree with this. I am not at all antagonistic to new lawyers, but I am a strong believer that every new lawyer needs to gain some experience before they can be set loose on the world on their own. But hey, that’s me. Others, who I respect immensely, say otherwise. Their views are set forth in the comments below, as are mine, and you can reach your own conclusions.
Disagreements make for the best vetting of ideas, so despite this post having taken a somewhat abrupt turn to the left, we’ve hashed out our respective positions and now commend it to others to make their own choices. But I must add one thing: If I were a young lawyer who wanted to go solo, I would pay very close attention to Susan Cartier Liebel and Carolyn Elefant, who offer sage advice. If you’re going to do this, then do it right and do the best you can with it.
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Maybe I’m just overly confident, but I think my trial skills were pretty much there at day 1. That was something I’d worked on in law school through trial advocacy programs. I have yet to face opposing counsel that is as tough as some of those students were.
The reason I went to an office with people more experienced than myself was to get a basic course in the mundane elements. Motion writing and how things were in a particular jurisdiction with a particular judge. If I’d learned more about those basics in law school, I might have felt okay going out myself. But my law school didn’t really lend itself towards realistic practice, as many don’t. Still, I know there are plenty of schools that really hit this stuff. And if I’d had a good internship where I got my feet wet, it would’ve gone a long way.
But consider the Dunning-Kruger Effect, Maggie. When you look back at yourself 20 years from now, will you be simiarly convinced that you now possess an adequate skill level, or will you think that when you started, you didn’t have a sound appreciation as yet of competency.
Dunning Kruger Effect: Incompetent people systematically overestimate their abilities and believe that they know more than others who are far more competent.
SHG,
Yes, you’re totally off-base. Many newly-minted lawyers, when provided with adult supervision and mentoring, are more competent to represent people than the mean of more-experienced criminal lawyers.
“when provided with adult supervision and mentoring“
Nope. Not allowed to change the rules. Now try again, this time taking asiduous note of the “flying solo” piece.
I don’t think I’m changing the rules. Adult supervision and mentoring don’t have to come in a formal employment relationship; I have students whom I taught criminal trial ad who are perfectly capable of defending people on their own. They are capable because, like all competent people, they know how much they don’t know and aren’t shy about asking for help.
Nope. It’s my game so I get to make up the rules. This isn’t a democracy.
The question posed is simple: Kid right out of law school on his/her own, no experience, no “adult supervision,” no “mentoring”, no nothing except kids right out of law school, totally on his/her own. No extra assumptions, conditions, provisos, caveats. Nothing, zip, zero, nada.
Scott, Your rules, your game. Your are going to play alone. This isn’t a black and white proposition. Any intellgent, competent new grad is going to have in place mentors. The fact your rules are so stringent shows you believe the scenario is analagous to asking someone to land a plane for the first time without contact with air traffic control. A more experienced attorney may be able to crash land an airliner with 300 passengers maybe with minimal injury but we are not asking new grads to do this.
And, in all honesty, if you are going to ask for discussion, especially from the first person who responded, don’t shoot them down even if this is your blog. The operative word is competence, not superstardom after 20 years. And ironically, the greatest malpractice claims are made between years 8 and 15 when lawyers are resting on their laurels. And the nastiest defeats of the giants I’ve seen come from them lounging comfortably when the opposition is a newbie who pulls the legs right out from under them.
In Blawg Review #142 got to the link under Brilliant Color, Kira Fonteneau. Go to my site where I talk about my being David against Goliath in a post entitled “Sing Opera”.
Yes, it’s your blawg and you get to make the rules, but if you want people to play….I still luv ya.
Susan, I can appreciate why you want to change the paradigm and go with Mark’s way, but he was dealing with a very different scenario from yours, and I wanted to give yours a fair chance. Now, it looks like you want to wiggle out too. Yesterday, it was countless newbie lawyers can pop out of the womb, hang out a shingle and become a success. Today, they can do so provided they have a mentor to lead them through the woods. That’s fine, just different.
Your airplane analogy is silly, since all pilots, young and old, use the tower.
Either new lawyers are competent on their own on day 1 (which was the question I posed because it was the assertion you made), or they require someone experienced to show them the ropes. Mark has clearly said that they are competent with “adult superision and mentoring,” but that didn’t answer your point, which (until now) was that they could hang out a shingle on day one and find happiness and success. Maybe he would have said that, regardless of supervision, he still thinks anybody fresh out of law school is competent to walk into court and represent clients. He might well have backed you up, if he stuck the the question posed. I don’t think so, but like I said, that’s just my view.
I’m fine with your new position, which is how every new lawyer starts to learn the ropes. It may be an employer, a supervisor, or even a mentor, but the new lawyer needs someone to teach him or her the ropes.
And if nobody wants to play with me, that’s okay. It’s still my blawg.
