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Reforming Legal Education Could Address Justice Gap

By Thomas Q. Keefe, Jr.

A couple years ago I agreed to serve as interim dean of a law school. In the interest of complete disclosure it was, to put it charitably, tempestuous. “Academia Meets Trial Lawyer”…coming to a theater near you…There will be no sequel. But I did learn a few things. Law school is hopelessly broken and the American Bar Association is full of baloney. You see the ABA accredits law schools. There is a Council with 21 voting members — of course 10 of them are law school faculty or deans.

When I was deaning, I remember when the ABA said jump, the law school said “How high?” The ABA permits law schools to charge kids $45,000 a year to be taught by persons many of whom have no teaching certificates, never represented a client, nor set foot in a courtroom, and often have no law license.

The ABA accredits a system which sends young people out the door with $150,000 in law school debt. The monthly VIG is $1,500! For that loan to make sense the graduate would need to make over $180,000 a year. Both the American Bar Association and the law schools know, as moral certainties, that does not happen for anyone — especially the vast “unwashed masses” who are not on scholarship and do not get hired by big law. Half of these kids start at $60,000 a year — assuming they can find a job.

Law school costs way too much and it takes way too long. The single biggest cost of running a law school is personnel wages and benefits, and by far the largest component is faculty salaries.

Tenured faculty make $180,000 a year to teach three courses for nine months, and they pick up another $10,000 to $20,000 in summer stipends to write articles no one reads. Tenured means you are stuck with the teacher and his salary until he decides to retire. Yup, no mandatory retirement.

And don’t forget the deans. My salary (which I donated back to the school) was obscene. The University of Illinois has 11 people with Dean somewhere in their title; Loyola of Chicago has eight.

And the debt is essentially non-dischargeable in bankruptcy. No worries — just default. Bad idea!

The entire amount, with interest, is immediately due. You are subject to late fees, additional interest and court costs. Collection agencies hound you, and kiss your credit score good-bye. Oh, and good luck getting married, buying a home or car, and starting a family. But hey, when they sue you, you won’t need to hire a lawyer.

What makes this state of affairs so utterly intolerable is that these kids graduate and know nothing about
lawyering. My legal assistant has forgotten more than these kids will know after three years of practice.

Why does the ABA allow this to continue? Why, especially when they make these proclamations about “equal access to justice” and “Equal Justice Under Law”?

Does anyone really believe there is equal access to justice in this country? I mean really.

Picture a middle class family of four. Dad works in a factory, and mom is a middle school teacher. He earns $40,000 a year; she earns $35,000.

Then one day dad gets laid off, and he stays laid off. The longer he isn’t working the less dignity he feels, and the depression which he manages with alcohol is starting to give way to anger. Tonight he struck mom. He’ll do it again next week, and the week after.

Mom needs an order of protection. She goes to legal aid, but she makes too much to qualify (the cutoff is about $30,000 a year for a family of four); she then tries several private lawyers, but each tell her it will cost at least $5,000 (which is not unreasonable considering their law school debt). Dejected and hurt, mom goes home. Within a year the family is effectively destroyed.

The Legal Services Corporation reports for every recipient of legal aid, one eligible person is turned away, and less than 20 percent of low income Americans’ legal needs are being met.

And that does not count our hypothetical mom. The lower middle class is completely shut out.

According to Rebecca Sandefur, as many as half of American households confront problems daily which impact shelter, wages, neighborhood safety, and the care and custody of minor children and dependent adults.

Lawyers matter! When people don’t have us, they don’t have access to the courts, and when they don’t have access to the courts they consistently get the short end of the stick.

The National Center for Access to Justice declares “we rely on our courts to secure the rule of law; to halt domestic violence, stop unlawful foreclosures, preserve the unity of families, and in some circumstances block unfair criminal proceedings.” The short end of the stick means losing benefits, jobs, insurance, pensions, and custody of your kids.

I believe all of these law students I met that year want to help others. They are young, ambitious, energetic and idealistic, but they are broke, and without high paying clients they can’t pay student loans, and with no practical skills they aren’t even competent to help.

