Return to ELP Seminar Participants' Papers 1999- http://www.uiowa.edu/~cyberlaw/elp02/priorpap.html
 
 

Some might think such a statement was made in regard to the numbers of lawyers graduating from law schools today.  Though perhaps fitting in some regards, this is not a comment on legal education at the beginning of this century, but rather a comment on medical education at the start of the last century.  Actually, legal training is in a far better state now than medical education was then, and law schools go to great effort and succeed in graduating well educated new lawyers.  Where law schools fail, and hardly even try, is in developing trained practitioners.

I.  Introduction

At the dawn of the twenty-first century, the legal profession faces some serious challenges.  These challenges include developing ways of providing legal access to all those who need help, the ability of newly minted lawyers to serve clients after graduation, and general perceptions about lawyers.  Improvement in these areas will not be easy or fast, and will almost certainly require a number of approaches to adequately address these issues in full.  However, one approach that will help all three of these areas is to modify the training regime of lawyers.  The problems of decreasing affordable access to legal assistance, lack of experiential training, and low public perception of lawyers can be improved by instituting a legal residency training program as an additional requirement for admission to the bar.

A legal residency training program could play a significant role in the identified areas.  By requiring an additional amount of hands-on training, great dividends will result.  Training will improve, legal help will be more readily available, and the public feeling about lawyers will improve.  This is not to say that this one change will fix all the troubles that the legal profession faces.  It can, however, be an important element in the creation of an approach to improving the profession.

 This paper begins in Section II by examining some of the current difficulties facing the legal profession.  This begins by discussing how the public regards the profession, how the profession regards itself, and the current medical and psychological status of the profession.    Next, problems with legal services are examined, specifically in the areas of cost and availability of services.  Lastly, law schools themselves are considered.  Their history, current approach to training, and failings are reviewed.

 In Section III, the approach to training of other professionals is reviewed.  This includes considering the training of medical doctors and dentists in the United States.  Additionally, the system of legal training of lawyers in England, and that of vocational training in Germany are presented.

 Section IV presents the idea of a legal residency requirement as a partial solution to the difficulties facing lawyers.  This section are discusses the challenges of developing such a system and makes recommendations for implementation.  This section also develops the benefits of a residency system as well as cautions to consider.

II.  Some Current Legal Problems

A. Aspects of the Legal Profession

1. Public Opinion of Lawyers is Very Low

It has been observed that the public has conflicting expectations of lawyers.1  People want a lawyer that is tough and fights for their rights, but at the same time want lawyers to be friendly and kind.  Surveys show that people think lawyers are too greedy, file unnecessary lawsuits, and manipulate the legal system.2  At the same time, people like that lawyer's put client's interests first, and that they protect people's rights.3  Unfortunately, these positive and negative views are the two faces of the same activities.

This inherently conflicted nature of the profession perhaps leads to some of the attitude towards lawyers.  Whatever the sources, in the popular culture jokes about the legal profession are both common and numerous.4  The attitude of individuals and society is reflected in everything from drawings,5 poems,6 and any number of verbal stories, jokes, and riddles.7  Rarely are any of these flattering to or respectful of attorneys.   However, they are ways to reflect the public's perception of lawyers.8

Furthermore, they accurately portray the common perception.  In surveys of public opinion, lawyers rank below insurance agents in admiration.9  One poll revealed that 60% of people have a "fair" or "poor" impression of lawyers, and just 5% have an "excellent" impression.10  Though there is no agreement on reasons, of which there are likely many, lawyer advertising has been pointed to as one problem area contributing to the negative image.11  Startlingly, for a profession already held in such low esteem, and even worse news, is that 36% of respondents stated that their perception of lawyers had gotten worse, and only 8% said it had improved.12  All of this show a profession that is not well respected in society today.
2. The Legal Profession Also Has a Low Opinion of Itself

This public opprobrium is certain to have an effect on lawyers.  Although 75% of lawyers reported that they were satisfied in their work in 1990, there was a 20% reduction in those reporting they were "very satisfied."13  Perhaps surprisingly, the causes are not limited to external public opinion driving the dissatisfaction, but changes within the practice of law itself.  The survey noted a marked increase in many categories of negative experiences, which also appear to drive the decreasing satisfaction.  The categories of negative experiences include less time for self, lack of time for family, advancement not determined by quality of work, and firm politics.14  All of these can be grouped in an overarching cause: loss of control.  It is further suggested that the loss of control that is felt and the resulting increase in dissatisfaction are resulting from the relentless push for billable hours and the transition to a business model for law firms.15

Others reason along similar lines, suggesting that lawyers no longer follow the "wise counselor" or "lawyer statesman" ideal.16  The ideal of law as a business has become prevalent, resulting in increased competition, the press for billable hours, and a decrease in mentoring and fraternity.17  One author suggests that an approach to ethics based on virtues and character rather than the current focus on rules as a guide to professional ethics would help re-establish law in more positive terms.18  It is suggested that focusing on justice, fidelity, self-care, and prudence would establish an ethics base that is stronger and more effective in promoting the positive aspects of the profession.19

In addition to dissatisfaction within the profession, and a changing approach to the practice of law, lawyer's mental and physical health is also deteriorating.  Depression is a prevalent mental health affliction for lawyers.  It is suggested that the depression experienced by lawyers is at least partly due to society's conflicting expectations.20  Because lawyers internalize the attributes and conflict that society projects onto them, lawyers themselves can become self-conflicted.  This conflict can lead to depression and dissatisfaction with a legal career.  In fact, one study of 103 occupations found that severe depression was more likely to occur among lawyers than any other occupation.21  And it is not just depression afflicting lawyers.  One study showed that lawyers were 3.6 times as likely to suffer from major depressive disorder than others who shared the same key sociodemographic traits.22  Not only is depression prevalent among lawyers, but other mental illnesses occur frequently as well.  Other studies have show increased levels of anxiety, hostility, and obsessive-compulsiveness.23

Lawyer's troubles are not just limited to mental afflictions, but extend to physical afflictions as well.  Lawyers are problem drinkers at almost twice the national rate.24  Suicide rates for white male attorneys may be over twice that of other white males.25  Divorce rates for female attorneys are substantially higher than divorce rates for women generally, and are significantly higher than rates for female doctors and professors, other highly educated groups of women.26  As far as general health, researchers agree that lawyers as a group are "in remarkably poor health."27

 Given all of the above, it surely comes as no surprise to find that lawyers are also unhappy.  A study of California lawyers found that only half would become lawyers if given the chance to do it over.28  Another study in North Carolina had similar results.29  In an ongoing study, the University of Michigan conducts surveys of graduates every five years.  This study has recently revealed striking decreases in the percentage reporting they are "quite satisfied" with their careers.30  From the 1976 to the 1991 classes, this "quite satisfied" percentage dropped from 45% to 37% for lawyers practicing in small firms, and from 53% to 30% for those practicing in large firms.31  Other studies also show declining satisfaction, and such results encompass both associates and partners.32

B. Access to Legal Services

1. The Cost of Legal Services is Rising

In considering access to legal services, cost surely is one of the primary concerns.  If you can't afford to pay for assistance, it is meaningless to say that assistance is available.  Considering costs, it is plain that the cost of legal services is rising in every area of law.  For example, in Orange County, California, a litigated child custody case now costs an average of $14,000.33  Statistics show that the average cost for a divorce in the United States is $15,000.34  One person found the average cost of a simple business incorporation was over $700.35  One firm claims that an average landlord-tenant dispute will cost around $1000.36  "The average cost per claim could rise to $30,000 that individual financial professionals pay to defend themselves against litigation, and in some cases it could exceed $100,000."37

These rising costs make legal assistance less available and less desired.  Fewer people are able to raise the amount of money needed for legal help without severe financial distress.  Even for those that could afford it, the rising costs are leading to greater cost/benefit tradeoffs that are more frequently resulting in a decision not to retain a lawyer.

The rise is cost is affecting greater numbers of people in more serious ways that ever before.  Numerous recent studies have noted a continued increase in self-represented litigants, particularly in the family law context.38  This increase places additional burdens on court staff and judges, as pro-se litigants require extra assistance in filling out paperwork and extra guidance on procedural rules.39  Therefore, not only do courts have to manage and deal with an increasing number of cases, a greater percentage of those cases involve pro-se litigants.  As they have little or no legal training, and require extra assistance, this too is placing an increasing strain upon judicial and chambers resources.  Additionally, this places strains on the adversarial system, as judges experience extra difficulty in a case where one party is represented by an attorney and the other is self represented.40  This places judges in an awkward position.  Rather than acting as a neutral, detached, referee, the judge is placed in the position of appearing to favor one litigant over the other, either because of the extra assistance or leeway provided to the pro se party, or the apparent unfairness of enforcing procedural rules over which the pro se party may not have a firm grasp.41  Finally, the increase in self representation may lead to less substantive justice.  Because of the difficulties of "navigating complex, confusing, and often convoluted legal procedures," the self-represented party may not take appropriate action, and give up rights by failing to pursue possible remedies, missing causes of action, and not knowing evidentiary and procedural rules.
 
