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Training yesterday's lawyers

Are law schools in Canada pumping out lawyers without the skills they need?
|Written By Scott Neilson
Training yesterday's lawyers

When asked about how Canada’s legal academy is handling innovation, Jason Moyse is blunt. It is “so far behind, it thinks it’s ahead,” says the co-founder of Law Made, a small legal company that helps startups and large corporates “drive innovation, and make the most of technology, in the legal services industry.”

Toronto-based Moyse spoke to Canadian Lawyer roughly halfway through Law Made’s informal road show of sorts through six or seven Canadian law schools. Preaching to “anyone who turns up,” the presentations focus on emerging best practices for training 21st-century lawyers.

“Through our travels,” says Moyse, “we have a global perspective on legal innovation and a very solid understanding of the [innovation] state of play elsewhere compared to Canada. And, frankly, I have a lot of concern in respect to the Canadian law school environment. [So far], the road show has regrettably only strengthened our concerns regarding a lack of innovation within Canadian law schools.”

Moyse says Canada’s academy is “nowhere close to where it needs to be,” innovation-wise, particularly when compared to small but highly innovative U.S. law schools now offering standard courses in e-discovery, document automation, data analytics, machine learning, project management, app building, design thinking and the user experience.

By contrast, “Canadian law school programs are still designed and taught the way they were 20 years ago,” says Moyse.

“Specifically, they are theory- rather than application-based.”

Echoing Moyse’s concerns about law schools’ failure to keep pace with change is Darrel Pink, who in January concluded 27 consecutive years at the helm of the Nova Scotia Barristers’ Society, that province’s regulator.

Pink says innovation is more or less non-existent within the Canadian academy, which is “continuing to do a very good job of training yesterday’s lawyers.”

Few schools, says Pink, are committed to teaching the “new law” relating to dynamic and emerging fields such as food security, genetic modification, IP, ownership and trade.

Hearing from critics like Moyse and Pink, the attempt to bring Canada’s law schools into the 21st century, with their traditions and tenured law professors, can seem like a lost cause. Enter Ontario’s Ryerson University and its proposal for a new kind of law school, one more oriented to “practice readiness and change management” — and which trains lawyers “differently” within an “innovative and entrepreneurial” environment.

Last December, Ryerson’s proposal won approval from the Federation of Law Societies. But before that, in November 2016, it drew a Council of Canadian Law Deans accusation of advancing only a “caricature” of Canadian academy innovation.

The law deans said there was plenty of innovation at Canadian law schools and questioned whether Ryerson’s proposal offered anything dramatically new. Canadian Lawyer spoke to several deans to find out what is actually happening at the law schools and why the pace of change is not as fast for both critics and deans alike.

Ian Holloway is dean of law at the University of Calgary, a school that in September began the third year of its high-profile Calgary Curriculum.

It sees first-year students enter via a foundational three-week boot camp-style course that aims to begin to “professionally acclimatize” them within a simulated 9-to-5 “office hours” environment. Other curriculum features include a compulsory course in legislation, a mandatory three-week “intensive” each January and training in legal project management, leadership, innovation in legal services, law and technology, crisis communications, business concepts and business-related strategy and risk management.

Of the business training, Holloway says the aim is to introduce students to the concept of looking at legal problems through the eyes of clients, rather than the eyes of a lawyer.

Holloway, however, is quick to admit the school still has some way to go when it comes to innovation.

“Data, data, data! That’s what’s missing from every law school curriculum I know — teaching students how to use Big Data to serve clients. We’re working on it.”

Holloway adds that the school remains at only an “experimental” stage when it comes to offering experiential opportunities beyond its six clinics.

Holloway has been working with the university’s Taylor Institute for Teaching and Learning to attempt, among other goals, to measure the curriculum’s impact.

“We’re [probably] going to review externally, at arm’s length. We’ll likely design it this year, and implement [in] 2019, so that we’ll have structured feedback from students who are [by then] articling, as well as their employers. That will be the [curriculum’s] real validation.”

When it comes to innovation, Lorne Sossin, dean of Osgoode Hall Law School at York University in Toronto, says Ryerson’s challenge will be to “catch up.” Law schools across the country are and have been launching initiatives in exactly the areas Ryerson “hopes to pursue,” he says.

