Can law schools be used for the actual training of new lawyers?

The cover story in this month's ABA Journal, by Indiana University Law Professor William D. Henderson and Rachel M. Zahorsky, "The Pedigree Problem: Are Law School Ties Choking the Profession?," raises (inadvertently, I suspect) a real question about the basic use or purpose of a law school education.

Is law school just three years' penance that must be served before becoming eligible to sign up for a bar review course (the bar review course being the real prerequisite for passing a state's bar exam)? I would like to think otherwise, but Professor Henderson and Ms. Zahorsky noted that graduates of even the nation's most prestigious laws schools have long been deemed incapable of practicing their profession without extensive post-graduate training:

The most successful of corporate law firms adapted to this business climate by hiring promising law school graduates and embedding them into their own training system, which over several years supplied inductees with a well-rounded and complete skill set that could be deployed for the benefit of clients.

The most famous training program was implemented by Paul Cravath, the brilliant business lawyer who went on to build the white-shoe firm of Cravath, Swaine & Moore. According to the firm’s history, published eight years after Cravath’s death in 1948, the primary purpose of the Cravath system was to create “a better lawyer faster.”

One key operational question of this training model was entry-level hiring. Cravath and his contemporaries favored graduates of a handful of Ivy League schools — namely Harvard, Columbia and Yale — and so-called national law schools, including the universities of Virginia and Michigan, for the coveted training positions.

A young man or woman graduates from any medical school and is thrown into the overnight shift in the a busy ER, treating traumas and heart attacks and chronic diseases right from the start. But a young man or woman, even one from the law schools at Harvard or Yale, goes to a silk-stocking firm and disappears into the library for a few years, looking up cases, reviewing documents, eventually getting the opportunity to carry a senior associate's briefcase to court for a status hearing (the senior associate's hands are full carrying the junior partner's briefcase; the junior partner is encumbered with the senior partner's papers). Despite the superior 'legal education,' the firm's lawyers had to be 'built' from the ground up.

Henderson and Zahorsky cite a number of reasons why the white-shoes firms took (and still take) only Ivy League graduates (or graduates of a few others, depending on the city where the firm is located): "They required extensive undergraduate education, their courses of study were full time and taught by scholarly faculty, and they tended to admit students well-connected to the commercial world."

Only this last factor is relevant: The Ivy Leaguers knew the captains of finance and industry for whom they'd toil. They were related by blood or marriage, or at least had common acquaintances from their prep school or undergraduate days. The kid from Loyola's night school or Henderson's own Indiana University would probably have none of these connections. These people from the hinterlands might not 'fit in.' At one time, this 'they're-not-our-people' approach was blatantly racist and sexist both. Times have changed; the school tie is now more important than ethnicity or gender. But the large law firms, for all their pro bono efforts, are not social service agencies; they will only hire people that their clients will feel comfortable with from the start, lest their clients go somewhere else where they will feel more at home. (Actually, pro bono cases give the new big-firm lawyers opportunities to develop courtroom skills without jeopardizing real business -- it's become an important part of the training program.)

Henderson and Zahorsky write about how law schools around the country aped the Ivy League casebook method, apparently believing -- and certainly asserting -- that there was something in the curriculum that gave the Ivy League graduates greater opportunities. Henderson and Zahorsky are on familiar ground here; this is an oft-told tale. But could these long-ago law school advocates really have been that naive?

When law schools try to teach practical skills (such as those displayed at mock trial competitions), the supposed distinctions among law schools blur considerably. Henderson and Zahorsky cite the results of the National Trial Competition:

Since its inception in 1986, a handful of teams has dominated the league tables, including Stetson (five-time winner), Northwestern (four-time winner), Chicago-Kent (three-time) and Temple (three-time). The trial teams are judged blind; law school affiliations are not revealed until the end of the tournament.

The appearance of top-tiered Northwestern Law with tier-two Temple and Chicago-Kent and tier-three Stetson suggests incoming credentials do not preordain performance as a lawyer. And the repeat appearance of a handful of schools suggests expert coaching and practice — a form of legal education — may be the real linchpin of excellent courtroom advocacy.

A few years ago, in an undergraduate trial practice competition, Elgin Community College beat Yale. (The team from ECC hadn't been invited initially; they were only permitted to enter after a scheduled team dropped out. They were brought in as punching bags. And they punched back!)

I wrote for the law school newspaper when I was in law school, roughly 35 years ago. When the schedule for an upcoming semester was announced, all the 'bar courses' -- that is, the courses that one would want to take if one had an interest in, say, passing the bar examination -- were distributed throughout the day in such as way as to make it difficult, if not impossible, for a student to put together enough consecutive hours to present him or herself as a viable law clerk to a firm. As a student journalist, it fell to me to interview the school administrator to find out why the schedule was thus arranged. "We don't want our students to work outside of school," the administrator told me. (And, yes, I'm being deliberately vague about the identity of the interview subject.)

But it was only by clerking that most students could hope to find jobs. One or two might get a sniff from a local big firm, a few more would get state court clerking jobs -- but what about the rest of us?

In the ER, no one cares where your medical degree is from. The new doctors from Harvard or Acme Night School must all perform to the same standard of care -- and right from the start, too. Professor Henderson and Ms. Zahorsky cite a lot of psychological jargon in their article, but it's all beside the point. Until law schools produce graduates who can appear in court or document or close complex transactions right from day one, they are irrelevant obstacles that must be overcome before a hopeful young lawyer can begin to learn his or her chosen trade.