April 29, 2009
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
April 22, 2009
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...
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.
Most major clients face a dilemma in three parts:
- Pressure to reduce internal headcount
- Pressure to increase internal speed
- Yet more legal and compliance work than ever (and it's riskier too)
In short: clients want more for less. Two strategies in response:
- 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.
- 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.)
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?
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:
- Closed client communities, as is happening across doctors (clients, not law firms, will join to share experiences).
- Online dispute resolution
- Embedded legal knowledge. [What I call "codelaw" -gk]
- 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."
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]
- The legal project manager
- The legal risk manager
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
December 20, 2008
Naming innovations at law school
The National Law Journal has this interesting article, headlined "Fla. law school takes 'naming rights' concept to a new level." The piece discusses one law school's innovative approach to naming rights. Here are some excerpts:
While all law schools seem to be launching naming rights campaigns to raise funds these days, St. Thomas University School of Law in Miami has taken the concept to a new level.
Not only is the small private law school selling naming rights to its school for $10 million, it is also offering donors the opportunity to have their names plastered on the student center, law library, conference room, annexes, breezeways, classrooms, instructor's offices, and a new "Center for Global Justice and Dialogue." The bathroom, however, is not for sale.
"The genesis of this is the law school is about to celebrate its 25th anniversary next year, and this is the first serious concerted fundraising effort we have launched," said Al Garcia, dean of the law school.
The naming rights fundraising campaign was launched one year ago. And while the big enchilada — the naming of the law school for $10 million — is still up for grabs, the school has had considerable success selling off pieces of the school, raising some $600,000 so far....
[L]ast month, alumnus Alex Hanna donated $250,000 to name the school's law library. Hanna previously donated $25,000 to name the law school's main entrance. Other donations include $50,000 from attorney Pat Cordero for a breezeway, $25,000 from Phil and Denise Gerson for the law school conference room, $10,000 from Miami-Dade Judge David Gerstein for the moot courtroom atrium, $10,000 from Sean Greene for the law school walkway and $10,000 from Michael P. Rudd for the student affairs walkway.
Other, smaller gifts will be used to name classrooms and faculty suites, said Mark Casale, director of alumni affairs and major gifts..... But hasn't the economy hit lawyers? Apparently not, according to Casale. "The economy is hitting hard everywhere, but there are attorneys in all walks of life doing well," he said.
Especially because I teach at a named law school and hold a named professorship, I am not inclined to be critical of law schools selling "naming right." In fact, this article leads me to wonder whether (or when) law school might start getting extremely aggressive in this arena. Administrative offices, copy centers, bulletin boards, seats in classrooms, and even books in the law library all have naming potential.
Is there any reason law schools should resist "selling" rights to any and every commodity it can imagine?
Posted by DAB
December 17, 2008
An innovative legal magazine ... which some law schools might emulate?
I keep getting e-mail telling me about the soon-to-be published new magazine pictured here. The magazine's website provides this information about the publication:
Introducing a brand new publication designed specifically for women professionals in the litigation practice specialty.
Demolishing stereotypes. Acknowledging strengths.
A publication for women, not of a certain experience level — but of a certain attitude.
Here is what now appears on the Suewebsite concerning the cover story and some feature stories to appear in the Inaugural January 2009 issue:
If Women Wrote the Laws : What would our world look like if women wrote the laws? What would your life be like? Noted Professor Laurie L. Levenson, Professor of Law & William M. Rains Fellow at Loyola Law School and regular contributor to CNN, MSNBC, NBC, & The National Law Journal explores how the Good Samaritan laws, Voluntary Manslaughter and Heat of Passion laws and Laws of War would have made our society very, very different had they only been written by women.
The Thin Pink Line:.....the fine line women very carefully walk to achieve professional, personal and financial goals. Coined by Dr. Kathleen Reardon, this term describes women who go over the line. Lean in one direction and you are labeled "too aggressive". Move over to the other direction and you're "too girlish"
Where are the Female Litigation Blawgers?Blawging (the latest nomenclature for blogging in the legal field) has caught on to the point that there are over 2,000 legal blogs just in the U.S. Added to that impressive number, social networking, say the pundits, is the way to boost your career, position yourself as an authority and create new avenues for your income. Why, then, are there so few female blawgers?
Though I had thought that print publications were sooo 20th Century, I am pleased to see this innovative new (niche?) publication entering the market. (I must say, though, that the preview of these article lead me to think that the magazine may reinforce rather than demolish some stereotypes.) It will be interesting to see if this magazine can persevere in tough economic times (especially given its seemingly considerable annual subscription price for a bi-monthly publication).