2. The Availability of Legal Services for the Poor is Decreasing

Availability is often wrapped up with cost, as they are indeed closely related.  However, to overcome the cost barrier, many jurisdictions have some type of legal aid organization in order to provide legal services to the poor.  Various groups began establishing legal aid organizations starting around 1900.  Legal aid programs grew very slowly until the 1960's, when they expanded considerably due to both public and legal interest.42  The major precipitating factor was the emphasis placed upon it by the private Ford Foundation, which infused a great deal of money, and infused the program with "new money, new stature, and new assertiveness."43  Following that lead, the federal legal assistance program was established.44  After political wrangling, the Legal Services Corporation (LSC) was established in 197445  LSC acts as a funding agency for local legal programs, but funding has remained modest.46  One example of a public assistance program is the Legal Services of Northern Virginia, which was created by the merger of local legal aid offices formed by members of the Virginia Bar.47  This group was founded in 1980, and since that time has participated in over 80,000 cases.48  Last year alone, the group acted in 5,656 cases.49  It can readily be seen that the need is great, especially considering that this group covers only a small area of Virginia.

Because of the modest federal funding, a significant amount of funding is provided on the state or local levels.  A significant source of state funding in some jurisdictions has been from IOLTA accounts (Interest on Lawyer's Trust Accounts).  Generally, these trust accounts are used where the amount of client's money is too small, or the time which the lawyer will hold the money is too short, to make it worth creating a unique account for that client.  Even so, the money earned can be considerable.  For example, Texas obtains about $10 million per year in IOLTA revenue, which is used to support legal services for the poor.50  And, even though there are fairly strict guidelines for use, the IOLTA programs have come under fire.

These programs are receiving significant scrutiny due to a 1998 Supreme Court decision.  In Phillips v. Washington Legal Foundation, the Court held that interest earned on client funds in IOLTA accounts private property and is the "property of the client."51  The Court remanded the case back to the lower court to determine whether the property had been taken by the state and if so, to determine the amount of just compensation due.52  After further legal battles, the Fifth Circuit determined that there had been a "taking" under the 5th Amendment, but also affirmed that a monetary-reimbursement claim was barred by the 11th Amendment.53  Although monetary relief was unavailable, the Fifth Circuit did find that declaratory and injunctive relief would be proper.54  The Fifth Circuit has denied a petition for rehearing en banc,55 and petition for certiorari to the U.S. Supreme Court has been filed.56  This is therefore, great uncertainty about the future of these funding schemes.
 On top of court challenges to a major source of funding, the adverse state of the economy is also affecting legal services funding.  With recent state budgetary problems, state funding for legal services is dropping.  For example, Missouri provided more than $1 million in funding three years ago, but only provided $50,000 in funding last year.57  In response, the Missouri bar is proposing an increase in filing fees for civil cases, with the proceeds earmarked for Legal Services.

 Even with all of these public assistance programs, less than 1% of lawyers work full-time representing poor people or other unrepresented interests in civil matters.58  However, even before the current funding problems, it was estimated that only 20% of the legal service needs of the poor was being met in 2000.59

The United States legal system has historically depended on pro-bono to fill many of these unmet needs.  The bar has long recognized some obligation for its members to assist those unable to pay for legal help.60  Currently, the American Bar association recommends 50 hours of pro-bono service per year.61  The Ethics 2000 Commission recommended that the ethics rules should be revised to require, rather than just recommend 50 hours of pro bone per year.62  Ths proposal was rejected by the ABA House of Delegates.  The issue came to the forefront because voluntary service appears to be in decline, with a resulting decline in legal assistance to the poor.  For example, the hundred wealthiest law firms spend only 2/3 of time for pro bono that they did eight years ago.63  Overall, the average lawyer spends less than 30 minutes per week on pro bono work.64  Given the central role that pro bono has played in meeting needs in the past, these are disturbing trends.

C. Law Schools

1. The History of Law Schools in America

Legal education in the United States can be broken up into distinct historical periods.  The first period, which lasted up until the late 1800's, was one of legal training by apprenticeship and by reading the law.65  Aspiring lawyers would work under a current member of the bar for a number of years to gain experience and knowledge before becoming a lawyer.  This allowed the lawyer to learn through a combination of study and experience.

The second period, starting in the 1870's and continuing at least until recently, can be characterized by the case method form of instruction and study.66  It is during this period that law school became a graduate school institution.67  This change can be attributed to the efforts of Christopher Columbus Langdell, dean of the Harvard Law School.68  His idea was that law could be taught as a science, rather than a craft, and that the training should take place in a law school, rather than with a practitioner.69  The library, rather than the office or courtroom became the law school's laboratory.70
 
Also in this period can be located an increase in clinical skills training.  The addition of clinics to law schools was largely instigated by the efforts of William Pincus and the Ford Foundation.71  Starting with small grants to a few law schools in the late 1960's and early 1970's, the number of clinical programs has increased dramatically.  From less than 10 law schools with clinical programs thirty years ago, now more than 100 law schools in the United States now have clinic programs.72  This is touted by some as the largest reform since Langdell.73  However, given the small number of students that actually participate in clinics programs, it might be more accurate to say that this could have been the largest reform since Langdell.  As it is, the clinics programs do serve a valuable purpose even if limited in scope.  As will be seen later, the lack of skills training in law schools remains a major concern about legal education.  Also, it has been observed that clinics and writing programs ("skills training") continues to face "formidable skepticism and other obstacles from law faculties"74
 
Lastly, there is a view that we are currently in the beginning of a third period in legal education.  There are different views on how this third period will be different.  One commentator suggests that a new law school took shape during the 1980's, and that it is characterized by diversity.75  He suggests that there is now equal emphasis on doctrine and legal reasoning, lawyering, and other perspectives on the legal system.76  An alternative view that this third period will be characterized by the application of technology to legal instruction.77  This includes both the rise of computer aided legal research,78 computer assisted instruction,79 and even an on-line law school.80

If there is to be a third period of legal instruction, it should be one that builds upon the experience and knowledge of the past in order to improve legal instruction in the future in a meaningful way.  A legal residency is an idea that combines the best of the first and second period training approaches.  It adds the benefits of apprenticeship and experiential training to that of instruction and study as currently provided by law schools.  Rather than a wild new idea, it combines the best of two different approaches that have proven to work in the past.

2. The Method of Training Lawyers

 Current legal training primarily uses a case method approach to teaching.  The evaluation of the current system varies widely.  Some authors believe that there is the right mix of instruction in law schools,81 and that clinic programs serve the role of skills instruction.82  A contrary view decries the prevalence of the case method and lack of problem solving in law school curriculum.83  This view suggests that the case method is responsible for the "significant slippage between the law as taught and the law as practiced.84  Elsewhere, it is stated that the current time "is a period of large opportunities and of considerable peril in the intellectual life of American law schools."85  The article comments on law schools ignoring or disparaging legal doctrine, assuming that the bar review courses will prepare students to pass the bar, and that the employer will train the new lawyers.86

 One judge argues that the focus of law school should be on theory, analysis, and the application of law to new problems.87  "It is in law school that students have time to learn why these rules exist and what functions they serve."88  However, he does judge that law schools are doing poorly at training in people skills, and that "[t]his aspect of your work is critical.  How you deal with other people, how you bring people together is essential for success."89  Given that this is an important area, it should receive greater attention from law schools.  It is recognized by some that "the law school clinic is the primary place in the law school where students can learn to be competent, ethical, socially responsible lawyers"90  Or, in other words, supervised experience can a great teacher.  A mandatory residency program would be a way to teach these type of skills that cannot be taught in a law school classroom to all law school students, rather than the few who participate in the limited clinical programs of today.

3. Where Law Schools Fail

Before we consider the shortcomings of law schools today, it is appropriate to recognize that law schools have generally been successful.  Even with the failings discussed below, it can rightly be said that American legal education is a "remarkable success story."91  It has been effective at training generations of lawyers.  Law Schools have also become more reflective of society in both students and faculty.92  Even though successful, law schools must continue to challenge themselves to improve.  Especially given the current state of the legal profession, as explored earlier, it is apparent that law schools are not doing enough.  As law schools form the common foundation of nearly all lawyers, improvements in law schools can have a great effect on the profession.

Unfortunately, the method of training prevalent in most law schools is linked to the current failings in law schools.  One author notes that law school fails to teach the "psychological dimensions of lawyering" in the three years of law school.93  Particularly noted is the failure to integrate a "medical school model" into the curriculum.94  Such an integration would expose students in law school to real clients with real problems.  This suggestion is not new.  In 1933 and again in 1947, Jerome Frank proposed "clinical lawyer training schools" instead of the case method approach.95  His call went virtually unheeded.

The American Bar Association has also studied and reported upon law schools several times.  One such report was a study conducted in 1979 (the Cramton study).96  This report stated that law schools should do more to develop practical competence in students.97  It suggested that law schools improve in the areas of 1) developing fundamental skills, 2) developing attitudes & values critical to professional performance, and 3) providing integrated learning experiences.98  These suggestions seem eerily reminiscent of Flexner's suggestions about medical training at the start of the century.99  Additionally, the study noted that new lawyers often go into unsupervised practices, are poorly trained, or are immediately pushed to produce billable hours.100  As true as these statements may have been in 1979, they are likely even more true today, as escalating salaries are pushing all lawyers, including new lawyers, to higher billable hours targets.
 
