The recent intense discussion about pupil remuneration revealed an interesting dimension to the issue – a Master’s expectation of their pupil. The impression of that is Masters now expect a lot from pupils; they expect them to be ‘practice ready’ i.e. to be able to draft letters, applications and submissions competently, to know how to go about court, to deal with clients, to generally know how to run a case, etc. The inability of a majority of pupils’ shortcomings are then blamed on their tertiary education i.e. the universities.
Mohd Hazmi Mohd Rusli and Noor Dzuhaidah Osman, academics, disagree tertiary education is responsible for these supposed shortcomings and wrote as follows:
Law faculties are not law firms and have limited means to sufficiently provide comprehensive legal training to them.
It is to be remembered that law schools do not only produce legal practitioners, but also future academics, bankers, administrators, diplomats and the like.
Law graduates could only experience hands-on legal training when they undergo pupillage or chambering at legal firms. If law graduates are expected to know everything and to be practice-ready from day one, what is then the purpose of the nine-month pupillage?
In short, universities provide legal education not legal training; legal training is the province of pupilage and so, law firms. That is fair.
I didn’t get one whit of legal training when I was in university. If a friend had not dragged me to a moot once, I feel certain I would have confused it with a moat. That was as close to legal training as I got. Even when we sat for our certificate of legal practice (“clp”) we received no legal training, just more “legal education”, which meant stuff to memorize and regurgitate.
We were not trained how to draft pleadings, we were only acquainted with its format. There were no advocacy or client handling classes. We were not taught opinion writing or research skills. This was in contrast to those who did the bar exams and were called to the bar in England and came back to Malaysia as a barrister. They were legally trained and tested to be ‘practice ready’ because after their first six months the pupils have to earn their keep for the second six months.
At least we possessed basic abilities, which includes at least the ability to read critically and with discernment, the ability to write and speak sensibly, and discuss matters civilly, the ability to research legal issues and formulate them, and common sense. These basic abilities we should have grasped to some degree by university’s end. The rest we learned on the go.
Instead of courses, training and webinars to learn from, we had the judge’s ire, scolding and the embarrassment that followed to learn from; those also served as all the impetus we needed to learn fast. We were “bloody, but unbowed”; that experience was expected and endured as someone finding their place in the legal world.
And although we did not have the training and courses available as pupil’s now do, it did not mean we were incompetent; it just meant it took a little longer to get to where we were supposed to be because we learned from raw experience. But back then we had time and Masters had more patience because the pace of practice was not as fast and intense as it is today. I sometimes wonder whether the quickened pace of practice is a contributing factor to the higher expectations by Masters and firms of their pupils.
The difference between then and now is then there was little to no expectation a pupil would be or should be practice ready. If he or she possessed those skills to a high degree, fantastic! and that would make him or her exceptional. Despite us appreciating the exceptional is uncommon, yet we seem to be placing expectations reserved for the exceptional on the common. This is where I think these expectations of being ‘practice ready’ finds its source – unreasonable expectations.
Unreasonable expectations provokes unreasonable demands. That for me provides a workable explanation to the dissatisfaction and grievance on both sides of the equation.
We must acknowledge that if there is such an expectation on pupils to be practice ready then it is an unreasonable and unhealthy expectation to place on them. I certainly didn’t feel practice ready even after I completed pupillage, never mind at the start of it. How were we to? We came straight from ‘legal education’. My predominant concern for myself during pupillage was making sure I did not screw up whatever was handed to me, and even then I still did.
Right out the door, I erred in my Borang 1. I wrote saujana muda undang-undang instead of sarjana muda undang-undang. I had to amend it because of one alphabet. But hey, I learned to draft an amendment application, a supporting affidavit, and an amended Borang 1 very early in my pupillage. I also learned how to use the office typewriter to make the amendments. Most importantly, I learned what I had to do if I needed to amend something in the future.
We need to remind ourselves that pupils that did not receive rigorous legal training prior to their pupillage do not come practice ready; and even those that do receive legal training are far from the finished article. I am two decades in and I feel far from it. Pupillage is a period of apprenticeship so pupils must be give the necessary time and space to learn and grow, which means learning from their mistakes, being guided out of them and letting them find out how things work by themselves for themselves.
Mistakes are important junctures of learning. Being practice ready implies not making mistakes anymore because lawyers are not supposed to make mistakes (even though we are human). This perhaps accounts for the stress and anxiety now commonly associated with pupillage. My pupils routinely apologize for not being able to reach my expectations before they do the work. I find that puzzling and amusing. What I tell them goes more or less like this, Look, I don’t expect a perfect first draft. If it is, great. But you just started, what do you know? Just do it how you think it should be done. I will tell you what you got right and what needs improvement. The point is to improve on it until it becomes acceptable. You only apologize if you didn’t give me your best.
Masters and firms need to dial down what they expect of pupils a few notches from practice ready. Of course, expectations are necessary because as a profession we have standards, but the flipside to that is each pupil’s abilities needs to be assessed individually. Each person is different and so will have a different trajectory, arc and momentum of development and a variety of qualities. This is hard to do when pupils are taken in mass. If we do not take the trouble to get a sense of where they are in that, we may harm, stall or misguide that development and fail to nurture those qualities.
And Masters these days must take some responsibility for and interest in their pupil’s development. By that I mean, giving them appropriate legal work, providing guidance when required, relating what it means to be a lawyer, sending them for courses and getting to know them as a person; and having a presence in the pupil’s experience. If they want to do more, great. My sense of it is when pupils do not get some these things, especially not having rapport with their Masters, it makes the pupillage feel transactional and feelings of ill-treatment become easier to stir.
We have to acknowledge that not all Masters are angels and some of them can be quite the devil. I have heard complaints every now and again from pupils of other firms being poorly treated. I feel sorry for them. From what they tell me, some of the treatment goes beyond the bounds of merely intense work and spills into the realms of psychological and emotional abuse.
It has to stop, but everyone has to do their part: the pupil’s must report it, the Bar Council must take such complaints seriously and prosecute them or help prosecute them, and lawyers sitting over such complaints must call it as they see it and not do offending lawyers any favours. Failure to carry out any of the actors parts results in a failure of the process, and if it happens enough, failure of the system.
These days few Masters call me up to move their pupil’s calls. Very often it is the pupils who approach me directly and I dislike that. This is where I come to experience first hand the delinquency of some Masters. I am a stickler about these things. It is the Master’s duty to arrange for the pupil’s mover. Regrettably, that simple duty is often neglected. The reason for that duty is plain – a pupil does not often know any or many senior lawyers well enough to request them to move their call. An introduction is therefore important and that is why it falls on the Master to act on it.
A Master’s expectation must be reasonable and tempered by the pupil’s state of development and potential. A Master should also be mindful of his obligations towards his or her pupil and take the trouble to carry them out. This is the first step I think that must be taken to begin the first cut to sever the twisted knots of unreasonable expectations and unreasonable demands.
The second cut is for lawyers and pupils who clamour for employment contracts and wages for pupils to research pupillage history, the experience and remuneration of pupils in other commonwealth jurisdictions, and the standards pupils in those jurisdictions are expected to reach when they commence pupilage, as a starting point.
After that, I hope both sides would be in a mature and informed position to consider and discuss civilly about the issue. And hopefully, that should be the final cut.