Evers, M et al --- "Looking to the past to plan for the future: a decade of practical legal training" [2011] LegEdDig 39; (2011) 19(3) Legal Education Digest 26

• Looking to the past to plan for the future: a decade of practical legal training

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Looking to the past to plan for the future: a decade of practical legal training

M Evers, B Olliffe and R Pettit

The Law Teacher, Vol. 45, No. 1, 2011, pp 18-44

Significant changes have occurred in the practice of law during the past 10 years and since the initial drafting of the Law Admissions Consultative Committee and Australasian Professional Legal Education Committee Competency Statements for Entry Level Lawyers in 2000. Law firms may operate as incorporated legal practices or multi-disciplinary practices, e-communications have replaced facsimiles, law firms are listed on the Stock Exchange and mental health is becoming a recognised issue within the profession. Newly admitted graduates are facing a constantly changing legal, social and global world.

Additional obligations have been placed on practitioners since the move towards a national legal profession and the increased duties on practitioners, including ongoing costs disclosure and certification of reasonable prospects of success in some areas of litigation.

These shifts in the legal, social and international culture raise the issue as to whether our PLT programme which commenced in 1996 is meeting ‘the needs and wants’ of our graduates and the profession.

To be eligible for entry to the legal profession in New South Wales, an applicant must hold a New South Wales accredited law degree or Diploma in Law and must have completed an accredited programme of practical legal training. When these studies have been completed an applicant can apply to be admitted as a lawyer of the Supreme Court of New South Wales. Those lawyers who wish to practise as a solicitor will apply to the New South Wales Law Society for a practising certificate whereas those wishing to be a barrister must undertake the Bar Practice Course before obtaining a practising certificate from the New South Wales Bar Association.

A distinctive feature of the UTS law degree is the option to include the practical legal training programme in the final year of law study. The majority of our law students choose this option. The remainder of our students on completion of the law degree undertake a Graduate Diploma in Legal Practice. Our PLT programme consists of a set of subjects that are available to students as part of their undergraduate or postgraduate law degree or as a Graduate Diploma in Legal Practice. The programme is offered on a full-time and part-time basis to on campus and off campus students.

The relevance of PLT to the legal marketplace is tied to the New South Wales statutory requirements for newly admitted practitioners as prescribed in Schedule 6 to the Legal Profession Admission Rules 2005 (NSW) and referred to as the Competencies. The Competencies required by the NSW Legal Profession Admission Board (LPAB) determine, in part, the content and the structure of our PLT course. Within the delivery of the essential requirements of PLT, there remains some flexibility to provide students with learning that will support and enhance their attributes as newly admitted practitioners.

An evaluation of graduates’ experiences in their first legal job provides a basis from which we can critically reflect upon the effectiveness of our course.

An email, containing a hyperlink to the UTS web survey system, was sent to 1850 graduates of the PLT programme at UTS. The survey was designed to enable the responses received to be divided into three cohorts thus identifying any differences in response from those students who undertook PLT from 1996 to 1999 compared with students in the 2000 to 2003 cohort and in the 2004 to 2008 group.

It is more than 20 years since the research undertaken by John Nelson into the type of legal work tasks and skills that the New South Wales College of Law graduates performed in their first year of practice. There has not been a later Australian study with a specific focus on the application of skills by PLT graduates in their early years of practice. In 1997 Sumitra Vignaendra and the Centre for Legal Education administered a national survey to Australian law graduates from 23 universities across Australia. One of the findings of the Vignaendra survey was that ‘the most frequently used skills, in fact, had to do with communication. And, indeed, other generic skills, such as time and document management, computer skills and fact finding were found to consume more law graduates’ time while at work than any legal skill.’

Our objectives were designed to investigate the experience of our graduates, both as PLT students and as practitioners.

A total of 213 responses were received providing us with a response rate of 11.5 per cent. We were hoping to achieve a higher response rate; however, this lower rate may be a sign of online survey fatigue.

Of the three cohorts used for grouping students, 27.2 per cent of respondents were in the 1996 to 1999 cohort, 29.1 per cent were in the 2000 to 2003 cohort and 43.7 per cent were in the 2004 to 2008 cohort. The greatest number of respondents, 31.5 per cent, was in the 31-35 age group, 24.1 per cent were in the 36-45 age group, 20 per cent in the 46-55 age group, 13 per cent were over 56 years of age and the remaining 11.4 per cent were in the 26-30 age group.

The fact that 31.5 per cent of our respondents were in the 31-35 age group may reflect the large proportion of UTS students who are mature age students or it may indicate that older graduates were more interested in participating in this survey.

The majority of respondents were full-time on campus students. Of the 213 respondents, 82.4 per cent were on campus and 17.6 per cent were off campus, 71 per cent were full-time and 29 per cent part-time.