Another report was conducted in 1992.  This 1992 ABA report (The MacCrate Report) also examined law school instruction and suggested that law school instruction should be reformed and improved.101  This report suggested ten skills and four values that were necessary for competent client representation.102  The skills included problem solving, legal analysis, investigation, counseling, negotiation, advising clients, litigation, law office administration, and resolving ethical issues.103  The values identified included striving for justice, fairness, and morality, striving to improve the profession, self-development, and providing competent representation.104  This report was presented with more urgency than the Cramton report,105 perhaps because many of the same findings repeated themselves, showing that little progress had been made in the intervening 13 years.  This report also echoed many of Flexner's themes from years before.106  Like its predecessor, this report generated a significant reaction, but very little actual change.107

Apparently, the twin barriers of resistance to change by law schools,108 and their insulation from competition have stifled most attempts at reform.109  Relevant also is that those who would be most affected by improvements in the curriculum are those least able to effect the change.  Law students, transitory, busy, disorganized, and unfocused, generally are unable to have a significant impact on law schools without assistance.110  Given the number of competing interests,111 it is perhaps somewhat surprising that progress has been made at all.
 
At the same time, it has also been suggested that law school doctrinal training "requires only the first year and part of the second,"112 along with a suggestion for electives or clinical courses in the remaining time.  Other commentators note that the idea of less than three years of legal education is being discussed.113  There is also the oft-quoted114 law school saying:  the first year, they scare you to death; the second year, they work you to death; and the third year, they bore you to death.  That certainly doesn't paint a very pretty picture of law schools, but the implication present is that the third year is less valuable from a learning perspective as the first two years.

In the 1990's there was some curriculum modification to address some of those deficiencies.115  There was significant growth in the areas of litigation, the lawyering process, clinics, dispute resolution, and specialty classes.116  It is also asserted that the increase in skills classes is the most significant development in the past 60 years.117  In addition to the clinics courses, more lawyering skills courses are offered before and after the clinical experience.118

However, although many schools offer clinics programs, because of the expense, they are generally limited to one or two programs, with a corresponding limitation on the number of students that may participate.119  In many cases, the availability of summer law firm clerkships, externships during the school year, and judicial clerkships are counted among practical skills training.120  The downside of depending upon these for training is that there is usually no overall objective in training to be attained - rather it depends upon the immediate needs of the firm or judge.  Additionally, as has been seen during the recent economic downturn, these opportunities decrease in tougher economic climates.

One method of improvement is based on benchmarking.  That is, examine and consider what other similar areas are doing, then apply the best lessons to your own problem.  Applying this principle to law schools, other professional training programs should be examined and then the best aspects applied to law schools.  The next section examines different professional training programs.
 
III.  What Other Professions Do

A. Medical Training of Doctors in America

1. The Development of Medical Training

In 1910, a study of medical training was completed.  In order to remedy the problems that he viewed as prevalent, a three-pronged approach was recommended by the study's author, Abraham Flexner.121  First was the suggestion to affiliate training programs with universities or hospitals.  Second was the suggestion to subsidize training via government, university, or professional sources as tuition alone was inadequate to cover the expenses of necessary training.  The final suggestion was to have clinical training dominate in medical education.

Flexner's vision has largely come to pass in medical education, as all three suggestions were implemented.  The profession, government, and the universities came together to improve medical education.  One current example shows how fully this report has directed the course of medical training.  Vanderbilt University Medical Center is affiliated with Vanderbilt University.122  Only 4% of its $500 million budget comes from tuition.123  Its training program includes 497 medical school students, 450 interns and residents, 1,200 clinicians, and 800 full time faculty.124  In comparison, Vanderbilt University Law School is also affiliated with Vanderbilt University.125  However, 86% of its $11 million budget comes from tuition, and there are 540 students with 32 full time faculty.126  Furthermore, "[i]t would be a matter of despair to venture any comparison whatever between the law school's clinic and the medical school's teaching hospital."127
 
2. How to Become a Doctor

Generally, medical education is viewed as an educational continuum starting before entry into medical school and continuing until the physician becomes board certified, with fairly rigorous continuing medical education requirements thereafter.  A student may be admitted to medical school after completing an undergraduate degree, which must include certain pre-requisite courses.  A majority of the first two years in medical school is spent on classroom instruction in basic sciences and clinical work.128  The final two years increasingly adds patient care and clinical experiences in a number of rotations where the student is exposed to the different medical specialties and is able to directly participate in patient care.  The activities include taking a patient's medical history, examining patients, drawing blood, and other beginning tasks.129
After medical school, the student applies for and matches into a residency program in one of the specialty areas of medicine.130  Overall, there are around 16,500 students that graduate from medical school each year, and the great majority continue into some kind of residency program.131   There are roughly 1100 institutions that offer nearly 7500 residency programs for these residents.132  Generally, the residency programs last from 3 to 5 years, with the physician able to enter practice thereafter.133  Alternatively, an individual may decide to continue and complete even more specialty training in a fellowship following completion of the residency.134

The first year of residency is known as the internship year.  To become an intern, an individual must have graduated medical school and passed Parts 1 and 2 of the U.S. medical licensing exam.135  This allows the intern a temporary license which allows them to practice in their residency program, under supervision of the training doctors (known as attending physicians).136  After the completion of the internship year, and passage of Part 3 of the U.S. medical licensing exam, a physician may be licensed by the state to practice medicine.137  Although some states still allow interns to be licensed to practice, this is becoming quite rare, and the completion of a residency is required in nearly all states.  The completion of a residency allows the doctor to become board-eligible, which means they will be able to sit for a special exam in one of the medical specialties.138  After passage of an extensive exam, the doctor is "board certified" to practice in that area of medicine.139  Obviously this is a long process, with many checks along the way.
 
3. Examining the Residency Program in Greater Detail

Residency programs have both academic and clinical components in the training they provide.140  Lectures in various topics, related to their program are presented periodically.  Additionally, direct patient care is provided by the residents, under the supervision of attending physicians.  As the residency continues and the resident gains experience, the resident gradually gains responsibility, and begins to do the more difficult and complicated procedures.141  This allows the resident to learn by doing, and to gain confidence and ability in a step by step process, all under the guidance of training physicians.  The residents get evaluated at the end of every training rotation by the attending physician, in order to provide a periodic written evaluation to the resident.142  The resident also takes an annual exam on their specialty, that is reflective of the board exam that they will later have to pass to be board certified.  This allows another opportunity for an annual evaluation, and provides feedback to the resident of how they are progressing in comparison to others around the country, and allows the programs and the individuals to identify academic strengths and weakness.143
 
The length of residency varies, depending on the specialty in which the doctor wishes to practice.  These figures are for the residency portion of the educational process, which begins after graduation from college and the completion of four years of medical school.  Some examples of the different lengths of programs are:

* 3 years:  Family Practice, Pediatrics, Internal Medicine
* 4 years:  Ophthalmology, Radiology, Dermatology, Pathology
* 5 years:  ENT
* 7 years:  Plastic Surgery, Neurosurgery

4. Accreditation Procedure for Residency Programs

"The Accreditation Council for Graduate Medical Education is responsible for the Accreditation of post-MD medical training programs within the United States. Accreditation is accomplished through a peer review process and is based upon established standards and guidelines."144  The ACGME is an independent group that monitors and certifies programs to participate in residency training.  The ACGME has a list of requirements that programs must meet in order to be certified.145  These requirements are broken into sections, including 1) Institutional Support, 2) Resident Appointment, 3) Faculty, 4) The Educational Program, 5) Evaluation, and 6) Experimentation and Innovation.146  Site visits are conducted periodically, depending on the program, and around 2,000 site visits are conducted annually by field staff, and another 200 or so visits by specialty site visitors.147

Also, the ACGME has real power if they detect a problem during their visits.  Last year, after detecting serious problems, the AGCME shut down a plastic surgery residency program of eight residents in New York.148  The residents were transferred to other programs in the area, so that the residents were able to continue their training.  However, the affiliated hospital will no longer have those resident resources, at least until it corrects the deficiencies.   This indicates the seriousness about standards, and the willingness and ability to enforce them.

5. The Benefits of the Medical Residency Approach

There are many benefits of the medical residency training approach.  First, it combines theory and practice together, so as the student is learning from academic lectures, there are able to see real application as they interact with patients.  This integration allows for reinforcement of the concepts taught.

Second, the training progresses in a step by step fashion throughout the education process.  It begins in an almost entirely academic teaching environment, and ends in almost entirely clinical environment.  As the student gains more ability, confidence, and knowledge, the student has a greater opportunity to apply that knowledge to patients.  However, at no point is the student left to flounder alone, but has the attending physician to assist in times of need.  This hands-on training eases the student into the profession and provides experience to reflect upon later as a doctor.
 
Third, the training takes place in an environment that is challenging.  The resident sees a wide range of cases in training.  The resident is able to gain experience directly with highly qualified doctors.

Fourth, teaching hospitals provide a large amount of indigent care.  Many times, rotations at county hospitals and VA hospitals are part of the residency program as well.  This provides healthcare to a large number of individuals that otherwise would not be able to afford health care at all.  It also provides the resident exposure to the poorer part of society and makes the resident aware of the impact that medicine can have on a person's life.