In 2014, Osgoode launched its Research Digital Commons — Canada’s “first open-access platform” for law school content including thought leadership. Since then, says Sossin, commons content has been downloaded almost 1.5 million times.

More recently, Osgoode has hosted or participated in a modest stream of new law-related conferences and workshops. One such full-day event last November focused on blockchain and drew a capacity crowd of 120, says Sossin. Other recent events were titled Disruption in Legal Service Delivery: What Students and New Lawyers Need to Know; Hack Justice: An Access to Justice Hackathon; and Communication 2.0: Social Media Best Practices. The latter drew almost all of Osgoode’s 300-strong first-year class.

Other additions, meanwhile, include Osgoode’s Learning & Leading Series of professional development programs for JD students. New courses include Legal Information Technology and Designing the Future of Justice. And, in 2017, the school’s Winkler Institute received “significant” Law Foundation funding to host Design Thinking and Technology: Responding to the Justice Needs of Aboriginal Youth.

Says Sossin, “The feedback [on these changes] has been really strong and positive and in some cases career-altering . . . We actually will be posting some of these testimonials in the new year and hope to expand some of these activities significantly in 2018.

“Innovation is not a new fad at Osgoode,” he says. The school’s efforts have received plenty of external recognition — for example, the 2016 Clawbie for best Canadian Law Blog — and also funding, including two innovation-related grants the school recently secured from the Law Foundation of Ontario.

Despite the apparent progress, however, Sossin says he has plenty of work left to do when it comes to embedding innovation.

“All [Canadian] law schools need more thought leadership on innovation. It’s invoked by many but investigated by few.”

He also wants to see his school achieve “more engagement with tech literacy” and better use of technology to teach and train.

So, what’s stopping him?

“The very aspects of innovation that are compelling are also sometimes discomforting,” says Sossin. Aspects such as “limited time, resources and knowledge [are] always hurdles to overcome.”

Perhaps less nuanced regarding his school’s barriers to improvement is Paul Paton of the University of Alberta’s Faculty of Law in Edmonton.

Says Paton, “The faculty [of law] wasn’t always and still isn’t always ready for embracing change. That’s a fine balance that needs to be managed by any dean and any legal community. I’m cautioned about how quickly we have moved . . . Within any legal community, you always have entrenched interests.”

One of the first moves Paton made when he arrived at the school from California almost four years ago was to create an external advisory board comprised of eight to 12 members spread across Edmonton, Calgary, Vancouver and Toronto.

Says Paton, “We set it up to get advice, input and information; to garner a better insight in terms of what we ought to be doing.”

More recently, Paton created a second advisory body — this time on experiential learning — to look at “how can we bolt on or enhance the experiential learning we provide and add it to our academic foundation carefully, thoughtfully and well.”

In late January, meanwhile, the school hosted a conference on legal innovation. And Paton, who surveys students on the faculty’s performance, has also launched a law and social media course. That takes on a different topic each year, most recently the Truth and Reconciliation Commission. Prior years have focused on women’s suffrage, the Magna Carta, and change and advocacy — with that year’s version winning national and international recognition. 

Innovation runs through the school’s pedagogy, says Paton. For example, professor Peter Sankoff — winner of an innovation-related international Bright Space award — introduced to Canada’s academy “flipped classrooms,” a concept that aims to place students rather than lecturers at the centre of the learning experience.

Paton is also launching experiential partnerships with organizations such as the Alberta Utilities Commission and Alberta Human Rights Commission, the Canadian Armed Forces and innovation hub TEC Edmonton. And the school also offers “various opportunities” for students to have supervised externship practice experiences.

Mitch Kowalski, a Toronto-based lawyer and the Gowling WLG Visiting Professor in Legal Innovation at the University of Calgary Law School, says law school faculties are “ocean liners filled with tenured professors who need to be coaxed in new directions” — professors who have “little incentive” to respond.

Kowalski, who labels the council of deans’ letter in response to Ryerson’s proposal as “petty,” says there’s only a “veneer of innovation” at Canadian law schools.

“The current level of innovation is nothing to crow about. Ryerson’s proposed curriculum would put it leaps and bounds ahead of every Canadian law school.

“New players in every industry have a huge advantage because they don’t have any legacy baggage to deal with as part of change management. A new school starts from a blank page, hiring only the professors who buy in to the new vision and only those who are able to take a fresh look at how every course is taught.”

