Home » Legal Practice (Page 6)
Category Archives: Legal Practice
On the Training of New Lawyers (Part I)
I have just returned from three weeks of back-to-back conferences, exhausted but ready to jump back into Law 2050.
The conferences were not about the legal industry—they were environmental law and policy gatherings—but I found plenty of time to discuss the legal industry with practitioners and academics. A number of conversations led me to think more deeply about the training of new lawyers in the new legal environment. One was with a friend who had recently left 20 years of practice with a law firm to become the general counsel of a mid-sized energy company. One of the first steps he took in his new position—following the trend among corporate clients—was to inform all his outside law firms (including his old firm) that he would not pay for any first or second year attorneys working on matters for his company, no exceptions. I asked him how he thought new lawyers at law firms handling complex litigation and transactional work will receive adequate training as this trend spreads throughout the industry. His answer boiled down to, “not my problem.” Well, maybe it’s not his problem, but it is a problem.
For the past 60 years the training of new lawyers—and here I mean training in complex corporate litigation and transaction environments—has been financed by law firm clients in a tacit, though sometimes explicit, agreement between the firms and their clients. This arrangement worked best when there was an expectation of long-term engagement between a firm and its clients as well as long-term employment of a lawyer at his or her firm. The idea was that the client would foot the bill to train a new lawyer at the front end and in return would after some years be able to work with an experienced attorney knowledgeable in the client’s business affairs. Both of those expectations began to fall apart in the 1990s, however, as clients diversified their firms and lateral movement by lawyers became the norm.
Although it is now widely discredited by legal “rethink” pundits, the old system worked—it produced very capable senior attorneys. So, what to put in its place? What system will produce just as capable senior attorneys under the condition that clients will not pay for new attorneys working on their matters? As I have observed in other posts, the answer clearly is not to replicate the Axiom and Clearspire model of firms staffed solely by senior attorneys. Their approach, though hailed in the “rethink” media as brilliant, obviously is unsustainable as an industry norm.
The Irony of Axiom and Clearspire: If Most of Their Lawyers Are Top AmLaw 200 Firm Alums, AmLaw 200 Firms Must Be Doing Something Right
Anyone following news of the changes taking place in the legal services industry has heard of the much-touted new law firm models represented by Axiom in the UK and Clearspire in the US. Both claim to have reimagined how a top law firm is structured and operates, and they truly have done some innovative thinking. Plus they have slick websites. Hats off to them.
But here’s the irony of Axiom and Clearspire: they proudly pronounce that most of their lawyers were trained in the BigLaw world they say is broken. Clearspire says its attorneys are “drawn predominantly from the ranks of AmLaw 200.” Axiom says that of its over 1000 attorneys in the network, “most have worked at an AmLaw 50 or Magic Circle firm.” Sure, it’s the profit pyramid/billable hour business model they and countless others piling on say is “broken” in BigLaw, but apparently Axiom and Clearspire have no problem with the training young attorneys receive in those firms. Indeed, that’s what they are marketing–their clients get BigLaw trained lawyers at half the rate. Here’s the bottom line: Law firms like Axiom and Clearspire are telling Fortune 500 clients to shun BigLaw while at the same time telling Fortune 500 clients they are staffed by attorneys trained by BigLaw. Huh?
Axiom and Clearspire also seem to have absolutely no interest in hiring and training new post-graduate lawyers in ways that would produce the quality of seasoned lawyer Axiom and Clearspire are marketing to their clients. Everyone seems to agree BigLaw does a pretty good job of moving lawyers from young post-graduates to experienced senior attorneys ready to handle complex legal matters faced by Fortune 500 companies. But according to Axiom, Clearspire, and their champions, BigLaw is over and they are now the best bet in town.
