Having Skills Is Not the Same as Using Skills

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Having Skills Is Not the Same as Using Skills



An obvious problem with the approach based on what a lawyer should do is that even if a lawyer possesses the full range of skills needed to fulfill his professional responsibility to the client there are critical factors that get in the way of doing so. These factors include the lawyer’s need for revenue, the behavior of the opposing lawyer, and the fact that in many instances the “ideal” handling of a dispute or transaction requires the investment of time, energy and resources the lawyer and/or the client do not possess. In many instances what should be done in the representation can’t be done, or simply isn’t done. The reasons for the failure can be because the client can’t afford to pay, the other side has failed to evaluate their position effectively or honestly, or a client can pay legal fees and the lawyers are “milking” and “churning” in order to maximize their own return.


I always loved teaching courses on trial, negotiation, strategic thinking, dispute resolution and negotiation because students were highly motivated due to their feeling that such educational opportunities were directly related to what they would be doing after graduation. In the current debate about what American law schools should be offering their students in order to make them more “practice ready” on graduation, many of the critics of legal education are ignoring the fact that much of the alleged “skills” shortfall of lawyers has more to do with the failure to use or apply skills most lawyers possess than the lack of practice skills themselves. As someone who spent four decades deeply involved in law teaching and curriculum development in pretty much every type of course context from Jurisprudence through criminal and civil clinics, Criminal Law, externships, professionalism, trial and transactional courses covering the full range of legal skills including negotiation, dispute resolution and strategy, I can say that the expansion in “skills” courses in law schools over that period has been dramatic. At this point law schools are offering considerably more courses in professional skills and values than their critics have realized or admitted, including a wide range of simulated experiential courses as well as clinics and externships.


The inability to match the reality of law practice with the professed ideals of how lawyers should operate on behalf of clients is even more problematic on the solo and micro-firm levels that so many new graduates are now entering, too often as a matter of necessity rather than personal choice and preference. Law schools fail to deal with some of the most critical aspects of client representation in which a significant percentage of lawyers in private practice find themselves after graduation.   Nor is it generally possible to create anything resembling the economic dynamics of private law practice through law schools relying on simulated experiences or even typical clinical courses that almost inevitably lack any dependency on client funding or need to market themselves to build up a critical mass of clients.


In teaching courses on professionalism and professional responsibility I always tried to provide students with a sense of the darker realities or at least the more honest aspects of private law practice. This included an economic analysis of what was involved in types of law practice and the financial realities of engaging in a competitive enterprise in which there was an increasingly negative relationship between supply (lawyers) and demand (people who can pay lawyers). But awareness of such things in no way means that you can do anything about them. In the market system in which lawyers function the conditions of competition have been changing dramatically in ways that threaten lawyers, law schools and many of the heavily indebted students who are paying between $100,000 and $200,000 to gain the right to practice law in America. Struggling to make ends meet as a lawyer has become for too many a difficult “hand-to-mouth” existence. One study of the Chicago bar, for example, reported that in real dollar terms the earnings of solo practitioners had declined from over $90,000 per year to $55,000—a truly frightening earnings drop for those in that context.[1]


Even for the best lawyers operating on the solo and micro-firm scale of private practice the undertaking is tough from a financial point of view unless they are fortunate enough to have a substantial and dependable source of income from clients. Predictable and ongoing retainer and referral agreements with institutions such as local governments or insurance companies that can supply a steady and predictable flow of income create a financial base that mitigates the challenging struggle to generate the essential revenues needed to operate a law firm at any realistic level of quality.


Without that kind of reliable and consistent financial base supporting essential operations many lawyers are scrounging for clients. Having to spend significant amounts of time often unsuccessful “hustling” to find clients means that there is less time to devote to the planning, preparation and implementation of a single client’s dispute or transaction. This means that the “ideal” approach to client representation involving what should be done in the best-case scenario is an impossible dream for many lawyers in actual law practice. It also means that in the challenging and cutthroat context in which much of private practice operates it is absolutely vital that a lawyer develop the skills of quick and efficient case assessment. This can allow intelligent and effective strategies to be identified at a point where honest and accurate advice can be provided the client.