The problem is not lawyers. And the problem isn’t clients. The problem is an ABA-approved system which trains the former in a way, and at a cost, that min-imizes their ultimate utility to the latter.

We have willing (broke) young lawyers and lots of worthy (broke) clients, and no one is getting fat except Mama Cass (and tenured law professors).

So we need law school to cost less; we need young lawyers to learn how to lawyer; and we need to pay more than lip service to the admonishment from Lewis Powell that “justice shall be the same, in substance and availability, without regard to economic status.”

In 2006 the same body which accredits these law schools urged “federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories as adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.”

So why can’t the ABA tell the law schools that two years in the classroom is enough? (It is.) Immediately you have cut costs by one third. Tell the law schools this faculty “legal scholarship” is nonsense. That gets rid of the summer stipends. Even the Chief Justice of the United States Supreme Court says no one pays any attention to law journal articles. Tell law schools they can and should hire faculty who actually have “legal” experience. I know so many lawyers who would be thrilled to teach courses at a fraction of the cost.

Do you think Joe Power might know more about the law of evidence, or Bob Clifford about products liability, than some professor? These guys, and their partners, have tried hundreds of cases.

By simply exercising their accreditation power I bet we could get the “classroom” costs to these kids cut by 50 percent.

But much like medical education, prospective lawyers must do a residency — a two-year pro bono internship, after they complete their classroom work.

What if the Supreme Court required all law firms to accept one student for every three full-time practitioners they employ? The student is not paid, but would instead earn law school credit. But they would spend these two years learning how to become lawyers by solely handling pro bono cases.

Just as legal needs are varied, so too are the skills and specialties of our legal community.

Each law firm would register with a Supreme Court appointed “clearing house” where they would declare what areas they have interest or expertise. A student or students are assigned to firms.

When people have a legal need, the cases are assigned to a firm with professed expertise to address that need. Obviously there will be limits on actual assignments of cases per firm. The students could rotate through different firms just as a prospective doctor rotates through internal medicine, pediatrics, neurology, emergency room practice, etc.

This is not a perfect solution, but it is a start.

Everyone wins. Law firms get the deep professional satisfaction of mentoring, providing legal services to the poor, and they can hire “new” lawyers with two years of legal experience. Students are exponentially better prepared to practice law at perhaps half the cost, and they actually get the joy of feeling like a lawyer which is to say helping a fellow human being at no charge.

And most importantly untold thousands of poor and lower middle class people get real legal help in navigating evictions, foreclosures, predatory lending, domestic violence, child support, social security, immigration, and veteran affairs.

Nor is this limited to the civil arena. Our criminal justice system would be completely transformed.

Every felony case is charged by indictment or information. If charged by information, the defendant is entitled to a preliminary hearing wherein the prosecutor calls a police officer to testify about the probable cause justifying the charge. The officer is then subject to cross-examination.

A preliminary hearing is therefore free discovery — an opportunity to pin the police to a narrative that can then be undercut at trial. In most cases failing to ask for one is tantamount to malpractice. But most felonies are handled by understaffed and underfunded public defenders’ offices that lack the time and resources to conduct such hearings, and instead routinely waive them. This is not a criticism, it is an unfortunate truth of today’s practice. And the defendants who would have otherwise benefitted from such a hearing fall squarely within this justice gap.

The good the third and fourth year law students could do for the indigent accused is incalculable. They would review discovery, identify potential issues, draft motions, outline examinations, help negotiate more favorable plea bargains, and assist in trying cases. They would help level the playing field, saving thousands of decent but flawed people from serious consequences. They would help close the gap.

Is there something I’m missing here? Why in the world aren’t we doing something?

Thomas Q. Keefe, Jr., consistently named one of the country’s top lawyers, has handled high-stakes, complex lawsuits on behalf of plaintiffs for nearly 35 years. His clients have been awarded more than half a billion dollars in cases involving medical negligence, products liability, vehicle and truck accidents, construction injuries and claims against railroads. He practices at Keefe & Keefe, P.C. in Belleville and can be reached at isuedocs77@ gmail.com.


– Leading Lawyers insert in Chicago Daily Law Bulletin’s Law Day edition, 2015