LLB confidential

There was a tradition in the Diplomatic Service allowing an outgoing ambassador to leave his successor a full and frank report on the country where he had served. Naturally, this communiqué was confidential, as it often contained deeply insulting assessments of “the natives”. Following that splendid old practice, I have decided that on “retiring” this year (after over 25 years of teaching on both the LLB and the Diploma) I will pen my thoughts on where we are today in legal education in Scotland. I do so at a time when the Law Society of Scotland has realised the importance of the subject; and there is also a debate within the universities about the LLB curriculum and the teaching of Scots law within it.

I am clear that the fundamental problem which exists for the profession is that the law schools’ aims for the LLB degree do not match the needs of the modern legal profession in Scotland. I went to university over 30 years ago. The practising legal world was more leisurely and less brutal than is the case today. Young people entering their traineeships from law school now have to be much more “battle-ready”.

Law – an easy option?

The underlying difficulty is that, while the political, social and commercial worlds in which lawyers operate have become much harder, law schools have become much softer towards students. Entry to university is easier than 30 years ago, and assessments not as rigorous. Now this may be all very well in some courses but, when the law degree is part of the training to become a practising lawyer, that gives rise to a problem.

Today, Scottish law schools admit almost everyone to study honours and award almost everyone a 2:1 degree. According to the marking protocol, to get a 2:1 a student has to “show considerable intellectual skill; very good understanding of the principal features of the subject; very good problem solving, evaluation, argument and other intellectual skills; evidence of originality and autonomy; evidence of very good communication and other key skills”.

Legal academics happily certify that almost all their students have these qualities. But in many hundreds of papers I have marked over the past 25 years, I have rarely seen anything original – apart from bizarre sentence construction. Today’s law students are tediously conformist. Their prime aim is to please those who teach them by agreeing with all their views. Originality and free thought are out. Nor is lack of literacy any bar to a 2:1 honours degree. The 2:1 category now ranges from very bright candidates who nearly achieved a first, to those who are mediocre – had they sat honours with me they would at best have obtained a middle range 2:2.

Compared with other professional university degrees, law is not of a high standard. It is a soft option compared with degrees where a profession sets the standards required. Some legal academics honestly admit that today’s LLB has really had to become an arts degree, to accommodate the huge number of law graduates who will not get jobs in the legal profession. This is a vicious circle.

Cashing in

Lower standards are only a small part of the total problem. The law schools are cynically used as “cash cows” by the university administration. Law is very cheap to teach, requiring very little extra financial outlay whether there are 20 students or nearly 300, as is now the class size in Glasgow and Edinburgh. In a very suspect argument, legal academics maintain that they do not know that their students actually want to be lawyers. Could they not ask? In truth, they are frightened of the answer. The Executive’s working group report on the legal services market in Scotland, published in May, quotes research indicating that 70-80% of law students want to be lawyers. For legal academics the truth is too uncomfortable to face. They admit so many undergraduates, there is no possibility of them all getting jobs in the legal profession unless we start having an annual cull of those of us who hold practising certificates. According to the law schools, this justifies them teaching the students “transferable skills”, often in preference to black-letter law. But the practitioners’ perspective might be that universities fail to prepare students adequately to practise law in today’s harsher climate.

So what do the students actually study in an LLB these days? For the first and second years, they take general introductory courses and most of the professional subjects, i.e. the classes covering the Society’s list of required passes.

The teaching of the professional subjects is now briefer and shallower than was the case in the past. It is said the emphasis is on skills rather than content. But this gives a problem to the practitioners who teach in the Diploma, who now cannot assume even a minimum level of legal knowledge in the usual areas of practice. It appears that Scots law is taught little and seldom in some law schools. Many scripts I mark use only English terms. Plenty of honours dissertations are on English law alone. They are written in such a way as to raise doubts in the marker’s mind as to the awareness of both the students and their teachers of separate legal systems within the United Kingdom. Professor Gretton is right (Journal, February 2006, 14) to be concerned for the future of Scots law in our law schools.

Not the real world

In third and fourth year, outer space truly is the frontier! No doubt the subjects taught in these years are intellectually valid. However, from the profession’s point of view, some are, to quote my old pal Jack McLean, pure mince. Inevitably, academics indulge themselves in honours classes by teaching their pet areas of law. Usually, this involves the study of the decisions of the higher courts, such as the European Court of Human Rights, the House of Lords, and the like. Practitioners appreciate that the decisions of such courts have very limited applicability to the real-life situations they encounter. But that is what the students learn about.

