Not everything worth knowing is taught.
There are a couple of things that law school doesn’t teach you. Let’s go through the list, because I believe in this:
Scientia potentia est = Knowledge is power
1. Real practice exists outside the bubble
Anyone who finishes law school is completely blindsided by how the law is practised in real life. This is unsurprising. Law schools continue a dogged focus on imparting academic ‘black letter’ law. The upshot of this is that students remain unequipped for the real world.
On one view, there is an argument that law schools have a very specific role in legal education. That role involves imparting the basic building blocks of legal education. This is why we have subjects like jurisprudence, also known as legal theory. At its centre, the legal purist argues that every case boils down to a series of academic legal principles.
The difficulty is that real practice is messy, ugly, and bound up in human conflict. Real practice exists outside the bubble. A significant part of legal work is about trying to get the facts right. There is no perfect scenario or set of identical facts to a case you read at law school. We must analyse every case on its ‘factual matrix’ (also known as the facts specific to the case).
2. Front-end vs. back-end law
Law schools definitely do not tell you about the difference between the ‘front-end’ versus ‘back-end’ practice of law. I would go so far as to argue that law schools only prepare you for back-end practice. Let me explain.
‘Front-end’ is also known as the ‘transactional’ practice of law. Lawyers in this area focus on making transactions happen. On a basic view, they do this by drafting contracts, negotiating and undertaking due diligence. Due diligence is also known as ‘figuring out if there is anything dodgy about the transaction’. For a property sale, it could be asbestos-contaminated soil. For a business sale, it could be artificially-inflated sales figures.
‘Back-end’ is also known as the ‘litigious’ practice of law. It’s when people realise that they got the short end of the stick and are deeply unhappy about it. This is when they seek recompense, not necessarily (but often) in monetary terms. If you think about practice as a spectrum, this pretty much describes it:
‘FRONT END’
People are happy
People are doing deals
People don’t think anything can go wrong
Everything is great
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‘BACK END’
People are unhappy
People hate each other
They sue each other’s pants off
They think it’s a matter of principle, but often it’s about money
Somewhere along the spectrum, there is scope for:
- advisory work;
- contract management; and
- diffusing disputes in a variety of ways (not involving the courts).
Now let’s go from the real world back to law school. A big focus at law school is reading cases. Lots of them. Cases are useful for learning about the crazy things that people do. Of course, we are always wiser with the benefit of hindsight. Another upside of reading cases is that you can break difficult concepts down into bite-sized rules – also known as legal principles.
Reading cases sets you up very well to think about when things go wrong. This is what working in the ‘back-end’ of law is all about. A downside is that reading cases does not give you a full appreciation of the cut and thrust of legal practice. In real life, no problem ever comes nicely packaged with a proper headnote, footnotes and case references. Neither are the facts straightforward, pretty or easy to distill. This is because clients are humans – and humans don’t always give you the straight facts (whether knowingly or unknowingly).
Reading cases also doesn’t tell you much about what front-end practice is like. Let’s take a closer look at this in the real world. There are a variety of areas that you can deal in as a front-end lawyer. Here’s a short list:
- intellectual property;
- patents;
- construction;
- franchising;
- conveyancing;
- trusts;
- wills and estates;
- mergers & acquisitions / sale of business.
As a front-end lawyer, the intention is that you become an expert in a particular area of law. You are NOT all things to all people. One exception is if you work in a family or small law firm context. This means that you provide the things that ‘normal people’ need. This includes conveyancing and drafting wills.
Unfortunately, law schools offer virtually no training on contract or other kinds of drafting. A friend told me that her law school ran one subject on it. This is still non-standard in Australian law schools, and I suspect in other countries. I am not sure why law schools don’t teach these subjects.
There are two explanations for this.
First, most academics have limited practical experience. This doesn’t mean that they lack knowledge. But you can only teach what you know. It creates a situation where the teaching is separate from the actual practice of law.
