Law School Innovation

Some real-world insights from some real-world lawyers

This interesting new article from the Fulton County Daily Report, headlined "Best Lawyers' Panels Agree That Law Schools, Firms Need Retooling," say a lot about the modern realities facing lawyers and law schools.  Here are a excerpts from a must-read:

Seismic changes in the legal profession engaged the concern of seasoned attorneys at a conference held last week by the Best Lawyers of America.... At Friday's panels on the future of legal education and the legal profession, the tenor of questions showed a lively concern for where the profession is headed.

The practice of law has changed radically in 25 years.... Law schools must retool legal education, the deans agreed, but exactly how still is not clear. "You're producing a product that very few people want. Firms have hiring freezes. Why not stop producing the product -- or create new markets for what you're producing?" one lawyer challenged the deans. "You're like the auto manufacturers who produce a product for which there is no demand."...

Organizational behavior and product management skills plus strategic business thinking are important competencies for lawyers at firms handling today's giant matters, said the deans. But they said the current criteria for law school admission -- college grades and LSAT scores -- do not assess these competencies. [Dean Richard] Matasar challenged lawyers who think legal education is out of step with the demands of the market to "go back to your place that manufactured you and put pressure on them. You have the power of the pocketbook."

Another lawyer in the audience objected to the idea that legal education should merely supply product to private firms and companies. "We're not talking about cars. We're talking about minds. ... This is supposed to be a profession," he protested. Massive discovery demands have shifted legal work away from thinking and analysis to product management, said another attorney. "When we were in law school, discovery meant two or three banker boxes of documents. Now it means two or three hundred boxes. That demands widgets -- not thinking," he said.

Members of the panel on the future of the profession agreed that the vastly expanded scale of electronic discovery has transformed legal work. The panel's moderator, Philip K. Howard of Covington & Burling, pointed to another fundamental change: the increase in the number and complexity of laws.

"Layers of law have accumulated like concrete. Some is productive. So much of it is not. Congress never goes back and revises," said Howard, who addresses this issue in his latest book, "Life Without Lawyers: Liberating Americans From Too Much Law."...

[Robert] Clifford, a member of plaintiffs firm, the Clifford Law Offices in Chicago, cited gargantuan discovery requirements as one of the culprits for the disappearing jury trial....

[Charles] Stillman, the panel's white-collar criminal practitioner, said federal sentencing guidelines also have chilled jury trials. Defendants prefer to cut a sentencing deal rather than take their chances in court. Stillman is a founder of Stillman, Friedman & Shechtman and a former federal prosecutor.

He warned of a new development -- the government's increasing use of private firms to handle internal investigations of companies.. Subcontracting investigations to firms is another shift in power from public law enforcement agencies to the private sector, said Stillman. "So lawyers are increasingly viewed as an arm of government. This is a very serious challenge to our profession, which I find quite scary," he said.

Posted by DAB

Digg This: Leading Law Reviews Collaborate to Introduce Online "Legal Workshop"

As Doug Berman has written, seven law reviews form the founding membership in a new online forum, a "Legal Workshop" that allows one-stop-shopping for cutting-edge legal scholarship.

The founding members:

Cornell Law Review
Duke Law Journal
Georgetown Law Journal
New York University Law Review
Northwestern University Law Review
Stanford Law Review
University of Chicago Law Review
 

Some have worried about the initial set of papers posted to the forum and to the perhaps over-ambitious hope to reach the general public with bite-sized versions of scholarship. But I want to make two different observations about the Workshop's ability to circulate scholarship among the smaller universe of potential readers of legal scholarship, a function that Larry Solum's blog and other blogs also serve.

First, this workshop marks a technological innovation that may prove significant: it seeks to introduce social networking tools to legal scholarship.  It allows readers to "Digg" an article or share it on Facebook or LinkedIn.  

While it is hard to imagine law review articles displacing interest in Britney Spears or iPhone news or "64 Things Every Geek Should Know" (one of the top five items on Digg in the last week), it seems quite likely that readers will find it useful to highlight legal scholarship in this way. I suspect that readers will run across work of interest that they would not have otherwise found through this method.

Second, this Workshop by its very nature has an open access quality. It does not hoard information, limiting it to paid subscribers only. Rather it offers easily accessible, one-click reading of the nation's top scholarship.

We law professors often have the privilege of having the nation's top law reviews hand delivered to our office by our librarians.  Now the world can share in this privilege.

Anupam Chander

Susskind on "The End of Lawyers? The End of Law Schools?" - liveblog

The Harvard Berkman Center's Law Lab sponsored a talk today with Prof. Richard Susskind at Gresham College / University of Strathclyde on the future of the legal profession and legal education. The live video stream can be found here.