6. The Public Perception of Doctors

In contrast to the declining opinion Americans have about lawyers, they have an improving opinion about doctors.  From 1997 to 2001, the number of poll respondents who said they trusted their doctor to put their needs first rose from 91.6% to 92.9%.149  Doctors are also one of the most trusted professions, falling just behind clergy and teachers.150  In that study, doctors were trusted by 84% of respondents, and by comparison, while lawyers were not included on the survey, judges were, and they were trusted by only 75% of respondents.  In a very recent survey (August 2002), doctors were at the top of a list of seventeen different professions that are thought to have "very great prestige."151  In direct contrast, lawyers were at the bottom of the list, coming in just above accountants and union leaders, and it wasn't even close, as the percentages were 50% and 15% respectively.152

Although the residency program can not be pointed to as the source of this trust and admiration, it surely has a great impact.  The residency program is the foundation for the future doctor's practice and attitudes towards patients and the profession.  Every doctor starts off with a strong base to start his or her practice.

B. Dental Training

1. How to Become a Dentist in America

Dental programs generally last 4 years and result in a D.D.S. degree.  Individuals are accepted into a dental program following graduation from college.  The structure is similar in many ways to medical school.  In the first year of dentistry school, students focus on basic sciences and topics specific to dentistry.153  Near the end of the first year, the student begins to get exposure to patients in the clinical setting.154  The second year is similar to the first year, except that there is an even greater component of clinical experience, though the academic portion of the program still dominates.  In addition to observing patients in the clinics, there is other hands-on training.  Many programs have simulator units, or other methods of giving the students "hands-on" experiences without risking harm to patients.155  Simulator units are mannequins that are positioned like patients, and allow the student to try different techniques and approaches, by learning in a situation where mistakes will not injure a patient.156  At the end of the second year, students must pass Part I of the National Dental Board Examination.157

 In the third year of dental school, students rotate through a series of clinics to expose them to different areas of dentistry.158  They work mainly in the clinical environment under the supervision of training dentists.  During the fourth year, students take on a high degree of responsibility, as they work in a manner that simulates their real world practice.159  However, it is a more controlled setting, as experienced dentists are around to assist and consult with in the training environment.  During these two years, dental students gradually take on more responsibility as the program progresses.  The fourth year also includes a community dentistry experience, where they work in underserved areas of the community.160  Another interesting feature is that some programs provide practice management courses.  These help the new dentist to know the basics about running a practice, and provide assistance in helping the dentist get started in a career.  Additionally, Part II of the National Dental Board Examination is taken during the fourth year.161  As with Medical fellowships, training programs are available for additional training in specialized areas.

2. The Benefits of Dental Training

Like medical training, dental training combines academic and clinical settings, and theory and practice in developing a dentist.  Training also moves from almost entirely classroom training at the beginning, to almost entirely clinical by the end.  New dentists are sent out, having been exposed to real patients, having done real work, and having the skills necessary to fully begin a practice on their own, if desired.  In fact, the dental training goes even farther than medical training in this regard, by providing practice management training.  This provides essential skills for running or being part of a practice, and is knowledge that one does not pick up by studying biology, or interacting with a patient in a chair.

Dental training is also notably shorter than medical training.  Rather than medical school plus residency lasting a minimum of seven years, the dental program lasts just four years.  This is reflective of the limited area of the body with which dentists work.  At the same time, however, the program is able to include both academic and clinical training in the right amounts to provide both knowledge and experience.
 
C. German Professional Training

1. Overall Description of Program

After the equivalent of high school, about 70% of Germans enter into a type of vocational training program, or "dual system."162  Joint cooperation between the federal government, the state governments, and industry determine the occupations that will be covered by the program.  The dual system can last from two to nearly four years, depending on the occupation.163

The system has some unique features.  First, the dual system delivers vocational training through both classroom instruction and actual job experience.164  The student spends three to fours days a week at the firm or business, actually working in production or service capacities.  Additionally, the student spends one or two days a week at the vocational school for classroom schooling.  Classroom instruction consists of about 2/3 specialized training and 1/3 general education.165  This requires close cooperation between the private and public sectors to coordinate schedules.  Second, the responsibility for training is split.166   The companies have responsibility for the training they provide and the programs are regulated by the federal government, while the states control the classroom activities and instruction.

The extent of the program is illustrated by the fact that vocational training is currently provided by about 500,000 firms.167  Around 1.65 million people are currently receiving training in 365 recognized occupations.  Also, the vocational training programs are open to everyone.  It is also seen as a method of combating youth unemployment, and significant resources are expended to extend the program.168

2. Benefits of the Vocational Training System

One clear benefit is that students are trained in the technology and with the machines that are current and actually in use.  Since they work directly at the businesses, they are using the equipment used by the business and which they would used if later hired.  Rather than facing the budget crunch of a college with the resulting tendency to use outdated equipment and technology, such as in American colleges, the businesses have every incentive to provide the most current machines and technology in use.

 As firms are directly involved with, and responsible for, a large portion of the training, the system creates its own incentive for the training to be relevant to the job market.  Firms view the program as a way of integrating people into the work process and into the firm.  Training in real world situations helps ensure that the right skills are imparted to the next generation of workers.  Also, by using firms to shoulder a large portion of the educational burdens, it relieves pressure on public facilities, public financing, and student tuition.  Rather than the burden being placed on just the student and the public, as in America, Germany adds a third pillar via private support.

 Germany has a reputation for craftmanship and engineering.  The training program that has been established in a way to build upon and continue that tradition.  Students are trained over a number of years in both theory and practice.  This reinforces the instruction, as students can themselves apply that which they are learning.  This combination of experiential and theoretical training enables the students to be fully trained at a high level when school is over and the job begins.  However, the limitations to such an approach may best be illustrated in that no "professional" training in Germany uses such an approach.  It is not used for doctors, lawyers, or other graduate degree programs.  Rather, it is used for various trades, manufacturing, production, and service positions.
 
D. English Legal System

1. Barristers and Solicitors

England has a separation in types of lawyers between barristers and solicitors.  Solicitors handle the facts and investigation of the cases and interact with the clients. "A solicitor's job is to provide clients (members of the public, businesses, voluntary bodies, charities etc.) with skilled legal advice and representation, including representing them in court."169 Becoming one requires a two-year apprenticeship in a firm of solicitors, following which employment as a solicitor may be sought.170  In contrast, "A barrister specialises in giving advice on derailed issues and representing clients in court."171  Barristers handle the theory of law and the appeals process, and becoming one requires a one-year apprenticeship in an affiliation of barristers, after which they can be invited to join an affiliation.172

2. How to Become a Barrister or Solicitor

The rules for legal education and training of a solicitor are designed to provide a broad and extensive education.173  In order to qualify to enter the solicitor program, an individual must either 1) have a qualifying law degree (undergraduate), 2) pass the Common Professional Examination after a one year course, or 3) have a post-graduate Diploma in Law.174  Professional Solicitor training then begins with a one year "legal practice course" which is traditional, academic learning.  The second step is to enter a two-year training contract with a firm or other approved organization to gain practical experience.  Fulfilling these two stages qualifies one to become a solicitor.175

The objective of this system is to ensure than a "graduating solicitor" has a combination of both experience and study.  Rather than gaining experience in the first job, with the attendant pressures of billing and focus on work, the solicitor is eased into the system.  The newly minted solicitor has already been a "trainee solicitor," with the purpose of learning by doing, under experienced eyes, in a setting which is focused on training.
 
The Barrister program starts out the same.  Either a degree in law, passing the CPE, or a Diploma of Law is required to qualify to enter the barrister program.176  This first, academic stage provides a foundation of legal knowledge.  It is also suggested that one should join an Inn at this point, if one has not already done so.  As far as inns go, "all offer roughly the same support: a library, educational activities, mooting societies, somewhere to eat, common rooms, gardens. More importantly they all have a senior member of staff to deal with students and pupils."177  It is also suggested that the students obtain some practical views by completing several mini-pupillages. "These usually take the form of a week's work experience and work shadowing: reading papers, discussing cases, attending court-even completing some written work."178

The second stage is the vocational training stage.  This is known as the Bar Vocational Course, and was traditionally available only at the Inns of Court Law School in London, though beginning in 1997, it was also available at a few other selected locations.179  The BVC places 60% of its emphasis on skills, and 40% on knowledge.180

The third stage is the pupillage.  "All pupils are assigned to one or more pupilmasters or pupilmistresses, experienced barristers who organise training, allocate work and assess performance. Pupillages also give chambers the opportunity to assess pupils with a view to ensuring that they become effective practitioners."181  The first half of the year is spent observing and helping the pupilmaster/pupilmistress.  The second half of the year, the pupil begins to have his own clients, work on his own cases, and appear in court.  The intent of this program, like the solicitor program, is also to combine learning and practice in order to better prepare the new barrister as he begins his career.

IV.  Recommendation

A. Legal Residency Requirement

1. The Idea of Legal Apprenticeships Has Been Rejected Previously

"The problem ... is that legal education, unlike medical education, did not experience a Flexnerian revolution decades ago."182  Rather, the American Bar Association rejected the idea of a legal residency when it first established standards for law school accreditation in 1921.183  This rejection was re-affirmed in the 1973 standard revisions.184  With the continuing focus of law schools on theory instead of practice, and the continuing decline of mentorship and training in law firms, it is time to re-consider that rejection of apprenticeship.  The gap between education and practice is wide and growing.  It has reached a point to where this gap is felt, discussed, and worried about by law students.  Even if it is not of great concern to present members of the bar, it is to future members of the bar.