Remember, too, that in almost all cases they are taught by people who have never practised law. There are few admitted Scottish solicitors or advocates in our law schools now, and even those few often have little or no practical experience. So they know almost nothing of how courts work and often appear to know little about setting law in a practical, social, commercial or political context. So I think one can legitimately criticise the teaching our students get in years three and four as being extremely narrow, as well as being mainly impractical.

I have noticed throughout my many hours of marking scripts that most law students, even at honours level, fear problem questions. To them, the essential, everyday legal skill of applying law to a set of facts is a positively terrifying experience. They much prefer writing long, rambling, inconclusive essays on philosophical legal questions. In an exam containing both types of questions, you can guarantee that almost all students will run away from the one containing facts. If medical students were taught in this way, presumably they would write airy treatises about diseases rather than go into hospitals, see patients and try to diagnose what might be wrong with them.

Fit for purpose

Compared with other professions, we lawyers are incredibly lax about letting people join our ranks. The Society has not asked the law schools to apply a test to ascertain whether the students are suited to becoming lawyers. It’s surprising that the Guarantee Fund Committee and our indemnity insurers have not suggested something of this sort. Worse still, the Society accepts academics’ certification of graduates as “fit and proper” to start a traineeship! Hardly an informed view.

In contrast, medical students, who all possess five As at Higher and have worked to build up a portfolio of medical experience while at school (to demonstrate their commitment to the profession), still have to go through a rigorous pre-course interview where they are examined by a panel of experienced senior doctors.

In short, today’s legal training in Scotland, from a professional perspective, as Peter Cook said of the entry requirements to become a coal miner, lacks rigour. Other professions have not allowed control of entry to slip from their grasp like this.

Horses for courses

One way forward might be that, after the introductory two years, students have to elect to be taught either on a Law Society of Scotland-approved LLB Honours course or a general university-approved LLB Honours course. There are very few teachers of law within the universities who would be able to teach the Society course. However, there are plenty of retired, or semi-retired, experienced practitioners who could fill the gap – perhaps the increasing number of part-time practitioners would find this an attractive and viable career option. University pay is notoriously low, but hopefully the altruistic attitude of the Scots legal profession, demonstrated by its support to the Diploma, would extend similarly to LLB teaching. There is no reason why a practical and vocational course cannot be taught within law schools. Medical schools can do it, engineering departments can do it, the business schools can do it, and indeed the English College of Law can do it. It just seems to be the Scottish law schools who are, from a professional viewpoint, no longer fit for our professional purpose – which squirm as they might, is part of their remit.

Such a scheme would have the attraction of allowing the development of new areas of study within the LLB. There are many areas of practice which have grown up over the past 30 years which are not touched upon at all in the law schools because the academic teachers know little or nothing about them. That gap could be filled. There has to be more clarity, and indeed more honesty, about what the law schools are trying to do. I do not accept the academics’ argument that they are in the business of teaching law as an intellectual discipline and are right to be totally unconcerned as to the utility or preparedness of the student turned out for the practice of law. Law is a vocational subject. As noted already, independent analysis shows that three out of four students study law because they want to become lawyers. But sadly, due to excessive intake by the law schools, too few can now realise this ambition.

Legal academics accept that they do not have the necessary skills to teach students “practice” skills, that being left to practitioners in the Diploma. If academics are correct in stating, as they do regularly, that many law students are there to study law as “a general qualification”, then these students could take the purely academic honours degree while those who want to go into practice would take the Society-approved course. Academics would be freer to experiment in their particular areas of interest and expertise. At the same time, teachers of intending practitioners would have the chance to expand greatly on what is presently taught in the professional subjects. For some unknown reason Scots academics are allowed four years to teach what English academics must cover in three years – let’s make use of this luxury sensibly.

Now, none of what is above is to detract from the hard work done by the many excellent graduates from the law schools in Scotland. Inevitably, the profession takes the top graduates and I earnestly hope that they are satisfied with the intellectual quality of their trainees. It is certainly not the graduates’ fault that they often have an impractical approach to the use of law as a means to achieve the end instructed by the client.

Nor is this an attack on the many excellent academics who work hard for little reward in many of our law schools – and I hope that my friends in the academic world will still be friends after reading this.

All I seek to do here is illustrate that there is a serious mis-match between the teaching of law within the LLB degree and the requirements of the legal profession and public in Scotland for properly trained lawyers – and that we should address it.

CHALK AND CHEESE

Professor Gretton’s article (Journal, February, 14) referring to my advice to sixth-form school students has been drawn to my attention.

