We Need To Change The Third Year Of Law School

Photo Credit: Lawyer Monthly

Just over 10 years ago, I graduated from the UCLA School of Law. I finished my legal education during what was a very difficult economic environment for most Americans — including attorneys. In the first few years after graduation, I grew skeptical of the value of law school.

Today, I look back fondly on those years. I believe there are plenty of good reasons to attend law school, and become a practicing attorney.

At the same time, I’ve also been critical of legal academia. More than 4 years ago, I argued that institutions were not being transparent in disclosing bar passage and employment statistics, and were thus painting an unrealistic picture of a graduate’s chances of succeeding in school.

Real progress has been made. No small amount of credit goes to nonprofit organizations like Law School Transparency, and law school graduates who sued law schools for misrepresenting employment / salary statistics. While not all of this litigation was successful, many law schools have been forced to reconsider their approach, and be more upfront about post-graduation outcomes for their students.

Of course, all of this is happening while fewer young people express interest in becoming lawyers. The future of the profession, is, at best, murky.

At the risk of being immodest, I have another proposal, which I believe will further improve things. In my view, it is time to eliminate all classes from the third year of law school (except for some optional bar exam preparation), and focus strictly on clinical education.

In order to understand why this approach makes sense, we need to first dive into how the bar exam, as well as law school more generally, is currently structured. This will make it clearer how (and why) the third year of law school ought to be altered.

The Bar Exam

To become a licensed attorney, you must first pass the bar exam. This exam, which students take after the third year of law school, tests a series of subjects, in both multiple choice and essay formats. Bar exam preparation drives much of the law school curriculum.

The multiple choice portion consists of 200 questions. This portion of the bar, known as the Multistate Bar Exam or MBE, is administered over two days, in sessions of 3 hours (and 100 questions).

The MBE is uniform across most states. Therefore, a student could attend law school in any part of the country, and successfully complete the MBE in a different state. This offers greater flexibility for law students who wish to pursue a career outside of the region where they went to school.

The MBE tests the subjects which are normally covered during the first year of law school. I’ve discussed that in more detail below.

The bar exam consists of more than just multiple choice sections. In most states, you’ll have 6 essay questions. You are allocated 1 hour to write each essay.

Each essay requires you to apply your knowledge of a particular area of law, to a specific fact pattern. In California, as with many other states, the essays cover not only the traditional first year subjects, but also, subjects like evidence, criminal procedure, community property, remedies, wills / estates, and of course trusts. In other states, the topics covered might include corporations, as well as the state law versions of the above subjects.

You don’t know exactly which essay subjects will be tested. Therefore, you need some preparation in all of these topics. At many law schools, these courses are not required, but rather, are elective classes, which you take during your second and third years of law school.

To most effectively prepare for the bar,, most of one’s efforts should focus on the MBE subjects. After all, those are guaranteed to be tested. The other topics, while important, are only possibilities.

The 1L Curriculum

To better explain why the third year of law school should be restructured, we need to first revisit how law school currently operates. If you’re a law school graduate yourself, the next few sections will cover very familiar topics.

During the first year of law school (known as 1L), you’re required to take a series of core classes. 1L was a grueling, yet vaguely thrilling experience. You work like crazy, trying to absorb a lot of dense, confusing information. Really, the goal is to learn how to “think like a lawyer.”

What exactly does that mean? I’m still trying to figure out.

One L, by Scott Turow (a Harvard Law School graduate himself), brilliantly captured the ethos of the first year of law school, in all of it’s insanity. I read this book after my 1L year, and felt a profound sense of deja vu.

Students at most law schools in the country, especially those which are approved by the American Bar Association, will typically take the same set of courses during 1L year. These 7 classes are in civil procedure, criminal law, contracts, torts, constitutional law, real property, and a course in legal research and writing.

I took Criminal Law, Civil Procedure and Real Property my first semester, and Constitutional Law, Contracts and Torts during the second semester. Legal research and writing was a two semester class.

The Second & Third Years Of Law School

If 1L year focuses mainly on MBE courses, what happens when the year is over? During the summer after 1L year, students usually complete an internship, often with a government or non-profit organization. I worked with the New York State Division of Human Rights, located in the Bronx.

At the beginning of the second year (surprise, it’s called 2L), students interview with law firms or public interest organizations, which they aspire to work for during the summer after 2L. Depending on the law school one attends, the firms in attendance might be large, national corporate law firms — or smaller local operators.

I went through this process in the weeks before and after Lehman Brothers collapsed. Many opportunities which were available just days earlier, vanished into thin air.

2L typically involves taking a mix of elective courses, and those which might be tested on the bar exam. I took Community Property and Wills & Trusts (both bar exam courses), as well as courses in corporate governance, civil rights law, and more.

The summer after 2L, I once again took an internship with a government agency in New York City. In a less challenging year (i.e. a better economy), a larger portion of students might work as summer associates at law firms. These paid internships offered substantial pay (typically around the same weekly salary as a first year associate, minus bonuses), tasty lunches, and a manageable workload.