In order to help remedy some of the current difficulties facing the legal profession, we need to consider changing the educational and training process of new lawyers.  It is the foundation of a lawyer, the base that nearly all lawyers have in common.  Whereas doctors or dentists have a common tie may include heavy studying and worry, their tie also includes making a difference in people's lives, and seeing how their efforts can make a real change.  In contrast, the commonality for lawyers is limited to the studying and stress parts of that tie.  Legal education has been successful for more than a century, and should be commended for what it does well.  At the same time, society has changed so greatly, that for legal education to be mired in an approach substantially similar from not just the last century, but two centuries ago, seems more than just anachronistic.

2. Proposal: Mandatory Residency

Instituting a mandatory residency requirement is a timely and proper step to take that can have a great effect on the legal landscape. The problems of decreasing affordable access to legal assistance, lack of experiential training, and low public perception of lawyers can be improved by instituting a legal residency training program as an additional requirement for admission to the bar.  Adding such a program would be one change that can move the profession in a positive direction.
First, lawyers will have a common experience touchstone of applying their legal abilities and knowledge to helping others.  As their first experience, the lawyer to be will be working in an environment structured for education.  The program should be structured so that the student will be able to work directly with clients, under the supervision of attending attorneys.  This will provide experience of how the law can directly affect people's lives, and that the lawyer can help facilitate improvement in those lives.

"The most valuable training that any young lawyer receives comes from observing and being observed by more experienced attorneys.  Lawyers can learn only so much from books, in-house training sessions, or continuing legal education seminars."185

Second, lawyers should have an early experience of helping others.  It has been said that three of the major factors causing lawyers distress is the hours worked, the focus on money, and the competitive aspects of a law career.186  By having a formative experience early of working with individuals that really need help, and need the students help, the pull of these negative imperatives of the current system will be lessened.  Working and helping someone else will help bring a common sense of empathy to the profession, one which seems to have been lost.

Third, many individuals will have access to legal help that they would not otherwise receive.  Given the decreasing funding for legal aid programs, and their limited reach even when they had greater funding, this seems an excellent way of improving legal access for all Americans.  Just like medical residencies provide a large portion of indigent care, legal residencies might provide a large portion of necessary legal care to individuals who could not otherwise afford that care.

"Law students need to be reminded that 'justice' is not something that emerges ipso facto from the existing legal system.  They need to be taught that law is not simply a value-free or value-neutral mechanism for dispute resolution and the protection of private interests, but is also a political mechanism for the acquisition, exercise, and defense of power."187

Fourth, the public perception of lawyers will likely improve as a result of a mandatory legal residency.  People would see that lawyers do care about those less fortunate and are willing to help them.  Rather than the money-grubbing image lawyers have now, the image could be modified to include the young, poor law student, working to assist others, and not just self-focused.

Fifth, lawyers own perceptions about themselves may improve.  All lawyers will have a common basis of spending time helping others with legal problems.  The awareness of how other people live and the needs they have will make lawyers more aware of the role they can play to improve people's lives, and more aware of the income they will be earning.  By creating a shared sense of empathy, the focus on money and the intense competition may decrease.  Realization may also come of a need for better balance, reversing the spiral of ever increasing hours.  This in turn will allow lawyers to be more involved in their families and communities.  This increased involvement in community affairs will in turn feed a more positive image of lawyers as they positively impact communities and others by that involvement.  Rather than continuing the current negative spiral of the profession, a new positive spiral may be started by implementation of a residency type program.
Lest this sound too Pollyannaish, it is clear that a change in legal training is only one step that needs to be taken to improve and address many of the problems facing lawyers today.  However, as legal training is the foundation of a legal career, it can have an inordinate impact.  Small changes at the beginning can make a large difference later.  For example, just changing your direction of travel five degrees will mean nearly a one mile change in destination after just ten miles of travel.188  Another example is compound interest, where changing the interest rate from 9 to 10 % will result in a 25% greater return after 25 years.189  Such examples show that small differences can have an inordinate impact later, after the passage of time.

B. The Challenges

1. Introduction

In considering a return to a modified apprenticeship program for part of a legal education, several challenges can readily be foreseen.  These challenges include problems with poor supervision, lack of educational focus, exploitation of the resident, and low teaching skills by supervisors of the resident.190  The cost of a residency program is also an ever present factor to consider.
 
2. The Cost of the Program

The issue of cost has long been recognized as a barrier to reform, and was explicitly described in the 1979 ABA Study on Lawyer Competency (Cramton Report).191  Nine of its twenty-eight recommendations focused on this issue of cost.192  The extent of the cost problem is exemplified by an example.  One author calculated that to add a skills/values "subcurriculum" at his law school would require the minimum of a 50% expansion in the faculty at his school, which in turn would place the attendant additional strain on physical plant and financial resources.193
 
Law schools are highly dependent on tuition revenue to operate.194  Additionally, the heavy burden of law school debt taken on by current law students is becoming an increasing cause for alarm.  Increasing tuition by 50% as the above numbers would seem to indicate is a non-starter.  It is suggested that medical education costs approximately 5-7 times as much as legal education.195  The tuition costs are not greatly different however, because medical training is funded to a large degree through direct and indirect funding by the government through Medicare and other programs.  However, "health is a more important social value in contemporary America than justice, and there is much greater agreement on its content."196  As both state and federal governments are currently beset by budgetary problems, it is even less likely now for government to take a major role in funding.  With the two most obvious sources excluded, an alternative approach must be found.

3. Ensuring a Real Training Program

Another area of great concern would be to ensure that the residency was a meaningful training experience.  To accomplish this, the focus must be placed primarily on education.  There are many benefits to be gained from actual clinical experiences, but the value decreases dramatically if the primary purpose is not education.  All other benefits need to flow from learning as the primary driver.  If the focus was on providing services, or on being cost effective, the program could easily slip into one that pushes lots of hours, high competition, and lackadaisical training efforts, or very similar to what we have now.

However, history teaches us that successful apprenticeship programs can be difficult to create.  "Historically, apprenticeships were poorly supervised and lacked educational focus.  Often, apprentices were exploited by their masters, and were forced to do menial jobs that had little educational value"197  One author suggests that because lawyers are very busy and have little experience as teachers, these historical problems would be present in a new apprenticeship type program.198

The results are not encouraging when one examines the experience in other countries that do have a type of apprenticeship program for lawyers.  In fact, there has been a great deal of criticism leveled at the apprenticeship system.199  Specifically, in the English Barrister pupillage, it is asserted that the pupil suffers from limited exposure to practice areas, exploitation and a lack of supervision.200  Additionally, and perhaps causing the other problems, there are no uniform standards for training.201  The solicitor apprenticeship system suffers many of the same problems.  The positions are difficult to obtain, the clerks are employed in tedious, boring tasks, and receive inadequate instruction.202  Again, the failure is seen as a failure to operate the system properly, rather than in the conception of the training.

 Although not discussed separately in section III, Canada has a training system much like England.  Canada requires an "articled clerkship" for admission to a provincial law society.203  These programs, which last from six to twelve months, are designed to provide experience under the watchful eyes of an experienced practitioner.204  In practice, the system falls far short of the ideal.  In fact, if fails to such an extent that many call for an abolition to the program.205  The failings are many, and include poorly informing the student about the objectives of the training, poor supervision, and lack of adequate interaction between student and principal.  Additionally, there is insufficient evaluation and feedback, lack of exposure to different practice areas, and a prevalence of menial tasks.  The programs are unstructured and have a shortage of interested and experienced practitioners.206  One again, the manner in which the program is implemented and directed seems to result in the results and benefits being far less than the potential and ideals of the system.

Given the great difficulty other jurisdictions have faced in implementing a residency type program for lawyers, one may be tempted to conclude that the idea will not work, and the difficulties are too great to overcome.  Counter-balancing against such a decision is the promise of the benefits that can accrue through a well-run system.  Rather than focus on the failings of other legal apprenticeship type programs, one should consider areas in which the system works, and works well.  When one considers how well some professional clinical training programs work, such as that of the American medical residencies or dental clinical training programs, one should be heartened that not only is an effective, well-functioning system possible in theory, but that it can work in actuality as well.

Therefore, these successful programs should be used as a model for the legal residency.  Other legal apprenticeship programs, with their attendant failings, should serve as warnings of what can go wrong and can help identify the dangers that should be guarded against.  The program should be implemented in a way that minimizes the areas and approaches that have been demonstrated to cause problems.

4. Overcoming Bar Resistance

In establishing a legal residency program, care must be taken not to alienate current lawyers.  With a great influx of new clinics programs, some lawyers might feel threatened that a substantial portion of their clients would elect to use a clinic rather than their services.  This is a concern that needs to be addressed, but can be overcome.  For example, the same concern might be true in medicine, but the system works in such a way that both residency programs and slo and small group medical practices are still viable.

Small firm and solo practitioners might be used to help guide students in the clinics.  There will be a need for lawyers for the number of residents, and so this could be a winning combination.  The clinics as well will need to recognize their limitations and refer appropriate cases to lawyers outside the clinics.  The concerns of local attorneys should be considered in establishing the clinics portion of the residency program.

