The Soft Skills of Lawyering*
-Susan Daicoff, Dec. 2011
The legal profession is in the midst of rapid and dramatic change, fueled by longstanding dissatisfaction within and without the profession, inflamed by the economic recession beginning around 2007. Changes in the profession are propelling (or consonant with) concomitant changes in legal education. Lawyers can no longer rely simply on excellent legal analysis and advocacy, written and oral communication skills, trial skills and traditional prelitigation negotiation and settlement. The legal profession is rife with commentary exploring how to be more marketable in the law profession of the future, given the rapid changes fostered by technological advances, disruptive concepts and strategies, the need for sustainability, and outsourcing. Law schools are under fire for providing students with unsatisfactory returns on investment, when students compare their employment prospects with the cost of legal education. A reevaluation of the competencies needed to be a 21st century lawyer, thus, seems appropriate. Some even assert that it is time to decisively redefine both the role of the lawyer and the content of legal education.
Law firms are becoming more selective when hiring attorneys and are experimenting with different interviewing methods and processes, including performance-based tasks and simulations. Law schools are placing a greater emphasis on bar passage results and teaching lawyering skills, rather than on simply the acquisition of doctrinal knowledge. They are also experimenting with including more of the “soft skills” of lawyering in legal education and admissions criteria that include assessing applicants’ soft skills proficiency, in order to produce more effective graduates.
Despite resistance to training in the “soft skills” of law practice, such as human relations skills, there is empirical evidence that the soft skills of law practice are precisely those skills that differentiate the most successful lawyers from the rest of the pack. For example, studies show that top-performing lawyers outstrip other lawyers in competencies such as stress management, independence, self-knowledge, general mood, problem solving, and interpersonal competencies. Practicing lawyers consistently list soft skills such as instilling others’ confidence in you, negotiation, counseling, obtaining and keeping clients, honesty, integrity, reliability, judgment, maturity, dealing effectively with others, motivation, continued professional development, tolerance and patience, understanding human behavior, self-confidence, listening, working cooperatively with others as part of a team, problem solving, networking within the profession, mediation, and strategic planning as essential for law practice, alongside more traditional skills such as legal analysis, legal writing, and oral advocacy.
While many scholars and legal educators have proposed the infusion of various “soft skills” into legal education (some even since the 1960s), it appears particularly timely now. Further, even though soft skills are edging into law practice and legal education, it is under a plethora of names and labels with little agreement or consistency among the various disciplines claiming ownership of the skills.
There are six empirical studies to be reviewed and synthesized, on the most important soft skills for lawyers. Then, unification of the twelve disciplines currently infusing these soft skills into the law, is proposed, in the hope that unification will strengthen and hasten the integration of these skills in both the profession and the academy. Finally, proposals are solicited for the most effective and efficient way to create a required law school course on the soft skills of lawyering.
*Article forthcoming in Santa Clara Law Review, as part of the Santa Clara University Leadership Education Roundtable III: Leadership as a Fundamental Lawyering Skill, held at Santa Clara University Law School in March, 2011.