I don’t think it’s the lack of experience that creates problems for new lawyers. I think in many cases, it’s the lack of contacts and a networking structure that can provide mentoring. Working for a year or two can give many new grads a chance to build relationships on someone else’s dime. As for experience, I do think that any grad, with proper prep and training can perform serviceably. When I started my firm, I’d never set foot in a court room, but I handled many court appointed cases (including several drug distribution and gun possession in DC) where I achieved good results because I took the PD’s 3 day training course, asked other lawyers for help, and sat in court and watched. I also had the benefit of not being jaded, so I would ask for relief (e.g., dismissing a case for want to discovery) that a more experienced lawyer wouldn’t think to do. Not all new lawyers are concientious but many are. Having said that, obviously, the more you practice, the better you get. My first cross examination in court was barely competent, but by my 7th or 8th, I even managed some decent concessions. Finally, I would add that while some hands on experience in law school is helpful – certainly at least 2 semesters worth, plus moot court or clinic work, I think practical training is overplayed because the process everywhere is different. As I’ve commented here before, the most important skills that new lawyers can learn is research, writing and strong analytical skills. And I’ve seen that lacking in lawyer of all levels of experience.
Now that surprises me. One of the complaints I hear about with great frequency from new lawyers is that they show up in court only to find that they haven’t got the slightest clue what they are doing. Their complaint is that law school doesn’t prepare them to be lawyers, and it shows until they’ve had an opportunity to get their feet wet.
But as for networking, that’s a different issue. I try to give a hand to new lawyers by giving them some scut work, but never something that would directly involve my clients. Even if she’s bright, energetic, hardworking, I would never let her go to school with a client’s life. So I can’t imagine what some kid fresh out of law school would gain by networking with me. Five years out and I might consider sending some cases, but new? Never. She has nothing to offer, and it’s just charity to send her to file papers or fetch files.
I’m beginning to sense, as to all the comments, that my expectation of legal competence may be very different than that of others. I guess that rookies may be perfectly acceptable as lawyers for some, but not for me. This doesn’t mean that experience alone makes lawyers acceptable (an old fool is worse than a young fool), but the absence of experience is a significant handicap. I expect far, far better work than any newly minted lawyer could conceivably produce. Someday, perhaps, but not the day they left law school.
It is a public menace to let baby lawyers out on their own. Guidance is critical for a few or more years and I personally wish I had more of it. As one of the two partners at my first lawjob commented, “They would never graduate surgeons who never performed surgery to figure things out on their own but look at what they let us do.”
So maybe I’m not as crazy as Susan tells me I am? Thanks Kathleen.
You’re welcome. You’re not crazy this time. ;}
I agree with you; I have a high expectation of competence. I would not refer anyone to a new lawyer working solo. They confront a steep learning curve. They don’t know what they’re doing. This they each realize, I think, sooner or later, but in the meantime, you hate to see them get themselves or their clients, or both, into trouble, but they sometimes do.
On the other hand, I would, for a modest fee split [modest because I expect boners], allow a solo to participate in a specialty of mine, of counsel — but only if he is interested in learning the speciality. The final work product would be mine. This would be for selected cases or a bunch of them. I would review all motions, pleadings, briefs, etc. with a fine-toothed comb. I would not expect a new solo to assist me anywhere near as much as I assist him in learning a profession, and a craft.
If the question is “can a new lawyer hang out a shingle and become a success without having more experienced lawyers willing to guide her” the answer is “that’s a stupid question!”
We all need a hand sometimes, whether it’s direction from someone more experienced or a second opinion from a trusted peer.I wouldn’t hire a 54-year-old lawyer who didn’t know how and when to ask for help any more than I would hire a 24-year-old who didn’t know how and when to ask for help.
The surgeons believe “see one do one teach one”, which is a scary thought for a trial lawyer.
Well if you put it that way, any of us who are newer in practice are completely unable to respond to your question, which is somewhat unfair.
Personally, I don’t see it. I had my share of times I messed up or could have done something better. I try to learn from my mistakes, and there are definitely learning curve issues. But I think that’s part of the inevitable when you’re a new lawyer. You’re going to mess stuff up whether you have guidance or not. It doesn’t mean you’re not competent.
If, for example, you had a good number of drug cases under your belt, you’re always going to be playing a new game when you do a sex crime for the first time. It’s how the game is played.
But despite what I’ve said, I would agree with you. Even feeling rather competent in some ways, I knew I lacked a lot of knowledge. I think any new lawyer will benefit from oversight and guidance.
From my perspective, I think your reaction is on the money. It’s not that you need 20 years before you’re any good, but it does take a year or two of supervised/mentored practice before you are ready to hang out a shingle and go it alone. And there’s nothing wrong with that. Once you have a firm grip of the basics, you can learn the rest. But everybody needs to have a baseline competence before they can fly solo.
None of this is meant to detract from the new lawyer, but rather to state the obvious. You’ve got to walk before you run. Some will run faster and farther than others, but they still need to walk first.
Worse than that. Terry Cummings’ point, largely, was that many newly licensed lawyers have never seen the inside of a courtroom. The need for a residency akin to medicine was (1991) and remains largely ignored.