Two pressing issues, among others, confronting the U.S. legal market are (1) the dearth of “practice-ready lawyers” graduating from U.S. law schools, and (2) the lack of legal representation accessible to U.S. citizens, especially low to moderate-income Americans.[i] By changing the third-year law school experience to focus primarily on the assistance of unrepresented individuals, we can enhance the practice readiness of new lawyers and access to justice in the U.S. The idea of third years doing far more than engaging in traditional curricula has been gaining traction for years, and most law schools currently provide some clinical opportunities for their third-year students.[ii] A paradigm shift among legal educators is not necessary to provide students the broader, experiential platform espoused here. Some general facts to consider:
· Roughly 18 million low-income Americans (those at or below the poverty level) have legal needs, but do not obtain legal assistance.[iii]
· Roughly 20 million moderate-income Americans (above the poverty level but earning $60,000 or less), have legal needs but do not obtain legal assistance.[iv]
· DIY (do it yourself) legal representation is rapidly expanding. For example, 97% of tenants in landlord/tenant matters in Utah self represent.[v]
· DIY growth probably stems from the fact that most DIYers cannot afford a lawyer.[vi] DIYers often make too much money to receive legal aid, but not enough to pay a lawyer. The legal system is “labyrinthine, inaccessible, unusable” and accordingly, many DIYers “are likely losing claims and paying penalties they could have avoided with a lawyer at their side.”[vii]
· 40,000 to 44,000 law students graduate from U.S. law schools each year.[viii]
· 49% of 2011 graduates obtained jobs at law firms, down from 58% in 2002.[ix] This is the “new normal.” [x]
My resulting conclusions:
· 38 million Americans, give or take, who would benefit from legal assistance, are not receiving any.
· Many DIYers, individuals and small businesses, are not self representing because they want to, but because they have no alternative. These DIYers also would benefit from legal assistance.
· Thousands of third-year students could render legal assistance to those going without, either through full representation or guidance on “unbundled” legal questions.
· In the new normal, third years must expand their professional horizons; less than half will be employed by law firms. Engaging in comprehensive experiential training will bolster practical skills, provide needed exposure to real world clients, and prepare tomorrow’s lawyers, particularly solo practitioners and those who lack a mentor, for the challenges ahead.
While national and state bar associations, the judiciary, legal practitioners, other industry experts, and law schools recognize the need to improve access to justice and the preparedness of our next generation of attorneys, associated discussions seldom address the topics together. Merging the topics for resolution, however, merits examination. Each year, tens of thousands of budding lawyers need experience practicing their legal calling (under appropriate supervision), and hundreds of thousands of citizens need legal guidance. Through properly tailored, fully experiential third-year curricula, the needs of both students and citizens can be met.[xi] Two birds, one stone.
[i] See, e.g., http://worldjusticeproject.org/country/united-states (U.S. receives lowly ranking among wealthy nations in the provision of civil and criminal legal services); http://bestpracticeslegaled.files.wordpress.com/2011/08/2011_hod_annual_meeting_10b.pdf (“The current educational and structural model for preparing law students and forming new legal professionals is under fire on many fronts.”).
[ii] See, e.g., http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1009&context=jlsj (Margaret Martin Barry, Practice Ready: Are We There Yet?); http://law.wm.edu/academics/programs/jd/electives/clinics/index.php (William & Mary Law School, clinics overview).
[iii] In 2011, US census data indicates, there were about 46 million low-income Americans. Approximately half of those individuals, extrapolating from a 1994 ABA study entitled “Legal Needs and Civil Justice,” likely had legal issues (23 million), yet only 1 in 5 of those individuals (4.6 million) sought/received assistance. That leaves 4 out of 5 (18.4 million) unrepresented.
[iv] In 2011, extrapolating from US census data, there were about 60 million moderate-income Americans/households. The previously mentioned ABA study states that 52% of moderate-income Americans had legal issues (30 million), with only 33% of those individuals seeking/receiving assistance. That loosely leaves 20 million unrepresented.
[v] See, e.g., http://www.nytimes.com/2010/01/02/opinion/02broderick.html (“An increasing number of civil cases go forward without lawyers,” including “life-altering” matters). See http://www.americanprogress.org/wp-content/uploads/issues/2011/06/pdf/objection.pdf
[vi] http://online.wsj.com/article/SB10001424052748704229004575371341507943822.html ("You can hardly find a lawyer who charges less than $150 per hour, which is out of reach for most people").
[vii] http://www.abajournal.com/news/article/middle-class_dilemma_cant_afford_lawyers_cant_qualify_for_legal_aid/ ; http://online.wsj.com/article/SB10001424052748704229004575371341507943822.html
[viii] See, e.g., http://www.nalp.org/uploads/NatlSummChart_Classof2011.pdf ( NALP summary chart for 2011 graduates).
[x] See, e.g., http://www.reinhartlaw.com/Services/BusLaw/CorpGovern/Documents/art1111%20TE.pdf (“The reality of today’s economy means fewer opportunities for law school graduates. With fewer clerkships, internships, and law ﬁrms hiring new graduates – and access to mentors – law schools are graduating more lawyers with less experience.”)
[xi] The content and scope of the curricula – from devising methods to supplement student experience with professor instruction, to deploying technology in teaching and providing legal services, to harmonizing rules governing third-year instruction and practice, to designing business models third years can use in their representations - are topics for another day.