Blawg Review #207

Blawg Review #207: All the News That Fits

April 13, 2009

Section A – News

  1. The Recession
  2. Prosecutors on the Ropes
  3. Same-sex Marriage

Section B – World

  1. International Justice
  2. Spotlight: Canada

Section C – Business

  1. Law Practice Innovation
  2. Google
  3. Copyright

Section D – Life
Section E – Sports
Section F – Technology
Section G – Education
Section H – Community
Section I – Religion
Section J – Comics
Section K – Editorial

Newspapers are dying, right? We all know that — at least, all of us except the Associated Press, The Atlantic, and a few others. Jeff Jarvis at Buzz Machine and Scott Karp at Publishing 2.0 get it, and they’ve been trying to explain the new rules to the surviving members of the print publishing industry, but it’s a little like teaching dinosaurs to have warm blood. The legal press hasn’t yet succumbed as badly as its mainstream relations, but its day is coming soon: Omar Ha-Redeye at Law Is Cool (one of the many Canadian law blogs we’ll be featuring during what Michel-Adrien Sheppard of Library Boy reminds us is Law Week in Canada) explains how the internet is already changing legal media too.

What many observers seem unable to grasp, however, is that while newspapers, magazines, even TV — all the hallmarks of traditional media — are suffering or dying, journalism is not. Journalism is a vocation and a social good — Seth Godin once called newspapers “two cents of journalism wrapped in ninety-eight cents of overhead and distraction.” Journalism is alive and it will be well — and Blawg Review is a tremendous example of what it will look like in the 21st century.

So this week’s edition has been structured to resemble your local newspaper — the one that showed up on your doorstep this morning  — to demonstrate the collective range, depth and acuity of the legal blogosphere. As with all papers, you can read the sections that interest you and simply skim the rest. Check out the “newspaper” that the legal community turned out this week — and keep in mind that this is only a sampling, and all of it was provided absolutely free. (And if you read nothing else, please skip down and read Section K – Editorial.)

A1 – News – The Recession

The recession continues to pound away at economies worldwide, and the legal marketplace continues to feel the pain. Law Shucks’ Layoff Tracker reported 100 more lawyers and 253 more staff were cut last week — and that was one of the quieter periods since the year began. Here in Canada, leading national firm McCarthy Tétrault cut 3% of its workforce, reported Jim Middlemiss at the Legal Post. Not only that, rumour has it that McCarthys intends to close its office in the national capital Ottawa, which would be an unprecedented move for any big Canadian firm in a downturn.

So just what are we experiencing here, and how bad will it get? Bruce MacEwen at Adam Smith Esq. suggests that this isn’t a normal “income statement” recession, but a potentially longer and nastier “balance sheet” recession. “Everyone — households, small businesses, big businesses, banks, investment banks, and yes, law firms — has seen their net worth hosed,” he points out. “The problem with recovering wealth is that it takes so much longer than it does to recover income.”

But Bruce also thinks we in the law should keep things in perspective. “Law firms are not, permit me to suggest, the worst industry to be in right now,” he observes. “Would you rather work for a large retail chain? A resort or hotel or entertainment complex? A bank? An investment bank? A hedge fund or private equity house? A magazine or newspaper publisher? An auto company?” Echoing the call for a more positive attitude, Charles Maddock at Maddock on Marketing presents a slate of ways lawyers facing some downtime can use it productively, including waking up dormant clients and engaging in business development training.

A2 – News – Prosecutors on the Ropes

It’s not been a great week for the prosecution in the United States. Not only was the high-profile conviction of Senator Ted Stevens overturned, but the judge ordered an investigation into the conduct of the case’s federal prosecutors. Douglas Berman at Sentencing Law and Policy worries that this is more than just a case of a few bad apples — that it’s a fundamental problem of federal prosecutorial culture — while Mike at Crime and Federalism wonders about the realpolitik at work behind the scenes on this case.

The DoJ is taking hits beyond the Stevens case, though. Mark Tushnet at Balkinization suggests the Justice Department, which many observers saw as highly politicized under President Bush, remains politicized under President Obama, despite the promises of change. Tim Jones at the Electronic Frontier Foundation argues that warrantless wiretapping has actually become more of a problem under the new president. And Beth Van Schaack at IntLawGrrls traces the etymology of “enemy combatant,” a term that has surfaced a time or two in each administration’s tenure.