Here’s the problem: If Axiom and Clearspire are the wave of the future and BigLaw is obsolete, who will train the lawyers the new “reimagined” law firms will staff as senior, seasoned counselors. Couple that with the utterly unimaginative proposal to reform legal education in the US by lopping off the third year, and you should see the disconnect. Law firms like Axiom and Clearspire (and their clients) apparently don’t want to carry the lawyer training burden, and law schools (even with three years and plenty of clinical and skills training) can’t possibly graduate fully-formed lawyers any more than medical schools can graduate experienced neurosurgeons after their four years.
This is the one piece of the puzzle the “Rethink Law” and legal education reform movements haven’t quite figured out if their vision of the future of the legal industry and legal education comes true: Who will train the newly licensed lawyers?
Computerized Judging? The Finns are Leading the Way…
A post on Legal Futurology discusses a recent judicial reform report issued in Finland that includes the following recommendation:
In some types of cases the preparation process could be more strongly computer-supported. For example, when the elements of certain crimes are met, the system could automatically offer relevant phrasings as motivations, which could ease up the burden of processing simple high-volume cases, such as drunk driving. This could reduce routine work while at the same time safeguarding the high quality of the decisions.
The overall thrust of this part of the report is that by computerizing the decision-making process, maybe they won’t need as many judges as they have today. Perhaps it is not just practicing lawyers who should get up to speed on the law+tech movement!
What Would a Law Firm Research and Development Department Do?
One day when I was a young environmental law associate at a law firm in Austin, Texas, my managing partner asked what I thought was going to be “hot” in five years. He asked me to write up a short presentation on whatever I dreamed up and we and a few other lawyers in the office would present our ideas to a gathering of real estate industry representatives at a luncheon (our treat). My prediction was that the Endangered Species Act, which was not even on the radar screen in that part of Texas and hadn’t accounted for more than a few billable hours for me at the time, was going to become a major regulatory hammer throughout Central Texas and that some of the compliance approaches being tried in California could be adapted to our area. It turns out I was right, and the ESA consumed the following eight years of my law practice and for twenty years after that has remained at the center of my academic work and occasional consulting.
Law firms hosting luncheons for business development is nothing new. What was different about the one my managing partner threw together was that none of the topics we presented that day was generating any billable hours at the time. Rather, we were telling those gathered in the room something like: We think this set of issues is going to become a problem for you in a few years, and we are working on the solutions now so that if those problems do in fact surface, we are ready to help you navigate them. We were, in other words, engaging in research and development.
BusinessDictionary.com defines R&D as “systematic activity combining both basic and applied research, and aimed at discovering solutions to problems or creating new goods and knowledge. R&D may result in ownership of intellectual property such as patents. In accounting for R&D costs, the development costs may be carried forward but the basic and applied research costs are often written-off as incurred.” What we did that day almost perfectly fits this description–we deployed lawyers in the firm to discover solutions to anticipated legal problems, we demonstrated ownership of that problem-solving knowledge, and we wrote off the costs of developing and marketing that knowledge. It paid off in the form of clients and revenue not only for me but for several other lawyers in the office. We got the work when the problems materialized because clients knew we had already thought about the solutions.
What was missing, however, was that nothing about that process was the result of a systematic activity. (more…)
Quantum Lawyering
One of the barriers to data storage and processing in existing technology is its binary form: the basic component of computing–the “bits”–are limited to binary encoding as a 0 or a 1. Busting through the binary digital constraint would open up a completely new world of computational power. The March 8 issue of Science includes a special section on the line of research designed to do just that–quantum information processing (QIP). QIP uses quantum mechanics to enable an infinite number of states that could be encoded on each quantum bit, or “qubit.” Given the properties of quantum-mechanical objects, it will be an immense challenge to create the physical architecture to support qubits in computer technology, but if the past of computer science is any indication, we’ll get there.
The chasm between binary and quantum computation technologies captures the limits of the emerging law+tech movement. As a number of previous posts have covered, the law+tech movement is designed to leverage the robust data storage and processing capacities now available to shift some kinds of lawyering services from humans to computers. Many of the tasks that can be shifted are routine, such as e-discovery and automated contract drafting. Some of the tasks, however, are quite sophisticated, such as contract risk assessment and patent litigation planning, and some of the innovations coming out of law+tech are opening up capacities human lawyers could not hope to achieve, such as the data visualizations Ravel Law is experimenting with.