Liveblog to follow...

The Future

Black & Decker does not sell drills; they sell holes in the wall. What's the actual value that lawyers offer? Maybe as KMPG describes it: "Transform our knowledge into value for clients."

Today's law firms are too reactive -- they don't anticipate client needs. Clients don't want dispute management but rather risk management.

Automation vs. Innovation: Automation merely systematizes that which already exists.

The Market

Most major clients face a dilemma in three parts:

1. Pressure to reduce internal headcount
2. Pressure to increase internal speed
3. Yet more legal and compliance work than ever (and it's riskier too)

In short: clients want more for less. Two strategies in response:

1. The efficiency strategy: cutting costs by moving towards commoditization or multi-sourcing. How do we take the costs out of the routine work? Or clients can share costs of similar problems.
2. The collaboration strategy

(As of 2007, England allows private non-lawyer investments in and management of law firms. This stimulate investment and innovation of business models -- and the genie will be out of the bottle.)

Commoditization

Susskind's model: Bespoke > Standardized > Systematized > Packaged > Commodity

Law schools teach us to think of all problems as bespoke (esp. our study of appeals, Supreme Court), but that just isn't true. In reality, we start with precedent documents, not blank paper; often we even use automated templates. Why can't we package our expertise for clients to use for themselves, just as banks generate their own term sheets? We need to realize that we provide value for the client, that our value is not embedded with the form of our relationship. The last step, commoditization, is likely to happen online, and is often unattractive because the price trends to zero.

Law firms imagine themselves as bespoke, but that is both factually incorrect and strategically misconceived. Clients are strongly pulling towards commodity. We need to chunk client work down into these boxes. And much of it can happen by "multi-sourcing" such as outsourcing, subcontracting, leasing, open-sourcing, computerizing, etc... Who will manage this process?

Information Technology

There's a tendency to resist technology-driven change. But just as email swept law firms, other communication media are also going to transform legal practice.

Four examples of disruptive technologies:

1. Closed client communities, as is happening across doctors (clients, not law firms, will join to share experiences).
2. Online dispute resolution
3. Embedded legal knowledge. [What I call "codelaw" -gk]
4. Electronic legal marketplace

The Shape of Law Firms

The traditional pyramid, with junior lawyers as profit centers, will change to new modes of sourcing. [How, then, will new lawyers be trained? This was a question I've raised earlier -gk]

Access to Justice

Rolls Royce service for the rich, free services for the poor, nothing for the rest. How about online legal advice, open sourcing of legal materials, establishing communities of experience among "clients." Remember Voltaire: "The perfect is the enemy of the good."

Lawyers?

What parts of lawyers' work can be undertaken differently -- more quickly, cheaply, efficiently, or to a higher quality -- using alternative methods of working?

What are lawyers' competitive advantage?

• Complexity - but complexity can be modeled in technology
• Creativity - but this can be exaggerated (we fool ourselves)
• Communication - but direct contact is diminishing anyway

Future jobs for lawyers?

• The expert trusted adviser, our traditional role
• The legal knowledge engineer [which I'd written about in the context of Codelaw -gk]
• Hybrids
• The legal project manager
• The legal risk manager

Law Schools?

The curricula of most law schools have serious gaps, because we are training the one-to-one, face-to-face, bespoke crafters. Instead we need more emphasis on complex teams reflecting all of the above. Even in the world today law firms complain about what law schools aren't teaching -- globalization, technology, etc.

Should we extend the mission of law schools to include other disciplines such as risk management, project management, legal knowledge management, and disruptive legal technology.

QUESTIONS / DISCUSSION

Some concern about embedded systems appearing to the users as "natural" and not amenable to challenge. Likewise, concern about mistakes becoming hardened inside systems or packages.

Existing disencentives from change, including up-front investment in new systems. But the market is demanding it, and it will eventually get what it wants. Law firms need a more R&D mentality.

Will the firms win or will the new winners be other players? How can you convince a room full of millionaires that their business model is all wrong? Maybe 2/3 will suffer and decline, and we'll see new service providers. Multi-sourcing model may allow US firms to innovate without the need for external investment.

- Gene Koo

Too much of a good thing at the new site The Legal Workshop?

I am pleased to report on a new scholarly on-line project (which I hope will evolve to better achieve its laudatory goals).  The project is the Legal Workshop, and here is its basic mission statement:

The Legal Workshop is a website providing a single online forum for cutting-edge legal scholarship from the top law journals in the country....

The Legal Workshop features “op-ed” versions of the articles published by the member journals. These concise and lively pieces are written for a generalist audience, combining the best elements of print and online publication.