The effects of the oversupply of lawyers differs by scale of practice and, presumably, by type of practice. The extent to which the lawyer has been able to develop competitively beneficial relationships, networks and a positive reputation of the kind that could lead to client word-of-mouth referrals makes the difference between success and failure. Just how bad the situation has become for many lawyers is demonstrated by research examining Indiana lawyers over a five-year period. This suggests the differential effects between types of law practice and scale of operation. [2]


The Indiana data demonstrate that the category of solo practitioner and 2-5 lawyer firms, which together make up two-thirds of private practitioners, are particularly hard hit. The same data show loss in real income far lower at the large firm level with 20.2 percent of lawyers at the solo practice level experiencing real and significant declines in income but only 3.8 percent of lawyers in the large firms experiencing declines. At those levels 37 percent of solo practitioners saw their earnings stagnate in real terms while 17 percent of large firm lawyers reported nominal increases in earnings and 77 percent of large firm lawyers reported real increases in income for the period. At the 2-5 lawyer firm size 17 percent experienced declines in earnings, with 37 percent only nominal earnings increases in real dollars. [3]


Lawyers trapped in such stagnating and declining earnings situations may wish fervently that they had the time and resources needed to function on the highest professional levels but are struggling to make enough to pay rent, utilities, essential personnel, health care, mortgages and personal living expenses. When lawyers and law school faculty talk about the need to teach “practice ready skills” to law students so they can hit the ground running, in far too many instances there is not only a lack of honesty or understanding about what those skills are among the professoriate as well as how you can deal with the stresses and inadequacies of law practice, but a lack of consideration regarding the economic realities of private law practice and how law graduates can survive in a declining and financially challenging environment.


One problem is almost certainly that law faculty members have no idea of the financial realities under which lawyers operate. But another issue is that even if law faculty fully understood the nuances of law practice on every level into which their graduates entered the profession there is no ready answer in terms of what law schools can do to change or influence the competitive realities of law practice. The fact is that many lawyers are “under the gun” to the point that, even if they possess the skills necessary to handle a client’s case adequately (and many do not), they lack the time to do so. Or, and this is an equally serious concern, they are forced to try to cope with an opposing lawyer who is in that negative financial situation and is not doing what is needed either due to a lack of skill or experience, insufficient time, or the need to maximize the revenues on the case through “churning” or bill padding. For many people, survival trumps professionalism.


Some law schools are trying to “invent” new practice-oriented elements for their students and graduates. These include an expansion in what are considered “skills” courses, and support following graduation such as “incubators” for new graduates entering solo practice and short-term subsidies for graduates who are working in the equivalent of fellowships for public interest and governmental organizations. One problem, however, is that the new graduates and many longer-term practitioners are up against a “rock and a hard place” created by a finite and even dwindling pool of paying clients. This drop in accessible clientele willing and able to “pay the freight” for the services they need applies through much of private law practice, even affecting the BigLaw firms that are in a continuing “dance” of mergers, layoffs and shrinkage as their “bread and butter” corporate clients increasingly develop in-house legal departments and reduce their dependence on the large law firms. It applies even more to solo and small firms that offer more limited services to less affluent clientele and lack the resources needed to market their services in ways that put them above the “noise” of competitors claiming they can be just as effective. The challenge is that law schools can educate for the skills of law practice ad infinitum but if there is not an adequate volume of paying clients that lawyers can rely on to feed the needs of their law practices even the most highly skilled lawyer has only limited time to devote to client needs. The available time may simply not allow lawyers to provide what is needed even if they possess the skills.


[1] See Urban Lawyers: The New Social Structure of the Barby John P. Heinz, Robert L. Nelson, Rebecca L. Sandefur, and Edward O. Laumann (2005) referred to as Chicago II, and John P. Heinz and Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (1992).

[2] See, William D. Henderson, “Financial and Billing Survey of ISBA Lawyers,” presented at Solo & Small Firm Practice Conference, May 31-June 2, 2007. http://www.law.indiana.edu/people/henderson/share/ISBA.pdf. This is also reported by the Wall Street Journal at http://online.wsj.com/public/resources/documents/info-Law0709-24.html.

[3] Henderson, id.

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