Erika Chamberlain, dean of Western University’s Faculty of Law in London, Ont., says that, in her experience, there’s always a “sense of inertia” among faculty as well as students. She’d like to increase her school’s skills training and introduce a greater variety of “more authentic” classroom assessments and exercises, including “problem solving via collaboration” and soft-skill training such as communication.

“That’s something we’ve been working toward, and we’re making a lot of progress.”

As for the present, Chamberlain says the school has made significant strides when it comes to exposing law students to other disciplines. Her school runs, for example, co-operative-style courses with the university’s business and health faculties. And it’s increasingly exposing students to new technology, too.

“In our M&A course, we use software developed, incidentally, by two of our graduates. It enables corporate deals to happen online and in the cloud without the [traditional] war rooms of [paper-based] materials. Teaching this way exposes students to the actual deal and helps them work through all its steps.”

Recent years have also seen the school introduce a number of specialized, elective study streams, designed to give students the ability not just to take a lot of introductory courses but to actually advance through a coherent program of study.

“By graduation, they’re really specialists in a particular field and can hit the ground running.”

The school also has a new third-year capstone course that helps students “put everything together [and subsequently] realize law doesn’t come in neat little packages but rather runs across what we would normally consider different courses.”

The capstone has students apply the theory and skills they’ve learned in the first two years to more complex programs . . . “as a bridge to practice,” says Chamberlain.

The school, which Chamberlain says has globalized its content as much as possible, also offers students clinics in general, business and sports law — and has a mediation centre, too.

Ed Iacobucci, dean of the University of Toronto’s Faculty of Law, says emerging technology will definitely impact practice.

“There’s no question there’s going to be change. To be sure, there are pressures on private practice.”

As such, Iacobucci’s school is “explicitly adding new programs and courses” to ensure it remains aligned with the times, he says.

“We’ve embarked on some significant curricular changes in recent years,” says Iacobucci. “For example, we have a new program at the professional master’s level on innovation and technology that will explicitly explore the law surrounding innovation — IP being one example — but which also talks about how the law itself is going to evolve amid technological change.”

Then there’s the school’s increasingly co-curricular approach. Several years ago, it launched its Leadership Skills Program to teach professional communication skills and conflict management in the workplace. More recently, the school struck a partnership with the university’s graduate business school to open up to its law students the online materials that Rotman’s provides to its incoming MBA students — introductions to accounting, finance and statistics and so on.

“There’s a host of experiential opportunities within the co-curriculum program as well. We have clinical experiences and externships.”

Iacobucci says that, instead of a skills-based, practice-ready approach, law schools should continue to focus on enabling students to develop “higher-level thinking abilities.”

“We want to teach people how to think. That’s part of our DNA. And everything follows from that.”

In addition, says Iacobucci, technology and skills training have increasingly short shelf lives, given the rapid pace of technological change.

“Who knows if the software you use today will be the software you use tomorrow. We are always looking to do what’s best. But that doesn’t necessarily mean something new.”

For Moyse, though, that may be missing the point — at least when one looks at what the job market is likely to look like a few short years from now.

“Software is eating the world and legal services have to be delivered now in some form other than a text-based narrative or by an advisory consultant . . . Increasingly, lawyers are going to be needed to build information products comprised of a mix of tech, design [and] project management. That’s what I’d like to see law schools gear themselves toward.”

Don’t believe him? Moyse points to the success of alternative legal services provider Elevate Services, currently the 53rd-fastest-growing private company in the U.S., according to Inc. magazine. Moyse is the Canadian lead for the Los Angeles-headquartered company.

“Alternative legal service provision — that’s where all the growth is going to be. And schools are not preparing students at all for those roles. That’s why Ryerson represents such a unique opportunity. There’s no legacy. No cultural drag, in respect of building a multi-disciplinary, market-connected JD program that’s aligned with a professional skillset.”

Lawyer Daniel Linna spoke to Canadian Lawyer at the end of a three-year stint directing the LegalRnD centre at Michigan State University’s College of Law in East Lansing.

There, classes incorporate scientific and quantitative methodology, and they include strong research and collaboration programs with legal aid organizations and law firms. The school introduces students to legal service delivery disciplines through co-curricular activities such as field work, directed study projects, speakers, weekly meetings, workshops, hackathons, conferences and more.