Second, law schools only get in practitioners with experience to teach at the Masters level. This is far too late given that lawyers only consider a Masters degree after a couple of years of practice.
There is a significant benefit for students to learn about contract drafting. At a minimum, law students should have the tools to analyse contracts in a critical way. It’s CRAZY that most law students get to the end of their studies and have never read an actual contract.
3. Areas of legal practice
In a similar vein to #2 above, the subjects at law school do not always reflect actual areas of practice.
What we did have at law school was a subject called ‘Remedies’. This was a rather bizarre way of saying, ‘these are the various grounds for which you can get relief from a court of law’. We also read a lot of cases. Including one about a chicken farm.
‘Remedies’ as a subject isn’t an area of law in itself. It is part of a natural progression of thinking about any one case, at least in litigation.
These are a selection of commercial law practice areas that I never knew about before going to a law firm:
- corporations / mergers & acquisitions;
- finance;
- technology;
- property;
- taxation;
- intellectual property;
- construction / energy;
- employment;
- general commercial litigation.
They are ordered from areas that are most likely to involve ‘front-end’ practice to ‘back-end’, or a mix of the two. You’ve probably realised that I haven’t even touched on common law (e.g. personal injury), family or criminal law.
4. Managing an irate client
Another aspect of practice that you don’t encounter at law school is THE IRATE CLIENT.
Irate clients can come in all forms. Sometimes it’s due to stress from their case. But it’s often due to perceptions that their lawyer isn’t doing enough to help them or that fees are too high (for the outcome). Some of this is unavoidable, but it’s about how well you manage expectations from the outset.
Thankfully, most clients (depending on the area of law) are reasonable people who will trust your advice.
5. Becoming a better decision-maker
Law school doesn’t equip you with the tools for making better decisions. In practice, you will need to make 1001 decisions at any one time about a variety of matters. For example:
- Do we use this case?
- Do we follow this particular line of inquiry?
- What have we missed or have we asked all the right questions?
- How do we break the bad news to our client?
Some people are better decision-makers than others. The best decision-makers can quickly reach a position after considering all the facts. They are also confident enough (but not arrogant) to stick with their decision. They also wear the consequences (if any) of a decision without the need to throw other people under the bus.
Perhaps there might be better decision-makers in the world if we paid more attention to this area.
6. Communicating with persuasion
Apart from mooting competitions, there are few opportunities to hone your persuasive communication skills at law school. Advocacy is an important aspect of practice, whether it means convincing a judge or your client.
7. The wheels of commerce
Sorry to shatter your world, but the reality is that a legal practice runs on the same currency as many other businesses – that is, money. This is a major driving force of how the law is traditionally practised.
One of the first things you realise is that there are no rivers of gold to fund technical arguments on obscure legal points. This is unless your client is a large corporation. Even then, they are getting more savvy these days about the kinds of legal fees they won’t pay for.
Law school also doesn’t tell you about the notorious six-minute billing interval. This is the bread and butter of how law firms make their money. Lawyers live and breathe the six-minute interval. Every hour has 10 sub-units (60 minutes divided by 10 gives you the six-minute interval). Another example – 36 minutes is 6 units.[*]
You will become inculcated into counting your minutes like grains of sand. A lawyer once told me that she knew this was becoming a problem for her one weekend. It started when she was reading a book for pure leisure. Unconsciously, she wrote down the time she started reading. When she put the book down, she wrote the time that she finished. Then it dawned upon her – the horrifying realisation that the six-minute interval had taken over her life.
I promise to write more about the six-minute interval, but I can assure you that it is one of the least-loved parts of life as a lawyer. Clients also detest it for obvious reasons because there is no obvious link between time spent on a case and the outcome. It is one of the major struggles of the legal profession to continue to justify.
To conclude
I hope this post has given you some insight into what law school doesn’t teach you.
Now, go out into the world, more enlightened than ever – with a spirit to change (if required) how things are currently done.
[*] Thank you to a lovely reader who picked up on my original typo of 0.6 units. This is how we would record our time.