Before I knew it, I was back in school for the fall semester. I had a chance to take an elective course in corporate strategy, i.e. how one company develops a comparative advantage over another.

This would prove to be a useful lesson, for my future business ventures. I also took Criminal Procedure — another bar exam topic, and Professional Responsibility, which was a required course to practice law in California.

I spent my final semester of law school nearly 400 miles from UCLA, in San Francisco. I was offered an externship (basically, an opportunity to work with a legal organization while in school) with the United States Attorneys Office (USAO) for San Francisco.

The USAO prosecutes federal crimes in the San Francisco area. I had a chance to observe and assist with various criminal matters. This was perhaps the most instructive experience of my entire time in law school.

I gained a real glimpse into what being a lawyer was really like, and improved my legal research and writing skills. I had a chance to regularly interact with practicing attorneys, and to better understand the techniques of good lawyering.

This experience felt quite similar to how I’m told rotations function during medical school. It’s a chance to learn, and start putting your skills to the test.

It is for this reason that I believe we ought to eliminate standard academic courses from the third year of law school, and focus more on practical/clinical education. Let’s take a look at what that would look like.

The Third Year Of Law School Should Consist Of Two Semester-Long Internships, With An Organization Of A Student’s Choice

The principle behind this altered approach is simple. Seth Godin put it best, when describing how we learn to ride a bike: “You learn by doing it. Actually, by not doing it. You learn by doing it wrong, by falling off, by getting back on, by doing it again.”

Let’s apply Godin’s insight to law school. Law students are going to learn the law in part by doing legal work. Each semester of 3L, law student’s should extern with a different organization. This helps ensure that students gain both breadth as well as depth of exposure.

Which workplaces might be the best fit for students? Simple: Whichever ones they’re interested in.

If a student wants to become a corporate transactional attorney, then spending a semester at a firm that negotiates corporate mergers and IPO’s, could be very productive. If they prefer advocating for low-income renters, then perhaps joining a legal aid organization, might be the best fit. The point is, students should pursue what appeals to them — and what also allows them to grow.

What might students learn during the internship? The amount of legal work they will personally complete is limited. They’re probably not going to play a key role in closing the merger of the year, or help save dozens of tenants from slum conditions. There is only so much that someone with limited knowledge can accomplish, in just 3 to 4 months.

Yet, students will certainly learn more about how lawyering really works — and be able to make some positive contributions. During my internship with the US Attorneys Office, I gained a better understanding of what was required to craft effective legal arguments, and to put together a case. I also had a chance to observe and interact with judges, court clerks and other personnel. These are the nuts and bolts of day to day practice.

I don’t think my experience is unique to litigation. A law student could work for a small law firm, specializing in trusts and estates, and learn a lot about how to effectively function as a lawyer in this field. This is true of representing criminal defendants, sports teams, recent immigrants, real estate developers, or any other sort of client. To paraphrase Godin, we learn through the process.

Why two semesters of clinical work, with two different employers? When you’re in law school, you might think you know what you want to focus on in your career — and perhaps you’re correct.

However, very often, I’ve found that we change our minds — or, the demands of the workforce change them for us. I was sure that I was going to be a corporate transactional attorney.

The problem was, graduating from law school in 2010, I found that demand for transactional attorneys was, at best, sluggish. Today, I focus on consumer credit issues, and I love it.

Had I been exposed to litigation around credit reporting and debt collection, back in law school, I might have entered this field right after graduation. It’s hard to say for sure — but being aware of these options would have been useful.

Thus, we should offer law students the chance to work for 2 different employers, and see what is the best fit for their interests and abilities. This helps law students to make better decisions about their post-graduate path.

Some Logistical Considerations

When considering this approach, a few questions might arise. First, how will students obtain these externships?

Law schools must take a very proactive approach to building relationships with potential employers. Facilitating clinical education and career opportunities is a notable weakness of many schools.

That will have to change. Law schools must think creatively about how to create opportunities, so that students can gain real work experience during 3L. If a school can’t figure out how to do this, then, to be blunt, it should cease to exist.

Externships should be allocated through a competitive application process, which considers each student’s academic performance, skill set, and career interests. This helps us ensure the best experience for each student, as well as their employer.

Thanks to the rise of remote work due to COVID-19, it is possible for students to participate in externships virtually, from locations around the country. Ideally students can enjoy some in-person interactions as well — even if that means visiting the “office” a few times during the semester.

However, if distance work is our future, there’s no reason for law students not to get used to it. Also, working with employers in various locations might open up the career path of law students, who wish to relocate after completing law school.

Students must demonstrate basic accountability, by checking in with their school every week or so, and providing details about the work they’ve completed. Also, employers should provide students (and their law schools) with an assessment of a student’s contributions and progress, about every 3 weeks. This ensures that students continue to progress in their efforts.

Another question that might arise: Pay. Will law students be paid for their efforts?

