Australia: Are you skilled in the business of law?

Last Updated: 27 July 2015
Article by Michael Altit

Recently I have come to the realisation that legal work, no matter how process driven, black-letter orientated or intellectually challenging, is heavily focused on one thing – that is, commerciality. While law school prepares us on the fine print, what it fails to instill is a sense of commercial dexterity that is necessary to operate in the legal marketplace. Arguably, post-graduate industry specific training exists to fill these holes in legal education, however, it remains an issue that we law graduates aren't adequately skilled in the whole process of lawyering from the outset.

At its core, good lawyering comes down to technical prowess, as well as a sound knowledge of how a law firm operates; its functions, economic impetus, competitive tensions and above all its client portfolio. At the end of the day, law firms are businesses. While practising law is an aspect of that business, it is not practised in a vacuum. No matter the area, all lawyering is intimately and intrinsically linked to the operational functioning of the firm as a whole.

Recently, there has been a lot of commentary on this. It has been suggested that it is the role of firm-specific graduate programs to up-skill young lawyers in a more particularised skill set – whether it is a precise area of law or commerciality more generally. This argument however, is entirely predicated on erroneous assumptions. Firstly, in this highly-competitive market where there is a recorded glut of top-rank law students, not all graduates can secure a graduate role. Secondly, not all firms have the time and resources to provide training in generalist economic and business-orientated skills.

What this means is that primary legal education should expand to include a wider set of skills to assist students in navigating through the grey area between academic legal application and real-world lawyering. This does not mean process-orientated intelligence, like the writing of affidavits or court filing and procedure, which is heavily focused upon at the PLT stage. Instead, even more basic skills like client management, document management and maintaining a case file suitable for potential discovery and court use should be touched upon.

While law school teaches us how to think, read and write like a lawyer, it does not teach us how to actually be one. It is easy for us to rationalise a lack of business acumen as attributable to being a newcomer, but for me at least, it should stand as a signifier of the failings of the system more generally. I am a strong advocate of the belief that the teaching of legal theory and legislative intricacy should be buttressed by a sound understanding of legal practicality rooted in catering to nuanced client desires and expectations.

The main thing for newcomers like me to understand is that nowadays lawyers need to fight for their clients on two fronts. Firstly, we must advocate in the more traditionalist sense of lawyering and zealously pursue a client's claim and secondly, we must win a client's business. What must be recognised is that firms are ultimately businesses driven by profit margins, the bottom-line and a desire to produce solid reputations. Catering to a client's needs beyond the court room is critical. A proper analysis of how the legal outcome affects a given client's bottom-line and what sacrifices it is willing to make to achieve a desired outcome is increasingly relevant in our economically driven society. Advice must be both legally sound and tempered with a view towards market sensitivities and potential risk sources to ensure outcomes are viable.

This is not to say that technical prowess should in any way be devalued as these skills are fundamental to fulfil the job description. What I am saying is that more time and attention should spent on dealing with clients in addition to the black letter law and the processes behind court management.

Speaking of court process, law graduates must also contend with a disruptive technological revolution that seeks to augment every aspect of current legal practice. While implementation and uptake will be initially slow, practices like electronic court document management, e-filing, e-conveyancing and the like will only continue to grow in the future. As more legal process is being displaced in favour of electronic counterparts, it is also necessary for PLT providers to look towards the future and begin to prepare the onslaught of new solicitors for these changes.

It is highly unlikely that a future employer is ever going to ask for an essay on the more esoteric of legal principles or for a creatively intuitive poster about a discrete provision of legislation. Instead, lawyers will need to turn towards these technological process and market knowledge to offer legal outcomes at the best value for money.

This echoes the point that the cohabitation of theory and practice in legal education prior to entering the workforce would produce a far more discerning and job-ready student. Having said this however, an onus must also be placed on students to become market-ready too. Internships, clerkships and the like are invaluable experiences that help bridge the gap between legal education and legal practice, however, these experiences are limited and differ between firms. Furthermore, these experiential learning paths often do not expose a budding lawyer to the economic realities of legal work. That said, they provide a general outlook on the areas that students can focus their attention on to put them in good stead for future job prospects.

Ultimately, junior lawyers should finish their legal education with sufficient business intelligence to allow them to work within the commercial context in which the legal system operates. This may provide beginners with a greater means to secure employment, and will assist them to understand how their skills can be used within the greater real-world landscape.

Not everyone will share my opinion, but I hope it contributes to the debate about how to better assist young lawyers come to terms with the grey area between legal academics and actual legal practice in addition to what knowledge they must secure to succeed in their chosen profession.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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