Whether you look at this as good or bad for the legal industry, it’s coming so get used to it. But as much as the law+tech innovators promise to change the way legal services are delivered, they can’t promise what I would call “Quantum Lawyering.” What do I mean by Quantum Lawyering? (more…)
Deep Structure — The Next Generation of Empirical Legal Studies
The use of statistical techniques to tease out empirical patterns in legal contexts has had a profound impact on legal practice and scholarship over the past few decades. From employment discrimination claims to academic studies of judicial voting patterns, we have learned a lot from regression analyses and other statistical applications. But getting at the deep structure of law has been more difficult with that tool kit. The convergence of big data, network theory, data visualization, and vastly enhanced computational capacities is changing that–now we can begin studying law and legal systems in ways that open up new frontiers for practitioners and academics.
As a practical example, sign on to Ravel Law. You will find a simple search field with no instructions. Plug in a term–I used “climate change.” Whereas in Westlaw and Lexis you receive a list of cases, in Ravel Law you receive something very different. Ravel Law gives you the list of cases, to be sure, but it also displays an interactive graphic representation of the citation network of all cases using the search term. The visual representation allows the user effortlessly and instantly to identify cases citing cases, the strength of each case as a citation source for others, and the timeline of cases in the network. So, if a practitioner wants to identify the “big case” in a topic, or to quickly trace the growth of the topic in case law, Ravel Law finds it for you in seconds, whereas piecing that together through traditional searches would take hours and a lot of mental gymnastics.
On a more theoretical level, tools like those used to power Ravel Law can help academics plumb the deeper structure of legal systems. For example, legal concepts and principles can be broken down into finely grained components, as in the way legal research services such as Westlaw and Lexis have developed their “keynote” and “headnote” cataloging systems. These cataloging systems produce hierarchical concept frameworks placing broad legal concepts such as constitutional law and environmental law at the top and then drill down from those broad concepts through successive levels of increasingly narrow subtopics. Michael Bommarito’s study of opinion headnotes in over 23,000 Supreme Court cases illustrates the branching form of what this hierarchy looks like when laid out graphically. (See Michael J. Bommarito II, Exploring Relationships Between Legal Concepts in the United States Supreme Court). As any lawyer knows, however, (more…)
Five Core Themes of Legal Services Industry Reinvention
Last week I attended the ReinventLaw – Silicon Valley conference, a one-day, 40-speaker, high-energy crash course on the forces of “creative destruction” acting on the legal services industry. Unpacking and assessing the details of the conference will take many posts. For now I am trying to identify the major cross-cutting themes that glued the 40 presentations together. My 30,000-foot take from the conference is that there are five core, interrelated agents of change converging to put tremendous pressure on some sectors of the legal services industry to “evolve or die,” while at the same time opening up potentially vast new opportunities for lawyers who think creatively. Although no one speaker at the conference discussed all five (speakers had either 6 or 12 minutes to get their messages out), almost every presentation fits under one of more of these big picture topics:
- Commodifying legal services to maximize efficiency: This is a theme developed in the work of Richard Susskind and others who have focused on the economic pressure corporate clients are facing to unbundle legal services and find the most efficient service provider for each component (e.g., outsourcing e-discovery and basic research). Example: Pangea3
- Finding purposes for Big Data: The availability of tremendous amounts of legal data and computation capacity can facilitate the drive for efficiency, but can also open up new services that offer new analytical and predictive services, such as contract review analytics and patent litigation forum analyses, which even highly-sophisticated lawyers cannot duplicate through sheer mental powers and judgment. Example: Lex Machina
- Online and other coordinated lawyer networks: Online capabilities allow the creation of coordinated networks of lawyers who offer services on an as-needed, rapid upload, low overhead, contract basis through pure online contact, physical placement, or a blend. Example: Axiom Law
- Developing the middle class and small business markets: Between the major corporations hiring BigLaw and the low-income client receiving public legal services, a vast potential market of middle class individual and small business clients sits waiting to be developed. The problem is these people and businesses often (a) do not know they could use legal services to their advantage, (c) do not comprehend the legal system, and (b) can’t afford to hire conventional practice lawyers in any case. By leveraging online, computerized, and other tech solutions, lawyer networks can deliver services at significantly reduced rates. Example: Rocket Lawyer
- Modernizing attorney practice rules: How far one can take any of the first four initiatives is constrained in many ways by lawyer practice restrictions, such as the prohibition against corporate ownership of law practices that continues to reign in the US but has been abandoned in the UK. The UK experiment is still young, but already innovations seem to be flourishing. Example: Riverview Law
These are by no means the only trends in play, nor do my descriptions do justice to the full scope of any one of them. The upshot is clear, however–there is a growing universe of lawyers and companies seeking to uncork a new way of conceiving, designing, and delivering legal services. What that means for the short- and long-term futures of law, legal practice, and legal education remains anyone’s guess at the moment. But no doubt these will be interesting times.