Here, we again look to the medical school example. Medical students complete rotations during their third and fourth years of medical school, to build clinical skills, and gain exposure to a number of practice areas. They aren’t compensated for their work. If anything, they’re paying for the opportunity, since they are still responsible for medical school tuition.

A similar structure could make sense for law students. 3L externships are a chance to maximize practical experience, which boosts the chances of meaningful employment after graduation. Essentially, students are trading their time for skills.

Requiring employers to pay law students for their work will greatly reduce the number of employers who participate. This will ultimately harm the goal of providing better legal education.

Therefore, structuring these internships as unpaid is probably the best way to go. By completing unpaid internships now, law students can obtain meaningful employment later. As the saying goes, the more you learn, the more you earn.

Will Eliminating Academic Classes From The 3L Curriculum Will Not Harm Most Students’ Ability To Pass The Bar Exam?

As with any new idea, there are some inevitable objections. When discussing these reforms with friends, I heard a common claim: Students will have a harder time passing the bar exam. I disagree.

During the first year of law school, all of the subjects which are crucial for the MBE portion of the bar exam are covered. This means that for the rest of their law school careers, students only need to complete a course in professional responsibility, and learn the basics of what might be covered on the essay portion of the bar exam.

From a bar exam perspective, I’d argue that many (perhaps most) 2L‘s only need to take one of the required (i.e. exam tested) subjects, along with some study of professional responsibility. This means they might take a class in professional responsibility one semester, and another bar course (perhaps one in trusts and estates) during the second semester.

Law students normally complete 3 classes each semester. So, the other 2 courses might be electives, in various areas of interest. A student might be interested in land use law, or civil rights litigation. It makes sense to gain a more in-depth understanding of these topics, before specializing further.

Through this structure, students can really broaden their law school experience. Yet, there is flexibility. Those who want to stay deeply focused on the bar exam, can certainly do so. They might forego elective classes, and instead, study only bar exam topics.

What’s more, if a law school has a low bar passage rate (which it hopes to improve), it could require students to take more bar courses during the second year. This offers students more time to master the required knowledge.

This raises another question: How do students gain a grasp of those subjects which are covered on the bar exam, but were not studied during law school? There are a few ways approaches here.

Students might study independently, perhaps by taking courses online, offered through their law school. These classes would focus on the core principles which appear on the bar exam, rather than an in-depth look at a topic. Think of this as a Cliff Notes version of a course.

This could be done as a side class, which students work through during their 3L externships. During my externship semester, I reviewed topics which appear on the bar exam, to brush up on subjects I’d already studied, and those which I was less familiar with. This might be formalized by law schools, as optional, non-graded courses, for students completing 3L externships.

In the alternative, students might simply review some subjects during their bar preparation efforts. It’s common for bar exam takers to have at least a couple of subjects they have not really studied, prior to their bar exam course. They learn what they need to, in a short amount of time.

This is what I did with Remedies (a law school course) which I had never really dove in to before. As I recall, an issue involving this topic appeared on the essay portion of the bar, and I felt comfortable answering it.

I wouldn’t postpone too many subjects to study right before the bar. However, there is nothing wrong with doing this with a few classes. Thus, eliminating required classes from 3L year doesn’t mean that students will have trouble passing the bar exam.

Are Academic Courses During 3L Year Crucial To Success As A Lawyer?

Law school is about more than just passing the bar exam. Ultimately, legal education strives to mold untested law students into budding attorneys.

Part of this process involves courses which challenge law students, and ultimately helps them grow. Some might argue that academic study during the third year of law school, is important for doing well as an attorney in the future.

I disagree. In my view, law students can be properly educated during the first two years of law school. As discussed earlier, students can take elective courses, which stretches their thinking, and exposes them to topics of interest.

What’s more, much of the knowledge required for the bar exam is covered during 1L. Some more is touched upon during 2L. The rest, students can cover during their 3L, and while preparing for the bar exam.

Much of one’s legal education can be gleaned from practical experience, i.e. being out in the field. We need to help law students become capable attorneys — not just good students and test takers.

Learning by doing is absolutely critical, and something which law school simply does not deliver enough of now. 3L must focus on clinical education.

Some Final Thoughts

I still believe that a legal education can be of tremendous value. Becoming a practicing attorney can be rewarding. We shouldn’t lose hear in the future of the legal profession, or think that a career as a lawyer is a relic of a past era.

Yet, things need to change. Law school needs to become less academic, and more practical. Arranging for 3L to focus strictly on clinical education, will empower law students to develop the sorts of employable skills which will allow them to more quickly obtain gainful employment, and start making meaningful contributions.

Just because something was done a certain way in the past, does not mean we should continue to proceed as we have before. It’s time to step it up, and make law school better. A more relevant, hands-on legal education is the way to go.

Enjoy reading and writing about technology, law, business, politics and more. An attorney by training, I’m a native of Los Angeles, and a former New Yorker.

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