What do lawyers do?

In this editorial for the Autumn 2008 issue of Directions Avrom Sherr, Director of the Institute of Advanced Legal Studies and Woolf Professor of Legal Education in the University of London, as well as Chair of UKCLE’s Advisory Board, examined the evidence for just what it is that lawyers do.

If as legal educators we are supposed to teach people about law, and especially if we are to teach some how to be actual lawyers, it would be very good to know exactly what it is that lawyers do. It could be said that if we did not know what lawyers do we must be failing in our efforts to teach others both about law and how to be lawyers.

But unfortunately, despite many exhortations in the academic literature and brave attempts at socio-legal research into the legal profession, we still know very little, and what we do know could well be dated. In the last two decades there has been a geometric progression in change in the legal profession, driven, among other things, by industrialisation, globalisation, growth of law and regulation, and the information technology revolution. We did not know enough 20 years ago, and we have not been able to keep up at all with such changes since.

Two models of legal education in the USA for 1978 and 2010 show some reaction to the notion of necessary change and to the different cultures of two periods. In 1978 Roger Cramton, Dean of Cornell Law School, described the “ordinary religion of the law school classroom” as:

a sceptical attitude towards generalisations; an instrumental approach to law and lawyering; a ‘tough minded’ and analytical attitude towards legal tasks and professional roles; and a faith that man, by the application of his reason and the use of democratic processes, can make the world a better place.

Moliterno (1996) predicted that, by 2010:

As the law became more complex…the final remnants of the mid-20th century notion that law schools could somehow teach in three years all the law a lawyer would need to know were reduced to ash. The emphasis of legal education…has finally and fully shifted to teaching fundamental legal principles and philosophies, perspectives on law’s place in society and the thought processes and judgements inherent to lawyering. The intent is to graduate lawyers who will be capable and flexible learners and practitioners in a remarkably wide variety of settings.

The 2010 vision represents some of the pressures on legal education to cope with the massive growth of law and regulation in every jurisdiction as well as the need to educate lawyers for a fast changing set of environments. And this may be an effective way to handle our lack of knowledge of the future. But wouldn’t it be nice at least to know the present?

Professor Carrie Menkel-Meadow (1980) talks about macro and micro theories of lawyering. There could be a more grand approach with macro theories of purposes, power, structure and substance of the legal profession and the lawyers’ role in society. Or it can be analysed as micro theories in relation to the different tasks and skills which lawyers carry out and the amount of time they spend on such different tasks and skill sets.

In England and Wales, prior to setting out the foundations of the then new Legal Practice Course for solicitors, two pieces of research were funded by the Law Society in order to determine first of all what solicitors were actually doing (Sherr, 1991), and secondly what approaches should be used in terms of teaching (Economides and Smallcombe, 1991). In order to analyse skills and tasks and the percentage of time which lawyers were spending on these, a team of researchers followed a set of lawyers working in different forms of legal practice and at different levels of experience over a period of one week and noted the amount of time spent on each of approximately 100 task subsets. These were grouped under the following headings, with the average proportions of solicitor time shown in parentheses:

• administration and management (22%)
• dead time (16%)
• interviewing clients (14%)
• drafting (11%)
• reading and assessing papers (9%)
• discussions with other lawyers (7%)
• travelling (6%)
• negotiation (5%)
• advocacy (3%)
• legal research (2%)
• interviewing witnesses (2%)
• time with counsel (1%)

It was thought to be crucial to carry out some form of research along these lines in order to understand how the profession does its work, ie the current modes of practice, and to determine the preponderance or proportion of particular tasks (and therefore the need to concentrate on these). It was also thought necessary to carry out this research before deciding the method of education and training. Even the most senior legal practitioners tend to assume that they know what they do, and perhaps, even worse, that they know what everyone else does in legal practice. We found that such assumptions were not always correct.

An important overview of practice did emerge from this research. In general, the balance of time spent on the different main task headings was fairly constant. The type of work being carried out, whether transactional or litigious, or even the different level of the lawyers working on these tasks, seemed to matter little. So, for example, the proportion of time spent in client handling tended to be more than the time spent in drafting, negotiation etc, whatever the type of work or the level at which it was performed. When the Law Society put together its Legal Practice Course it was thus able to take a common approach to the training of tasks and skills in whatever type of work the students were going to practice. Some 17 years after this research it would certainly be interesting to see whether these proportions are still the same – and also fascinating to know whether it would be the same or different in other countries with mature legal work patterns.

This form of research into the nature of legal work is a very small part of what we need to know even to begin to understand the world of the law, let alone teach about the law and teach others how to practice. Much more understanding has come recently from more qualitative approaches looking at particular specialisms of legal work, and hopefully there will be more coming out of current work on what lawyers understand as professional competence. But we should not continue to assume that we know what lawyers do, or that we can continue to teach about this, without knowing more.

References

• Cramton R (1978) ‘The ordinary religion of the law school classroom’ Journal of Legal Education 29:247
• Economides K & Smallcombe J (1991) Preparatory skills training for trainee solicitors London: Law Society
• Menkel-Meadow C (1980) ‘The legacy of clinical education: theories about lawyering’ Cleveland State Law Review 29:555
• Moliterno M (1996) ‘Clinical legal education in the year 2010’ Journal of Legal Education 46
• Sherr A (1991) Solicitors and their skills London: Law Society

Last Modified: 9 July 2010