By Andrew Cohen
The American Bar Association (ABA) and several state bar organizations are proposing new law-school requirements for experiential learning geared to build practical skills. Increasingly considered vital for new lawyers to practice effectively, these skills are distinct from more theoretical and doctrinal areas of legal study.
While this trend is spurring law schools to re-evaluate how they deliver legal education, it also raises the question of what constitutes “practical skills,” and how should they be delivered. Enter Berkeley Law Professor Eric Talley, who feared that business lawyers’ interests—particularly in transactional fields—were not adequately addressed in the various bar association proposals. With several faculty colleagues, Talley devised an online survey to identify the skills that are most important to business law professionals.
“Transactional attorneys are increasingly having to demonstrate familiarity in various types of ‘business-school’ skills,” Talley said. “It’s unclear whether these topics had received much consideration in what constitute core practical skills, and there didn’t appear to be much systematic analysis in this dimension. This seemed like an important project because, as an educator, my job isn’t merely to deliver my students the conceptual contours of business law, but the skills they need to be successful business law attorneys.”
Talley vetted the survey with prominent business litigators and transactional attorneys, spanning a range of work environments—from solo practitioners to lawyers in large, high-profile firms. Talley received 330 responses in just two weeks.
“Surveys are notoriously simple to draft and difficult to generate responses,” said Talley, a leading authority on corporate law and faculty co-director of the Berkeley Center for Law and Business. “Just putting a survey out there to hard-working attorneys who bill in six-minute increments is not easy. We solicited a lot of feedback before putting this out and were grateful that people reached out to colleagues to complete it.”
Transactional lawyers surveyed identified document drafting, professional ethics, and fact development and analysis among the most important skills for practice. Other findings are available here.
Getting down to business
The survey reinforced Talley’s belief that Berkeley Law’s growing synergy with UC Berkeley’s Haas School of Business is an imperative.
“Practicing corporate lawyers want law students to get a foundation in accounting, finance, business strategy, and how to use tools of valuation. In other words, pretty much the core of what gets delivered to first-year MBA students,” Talley said. “Companies increasingly need to develop policies on law and regulation, and a law degree is becoming a common credential for CEOs because compliance is a big part of their job.”
Talley, who requires his students to read The Wall Street Journal—though he excludes the op-ed pages—views the survey as a fluid enterprise. Built into its infrastructure is the ability to update questions for re-issue every few years to see which priorities are growing and dissipating.
“This will be very helpful to developing our core curriculum, but also helpful to the legal profession,” Talley said. “We don’t want to train lawyers for the next century by delivering a skill set harvested from the last century. We don’t want to fall into a situation where a student concludes, ‘I can take this class on finance and how it applies to transactional work, but it doesn’t satisfy the professional skills requirement while trial advocacy does.’ That’s probably not healthy for aspiring transactional lawyers.”
While the skills debate has centrally focused on what pragmatic skills are needed to hit the ground running as a transactional attorney, another dimension has emerged: what is the best way to deliver those skills? The prevailing presumption is that practical skills are taught best in a non-lecture environment—but the survey shows a weaker than expected correlation between these skills and hands-on simulation.
Accounting was rated as a high priority, for example, but few survey respondents said it would be best taught in a simulation setting. Lawyers who work with venture capital clients need strong spreadsheet skills and some grounding in statistics—other areas not well-suited for learning through simulations.
Talley hopes the survey will help both practitioners and legal educators assess—and, if needed, amend—the ABA’s current proposed guidelines. In the meantime, he offers a reminder:
“Business lawyers don’t have to be investment bankers or financial modelers, but they might have to depose someone who is—or explain what went into a financial evaluation report to a board of directors. We don’t need to develop experts in finance or accounting. But after this survey, I feel strongly that it’s our job to create lawyers who are at least comfortable in those areas.”