In-house ACCess : In-house ACCess: Association of Corporate Counsel : ACC : The In-house Counsel Bar Association

The other night, I was lecturing to a class at the University Of Akron Graduate School Of Business’ MBA program. Since I have been blogging about changes in legal education, and more recently Northwestern Law School’s attempt to address the issue through its strategic plan, I thought it was a good time to expose my view, described in the blog “Trouble in River City,” that the traditional legal educational scheme developed by Dean Langdell at Harvard is more than inadequate, it is misleading.

The students and faculty in attendance got it. Learning legal doctrine based on courts’ explanations of what they are doing and why, rather than examining their actions in the context of the social, economic and scientific reality in which the courts are operating can be very misleading and actually impair your ability to practice law effectively. When you demonstrate how that occurs in the context of a real case—they get it.

They also understood you cannot fix the problem by add-on’s to the present curriculum—you have to fundamentally change it.

The call for a new and thorough look at legal education is echoed by a growing chorus—and it is a call shared by Fred Krebs, ACC’s president. And just perhaps, if my ideas that business schools replace their law survey course with one that teaches business students how to manage legal problems and lawyers are implemented, law schools may find themselves under pressure from customers of the graduates to change and perhaps “catch up.”
 

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I must admit that I seldom look at my law school’s magazine. I generally find these self-promotional efforts a little tedious, and given the number of schools that were attended by my wife and kids we are deluged by these periodicals which never focus on the serious issue of how to get costs down and quality up, but seem to promote an underlying premise which is we will tell you how great we are and you will give us money.

However, in the last issue of the Gargoyle, the publication of the University of Wisconsin Law School, there was a note on program involving internships at law firms in Asia. It caught my attention initially because I thought this was a response to the declining access to internships in the US. It was not, although who knows what the future will bring.

The program has apparently been around for a while. When I was there a foreign internship was Denver. Although it was and still is small in size, for someone like myself who worked for a global company, tried cases in international forums, tried cases involving significant international disputes and worked daily with colleagues around the world, this program has a real potential of beginning to change the focus of legal education in this country which has tended to focus on our legal traditions as the only game in town.
 

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Money of Course, ADR Now Threatens The Legal Profession.

Not too long ago ADR was wildly supported by the profession. It was largely touted as a means to save costs, and included in its supporters were even the most costly law firms who assured their clients they were not at fault for the large legal fees; it was the judicial system. Slowly, but steadily, study after study came out demonstrating that ADR did not lower costs, but the notion that ADR was somehow a preferential way to resolve disputes persisted.

Law schools jumped on the bandwagon. They were never that good at teaching you how to practice law, so it is not surprising they would launch into this area without any real clear objective, and no reliable data, that ADR provided the parties with a preferable outcome, or society with a preferable process. ADR however seemed to grow in reputation, and perhaps application, but I have not seen convincing data on that issue.

There seems to be a growing consensus that arbitration as a solution in business disputes between companies is disappearing, although attempts to enforce its application between companies and their employees and retail customers is growing. There also appears to be a growing consensus that arbitration is taking on all the procedural characteristics of a lawsuit—being destroyed as one commentator put it by “lawyers.”

So what is the problem? ADR has allowed, perhaps unintentionally, non lawyers into the dispute resolution process. The judicial process had locked out competition, but ADR opened the door and lawyers did not foresee this result, nor do they appear to like it. So what is their response—raise ethical issues—express concern about the clients. Use this to start imposing costs upon non-lawyer competitors.

At a recent Law School symposium on ADR, one lawyer presenter expressed concern about mediators requiring clients to sign a waiver of liability agreement. He pointed out that lawyers were precluded from doing this with their clients, so why should mediators be immune. The answer of course is obvious; laymen hire lawyers, but lawyers hire mediators. In fact, at least two lawyers hire a mediator and if they can not make a reasonable judgment about the skill and ability of the mediator they are hiring, they should be sued not the mediator.

This is simply the first step in trying to raise the costs of non lawyer competitors or perhaps regulate out the competition.
 

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