Malcolm Gladwell has written a new book about the factors that most influence the likelihood that you’ll achieve (traditionally defined) career success. Outliers: The Story of Success posits that much of what affects our success is out of our control, and that arbitrary or even trivial factors play a disproportionate role in what we end up doing and how well we do it. As part of the book promotion tour, he spoke with the Globe & Mail the other day and made an observation that I think resonates deeply with the legal profession.
Giving an example of arbitrary success factors, Gladwell noted that a huge percentage of professional hockey players have birthdays early in the year. That’s because the standard cutoff date for hockey programs is January 1, so when all-star teams and other squads are recruited, the players who seem most talented are invariably picked — but in fact, they only seem more talented because they’re older and more physically capable. But then these players get special attention, more coaching, more opportunities, and by the time they hit their teens, they actually are more talented. The same applies in school — Jan. 1 cutoffs mean kids born later in the year are younger and therefore farther back on the learning curve. His point is that arbitrary dividing lines can have huge unintended consequences.
Then the interviewer asked Gladwell, at the end of their conversation, why anyone should care enough about this to actually do anything about it. His reply made me sit up straight:
Because we squander talent. Even in a country like Canada, where hockey is a priority, an obsession, we’re squandering a huge amount of hockey talent without realizing it. We could have twice as many star players if we just changed the institutional rules around finding talent. To me, that’s such a powerful lesson. Because it just says, look, in a simple area like hockey, in a country that cares more about it than almost anything else, if you’re still squandering 50 per cent of your ability, how much more are we squandering everywhere else?
I’d go further and say that squandering talent actually has two components: failing to realize the potential universe of talent at your disposal, and then failing to maximize the talent that you do choose. When you apply that analysis to talent identification, intake and management in the law, you come to realize just how arbitrary and undisciplined we’ve been. Look at it in these terms:
- We set law school admission criteria that aren’t specifically designed to select the best potential lawyers – sidelining from the start countless people who might make excellent lawyers but don’t have the GPAs and LSAT proficiency that schools look for.
- We allow law students to indebt themselves heavily and thereby restrict their early career choices – excluding or eventually driving out lawyer candidates who simply can’t afford the cost.
- We provide training in the legal certification process that aligns poorly with necessary lawyer skill sets – rewarding abilities and accomplishments (100% finals, lengthy memos) that don’t reflect professional demands.
- We recruit graduating lawyers on criteria not rationally connected to business or client needs – continuing to over-rely on student grades and law school reputation when assessing the “best” candidates.
- We give little assistance to new lawyers to acquire the professional skills they need – providing not nearly enough structured, supervised, institutional guidance to fill in the gaps in their first few years of practice.
- We routinely pick on new lawyers as the first ones to throw overboard in a crisis – adding to the growing list of associate layoffs all over the US and UK, White & Case has cut 70 lawyers and Eversheds is preparing to cut dozens more.
I really don’t see how this is sustainable. Every prediction about the next few decades of legal practice assumes a much smaller lawyer population, with Boomers exiting and Millennials not inclined to give their lives over to work. Most forward thinkers in the law also foresee a more streamlined and efficient industry in the near future, where clients expect skilled lawyers applied effectively to requisite tasks. But our existing legal talent pool and our incoming talent selection systems aren’t prepared to deal with these emerging realities.
Our profession essentially places the initial screening process for a population of more than a million lawyers in Canada, the US and the UK in the hands of several hundred members of law school admissions committees. Our governing bodies directly provide only a small percentage of the training future lawyers need, leaving the rest to law schools’ discretion and the vagaries of the private sector. And our system allows law firms, driven by their mystifying business models, to treat their new lawyers like firewood, chopped and stacked at their front door to be either left out in the cold or burned at need, as if there’s an endless supply of the stuff.
What we need, right now, is an empirical, disciplined way to assemble legal talent. Here’s what I think our profession’s leaders ought to consider doing in order to assert some measure of control over, and inject some degree of rationality into, the process of locating and nurturing that talent.
- Mandate sophisticated criteria for law school admission. Law schools currently decide who they will accept and on what grounds, and in doing so shape the profession’s profile for years to come. Carefully crafted, holistic, 21st-century admissions processes should be decided by governing bodies — transparently and collaboratively with schools and other stakeholders — and then applied by law schools, so that we end up with the lawyers the profession needs, rather than the applicants law schools wanted.
- Mandate sophisticated criteria for lawyer education and training. Schools should of course continue to teach legal thinking, theory and history — a legal education should always be a higher one. But the profession has the right and responsibility to stipulate core skills and knowledge with which new lawyers are expected to start their careers. If law schools don’t want to do this, we should create training institutes that will. But the profession should stop pretending that this is anyone’s responsibility but its own.
- Encourage legal employers to better evaluate and mentor their lawyers. I’m a free-market aficionado, and once lawyers are in the private sector, those rules should apply. But a completely laissez-faire approach to how legal employers handle their employees is professionally irresponsible. Offer recruiting and talent management training with the strong expectation that respectable firms ought to apply it. Work to build a culture of compliance with a mature, big-picture approach to talent development.
- Make continuing professional development mandatory. I didn’t say mandatory CLE — we’ve seen where that can lead, seminars booked at the last minute and lawyers BlackBerrying during presentations. British Columbia’s model shows real promise by approving a wide range of development activities: from attending CLEs to publishing articles, from teaching law courses to being active in bar associations, from contributing to study groups to mentoring junior lawyers. Ontario is planning to mandate CPD for lawyers in their first two years: also good.
You know, it strikes me that, just as our consumer and industrial cultures got used to a ready supply of oil, our profession has gotten used to a ready supply of lawyers. In both cases, we squandered an important resource and kept at it until things turned bad.
With oil cheap and its supply apparently limitless, we over-consumed, created massive suburban vistas accessible only by car, and built great big gas guzzlers to ride around in, giving little thought to alternative energy sources. The unfolding collapse of the North American automobile industry is one consequence of this mismanagement, but there’s a lot more to come on this score.
Equally, with lawyers thick on the ground and clients not terribly demanding about how they were used, we built great big law firms around a business model that viewed new lawyers as fungible units to be hooked up to a billing machine. And we gave little thought to whether there were alternative means by which to identify and cultivate potential lawyers or better use the ones we had.
So here’s something to ponder. Is the legal profession at risk of becoming the North American automobile industry, about to be hammered by market forces we never prepared for? Are our clients, fed up with the cost of tapping our traditional resource, ready to cast about for alternative sources of legal talent? And does your firm in any way foreshadow General Motors, a well-known name poised to collapse from short-term thinking and a failure to give customers what they want?