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Friday, March 5, 2021

Is Practical Legal Training a Total Waste of Time?

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Practical legal training can be tedious, obviously. But is the pain and suffering really worth it, or is it just a compulsory waste of time for people who want to be actual lawyers?


Why Bother?

The obvious answer here is that practical legal training is, in basically every jurisdiction, compulsory. Somewhere along the way you need to actually learn how to be a lawyer.

But is that what most courses or training systems offer?

I did articles of clerkship myself, and I’ve got to say that there isn’t really a comparison. I was 100% more equipped for practice than current lawyers coming out of the more university-style system.

The flip side is that some people had terrible experiences in articles, and so they didn’t get the same kind of kick start that I did.

What follows is an extract from my book, In Practice – Moving Beyond Law School Theory, where our main player – Andrew – is writing to his young protege about his view on the benefits, or otherwise, of practical legal training.

What do you think – is it a worthwhile endeavour, or just part of the cost of entry into the legal system?

If you want to play the audio of this chapter instead, you can do it:

Tedious and Cumbersome?

Dear Thomas,

I gather you are finding your experience of Practical Legal Training tedious and cumbersome?

I am not too surprised, and so I sympathise with your situation. Although my brothers in the profession who formulate these courses do so with the best of intentions, it is quite apparent that the curriculum becomes polluted with the interests of academics and various pencil pushers who have probably never practised law, let alone met with a client or entered a Courtroom.

The result is that the course you presently undertake represents, at best, an extension of your University education.  It is primarily academic, although seeks to provide you with some practical expertise so that you might not be completely useless to your employers (once you have an employer, that is).

Although I have touched on it previously, there are a number of distinguishing features between actual legal work and what you now do that I thought I would highlight, lest you subconsciously start to think that your current sanitised situation could represent what you have to look forward to.

The first primary difference is money.  The fictitious clients in your course almost never call you up about your fee estimates (which you almost never have to provide them).  They appear to have the ability and the will to “fight on principle” or some such nonsense.

You are never forced to account for the competing interests of the client’s immediate requirements which might not align with your firm’s requirement for you to get funds in your trust account before commencing anything.  At no time do you have to confront and solve a client complaint regarding their bill, or confess to a partner that you spent 3 hours longer than was required on a job because you couldn’t get the client to shut up on the phone.

These are the realities of practice. Everything you do has to be guided by the fact that your firm needs to make money.  If it doesn’t make money, then you are out of the job (one way or another). Personally I don’t think that’s greedy, like some people seem to think.  Rather, it’s just pragmatism.

The next primary difference is the lack of marketing. In “training land”, your work simply flows in and you do it.  In the real world, someone has had to fight to get that work in competition with a thousand other practitioners, many of whom cost less and are frequently just as competent (although not always).  There is no qualm about telling your fictitious clients that they have no case, because they won’t call your supervising partner who is friends with their mother’s brother’s cousin, and abuse you to them telling them how incompetent you are while, back at the office, you are forced to defend a perfectly sound legal finding to your now irate partner.  These relationship factors are absent in your training.

Next is the nature of facts.  In your world at the moment, you get the facts and assume their completeness and accuracy.  In the real world, you never get all the facts, and are frequently required to drag them out into the light for examination.

Situations change, answers change, documents reveal inconsistencies, and the list goes on.  The practice of law is a moving feast, and any given matter might change from a gnat to a dragonfly to an elephant over the span of its existence.

Finally there is the pressure of time.  Yes, your assignments have deadlines and due dates.  But, within that confine, you can spend as much time as you wish on a particular project.  You will not find that situation in law.  What you will find is that a task will be required to be completed within an hour, and if you spend more than that you will have to account for it in some way. You will also find that just because you are finished, doesn’t meant the job is done.  You need to factor in review, settlement, revision, and of course the time that the support staff “do mail” which, if missed, will result in an otherwise unnecessary walk to the post box.

Oh yes – I should mention the paper.  There is lots, and lots, of paper that needs to be printed, sorted, filed and dealt with in some way.

These are but some of the many differences which I wanted to highlight in brief to you now, so your brain does not accept the fiction that is presented to you now.  Over time you will start to identify more discrepancies for yourself, and no doubt we will discuss them further.

So, while you complete this “practical” course I would like to remind you, again, of the need for you to seek and retain a master who can more effectively guide you in the practicalities of the legal world than the course you now undertake could ever do.

If you are to be effective as a lawyer from day one, you will need to take your education far beyond what you now learn.  I encourage you (again) to do so as soon as possible.

Yours faithfully,

Uncle Andrew

Is He Right?

Uncle Andrew might be old – but he doesn’t know everything. What do you think about this one – is he on the mark, or is he just being a pompous git?

Learn more about Thomas’ journey through his legal career, and pick up your copy of In Practice today.

In Practice

In the meantime – Happy Lawyering!