A3 – News – Same-sex marriage

The same-sex marriage wave continued to crest in the U.S., as Iowa’s Supreme Court ruled that a state ban on same-sex marriage was unconstitutional. Tony Infanti of Feminist Law Professors explored the court’s detailed deconstruction of religious arguments in favour of the ban, while blogging colleague Kathryn Frank characterized the court’s “distinctly Midwestern approach” to the issue and Balkinization’s Jack Balkin debated those who criticized the court’s intervention.

Meanwhile, Mark Wojcik of International Law Prof Blog noted that Vermont’s legislature overrode its governor’s veto of same-sex marriage legislation, and that the D.C. City Council (which legislates for the District of Columbia) voted to recognize same-sex marriages performed in other jurisdictions. In light of all these developments, Brian Cavner of Family Fairness set out to tackle and rebut the numerous arguments he’s heard against same-sex marriage.

B1 – World – International Justice

What is the reach of international criminal law, especially over people and entities outside a court’s jurisdiction? Three interesting developments, each noted in the blawgosphere, might help answer that question. Betsy MacKenzie at Out of the Jungle notes that a Spanish court has agreed to consider a criminal case against six former Bush administration officials over allegations they enabled and abetted torture by justifying the abuse of terrorism suspects. Attempts to argue a “wartime” defence against the charges could be met by an article published by Mary Dudziak of Balkinization that examines the whole concept of “wartime” itself.

The “Bush Six” may also not be happy to learn that, as Mark Trumbl reported at PrawfsBlawg, former Peruvian President Alberto Fujimori was sentenced last week to 25 years in prison by a Lima court for crimes against humanity. But that was an entirely domestic conviction.  A more interesting parallel may be found in a report by Joe Palazzolo of the Blog of Legal Times: a Manhattan judge has allowed some claims under the Alien Tort Claims Act to proceed alleging that companies such as Ford, GM and IBM aided and abetted the apartheid government of South Africa late in the last century.

But you don’t need to look back in time to find situations crying out for the application of international criminal justice, as Christopher Rama Rao of Decoupling points out in reporting on the Congo Rape Crisis and what lawyers are doing about it right now.

B2 – World – Spotlight: Canada

A number of Supreme Court of Canada decisions prompted a flurry of legal blog posts hereabouts. The SCC made legal headlines worldwide when it ruled, in the course of a criminal case, that people have no right of privacy in the garbage they set out by the curb. David Fraser of the Privacy Law Blog and Dan Michaluk of All About Information explained the ruling and noted its consequences for everyday citizens’ privacy expectations.

Two other Supreme Court decisions led to detailed blog posts. Jonnette Watson Hamilton and Jennifer Koshan of Osgoode Hall Law School’s The Court analyzed a high court ruling that created a new framework for analyzing the equality provisions of Canada’s Charter of Rights and Freedoms. And Jeremy Grushcow of The Cross-Border Biotech Blog noted a Supreme Court decision that redefined the nature of non-compete clauses in employment contracts. Farther from the top court but closer to the front pages, Bob Tarantino tackled the merits of an upcoming prosecution of a band of polygamists in British Columbia.

C1 – Business – Law Practice Innovation

Upheaval and innovation in law practice and the delivery of legal services are gathering speed. Both Bob Ambrogi at Legal Blog Watch and Larry Bodine noted that big law firms are losing clients to smaller competitors. Rees Morrison of Law Department Management adds that clients are taking their cost-cutting measures very seriously. Will this finally cause big firms to cut associates’ salaries? Only if someone else goes first, notes Ashby Jones of the WSJ Law Blog.

But Tim Corcoran of Corcoran’s Business of Law Blog thinks that firms focusing on associate salary cuts are missing the point: “it’s time to take a good hard look at how law is practiced.” Absolutely, says Patrick J. Lamb of In Search of Perfect Client Service: “When firms abandon leverage in favor of efficiency and quality … [w]hen the focus is on providing materially greater value at materially lower costs … [w]hen the focus is on winning (however a client defines that objective) instead of body count, real change will have occurred.”