Each Legal Workshop Editorial undergoes the same rigorous editorial treatment and quality screening as the journals’ print content, but readers are able to offer comments and esteemed academics have the option of submitting response pieces, which are checked for citations and substance.

By aggregating the work of multiple law reviews, The Legal Workshop is able to provide frequently updated content. New article-based content is posted every Monday and most Wednesdays and Fridays. The Legal Workshop provides a one-stop forum for readers wishing to stay abreast of contemporary legal scholarship.

Larry Solum has a terrific early analysis here, which includes these three spot-on reactions:

First, the basic idea of creating an outlet for short-form legal scholarship is to be applauded....

Second, I am a bit skeptical of the ambitious claims in the press release about reaching "the general public."...

Third, I am also skeptical about potential for the format of "The Legal Workshop" to produce pieces that will directly influence practitioners -- lawyers and judges, who are most interested in descriptive doctrinal scholarship.

The fact that there is currently only this single criminal law piece now posted on the site, and that it runs nearly 4000 words and proposes a radical change to modern habeas law, confirms all that Larry has to say about this new project.  It is great to have a short-form version of this 70-page habeas article from the Duke Law Review, but I doubt that either the general public or practitioners are going to find the short-form version much more useful and accessible than the long form version. 

Plus, on a very practical level, I will be much less likely to cite the short-form version of the article inbecause its cite form -- which much include this cumbersome URL: http://legalworkshop.org/2009/03/18/habeas-corpus-and-state-sentencing-reform-a-story-of-unintended-consequences -- is much longer than the cite form for the full article.

Posted by DAB

Rankings leakage and other buzz-worthy stuff around the blogosphere

The US News law school rankings are officially due out later this week, but there is already much buzzing in the blogosphere about the leakage of the (perhaps official) results.  Here is just a sample of all the blog talk on the rankings from various different law professor blogs:

• Early Release of 2010 U.S. Law School Rankings
• Extensive 2010 US News Law Rankings
• 2009 Reputational Scores from U.S. News Surveys of Academics and Practitioners
• U.S. News and "assessments"

I am, of course, eager to have comments about all the comments about rankings here.  But I would also like to recommend other law school blog reading that, in my opinion, deserves more attention from law professors than the latest round of the usual ranking wrangling:

• The Worthlessness of American Legal Education
• Pre-Law Courses Would Help

Rankings and institutional identity

Brian Leiter has suggested, with good reason, that bloggers not post the US News law school rankings when they come out.  

That's not to say, though, that they should not be discussed, vigorously.  I doubt that Brian would disagree, since he often does exactly that.  We can and should critique the rankings, because (among other harms) they are a force against diversity of purpose within legal education.

The rankings have come to shape the way we value ourselves, and that is something we should try to control more directly.  Self-definition by individual institutions is crucial to ideological diversity, and one weakness of the rankings is that a uniform, centralized set of defining criteria are put in a numerical order, taking that task of self-definition out of our hands.  Chicago is not Appalachian is not Notre Dame is not Northeastern, and that is as it should be.  When they become more alike, something important to students and society is lost.

-- Mark Osler

Is a bad economy good for encouraging innovative career paths for lawyers?

This New York Times article reports that Skadden, Arps is offering "all of its associates — about 1,300 worldwide — the option of accepting a third of their base pay to not show up for work for a year ... [and] is helping associates find pro bono work, and is encouraging them to do so."  In addition to thinking Skadden has come up with an innovative way to try to weather the downturn, I cannot help but wonder if a bad economy may be helping some lawyers, especially those feeling trapped by golden handcuffs, find innovative paths to professional and personal success.  

Over at my sentencing blog, a North Carolina lawyer reports here that he is "working with a Skadden Arps associate in the pro bono program on a significant criminal sentencing project in North Carolina."  I am hoping that others are likewise using the rough economic times to discover that there are engaging and important legal opportunities that do not flow through the offices of massive law firms.

Relatedly, I am finding that it is a bit easier to convince my students to explore seriously clerkships and other government and public-sector positions before assuming that life in the private sector is the only sensible and lucrative way to get a law career started.  (Then again, I suspect that most everyone will conveniently and perhaps blissfully) forget all the hard lessons usefully learned during these lean times as soon as the next lawyer-friendly boom starts heating up.)

Posted by DAB

Recruiting, Sports-style

Not long ago, coach Kim Mulkey of Baylor's women's basketball team asked me to give a few of her recruits a tour of the law school.  One of them was interested in going to law school someday, and wanted to see ours.  I happily obliged.  The experience gave me a little insight into how the recruiting of top athletic recruits work, and it was clear to me that the best programs are extremely skilled at this.

Have any of us bothered to learn from them?  We recruit all the time-- for faculty, for top students of various kinds, for whatever kind of diversity our institution may need-- but it occurs to me that we may not  have consulted these experts in our midsts. 