C.  Specific Suggestions for Implementation

1.  Recognizing the Value

In considering other professional careers, one area that has found extraordinary success in clinical training is that of doctors and dentists.  These programs involve the heavily integrated use of experience in training through the use of clinical rotations.  This experience should be built upon in improving legal training.  Law schools do have some small programs that replicate this experience to a degree.  However, the limited scope of the programs prevent them from being truly effective in affecting the majority of law students.  Rather than a program of limited reach, this paper proposes a mandatory residency as a requirement for bar admission.  This paper joins others in calling for the addition of increased clinical training.207

2.  Independent Accreditation is a Requirement for Success

First, an autonomous accreditation committee and organization should be established that has real power to set and enforce residency requirements.  The directing committee could be established by appointing members from law schools, the bar, and government (much like the medical school directing accreditation committee) in order to ensure that the constituencies most affected are represented and have input into the process.  This would also ensure that no single constituency is able to dominate the direction and approach of the residency program.

3.  Integrating the Program is a Question of Timing

Before starting into a proposal on timing, the current system of summer clerking needs to be mentioned.  During the first, and most importantly the second summers of law school, students have the opportunity to work for firms.  This system generally works very well and has a number of benefits.  It is the only practical experience many students receive before graduating from law school.  It allows students to work inside a law firm or organization or agency, to see what goes on, and enables them to see if it is someplace they would like to work.  It allows the employer and the student the luxury of an extended interview or tryout.  This system should be retained to the extent possible.

In considering ideas, the first possibility is merely to add a year of residency on top of the current system.  As the third year of law school is already viewed as less valuable than the other two, merely tacking on an additional residency year does not appear to be the right direction.  In adding another full year to legal education, it would add the burden of an additional year on to the heavy debt load already carried by law students.  Additionally, it would do nothing to fix the issues with the current third year, and would likely make it worse.  With an interesting experiential learning experience ahead, the third year will appear even worse by comparison, and students will therefore be even less interested.

The other direction is to replace the third year of law school with the residency year.  This approach is also deficient in areas.  Matching with the current school calendar would generally mean a residency of Sept. 1 through April 30.  Eight months is better than nothing, but may be too little.  Additionally, with the end of year holidays, the value of that month may be lessened, effectively leaving seven months of experience.

Borrowing from the medical residency, the best approach would be to have the program last a full year.  Rather than starting and ending on July 1, the program should start and end on June 1.  Even so, this would likely require that the bar exam be pushed back some weeks from its current end-of-July timing.  Having a full year would also maximize the benefits to be gained by the residency, and would allow plenty of opportunity for the student to experience different areas of the law as well as different providers.

Continuing to borrow from medicine, the program should be structured to have rotations last two months, so that each student would rotate through six different stops during the year.  The very valuable law firm/organization/agency experience could easily be incorporated into such a system.  There are many firms that already allow a student to split summers between jobs, which works out to a six or seven week experience under the current system.  Moving to a regimented rotation schedule would turn these into a very similar eight or nine week period.  Once again, with six rotations, there is plenty of opportunity for the student to explore in a number of directions.

It might be argued that such a short rotation would be of limited use in teaching students about the practice of law.  However, students will be interacting on a daily basis with advising attorneys.  When one looks back on the first few months of law school, one cannot but help be struck by the dramatic change one undergoes during the first months of studying the law.  With the residency program structured correctly, that would also be true of the rotations.  And, like a medical rotation, the purpose is not to become an expert in the area in two months, but to gain a familiarity with the various areas.  As one professor stated about his clinical program, even though the students never go to the point of filing a brief during the first year of the case, he "had no doubt that the six students who worked on thus case during the year found it to be both stimulating and a great learning experience.  Not only were the students steeped in the intricacies of constitutional analysis ... they had certainly been introduced to the very important ethical responsibilities of lawyer's to understand their clients' needs and attempt to serve them."208

4.  The Types of Rotations in the Residency

In order to allow students to get as broad an experience as possible, and also to enable incorporating the current try-out approach to career decisions, the residency program should be flexible.  The student should have a large degree of autonomy in constructing a rotation schedule.  At the same time, there should also be certain minimums to ensure that a student gets a breadth of experience, and that has enough of the same common fundamentals to ensure that the rotation forms a touchstone experience for all lawyers.

The rotations available could be divided up by type, and the students allowed to select among them.  An example scheme might be as follows:

Group    Description

1. Private    Rotation at a private firm.
2. Judiciary    Rotation assisting a judge or at a courthouse.  This would
be separate from and in addition to the current system of judicial clerkships.
3. Government Agency  Rotation at a state or federal agency, or Indian tribe.
4. Legal Assistance  Rotation at a place established to assist individuals for a very low or no fee, such as legal aid groups and law school clinics.
5. Optional Other legal areas that do not fit in one of the four primary categories.

In order to provide a common set of experiences, one rotation should be required from each primary group (groups 1-4).  This would allow each student to experience the breadth of the law, while still tailoring his choices to his area of interest.  For example, a student with an interest in business might choose a private firm with a business focus, elect to work in a court with a heavy business law or contract docket, select a rotation with the Securities and Exchange Commission, and work in a clinic that helps small businesses get started for a small fee.  Students with a different interest could construct a similar type of schedule in a different area of the law.  The key would be providing the maximum flexibility to students, while still meeting the needs of the different residency rotations.

5.  Financing is Possible

One fundamental problem continues to be that of financing the system.  Ever since the 1920's, there has been an awareness that law school's resources have precluded them from providing high-cost skills training.209  Although there has been an expansion in skills offerings, it is noted that the funding to support even the existing programs is becoming increasingly difficult to maintain.210  Asking to radically increase experiential training would certainly seem to run into the same obstacle of not enough funding.  However, there is a way out.

First, students should continue to pay tuition for their third year.  As the rotations will be more individualized and less dependent on any particular law school, perhaps this cost could be standardized on a national basis.  A great majority of these tuition dollars would be directed toward programs in the Legal Assistance category, while firms would not receive any support from tuition.  Additionally, a concerted effort should be made to prevail upon the government to provide a basic level of housing for legal residents, as they would be rather mobile in their rotations.  The student would still be responsible for travel between locations and meals, but a basic level of housing would be provided.  Third, the profession should contribute to the system.  This might be done in several ways, but one possibility would be an annual fee for lawyers to remain registered in a jurisdiction which is directed into the residency program.  Alternatively, a firm could pay a set amount, say one month's salary for each new attorney hired, much like a bonus paid to an employment agency for finding an employee.  Lastly, those that use the clinics should pay a small amount for the help they receive.  And, much like the suggestion by the bar in Missouri, there could be a small fee attached to every filing made with the courts.  Those that use the legal system should pay a small amount to help make legal access more available for all.  Attaching the fee to every filing made to the court, and not just initial pleadings would also mean that those that use the system the most will help others incrementally the most as well.

Such an approach would spread the cost of the system among the various groups, and not place to great a burden on any one group.  The approach would also avoid the great public cost that is incurred to support the medical residency programs, but will retain much of the public benefits such a program produces.

5.  Other Programs

One should also be careful about restricting possible rotations too greatly.  One program in place in the District of Columbia is noteworthy.211  In the program, law students are teaching high school seniors the fundamentals about Constitutional Law and the American political system.  The high school students gain important knowledge about the American system and mentors.  The law students gain skills in organizing and presenting material.  Additionally, the law students are paid a small amount, which helps defray the costs of attending law school.  This is an example of something that would fit in the Optional category, as it does not neatly into one of the four primary categories I described, but one which also has real value both for the student and for the country.

6. Is All of This Really Feasible?

Even with the continued pressure for increasing skills training in law schools, there is unlikely to be any substantial change without a major shake-up.  The University in which the law schools reside has a major impact upon the law schools.  This influence has led to a priority of research and scholarship over teaching.212  This in turn leads to the theory/practice distinction213 that is adding to the widening gap between law as taught and law as practiced.  On their own, law schools do not have the resources, nor the interest to make a major effort at enhancing skills training.
 
This would not be an easy change to make, and would require a major shake-up.  But, medicine changed its way of teaching to an even greater degree.  Usually the hardest step in changing is to admit that there is a problem.  After multiple reports by the ABA and any number of law review articles calling for change, admitting that there is a problem looks like it has already happened.   The hard fight will be to get the will to take action.

D. Ways of Introducing A Change

One great benefit of the United States is the ability to have legal differences in different areas in different states.  Lawyers are admitted to practice in individual jurisdictions, and jurisdictions have their own rules about practicing.  For example, ethics rules and requirements for admission to the bar already vary from jurisdiction to jurisdiction.

Therefore, if there is insufficient desire or motivation to make such a change on the national level, it could be done on a state level.  In fact, the best implementation plan might be for a single jurisdiction to begin.  At a state level, there are fewer competing interests, and it is likely that would be able to work more closely together than would happen on a national level.  Many of the suggestions for implementation would only require slight modifications to adapt them to a state level implementation.  Once implemented, success would be the best advertising for spreading such a system further.  Also, these suggestions are only some ideas of how a system might be introduced and supported.  By bringing together the various constituencies, I would expect even better ideas to come forward to manage and finance the system.

1. Limited Introduction via Specific Jobs

One alternative to a general requirement would be to implement the idea in specific circumstances.  For instance, one article suggests this as a method of increasing the numbers of entry-level attorneys into public interest jobs.214  The article suggests coupling an apprenticeship program at low salaries together with a loan forgiveness program.  This would allow young attorneys to gain valuable experience while being able to address their student loan debt.215  Lastly, the article notes the success that the Attorney General's office has had with unpaid volunteer attorney positions that last for 6 months.216
Although the idea of coupling loan forgiveness programs with public sector jobs has real merit, calling it a type of legal residency training has significant drawbacks.  The problem with limited application is that it tends to stay limited and becomes associated with a particular type of position.  In fact, if the residency program is seen as the requirement of entry, it effectively becomes the first year of a job and takes on the aura of an on-the-job training program for that specific position, rather than a residency training program of general application.  Having a universal requirement will avoid any stigma associated with it being a requirement for only certain positions.  The universality is a key feature in that most of the law students lack the fundamental attributes that will be taught through the residency program.