In early 2015, Linna started what is now a 38-school “law school innovation index” to measure the extent to which law schools have incorporated legal service delivery innovation and technology disciplines into their curriculum. The index’s foundational goals include improving access to justice, via (you guessed it) innovative improvements to legal service delivery.

Says Linna, “Where law schools really have and have had an innovation deficit since the beginning of time is thinking about how we can improve the delivery of legal services; not working in the business as lawyers, but working on our business. How do we improve our delivery model? Serve more people, add more value and increase access to justice. How do we not only become more efficient but improve quality, get better outcomes and provide better value to our clients?”

Another problem, says Linna, is that law schools “aren’t very well connected” with their customers and the outside world.

In addition, says Linna, “Many law school faculty are not well prepared to teach some of these classes.”

Linna, who has guest lectured at Osgoode and is “very familiar” with Ryerson’s Law Practice Program (an alternative to articling) as well as
its Legal Innovation Zone, says that Canadian and U.S. law schools are
for the most part engaged in “internal navel gazing.”

“Innovation isn’t all about law schools creating new courses. Some of these topics have obvious integration points into existing courses. For example, document assembly and computable contracts in contracts law, data analytics and project management in negotiation, blockchain in evidence, cybersecurity, metadata and the extent to which competent lawyering mandates technology knowledge and usage in professional responsibility.

“Why aren’t law schools better connected with the technologists on campus? With the business school? With humanities projects? There’s tremendous opportunity. That’s what they’ve tapped into at Ryerson. They’re taking that kind of energy and applying it to legal service delivery . . . It’s spot on.”

WHERE ARE WE WITH THE LPP?

Conceived as an eight-month-long, coursework-based alternative to articling, the Law Society of Upper Canada’s controversial Law Practice Program began in 2014 as a response to the increasing number of new graduates unable to find articling positions.

LPP students spend four months in a “virtual” law office where they take on a variety of cases and then participate in a four-month work placement.

Ryerson University offers the English version of the pilot, while the francophone equivalent — Programme de pratique du droit — is administered by the University of Ottawa.

In its first year, Ryerson’s LPP drew approximately 260 candidates, of whom 221 graduated. The French course drew 19 candidates, of whom 17 graduated.

Chris Bentley, managing director of Ryerson’s LPP and a former criminal lawyer and Ontario attorney general, told Canadian Lawyer that early indicators suggest LPP graduates, once called to their provincial bars, are meeting with “excellent” employment results.

Specifically, Bentley says that 84 per cent of the program’s “Year Two” class — and 75 per cent of the “Year One” graduating class — were working in law or law-related positions as of the schools most recent twice-a-year reporting cycle.

Says Bentley, “The figures reflect the status one year after call. If we could not reach them, they were counted as no job.

“There are no equivalent figures for articling.”

Over at the University of Ottawa’s LPP, director Anne Levesque reports that, of her program’s 51 graduates to date, the average employment rate for all years combined is 80 per cent.

INTEGRATED PRACTICAL TRAINING STILL LACKING

As long ago as 2007, the Carnegie Foundation for the Advancement of Teaching — a U.S.-based foundation founded in 1905 — called for better legal teaching.

The foundation’s report — “Educating Lawyers: Preparation for the Profession of Law” — studied 16 U.S. and Canadian schools and observed that most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.

“Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner,” the report said.

In Canada, only the Bora Laskin Faculty of Law at Lakehead University in Thunder Bay, Ont. has implemented the type of integrated curriculum recommended by the report — via an Integrated Practice Curriculum based on “integrating legal skill development with substantive legal knowledge,” explains dean Angelique EagleWoman.

“Our students are given meaningful experiential education through hands-on, face-to-face instruction. The mandatory four-month practice placement is designed to enable third years to further develop and refine, in a practice setting, relevant competencies and skill developed throughout the three-year program.

“Overall,” says EagleWoman, “the purpose is to see its graduates practise ready to work in the North and in sole and small-town practice.”

To date, 118 people have graduated from the IPC. How many have landed law-related jobs, however, remains unknown as EagleWoman says there’s currently no “standard reporting mechanism” to answer that question.

Editor's Note: This story has been corrected to clarify that Elevate Services is not a client of Law Made.

  • Reality does not dare tread here.

    B.F.
    Hiring committees at Canadian universities are not concerned with innovation, they are concerned with maintaining the pristine void of the hollow liberal echo chamber.