The article quoted me not inaccurately, I hasten to say, but entirely out of context and substantially missing the thrust of what I said, when stating that “studying law was a waste of time”.

My main point was that to practise law as an advocate at the English Bar, or practise it well, practitioners need a broad education and some experience of life. In this sense, I certainly said that a law degree was a waste of time. Those three or four years should, I stated, be spent doing anything but law, and as much else as could be squeezed in. I also made the point that practitioners should come to law later than immediately post-university and would do well to get qualified in something else first: engineering, accountancy, medicine etc, all of which would stand them in good stead in practice.

In the same vein, I discouraged them from opting for life in the law too early. Unless clear they wanted to do it, they should continue to broaden their experience before starting in practice. So long as one started to practise by the early 30s one would ultimately be at no disadvantage compared with others who started maybe 10 years earlier.

Learning in the real world

I did not go to university. After leaving school at 16, I started professional life as an apprentice accountant (in a Scottish firm), and then earned my living in a variety of ways while studying, by reading law books at night, for the Bar. When I started practice aged 24 I reckoned I was better prepared than most of my university-educated fellows, but another three or four years in the real world before starting practice would have advantaged me even more.

One of my fields of practice at law became accountancy and financially related matters. I was astonished at how few of my fellow practitioners (and judges) ever understood accountancy, or indeed accounts, and struggled with the financial side of even quite basic computations of damages. I came across the same lack of understanding in other fields: building, engineering, aviation.

When practising law, I would back myself to do reasonably well at first instance even against the cleverest brains and most distinguished lawyers at the Bar; in the Court of Appeal, I would reckon to be able just about to hold my own. In the House of Lords, I felt very underskilled against and outgunned by them. However, most of my professional life was spent at first instance, and most cases were won or lost there. A small percentage of cases went to appeal and a tiny proportion of those to the Lords.

Skills for the job

At first instance, other skills than knowledge of the law are required and in my experience many of the clever brains often lacked these. Such basic preparation as knowing your judge or tribunal and your opponent can be quite vital. I remember Cyril Salmon (later Lord Salmon) saying: “It’s a waste of time arguing before a dog-lover that it was not cruelty [when that was a ground for divorce] to kick the dog. Or to argue before a dog-hater that it was.” Whatever may be argued to the contrary, judges are human and take their frailties with them. All things being equal, judges prefer to find in favour of those they find agreeable. Cleverness is not always agreeable.

Similarly, I learnt that many clever lawyers hate having their cleverness challenged by those whom they consider less clever than themselves. In some cases it was easy to get under the skin of such opponents, who would then waste energy demonstrating how clever they were and you were not, and lose sight of the basic need to persuade the tribunal of the strength of their case. Clever lawyers tend to lecture, if not hector, judges and tribunals. Few people respond well to being lectured, let alone hectored.

Getting evidence from witnesses in examination is a skill that not all master, and cross examination is mastered by many fewer. Observers see cross-examination as aimed solely at destroying another party’s witness’s evidence, but equal skill lies in challenging it while affording the witness as little opportunity as possible to develop their point or explain why it is to be preferred. Jeremy (later Lord) Hutchinson was supreme in this. Often his opponent would object to Jeremy leading evidence on a point which it would be argued had not been put in cross-examination. Recourse to the transcript would always reveal that it had been sufficiently put, even if shortly and subtly.

These are but examples of the great variety of talents that the successful advocate needs. It is difficult to teach many of these skills at all, let alone the right way for each individual practitioner to deploy them. Advocacy is a very personal skill and each must develop his or her own approach.

Issues of principle

Where does the law come in? Basic understanding should come with passing professional exams. Thereafter each practitioner should be able to master the somewhat narrow field in which they may practise, and in preparation work up all that may be needed to deal with the particular issues a case may raise. If it be argued that a practitioner may not identify all such issues without a broader grounding in law than professional training provides, I would respond that smelling out the real issues in any given set of circumstances is what being a practising lawyer is all about. It is a skill that, like bedside manner for a doctor, evolves in practice but, I would argue, cannot really be taught.

Finally, as an “untrained” lawyer I often challenged principles, which would surprise my better legally-educated opponents. “You can’t argue that,” they’d say, “it’s been established for ages.” “But is it right ?” I’d reply. “Let’s find out.” Every proposition I always reviewed from first principles. I started with no baggage whatsoever.

I do not decry academic study of law. It is just that it is so very different from practising it. I adhere to the view that anyone who might want to practise law should not waste their time at university studying it.

Patrick Phillips QC