2. Limited Introduction via Specific Legal Area

Another article examines the increasing problems in the area of family law.217  After reviewing a number of proposals to improve the situation, the article suggests that a legal residency program would best assist in addressing and resolving the challenges described.218  It would have the benefits of providing legal services, allowing experimentation in delivering legal services, providing experience for young attorneys, and renewing the profession's commitment to public service.219  The article suggests a two year residency with the objective of providing legal services first, and education second, allowing the program to be independent from the law schools.220
 
Although this idea has merit, it also lacks the universality element of the specific jobs introduction above.  Because of its focus on family law, only a certain number of students would be interested.  Additionally, as it is proposed as an alternative, rather than a requirement, it runs the risk of being seen as a different entry to this area of the practice of law, with the attendant dangers of being viewed as better or worse than the traditional route.  Although a legal residency will serve to improve access to legal services, it should not be the overriding, primary purpose as this limited approach suggests.  Rather, a legal residency program should have an integrated focus, and access to services would be only one benefit.

V. Conclusion

The practice of law faces many challenges today.  Even though they are vexing and difficult, the problems of providing access to legal assistance, law students lack of practical training, and the perception of lawyers by both society in general and by lawyers themselves can be improved by instituting a legal residency training program as an additional requirement for admission to the bar.  A residency program will enable lawyers to gain experience and exposure to the practice of law in a controlled guided setting.  It will also provide the means to improve accessibility of legal help to many people, and could also help in addressing the overwhelming case loads faced by the courts.  By making a meaningful contribution early, lawyers own self-esteem for being lawyers will improve. And lastly, as society sees lawyers working for the good of all, instead of just the good for themselves, opinions will slowly begin to improve.  All of this may only pull things slightly in a positive direction, but it is a beginning, and small things can lead to great things, with the passage of time.