Noticing that Professor Levenson wrote the lead article for Sue's first issue, I got to thinking about whether some law schools ought to consider producing specialty legal magazines rather than more specialty law reviews. I think I am not alone in believing there are far too many law reviews, and also far too few thoughtful legal magazines. It would be nice to see some law school consider producing more of the latter and fewer of the former.
I suspect there are relatively few thoughtful legal magazines because they not very commercially viable (and the failure of Legal Affairs suggests that ever having lots of big names involved does not ensure success in the marketplace). But, of course, there are so many law reviews because their viability is sustained by law schools rather than by the marketplace. Moreover, the potential in-house institutional benefits of producing yet more specialty law review copy is likely limited for many law schools, but the potential in-house institutional benefits of producing a thoughtful specialty legal magazine might be considerable.
Posted by DAB
October 20, 2008
Great (though incomplete) look at HLS, innovations, and the future of elite law schools
The Boston Globe yesterday had this terrific article discussing the recent past, present and future of Harvard Law School. The article has lots of interesting passages for would-be law school innovators:
For the first time in years, Cambridge is home to some of the most important new voices in public law. And Harvard's rise is shaking up other top schools, creating a hiring war as they scramble to recruit new scholars. "It has unsettled things at the top of the legal academy," said Leiter. "Harvard is this giant vacuum with endless amounts of money, and it keeps sucking up more."
Just as striking, though, at a place full of professional arguers and their students, is the sense of frictionlessness and good feeling that now pervades the campus. This, as much as anything, marks a stark change for a school whose august name was not always buttressed by the realities along Mass. Ave....
[Dean Elana] Kagan set to work early, making small but visible changes to improve the everyday lives of students. She started providing free coffee in classroom buildings, and free tampons in the women's bathrooms. On a lawn outside the student center, she added a beach volleyball court that doubled, during the long Cambridge winter, as a skating rink....
For her part, Kagan describes that early flurry of face lifts and new perks as an idea borrowed from her former boss, Bill Clinton: The faith that small, symbolic policies could help solve big problems. "When I got here I looked around for little things I could do: things that don't cost much money, don't take much time, that you don't have to have a faculty meeting to do," she said in an interview in her office. "As it turns out," she said with a slight laugh, "you can buy more student happiness per dollar by giving people free coffee than anything else I've discovered."
On the broadest level, Kagan's governing philosophy seems to be one of persistent experimentation, of making the school more open to innovation and change. "Before, every possible change had to be weighed against hundreds of years of illustrious history. Now changes are weighed by asking whether it might make something better," said Elizabeth Warren, a bankruptcy law professor who chairs the school's admissions committee.
There is a lot more in this great piece that also makes it a must-read for anyone who follows the dynamics of elite law schools and the role of faculty hiring (though I may be biased because the article says so many nice things about my alma mater).
I also found interesting what the article did not discuss: modern political dynamics. If polls are to be believed, the country is about to elect a president who graduated from Harvard Law School. (Indeed, I believe that, if Senator Obama wins, he will be the first HLS graduate elected to be President.) A number of Senator Obama's mentors are HLS Professors, including prominent figures including Professors Ogletree, Sunstein and Tribe. In addition, Dean Kagan has been high on many Supreme Court short lists for those considering what kinds of judges a President Obama might appoint. (Dean Harold Koh of Yale Law School has also appeared on a lot of these lists.)
There is good reason to believe a President Obama would look to the legal academy for help with his administration and for potential judicial nominees. If so, HLS would likely be the law school he looks to first -- perhaps along with Chicago, where Senator Obama taught for a number of years. Though I doubt we should expect a huge migration to DC from HLS and other elite law schools (as occured in some prior generations), I do expect the future of a number of elite law schools to be greatly impacted by what happens on November 4 this year.
Posted by DAB
June 02, 2008
Can there be too many (innovative) law schools?
This week's National Law Journal has this lengthy and interesting article, titled "A Deluge of Law Schools: As Many as 10 Are in the Works — But Are They Needed?". Here is an excerpt, which highlights the innovation potential in these developments:
As many as 10 new law schools are in the works, with the majority of them proposed in the eastern part of the country. While their proponents insist that the schools will serve the needs of their communities and beyond, the plans are drawing sharp criticism from those who argue that creating more law schools is irresponsible....