Jim Cotterman of Cotterman on Compensation chimes in that “innovation is achieved only when creativity and invention are connected to the customer in a way that meaningfully changes their lives.” We could start with pricing our services rationally: Toby Brown of 3 Geeks and a Law Blog talks about the application of “mark-to-market” practices to the law, while both Chuck Newton of Chuck Newton Rides The Third Wave and  Peter Olson of Solo in Chicago warn about underpricing your services.

How will big firms make these kinds of adjustments? Not easily, according to Ron Friedmann of Strategic Legal Technology. “Large law firms must adopt more cylindrical structures to succeed,” he says. “This would require major changes in how they operate. The huge and costly infrastructure supporting partners and other lawyers would need to shrink.” Laurie Mapp of Halo Secretarial Services suggests they start by learning to partner with a virtual legal assistant. And Holden Oliver of What About Paris? ends with a fairly straightforward request for some lawyer innovation: “Stop writing documents which sound like mental patients talking to themselves.”

C2 – Business – Google

It’s nothing like what the DoJ has gone through lately, but Google has probably had better weeks too. David Canton of eLegal notes, and questions, a US Court of Appeals ruling that Google’s sale of a trademarked term as a keyword to a competing company may be a “use in commerce” and therefore illegal. Robert Richard of the Law Librarian Blog points out that Google also lost a key trademark infringement ruling in a Second Circuit court. And Canadian privacy authorities are investigating whether Google StreetView violates privacy laws: you can get the bilingual story from Brian Bowman of On The Cutting Edge and Vincent Gautrais de Chaire en droit de la sécurité et des affaires électroniques.

C3 – Business – Copyright

The US District Court for Colorado’s decision in the Golan case ruled part of the US Copyright Act unconstitutional: Tyler Ochoa’s guest post at Eric Goldman’s blog and Mike Masnick of TechDirt examine the impact.  Michael Geist picked up the Canadian Recording Industry Association’s plans to develop a (heh) grassroots campaign against music piracy. And the EFF’s Fred von Lohmann noted President Obama’s gift to Queen Elizabeth of an iPod filled with music and questioned whether it violated copyright laws: “You know your copyright laws are broken when there is no easy answer to this question.”

D – Life – Access to Justice

As previously mentioned, and as Stan Rule of Rule of Law reminds us, it’s Law Day/Week in Canada;  fellow British Columbian Shannon Salter of Rights and Remedies tells her readers about the extraordinary services provided by that province’s LawLINE.  (But John C. Bouck  of Boucks Law Blog condemns what he sees as the BC government’s attacks on litigants in the civil justice system there.) It’s a good time to remind ourselves that the whole point of lawyering is to deliver justice and satisfy clients; as Victoria Pynchon of Settle It Now puts it, “Money is the instrument.  But justice is the issue.” Hull and Hull LLP‘s latest podcast asks: just what do we expect from clients, and they from us? Ken Adams of Adams Drafting thinks a little less Latin could go a long way to delivering what clients need.

A major access to justice story these days is the growing lineup of deferred or fired biglaw associates who’ll be paid by their firms to take work at legal clinics and public interest  law services.  Kashmir Hill of Above The Law went to Newark, NJ, to see an innovative public interest law job fair in action, while  Mike Monahan of Lawscape described some of the developing rules of engagement between non-profits and hard-luck first-years; between them, it’s clear that there are more than a few issues still to be ironed out. But any assistance for otherwise lawyerless litigants will be welcomed by the courts, according to the WSJ Law Blog: “the well-intentioned but often clueless hordes are clogging already overly taxed courthouses as clerks spend more time helping people unfamiliar with forms, filings and fees.”

But Scott Greenfield at Simple Justice, while warning against do-it-yourself litigation, nonetheless says: “Don’t begrudge pro se litigants the opportunity to make their case on the merits despite the roadblocks the law places in front of them.” And he has harsh words for the judges who encounter pro se litigants. “[M]any judges aren’t capable of dealing with regular people,” he says. “Most judges in the New York City civil courts never represented human beings, but worked as law secretaries for other judges, or prosecutors, or corporate counsel, their entire careers.  When they take the bench, they see people as annoyances, drains on their time, interferences with their orderly process.”