One of the subjects of the PLT programme is practical experience in which students are required to undertake 16 weeks of approved practical experience in the workplace. Over 75 per cent of respondents considered their practical experience to be relevant or very relevant in preparing them for practice.

From an assessment of the responses to the open-ended questions, the lack of relevance noted by some respondents seemed partly attributable to these graduates subsequently moving to another area of work relatively different from their initial practical experience placement. This raises the issue of whether or not students are able to transfer their fundamental legal skills and attributes within a variety of legal environments.

We were interested to discover where our graduates were being employed in their first legal jobs. The highest percentage of respondents, 43.3 per cent, had first been employed in mid to large private law firms. Of the remainder of the respondents, 27.8 per cent were employed in small private firms, 17.6 per cent in government, 8 per cent in corporate and 3.2 per cent in community positions.

Analysis of our results suggests that if graduates went to a private firm they were more likely to stay a shorter time whereas if they were in a government position they were more likely to remain for a longer period.

An important objective of our research was to ascertain whether the practice areas covered in our course were still relevant for graduates as they enter legal practice today or if there had been changes in emphasis and needs over the past 10 years that might warrant modification to our programme. The 10 practice areas surveyed were civil litigation; commercial and corporate law; criminal law; property law; wills and estates; administrative law; consumer law; employment and industrial relations; family law; and planning and environmental law. The first five areas are taught in our course and the latter five are not.

In describing which areas of legal practice graduates had worked in during their first job, by far the two most commonly selected areas of practice were commercial and corporate law, and civil litigation. Both of these core areas received a selected response rate of over 50 per cent. Property law was the next most often selected area with 25 per cent, followed by employment and industrial relations with 20 per cent. These figures compare with eight per cent for consumer law, nine per cent for planning and environmental law, 11 per cent for administrative law and 14 per cent for family law. The area of employment and industrial relations was thus fairly common and more likely to be encountered than wills and estates and criminal law which were both selected by 16.5 per cent of respondents.

The results indicated we are teaching in the dominant core subject areas, namely commercial and corporate law, civil litigation and property law. Respondents were then asked to consider whether the programme had prepared them well for their first job.

Question 18 of the survey asked ‘Reflecting on your first job, were there any areas of practice where it would have been helpful if you had received further training in PLT?’ The areas identified by respondents in which further training was desirable were the two most common core practice areas, namely commercial and corporate law and civil litigation. The least selected practice areas for which further training was desirable were wills and estates and criminal law. It is difficult to know whether the low percentage of selection indicated that these areas were sufficiently covered in PLT at UTS and/or did it reflect the lower use of these areas in our graduates’ first legal jobs? The answers to the open-ended questions support the view that these areas were well covered in the PLT course. There were no requests for further training or comments on any deficiencies in these areas. One respondent said, ‘I work in criminal law and a large part of my job is Advocacy and criminal procedure. These two areas were addressed very well in the PLT course.’

Question 48 of the survey was an open-ended question that asked ‘What could PLT have done better to prepare you for practice?’ The responses to this question support the view that the PLT course could have better prepared students for work in large law firms and/or as corporate counsel.

Skills form a substantial part of the PLT programme and all skills required by the Competencies are taught and embedded across the programme.

There were 17 skills in our survey including drafting, advising, interviewing, technical literacy and ethical understanding. Specifically, graduates were asked what skills they required in their first legal job. Graduates considered the three most necessary skills to be drafting, writing letters and analysis and evaluation, in this order of priority. The programme teaches these skills in a number of subjects. The five next most necessary skills were critical thinking, advising, oral communication, legal research and problem solving. This ranking is in contrast to the Vignaendra survey in which the most frequently required skill identified by newly admitted solicitors in their first job was oral communication.

Respondents considered trust/office accounting to be the least necessary skill in their first legal job. Two other skills, dispute resolution and ethical understanding, were identified as being much less needed than we expected, particularly given the focus on alternatives to civil litigation and on the increasing regulation of the profession.

When specifically asked about whether the PLT course developed skills in drafting, the majority of respondents, 60 per cent, agreed that it did and in letter writing the majority of respondents, approximately 57 per cent, agreed that it did. When this data is combined with the figure that drafting is a skill held by less than 40 per cent of respondents prior to PLT, the conclusion must be drawn that drafting requires greater time and emphasis in our programme.

In relation to skills, the most significant differences in the responses of the three cohorts was the increase in the percentage of students in the 2004 to 2008 cohort noting drafting as the most needed skill for their first job. Other skills identified by a greater number of graduates in the 2004 to 2008 cohort as being skills required for the first legal job included technological literacy, ethical understanding and advocacy.

The first cohort of graduates from 1996 to 1999 considered the most significant skills required for their first legal job to be interviewing, legal research, oral communication, critical thinking, letter writing and advising and evaluation. Interviewing and letter writing were ranked less often by the 2004 to 2008 group.