Planners assert that their schools will offer specialized programs and innovative curricula to J.D. hopefuls. Critics, however, point to a tight job market and starting salaries that do not cover the ballooning costs of tuition for the majority of students already graduating from the nation's hundreds of law schools.
"I have no doubt that those concerns are valid, but it's whether they end up being compelling reasons to pull back on starting a law school," said Loren D. "Chip" Prescott Jr. He is the newly appointed dean of the Wilkes University Law School Planning Initiative, which is pushing to open a law school in Wilkes-Barre, Pa., by 2010....
Prescott cited a number of reasons to launch a law school in Pennsylvania. First, the closest law school to the area is a two-hour drive away, he said. Second, he sees a need for creative, hands-on training absent in legal education today. Third, a "brand new school," he said, can provide such innovation more readily than older schools constricted by outmoded traditions. "A school starting from scratch can make a unique contribution," he said.
If new schools are serious about making a "unique contribution" to legal education, my reaction is "the more, the merrier." But because there are already, in my view, far too many law schools "constricted by outmoded traditions," I hope only those schools with a serious commitment to innovation will get off the ground.
January 28, 2008
Interdisciplinary debates and the law school mission in "The Age of Ambition"
Nicholas Kristof had this interesting op-ed, titled "The Age of Ambition," in Sunday's New York Times. Here are excerpts:
With the American presidential campaign in full swing, the obvious way to change the world might seem to be through politics. But growing numbers of young people are leaping into the fray and doing the job themselves. These are the social entrepreneurs, the 21st-century answer to the student protesters of the 1960s, and they are some of the most interesting people here at the World Economic Forum (not only because they’re half the age of everyone else)....
Today the most remarkable young people are the social entrepreneurs, those who see a problem in society and roll up their sleeves to address it in new ways. Bill Drayton, the chief executive of an organization called Ashoka that supports social entrepreneurs, likes to say that such people neither hand out fish nor teach people to fish; their aim is to revolutionize the fishing industry. If that sounds insanely ambitious, it is. John Elkington and Pamela Hartigan title their new book on social entrepreneurs “The Power of Unreasonable People.”
Universities are now offering classes in social entrepreneurship, and there are a growing number of role models. Wendy Kopp turned her thesis at Princeton into Teach for America and has had far more impact on schools than the average secretary of education....
So as we follow the presidential campaign, let’s not forget that the winner isn’t the only one who will shape the world. Only one person can become president of the United States, but there’s no limit to the number of social entrepreneurs who can make this planet a better place.
Interestingly, none of the social entrepreneurs mentioned by Kristof appear to have any law school training. And yet, as highlighted in this guest-post over at Glom, my colleague Garry Jenkins (who helped to create Ohio State's new Program on Law and Leadership) has a vision that involves law schools teaching skills that seem essential for "social entrepreneurs." Here is an excerpt from Garry's account of why he developed a "Lawyers as Leaders" course:
I think leadership education needs to be a critical piece of legal education. I would argue that leadership development is central to our mission. If lawyers are to play key roles in the profession, in their communities, in government, in their organizations, they need to combine their legal skills with leadership skills. When I talk to law students about their aspirations I become even more convinced. Indeed, this should not be surprising because law schools are a rich source of intelligent and ambitious people. Whether students are interested in public or private law issues or pursuing non-traditional career options, leadership issues abound. Even in traditional law firm practices, professionals taking on senior leaderships responsibilities (e.g., Managing Partner, Practice Chair, etc.) or important committee posts (e.g., executive, management, promotion, compensation, or strategy) must learn how to effectively exercise leadership in environments where many of the formal sources of power and authority are limited.
Among other virtues, the Kistof op-ed and Garry's post give me insights on the raging debate over interdisciplinary scholarship and teaching in law school (TaxProf highlight the debate here and here). In my view, interdisciplinary work in law schools is essential if a law school's mission is to produce social entrepreneurs and/or leader-lawyers. However, if a law school's mission is to produce effective practicing lawyers, interdisciplinary work can often be a distraction (or at least an opportunity cost).
And this takes us back Brian Tamanaha's original post on Balkinization, Why the Interdisciplinary Movement in Legal Academia Might be a Bad Idea (For Most Law Schools). Because of their elite student populations, elite law schools can and likely should define their mission in terms of producing social entrepreneurs and/or leader-lawyers. Other law schools, however, may justifiably need to define their mission simply in terms of producing effective practicing lawyers.