Reinvent Law – Silicon Valley Conference
I’m heading out later this week to the Reinvent Law Silicon Valley Conference, which is shaping up to be a crash course in the current state of flux in the legal profession and the opportunities it presents. The schedule is packed with talks by key players in the transformation, such as the founder of Axiom Law, and people following it, such as Bill Henderson of Indiana Law School. One of its organizers, Dan Katz of Michigan State University Law School, explains that topics will include “LegalTechStartUp, Lawyer Regulation, Quantitative Legal Prediction, Legal Supply Chain, Project Management, Technology Aided Access to Justice, Design, 3D-Printing, Driverless Cars, Business of Law, Legal Education, Legal Information Engineering, New Business Models for Law, Lean Lawyering, Augmented Reality, Legal Process Outsourcing, Big Data, New Markets for Law, Virtual Law Practice, E-Discovery, Information Visualization, E-Discovery, Legal Entrepreneurship, Legal Automation … and much more.” Coming on the heels of the Georgetown Center for the Study of the Legal Profession’s 2013 Report on the State of the Legal Market, which confirms the trends seen in the past few years are deeply rooted, the Reinvent Law conference is worth checking out. I will provide a summary and assessment when I return.
Today’s Lawyers Should Read Tomorrow’s Lawyers
Pundits lately have made a sport of piling on the legal services industry, making no effort to hide their glee in predicting the end of the world of lawyers as we have known it. A voice of clarity in that cacophony has been Richard Susskind, who, while predicting the end of lawyering as we have known it, has done so methodically and with an eye toward predicting the possibilities that come from the industry’s transformation. Any lawyer who has not read his past works, and even lawyers who have, should read his latest book, Tomorrow’s Lawyers: An Introduction to Your Future.
Tomorrow’s Lawyers is a compact synthesis and update of Susskind’s previous works on the transformation of the legal industry, a short read filled with some valuable insights and suggestions. The primary targets of his study are the prototypical large corporate law firm and in-house law department. His basic approach is to (1) unpack transactional and litigation legal services into their discrete components; (2) put those components up against the disruptive economic and technological forces at play now and in the foreseeable future; (3) examine which of the legal services components are likely to come under pressure to be downsized, outsourced, price reduced, etc.; and (4) predict a new structure of the legal services industry coming out of that process, including new employment opportunities for lawyers.
As a former BigLaw partner who has been in full-time legal education the past 18 years, much of what Susskind describes resonates with my experience and my sense of where the legal practice is headed. I don’t agree with everything he says in the book, but I agree with most of it and believe it would be a useful read for senior partners, in-house general counsel, new lawyers, and, of greatest interest to me, law students. Even if you don’t agree with his predictions of where the legal services industry is headed, his descriptions of the components of legal services and the disruptive forces acting on the industry are insightful and instructive.
That said, (more…)
Law 2050 