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  • I think uncle Andrew has a good point. I was lucky enough to be working as a paralegal before I started my law degree and continued to work throughout my studies. I completed my ‘practical legal training’ through the 12 month Supervised Legal Traineeship under a partner at our firm. Yes it takes longer than the uni offering of PLT but the benefits of practical hands-on knowledge are huge as you are working on real files with real clients. I think more graduates should be encouraged seek to find a law firm to take on trainees and likewise law firms should be encouraged to take on trainees so at the end of the 12 months they have a newly admitted lawyer that actually has some clue on what to do.

    • Hi Sarah – thanks for that and I think you make a good point re: involvement. Although many firms have mentoring programs, a lot of them are a bit of a failure in terms of practical influence. It would be great to see law firms (and lawyers) consciously take on young lawyers that they actively, deliberately assist in their growth as professionals. Mentoring programs often seem a bit “tick and flick” rather than active participation.

  • As usual, brilliant, down to earth analysis of the distance between the cup and the lips – I can add so many more, having practiced law in India for almost 18+ years and now in NZ doing my “3 year period” working under supervision. Thank you for telling as it is. Looking to keep on reading more about many other aspects and inherent contradictions in legal profession. I would be obliged if you can write about “Barrister Sole” and “Barrister & Solicitor” in future when time permits. Regards. – Himanshu

  • Is this divisive issue back again? We are not going back to Articles any time soon, despite the fond memories that senior practitioners like to recount. Clearly, Practical Legal Training is not the same as legal practice. It doesn’t have the good bits of legal practice, but it doesn’t have the bad bits either. PLT was introduced because Articles were inconsistent in quality and were increasingly difficult to obtain. Some people had a great experience and learned a lot. Other people hated it and learned little. Learning on the job is not always the best way to learn something. What you see is not always best practice. Individuals have their own idiosyncracies – is this the way you have to do it, or is it just this person’s way? It is often easier to learn when you are not in the chaos of a legal office. In PLT you can make mistakes and ask stupid questions without damaging your reputation in the office. Then you’re more likely to do a good job on the job, and to ask intelligent questions. In PLT we can give students a leg-up and offer them some tools to apply, instead of expecting them to work everything out for themselves, starting from scratch. The modern trend in most industries is for formal training, not pure apprenticeship. Disclaimer: I have taught in and consulted to several GDLP programs, as well as working in legal practice for many years. Never taught academic law at all.

    • Hey there Shelley and thanks for your perspective on this one. I’m not sure I have a strong opinion on PLT vs Articles to be honest (Uncle Andrew is not my alter-ego, for anyone who was wondering), but what I do know is that survey after survey is telling us that law firms are of the view that graduates/newly admitted lawyers are unprepared for practice. The question then becomes “whose problem is it”? Of course, firms could step up and offer some better onboarding, but that’s a different discussion.

      One example – I recall reading a PLT assignment that someone had written once. It was a “letter of advice” type assignment, and therefore notionally practical. The letter, although technically accurate and correct, was about 10 pages long. It needed only to be 2. Most clients would not have read that letter. That feedback, however, was not given on that assignment. My question there is this: did that assignment actually prepare that student to draft a real world letter of advice, or not? Of course, such things are subjective and nuanced, and that makes people fairly uncomfortable from an assessment standpoint, but again that’s a different topic.

      PLT has evened out the playing field and offers a consistent experience and a safe training ground to graduates. From that perspective I can see its value. However, it also removes the outliers in the other direction – while the bad articles experiences have been removed, so too have the awesome articles experiences. That’s a predictable but unfortunate side effect of the system. A complex topic, with many variations and issues.

      • Shelley makes a good point. At the end of the day, PLT is about providing more consistent training for all law graduates to learn the essentials of practice. I think the positive articles experiences you refer to can still be gained in a lawyer’s first year on the job, AFTER they get the proper grounding of a PLT course to make sure they are being taught the consistent basics. I accept the example you provided of the 10 page letter. But just as not every articled clerkship yielded a positive experience, not every PLT provider would neglect to point out the obvious need to condense that letter – particularly since almost all PLT trainers are practitioners and not academics.
        Having said all of that – there is always room for continuous improvement in these frameworks, and PLT is no exception. PLT training is also clearly not the end, but the beginning of a trainee’s learning. It is one piece of the puzzle shared by law school and law firms. *I should also disclaim that I work in a PLT environment.

        • Hey there Alex – all good points, and I’m not really arguing against them – just offering the alternative view. In terms of the “first year on the job” surely the same principle applies? Some will get the “good first year on the job” and others won’t? At the end of the day, I think the main point to be gained is that PLT has not eliminated the need for graduates to be actively coached and mentored on the job, whenever that might be. That used to be the (theoretical) role of the master in articles. We might use different labels now but the role still exists and is just as important.

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