1 Ronald D. Rotunda, The Legal Profession and the Public Image of Lawyers, 23 J. LEGAL PROF. 51 (1999).
2 Id.
3 Id.
4 The problem is aptly illustrated by the fact that the extent and prevalence of lawyer jokes seems so evident as to not even require a citation.  However, a discussion can be found at Joseph L. Daly, Why I am a Lawyer, 35 SAN DIEGO L. REV. 1111, 1111 (1998).
5 See Rotunda, supra note 1 (Describing a print entitled The Law Suit, that had a cow representing the suit.  The plaintiff was pulling on the head, the defendant on the tail, and the lawyer was milking for all it was worth).
6 Id. (relating a poem by Carl Sandberg).
7 Any search on the internet will turn up a great number of websites and links.  One example can be found at http://www.nolo.com/humor/jokes.cfm (last visited 10/13/2002).
8 For a discussion of lawyer's role in various stories, children's rhymes, and literature, see Robert C. Post, On the Popular Image of the Lawyer: Reflections in a Dark Glass, 75 CAL. L. REV. 379 (1987).
9 ABA Commission on Advertising, Lawyer Advertising at the Crossroads: Professional Policy Considerations 65-66 (1995).
10 Randall Samborn, Anti-Lawyer Attitude Up but NLJ/West Poll also Shows More People Are Using Attorneys, 8/9/93 NAT'L L.J. 1 (1993).
11 Id.
12 Id.
13 Mark L. Byers, Career Choice and Satisfaction in the Legal Profession, 12 CAREER PLANNING AND ADULT DEVELOPMENT JOURNAL 1 (1996) (can be found at http://profdev.lp.findlaw.com/column/article1.html).
14 Id.
15 Id.
16 James W. Perkins, Virtues and the Lawyer, 38 CATH. LAW. 185, 186-187 (1998).
17 Id. at 185-86.
18 Id. at 187.
19 Id. at 201-204.
20 Id.
21 Id.
22 Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 VAND. L. REV. 871, 874 (1999).
23 Id. at 876.
24 Id. at 876-77.
25 Id. at 880.
26 Id. at 877-79.
27 Id. at 880-81.
28 Id. at 881.
29 Id. at 882.
30 Id.
31 Id.
32 Id. at 883-888.
33 Marsha Baucom, Collaborative Divorce, 41 ORANGE COUNTY LAWYER, 18, 33 (July 1999) ($10,000 in legal fees and $4,000 in evidence fees).
34 http://www.halt.org/News/page.cfm?page=tlrpg4 (last visited 10/17/2002).
35 http://www.reviewboard.com/Section/Websites/bizfilingsdotcom (last visited 10/17/2002).
36 http://www.realestatelaw-newyork.com/page617916.htm (last visited 10/17/2002).
37 http://www.insurancejournal.com/html/ijweb/breakingnews/regional/West/we1101/we1114012.htm (last visited 10/17/2002).
38 Steven K. Berenson, A Family Law Residency Program?: A Modest Proposal in Response to the Burdens Created by Self-Represented Litigants in Family Court, 33 RUTGERS L.J. 105, 107-112 (2001).
39 Id. at 112-116.
40 Id. at 113-115 (these difficulties include how much extra assistance is appropriate, how much leeway to give the self-represented party, and the change from a judging role to a more assisting role).
41 Id. at 114.
42 Roger C. Cramton, Delivery of Legal Services to Ordinary Americans, 44 CASE W. RES. L. REV. 531, 587-88 (1994).
43 Id. at 587.
44 Id.
45 Id. at 588-589.
46 Id. at 589.
47 http://legalaidhelp.org/faq.htm (last visited 10/17/2002).
48 Id.
49 http://legalaidhelp.org/LSNV%200urStory%20Mar%2026%202002.pdf
50 Washington Legal Foundation v. Texas Equal Access to Justice Foundation, 94 F.3d 996, 999 (5th Cir. 1996).
51 Phillips v. Washington Legal Foundation, 524 U.S. 156, 160 (1998).
52 Id. at 172.
53 Washington Legal Foundation v. Texas Equal Access to Justice Foundation, 270 F.3d 180, 189 (5th Cir. 2001).
54 Id. at 195.
55 Washington Legal Foundation v. Texas Equal Access to Justice Foundation, 293 F.3d 242 (5th Cir. 2002).
56 71 USLW 3092 (Jun 26, 2002)(NO. 02-1).
57 Margaret Graham Tebo, Aiding Legal Aid, June 2002 ABA JOURNAL 28 (2002).
58 Id. at 543-544 (counting 4000 lawyers working for legal services that provide free legal assistance to eligible poor people, and 1000 lawyers that work for tax-exempt non-profit groups dedicated to representing previously unrepresented interests on matters of public policy).
59 http://www.loper.org/~george/trends/2000/Dec/93.html (last visited 10/7/2002).
60 See Cramton, supra note 42 at 581.
61 ABA Model Rules of Ethics 6.1
62 See ABA Ethics 2000 Commission Report, Recommended Model Rule 6.1.
63 http://www.loper.org/~george/trends/2000/Dec/93.html (last visited 10/7/2002).
64 Id.
65 See Jay M. Feinman, The Future History of Legal Education, 29 RUTGERS L.J. 475, 476 (1998), Stephen M. Johnson, WWW.LAWSCHOOL.EDU: Legal Education in the Digital Age, 2000 WIS. L. REV. 85, 86-87 (2000).
66 Feinman, supra note 65 at 476-477 (places the second period from 1870 until the 1980's).
67 In contrast, some countries (e.g., New Zealand) have a undergraduate degree in law that qualifies them to become lawyers.
68 See Johnson, supra note 65 at 87-88.
69 John J. Costonis, The MacCrate Report: Of Loaves, Fishes, and the Future of American Legal Education, 43 J. LEGAL EDUC. 157, 160 (1993).
70 Id.
71 See Stephen Wizner, The Law School Clinic: Legal Education in the Interests of Justice, 70 FORDHAM L. REV. 1929, 1933 (2002).
72 Id.
73 Id. at 1934.
74 Philip C. Kissam, The Ideology of the Case Method/Final Examination Law School, 70 U. CIN. L. REV. 137, 137-38 (2001).
75 Feinman, supra note 65 at 478.
76 Id. at 480.
77 See Johnson, supra note 65 at 92-100.
78 Such as through Lexis, Westlaw, and Internet websites.
79 Computer assisted instruction includes both the use of computer tools in classroom instruction, increased communication in courses through the use of email and websites, and the use of technology such as distance learning and web broadcasts.
80 See Robert E. Oliphant, Will Internet Driven Concord University Law School Revolutionize Traditional Law School Teaching?, 27 WM. MITCHELL L. REV. 841 (2000).  The Concord Law School can be found at www.concordlawschool.com, and is run by Kaplan.
81 See Feinman, supra note 65 at 480.
82 See Johnson, supra note 65 at 88.
83 Janeen Kerper, Creative Problem Solving vs. the Case Method: A Marvelous Adventure in Which Winnie-the-Pooh meets Mrs. Palsgraf, 34 CAL. W. L. REV. 351 (1988).
84 Id. at 353.
85 Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 41 (1992).
86 Id. at 39.
87 Jack B. Weinstein, Preparing Students to Become Lawyers: Judicial Insights on Legal Education Today, 15 St. JOHN'S J. LEGAL COMMENT. 337, 340 (2001).
88 Id.
89 Id. at 344.
90 See Wizner, supra note 71 at 1930.
91 See Costonis, supra note 69 at 169.
92 See Costonis, supra note 69 at 168.
93 Paula A. Monopoli, Teaching Lawyers to be More than Zealous Advocates, 2001 WIS. L. REV. 1159, 1165 (2001).
94 Id.
95 See Wizner, supra note 71 at 1932.
96 Section of Legal Education and Admissions to the Bar, American Bar Association, Report and Recommendations of the Task Force on Lawyer Competency: The Role of the Law Schools (Chicago 1979).
97 See Costonis, supra note 69 at 170.
98 See id.
99 See section III A infra.
100 See Costonis, supra note 69 at 170-71.
101 The Task Force on Law Schools and the Profession: Narrowing the Gap, Legal Education and Professional Development: An Educational Continuum, 1992 A.B.A. Sec. of Legal & Admissions to the Bar 6 (the "MacCrate Report").  Excerpts can be found at www.abanet.org/legaled/publications/onlinepubs/maccrate.html (last visited 10/17/2002).
102 Id.
103 See Patricia Mell, Law Schools and Their Disciplines, 79 MICH. B.J. 1392 (October, 2000), Costonis, supra note 69 at 177.
104 Id.
105 See Costonis, supra note 69 at 170, 176.
106 Id. at 174-76.
107 See Oliphant, supra note 80 at 842-843.
108 This resistance may be driven by the increasing emphasis on legal research as a measure for law professors.  See Thomas M. Mengler, Celebrating the Multiple Missions of a Research I University-Based Law School, 31 U. TOL. L. REV. 681 (2000) (noting the focus on research in law schools, though he claims that his school judges faculty based on equal measures of research, teaching, and service).  See also Peter V. Letsou, The Future of Legal Education: Some Reflections on Law School Specialty Tracks, 50 CASE W. RES. L. REV. 457, 461 (1999) (stating that reforms will require additional time from faculty, decreasing the time available for writing, consulting, or leisure).
109 See Letsou, supra note 108 at 460.
110 See N. William Hines, Are Students a Dean's Primary Constituency?, 31 U. TOL. L. REV. 629, 629-630 (2000).
111 See id. (listing faculty, central administration, big donors, alumni, judiciary, bar leaders, other deans, and department heads).
112 Id. at 63.
113 Kenneth W. Starr, Keynote Address, Symposium: Legal Education at the Threshold of the New Millenium, 15 ST. JOHN'S J. OF LEGAL COMMENTARY 251, 255 (2001).  See also Cramton, supra note 11 at 617 (suggesting three years of college plus two years of law school as educational requirements).
114 At least oft-quoted by law students.
115 See Mell, supra note 103 at 1392.
116 Id.
117 See Costonis, supra note 69 at 167(citing to the MacCrate Report).
118 Id.
119 See Mell, supra note 103 at 1392.
120 See Costonis, supra note 69 at 167-168.
121 Id. at 158.
122 See http://www.mc.vanderbilt.edu/root/aboutus.html (last visited 10/14/2002).
123 Costonis, supra note 69 at 159.
124 Id.
125 See http://law.vanderbilt.edu/index.html
126 Costonis, supra note 69 at 159.
127 Id. at 160.
128 Boston Medical Center Corporation, 330 NLRB No. 30 at 37 (1999) (also cited as 1999 WL 1076118).
129 Id. at 33.
130 Id.
131 Id. at 51.
132 Id.
133 Id. at 2-3.
134 Id.
135 Id. at 3.
136 Id.
137 Id.
138 Id.
139 Id.
140 Id. at 4.
141 Id. at 4-6.
142 Id. at 6.
143 Id.
144 http://www.acgme.org/About/about.asp (last visited 10/17/2002).
145 http://www.acgme.org/Req/commonReqs.asp (last visited 10/17/2002).
146 Id.
147 http://www.acgme.org/GmeDir/Sect1info.asp#3 (last visited 10/17/2002).
148 http://www.ama-assn.org/sci-pubs/msjama/articles/vol_281/no_27/outcom.htm (last visited 10/7/2002).
149 http://www.hschange.org/CONTENT/457/ (last visited 10/17/2002).
150 http://www.harrisinteractive.com/harris_poll/index.asp?PID=273 (last visited 10/17/2002).
151 http://www.harrisinteractive.com/news/ (last visited 10/17/2002).
152 Id.
153 http://www.dentistry.uiowa.edu/public/student/firstyear.html (last visited 10/17/2002).
154 Id.
155 http://www.dentistry.uiowa.edu/public/student/simclinic.html (last visited 10/17/2002).
156 http://www.dentistry.uiowa.edu/public/student/firstyear.html (last visited 10/17/2002).
157 Id.
158 http://www.dentistry.uiowa.edu/public/student/thirdyear.html (last visited 10/17/2002).
159 Id.
160 Id.
161 http://www.dentistry.uiowa.edu/public/student/thirdyear.html (last visited 10/17/2002).
162 See http://www.germany-info.org/relaunch/info/facts/facts_about/10_02.html (last visited 10/2/2002).
163 Id.
164 Id.
165 Id.
166 Id.
167 Id.
168 Over DM 2 billion in both 1999 and 2000.
169 http://www.online-law.co.uk/solicitor/role.html (last visited 10/16/2002).
170 Jane E. Tewksbury, The Changing Face of Public Sector Practice: Apprenticeships as a Recruitment Tool, 40-DEC B. B.J. 12, 23
171 http://www.online-law.co.uk/bar/becoming_a_barrister/deciding.html (last visited 10/16/2002).
172 Tewksbury, supra note 170 at 23.
173 http://www.online-law.co.uk/solicitor/becoming.html
174 Id.
175 Id.
176 http://www.online-law.co.uk/bar/becoming_a_barrister/academic.html (last visited 10/16/2002).
177 http://www.online-law.co.uk/bar/becoming_a_barrister/joining_inn.html (last visited 10/16/2002).
178 http://www.online-law.co.uk/bar/becoming_a_barrister/mini_pupillage.html (last visited 10/16/2002).
179 http://www.online-law.co.uk/bar/becoming_a_barrister/vocation.html (last visited 10/16/2002).
180 http://www.online-law.co.uk/bar/becoming_a_barrister/course_content.html (last visited 10/16/2002).
181 http://www.online-law.co.uk/bar/becoming_a_barrister/pupillage.html (last visited 10/16/2002).
182 See Costonis, supra note 69 at 196.
183 See Mell, supra note 103 at 1392.
184 Id.
185 See Schiltz, supra note 22 at 927.
186 See Schiltz, supra note 22 at 888-906.
187 See Wizner, supra note 71 at 1936.
188 For a great triangle calculator, see http://www.ex.ac.uk/cimt/res2/calcs/calrtri.htm (last visited 10/17/2002).  To calculate a 5 degree difference, create a triangle with a hypotenuse of 10 units, and a small angle of 2.5 degrees.  To get the value for 5 degrees, double the result of the short side distance you get for the 2.5 degree angle (because you have two right triangles back to back).  With a 10 mile side and a 2.5% angle, the short side value was 0.436.  Doubling this for a 5% angle gives 0.872 miles.
189 For a compound interest calculator, see http://www.1728.com/compint.htm.  For my example I used principal = 1000 and years = 25.  Using a 9% rate returned 8623.08, while using 10% resulted in 10,834.71 (25.64% more).
190 See  Johnson, supra note 65 at 121.
191 See Costonis, supra note 69 at 173.
192 Id.
193 Id. at 185-86.
194 See supra, section III. A. 1.
195 Roger C. Cramton, Professional Education in Medicine and Law: Structural Differences, Common Failings, Possible Opportunities, 34 CLEVELAND ST. L. REV. 349, 351 (1986).
196 Id.at 350.
197 See  Johnson, supra note 65 at 121.
198 Id.
199 Stephen R. Alton, Mandatory Prelicensure Legal Internship: An Idea Whose Time Has Come Again?, 41 U. KAN. L. REV. 137, 145 (1992).
200 Id.
201 Id.
202 Id. at 146.
203 Id. at 147.
204 Id. at 147-48.
205 Id. at 148.
206 Id. at 148-49.
207 See Alton, supra note 199 at 137.  This article also cites to other proposals by Jerome Frank, Alfred Reed, Bayless Manning, Henry Rose, E. Blythe Stason, Robert Kessler, James Ely, Jr. Michael Sovern, and others.  See id. at 154-157.
208 Frank Askin, A Law School Where Students Don't Just Learn the Law; They Help Make the Law, 51 RUTGERS L. REV. 855, 864-65 (1999).
209 Costonis, supra note 69 at 162.
210 James K. Robinson, "May You Live in Interesting Times" - The Future of Legal Education, 77 MICH. B.J. 650, 651 (1998).
211 See Starr, supra note 113 at 256-57.
212 See Kissam, supra note 74 at 163-165.
213 Id. at 166.
214 See Tewksbury, supra note 170 at 22-23.
215 Id. at 23.
216 Id.  (success in this context is 50-60 interviews per year, with an average of 20 volunteer attorneys in the office).
217 See Berenson, supra note 38 at 105.
218 Id. at 145.
219 Id.
220 Id. at 156-157.