Putting theory into practice

“It is no longer sufficient (if it ever was) to be an excellent lawyer – the successful solicitor now also has to be a highly competent manager… acutely aware of the business environment.”

Few would argue with this statement from the Law Society of Scotland’s materials on practice management (PM) for the Diploma in Legal Practice. PM as a subject has been included in the Diploma since 2000-01 – the curriculum includes Time Management, Risk Management, Client Care and Law as a Business – and PM modules are included in the Professional Competence Course for trainee solicitors. These courses also provide modules in practical legal skills, e.g. interviewing, negotiating and advocacy. Law firms too are increasingly offering training in these and other business-orientated skills.

Perhaps inevitably, Diploma student reaction is mixed. The feedback for 2002-03 from the Glasgow Graduate School of Law quotes one student’s view of PM as “invaluable on a practical level”, whilst another, on the same course, thinks it “has little value”. A third is pleasantly surprised at the “interesting course” because “the name indicated that it would not be very informative”. What conclusions may be drawn? Well, you cannot please all the people all the time. Perhaps it would be more productive to start with principles that might unite law firm partners, legal academics and students.

Answers for higher ideals

All would agree that developing practical knowledge and skills is more important than ever before, both for individuals and for the legal profession as a whole. Whether and to what extent they would agree that there is a place for theory in legal practice is another matter.

For students, trainees and recently qualified lawyers, PM and practical training advance the transition from learning the law to earning a living out of the law. Students are understandably hungry for hands-on experience and may be eager to distance themselves from the academic study of substantive law in the undergraduate degree.

An older generation was not taught practical subjects formally and acquired its professional patina by empirical means. If there is indeed a consensus that formal education and training in legal practice is a good thing, it is vital to remember that there is a two-way link between the way we train lawyers and our ideal of a lawyer. The way in which we train PM and practical skills contains implicitly, if not explicitly, important messages about the nature and self-image of the modern legal profession.

Legal education – even in practical subjects – should address professional ideals at the same time as market demand. When we teach PM we are not just talking about how to set aside time in the morning to open mail or read emails. We are teaching what it is to be a lawyer. This should be remembered in the current debate on self-regulation in the context of the Clementi review – lawyers have to address this very question.

This means we must ensure that we integrate and embed the “higher calling” aspects (intellectual and ethical) of being a lawyer with the essential, if more mundane, daily disciplines. For every student who feels that theory is a “waste of time”, there will be the more thoughtful who feels that PM “opened my eyes to possible management issues in law firms”. The latter response is encouraging, but the challenge is to engage both predispositions.

Challenges of common sense

Some students take the view that PM is just “common sense”. Those of us who have practised law for some time know there is a little bit more to it than that – PM might more accurately be described as explicating common sense. So, what are some of the educational challenges involved?

First, PM involves teaching the practical. PM is about issues and techniques involved in doing something and, unlike substantive law, it is difficult to teach in the abstract. Practical skill is often bound up with individual personality and aptitude. Not everything is reducible to right and wrong answers. One size does not always fit all.

Secondly, PM is as much a way of thinking – an attitude or predisposition – as it is a body of substantive content. In order to teach a way of thinking it is necessary to get learners to think a bit for themselves. The fact is that an undergraduate degree in black letter law is not exactly the perfect foundation for this.

Thirdly, the subject suffers from what might be called curricular incoherence. A simple, but relatively arbitrary, classification is used (Time Management, Risk Management, etc) and then practitioner tutors present the material. After a while, it all merges into an amorphous mass, relevant but lacking coherence. There is an absence of governing principles, any means for students and trainees to work things out methodically for themselves.

Fourthly, there is the ever-present difficulty of discerning the fundamental from the merely fashionable. We live in a time dominated by faith in business culture and “entrepreneurship”. In the case of the legal profession, this factor is aggravated by increasing competitive pressures. How do you tell passing phases from permanent shifts? (Total Quality Management, anyone?) Management theory holds special perils for any occupation supposedly rooted in the normative (ethics, rules and so on).

Beyond the war stories

An uncritical, wholesale adoption of mainstream business methods and culture has implications for lawyers, individually and collectively. It is in the area of PM (and practical skills generally) that lawyers, consciously or unconsciously, address the delicate distinction between being in, and being of, the clients’ world.

The irony is that these pedagogic problems require as a solution the very thing that, superficially, learners abhor in a “practical” subject, namely, theoretical underpinning and analytical coherence. Without this, we risk teaching by checklists, soundbites, and war stories.

Checklists are essential. However, checklists alone can disable creativity and responsibility, reducing legal work to a species of administration. This is a far cry from our self-image as critical, independent and ethical facilitators of social and economic affairs – not forgetting our role as principled defenders of constitutional freedoms. War stories too have their place in teaching PM – students can hear the sound of gunfire and smell the smoke of battle. But anecdotes alone do not always explain the purpose behind the fighting.

So what abstract principles should underpin how lawyers are introduced to, and trained in, PM? This is open to debate but here are some suggestions.

First, a good lawyer’s thinking needs to be both disciplined and methodical, but also independent and flexible. The structure of thinking needs to be disciplined. The conclusions reached may be creative. In the context of PM, for example, lawyers need to learn to manage work in progress and debtors systematically, but also to accommodate clients in long-term relationships.

Secondly, a lawyer’s understanding needs to be holistic, not compartmentalised. The subject matter of PM, like that of substantive legal problems, must be comprehended as a whole and relative to context. This must embrace the client’s non-legal outlook (in which things may appear as a commercial venture, personal event, emotional upheaval and so on) as well as the lawyer’s own perspective (in which matters may be experienced as a document, procedure, fee, career etc).

Thirdly, there is the belief that individualism is, or ought to be, one of the most cherished characteristics of lawyers, albeit founded on shared ethics and regulation. Legal academics have identified Aristotle’s concept of “practical wisdom” as the quality that sets truly great lawyers apart in the minds of their peers and clients. Likewise, what just about every survey of law firm clients shows is that what clients value in their advisers is personality and judgment. Technical competence is often assumed. Training in PM can either strengthen or undermine individualism and the related quality of independence.

Good lawyers have been taught to deal with the issues where there are no right answers or precedents as well as with the ritual set pieces. Lawyers need to be able to dance, not just follow the steps. Training in PM should be more than spoon feeding checklists and the latest interpersonal gimmicks.

Practice needs academics!

How should these principles be reflected in PM, the first step a student takes towards becoming a practising lawyer? It is vital that, at this stage, the connection between theory and practice is retained and not broken. What this requires is a mnemonic, analytical framework from which students can make sense of the myriad practical procedures, protocols, hints and tips comprehended by the subject. Such a framework would embody principles that will allow students to think for themselves and generate their own strategies and techniques to address the challenges of the legal business. Practising lawyers’ minds work through cross-referencing, double-checking and looking at things from different perspectives. The presentation of PM and practical subjects should foster and utilise a predisposition to these mental patterns.

In a second article I will suggest how to apply a presentational structure along these lines to the subject matter of PM.

More fundamentally, however, I believe it will remain difficult to set PM in a proper context unless legal practice is recognised as more intrinsic to law as a subject of academic study. This means change to the undergraduate law degree. We need better and earlier input from the academic providers of legal education. Legal practice is too important to be left entirely to legal practitioners!

Robert Pirrie is the principal of Metalegal. He is the WS Society’s Director of Education and tutors on its PCC and on the Diploma at the Glasgow Graduate School of Law. He is a former partner of Dundas & Wilson and Maclay Murray & Spens. e: rpirrie@metalegal.co.uk