As just one example, I found that a key to successful recruiting for athletes in responsiveness.  It matters if a head coach returns a call right away, if a text gets a response in a few moments, and coaches structure their time accordingly.  It makes the athlete feel wanted and cared for, and assures them that they will not get lost at that particular school should they choose to attend.  Probably some law school recruiters do that and some don't, but we could all learn from what it is that a coach says in that call, what it is that works.  I'm sure some sharpies like Jim Chen (Louisville = good recruiting!) have already figured this out, but it never occurred to me.

I'm thinking that in the next year, I may try to have a sit-down with a few of our coaches and see if we can't do a little cross-training.

-- Mark Osler

Are law schools playing along as "technology transforms the litigation game"?

This article from the Legal Tech Newsletter, which is headlined "Technology Transforms the Litigation Game," has me wondering and worrying yet again about how well law schools are preparing modern student for modern law practice. Here is how the piece starts:

There's no mistaking that new technologies are transforming the practice of litigation.  Today's litigators take depositions via videoconferencing, scour social networking Web sites for dirt on the opposition and communicate at all hours of the day and night with opposing counsel via BlackBerry.  Technology can overlook the time-tested interpersonal styles that facilitate skills development, but it can also offer a leg up when it comes to seamless client service and flexible schedules, a trademark that is here to stay as more Gen Ys enter the workforce with an innate expectation of using these tools.  The successful litigator must temper the tension between the obvious personal and professional benefits of taking full advantage of new technology and the corresponding loss of face-to-face interaction.

I am inclined to think (and fear) that there is not a single law school (nor perhaps even a single law school class) that has a curriculum specifically designed to help modern law students learn about and reflect on the pros and cons of depositions via videoconferencing, using social networking Web sites, and communicate with clients and opposing counsel via BlackBerry. 

But perhaps I am too quick to assume that law schools are already way behind the modern technology curve.  I would be grateful to hear reports from student or faculty about effective technology programming already appearing in the formal law school curriculum.

Posted by DAB

Social Media Best Practices for Law Students

Laura Bergus, an enterprising student at Iowa College of Law, is working with her school's administration to "get real" about social media by revising their black-and-white advice ("don't use social media") to be in line with the reality of being a 21st-century, digitally connected law student. In addition to the usual advice on how to set privacy settings, etc, the guide should also include much more affirmative and proactive suggestions on how to construct an online identity for the sake of job-hunting and future professional practice. This emphasis on what positive steps law students should be taking is, IMHO, a much more effective route than simply telling students not to do things, because these good behaviors not only help give students a leg-up but also "crowd out" stupid / harmful behavior.

• Social Media Best Practices for Law Schools (Part 1)
• Social Media Best Practices for Law Schools (Part 2)

Laura is currently surveying students to gather background information on how students already use social networking.

I'm very much looking forward to whatever results from this exciting process!

- Gene Koo

How well do law schools address gendered realities in the profession?

Especially because criminal justice law and policy is a very gendered topic (though rarely seen that way outside of a few topics), I frequently try to emphasize gendered perspectives in substantive class discussions.  In these discussions, I often note and sometimes lament that relatively few prosecutors and judges are women.  I also sometimes encourage students to think about whether and how criminal law and policy might be different if the majority of prosecutors and judges were women.

I sense that some of my colleagues (and especially my female colleagues) also ensure that gendered perspectives are brought into classroom discussion.  But I also get a sense that, outside of the classroom, law schools as institutions generally ignore (or even downplay to modern students) the history of gender bias in the legal profession and the (significant?) gendered realities that still impact modern legal power structures.

I raise these points not only because my law school will be hosting the only current female Supreme Court Justice next week, but also because I just came across this interesting research via SSRN. The article, which is titled "From Lawyer to Judge: Advancement, Sex, and Name-Calling," provide some worrisome insights into how lawyers judge one another. Here is the abstract:

This paper provides the first empirical test of the Portia Hypothesis: females with masculine monikers are more successful in legal careers. Utilizing South Carolina microdata, we look for correlation between an individual's advancement to a judgeship and his/her name's masculinity, which we construct from the joint empirical distribution of names and gender in the state's entire population of registered voters. We find robust evidence that nominally masculine females are favored over other females. Hence, our results support the Portia Hypothesis.

My gut instinct tells me that law schools generally do a poor job preparing students for many consequential gendered realities that they will encounter upon heading into the workplace.  But maybe this perspective itself reflects my own gender bias: as a man, I rarely attend or even keep up with the activities of the various gender-oriented student groups and I do not have many opportunities to discuss gender issues when counseling students about professional opportunities.

Posted by DAB