Experience Matters: Law Schools Provide It; Now We Need to Assess It
Since 1982, I have been an experiential education proponent, but a somewhat unusual one. For my entire 35 years in legal education, I have lived with one foot on each side of the unfortunate and artificial divide that exists between, for lack of better terminology, experience-oriented faculty and classroom-oriented faculty. My first professional piece of scholarship criticized the divide, using Dr. Seuss’ story of the Sneetches as an illustrative device. Remember the story? Thirty-five years later, a dozen books and many dozens of articles about both my substantive expertise and about legal education reform, and two major curricula reforms spanning 29 years of work (at William & Mary and Washington and Lee), I am inspired anew by the most recent report from IAALS, Hiring the Whole Lawyer: Experience Matters.
My work on the classroom/traditional side has never needed empirical justification. It represents legal education’s status quo. As much is to be said for its value. Especially in the first year, the brilliance of the analytical challenges presented to first year students, the demand that they develop the capacity to question and explore first-instincts, builds the true ground-layer of the excellent legal mind. By contrast, my work on the experiential side has always been met by skepticism by those who share my belief in the value of the classroom. Experiential education is not the status quo; it is always subject to demands for empirical evidence of its value.
Data is always demanded to justify change, but not to support status quo
Even when the status quo is repeatedly found wanting, is repeatedly decried as incomplete and disconnected with the profession its students feed into, the status quo seems always immune to demands for empirical support. But not so, change. Change is ever challenged, ever denigrated, and ever subject to demands for proof.
Now comes the Foundations for Practice project and its comprehensive, wide-ranging data collection and analysis of what it takes for lawyers to succeed, and now, what markers of beginning lawyers are most valued as predicting those success attributes.
In its first report, based on a survey of more than 24,000 lawyers, the Foundations for Practice project identified what makes entry-level lawyers successful (“the foundations”). In its second report, the project has turned to what markers best predict whether entry-level lawyers will have those foundations, and therefore how likely they are to succeed.
Brilliantly, the project did not ask lawyers, “how do you hire?” Instead, they asked, in essence, what markers best predict that entry-level lawyers will have the previously-identified foundations. The survey-takers’ answers tell us: “Experience Matters.”
Experience that matters takes the form of actual work experiences such as clerkships, externships, and clinics. And experience that matters comes in the form of experiential education, including simulations, externships, and clinics. The respondents say that experience matters more than class rank, journal or law review membership, law school attended, specialty substantive-area certifications. Recommendations from judges and lawyers matter more than recommendations from professors.
If experience matters more than GPA, class rank, and so forth, why do employers continue to use GPA and class rank and school attended as the first round of screens, limiting their exposure to untold numbers of job candidates whose markers would show them to be more likely to provide value to the employer and its clients?
Because GPA and class rank and school attended are easy screens
It’s easy and it’s the status quo way of hiring. “Nobody ever got fired for hiring IBM,” the saying goes. Although we repeatedly hear stories of new hires with excellent credentials failing to produce, those failures are comfortably blamed on legal education, not on the mechanical-adherence to status quo hiring procedures. Against their own long-term self-interest, hiring partners and others use the status quo, easy markers to narrow the field, and miss seeing many students who hold great promise.
Now with the data from the Experience Matters report, we can identify these students of great promise who are currently being passed over. How can we help employers identify them? To succeed, any such system must be as easy to use as the current GPA, class rank system. We in legal education will need to do the work to devise such a system and produce the easy-as-GPA-to-use numbers. Still, we should expect the full participation of the practicing branch of the profession, given that such a new system will ultimately serve their interests and those of their clients.
What we could do—One option
In recent years, we find ourselves creating educational goals and outcome measures for accreditation purposes. We are assessing more than by giving final exams. Why not understand the new accreditation requirements as an invitation to assess students for attributes that approximate the teachable aspects of the Foundations?
Matching educational goals and assessments to teachable aspects of the Foundations would open the door to creation of an alternative GPA or GPAs. Such numbers as easy to use and order as the current GPA could assess students for their abilities and achievements in problem solving, communication, work initiative, creativity, and the like. Such alternative GPAs could communicate the student’s qualities that more closely match what the “Experience Matters” report tells us employers believe are the most valuable markers of success. Employers could access students for the attributes the employer values most highly.
Experience Matters. We are indeed providing amazing experiences for our students through the combination of clinics, externships, and simulations. Now the task is to communicate their achievement levels in ways that employers can use as easily as they now use the status quo markers.
Editor's Note: Professor Moliterno was recently named the recipient of the William R. Rakes Leadership in Education Award from the Virginia State Bar Section on the Education of Lawyers in Virginia.