Of the four most necessary skills of drafting, letter writing, critical thinking, analysis and evaluation, the 1996 to 1999 group was the largest group that considered letter writing, analysis and evaluation and critical thinking to be a first legal job requirement.

As shown in the area of PLT and skills development, drafting is a consistent skill requirement for all graduates. The 2004 to 2008 cohort who noted drafting as the most needed skill also required the skills of ethical understanding, technical literacy and advocacy to a greater extent than the two earlier cohorts.

Given that the majority of respondents were employed in mid/large firms, it is not surprising that commercial and corporate law was the largest practice area where further training was desirable. As a substantial component of this area of practice is drafting, this result aligns with the responses indicating drafting as a necessary skill. The results are also supported by the answers to the open-ended questions and the interviews.

Respondents were also asked about their current employment status. What is noticeable is the number of graduates working as in-house or corporate counsel. This reflects the growth in the number of corporate counsel positions which also became evident in the answers to the open questions and interviews.

The percentage of respondents not in legal work, 7.2 per cent, is slightly less than the percentage reported in the Vignaendra survey, being 11 per cent of graduates in the 1995 cohort and 12 per cent of graduates in the 1991 cohort.

Graduates were not asked in the survey if they worked in other legal areas such as international law, finance law or intellectual property. An analysis of the interviews and open-ended questions indicates that a number of our graduates are working in intellectual property and would have benefited from some practical legal training in this area.

In 2008 ethics and professional conduct became a core subject in the law degree and all law students now undertake this subject.

Graduates were asked how frequently they encountered ethical dilemmas and/or challenges in their employment. The majority of respondents answered ‘sometimes’, followed by ‘never’ and the smallest group indicated ‘frequently’. A possible explanation as to why 30 per cent of respondents never dealt with ethical dilemmas may be that there is an inability to recognise ethical dilemmas and a lack of understanding of the need for ethical decision making. Further research as to the types of dilemmas, the action or non-action taken by the graduate, the outcome and whether any advice or assistance was sought would be valuable for the planning of our ethics subject.

Given that the highest response rate was from solicitors in large firms, it is not surprising that several suggestions were made for better preparing students for practice in the large firm environment. The issues that faced junior solicitors included how to manage the boss who may not always be right or not always acting ethically yet expects the employed solicitor to follow instructions; partner management when receiving work from several sources; how to stand up for yourself and how to get ahead with partnership prospects.

Many of the issues raised concerned relations with others, including the employer, the client and the opposing solicitor. These concerns highlight a need for graduates to have effective people skills and strategies to deal with difficult employers who may make unreasonable demands on graduates’ time and behave unethically. Difficult clients included those who ‘hassled’ the solicitors and those who were demanding. Some respondents also suggested better preparation was needed in how to assist emotional clients.

It was interesting to note how respondents viewed their colleagues. One respondent referred to encountering difficult solicitors on the other side of matters while another referred to discovering that the solicitor on the other side was not the enemy. There is possibly a need to dedicate more time to educate students about protocols and expectations in dealing with colleagues. The skill our respondents appear to need could be termed ‘professional intuition’. Characteristics of professional intuition and ethical resilience are desirable qualities to support our graduates in their first job and beyond.

Some responses referred to personal well-being, including mental health; emotional intelligence; maintaining a work/life balance; self and priority management including career goals; how to deal with unethical behaviour and bullying. Many of these responses, such as mental health, work/life balance and bullying, are recognised issues in the legal profession. The challenge for legal educators is to provide knowledge and skills to cope with these challenges, not just alerting students that these will be issues in practice.

The PLT programme has begun to address some of the survey findings with the introduction of mentoring by senior students and staff, information sessions on alternative careers in law, networking events with students, alumni and staff and developing relations with the Young Lawyers’ Society. We propose to include mental health and wellbeing as a component of our legal skills subject in summer 2010-11.

Respondents told us that PLT could assist by providing further training in drafting and also in dealing with the diverse and difficult people they relate to in practice. Further and varied tasks requiring more complex drafting in several practice areas, such as advocacy, litigation, property and commercial law should be introduced.

The experiences of our graduates, as members of the profession, indicate that more graduates are working in large firms and desire more training in corporate and commercial work. Without ignoring the number of graduates who go into small or medium-sized suburban or regional firms, we recommend there be a change in focus for the Competencies and our programme to address the work being carried out in large city firms.

The survey results have highlighted strengths and challenges in the teaching of skills and practice areas. A shift in the emphasis of teaching to identify and include skills that are portable and flexible would render the course more relevant to a greater number of graduates and would also mean that it covers non-traditional practice areas.

The findings confirmed that traditional skills and established areas of practice continue to dominate the experience of newly admitted graduates. Currency and relevance in the delivery of practical legal training are essential in order to provide a professional and ethical framework for graduates from which they can become valuable members of the profession.