E – Sports

Turning to sports (I’ve always wanted to say that)….  As UNC emerged victorious from March Madness, Alfred Yen of madisonian.net questioned whether recruiting violations committed by NCAA tournament contender UConn jeopardized the integrity of the tournament. At the lighter end of the spectrum, Above The Law completed its own March Madness for Law Firms by announcing the firm least likely to lay off people (congratulations, Williams & Connolly). NCAAers who make it to the NBA might want to read Doug Cornelius of Compliance Building‘s account of a Memphis Grizzlies backup center who’s apparently a walking violation of the US trade embargo of Iran.

Even before Angel Cabrera won (or Kenny Perry lost) the Masters, David Dawsey of Golf-Patents.com republished his popular post about the impressive trademark portfolio of Augusta National. Brian Baxter of The Opening Day Chronicles chronicled the legal aspects of baseball’s Opening Day and more. And if you prefer your games indoors, Michael Webster of The BizOp News has some detailed insights into how poker can come in handy for litigators.

F – Technology

Was there anyone in the legal blogosphere who wasn’t (a) at TECHSHOW, (b) following the conference through Twitter or (c) tired of reading about all the #techshow Twitter talk? Detailing all the posts from and about TECHSHOW would be a Blawg Review unto itself, so take some time to sort through the posts by Mazyar Hedayat, John Sirman, Amy Derby, Reid Trautz, Sharon Nelson, Conrad Saam, Nicole Black, Rick Borstein, David Sparks, The Posse List, Joshua Poje, Alan Klevan, Allison Shields, Rex Gradeless, Jim Calloway, Lisa Solomon, Brett Burney and Erik Mazzone.

Worth special attention: Dennis Kennedy live-blogged the keynote presentation of Richard Susskind; Craig Ball of EDD Update found the conference nice but a little tired; and Carolyn Elefant of MyShingle.com thinks all this talk of innovation in the law will come to nothing unless “archaic, protectionist ethics rules” are addressed. But TECHSHOW wasn’t the week’s only high-tech event: Connie Crosby at Slaw live-blogged Rob Hyndman’s presentation at Mesh 2.0 on law for web startups, while Rob Hyndman posted videos from the conference.

G – Education – Law School

Law school is arguably even more overdue for innovation than is the legal profession: James Edward Maule at Mauled Again is calling for nothing less than change that reaches “into the heart of law school culture.” That might be why Jay Wexler at PrawfsBlawg decided it was time to tip some sacred cows by chanelling Joe Queenan and creating an “Admit It — It Sucks!” list for law school. Mark Cohen at MinnLaw Blog has a modest proposal: how about a law school that competes on price? And Susan Cartier Liebel of Build a Solo Practice @ SPU sings the praises of an intensive practical training program at Franklin Pierce College of Law in New Hamphsire that lets graduates skip the state bar exam.

Colin Miller of PrawfsBlawg makes the case for “open-everything” law school exams, while another Prawfsblawgger, Eric E. Johnson, argues that “[s]cholarly articles should be freely available on the internet – downloadable, without charge, at a click. And legal scholars should see that this happens for their articles.” Stephanie West Allen of IdeaLawg‘s quest to find fun law classes brings her a law prof who uses rock, reggae and rap to improve students’ learning. And finally, Kevin O’Keefe of LexBlog has a message for all law students: get on LinkedIn already!

H – Community – Social Networks

The legal blogosphere’s community is grounded in social networks, and there’s plenty to talk about this week concerning Twitter, LinkedIn, Facebook and MySpace. It was on that latter network that a resident of Coalinga, CA, wrote a withering critique of her hometown that, to her dismay, was picked up and republished in the local newspaper. Much abuse and some death threats later, the author sued the paper for, remarkably enough, “invasion of privacy.” As Ken at Popehat and Eugene Volokh of the Volokh Conspiracy reported the decision, you can’t post to MySpace and retain an expectation of privacy — but this case may have other implications yet.

Elsewhere on the Net, Erik Magraken of the ICBC Law Blog and Garry Wise of the Wise Law Blog both noted a BC trial decision that allowed a defendant to examine the plaintiff’s computer to determine his patterns of Facebook usage. Steve Matthews of Stem Legal noted the astonishing one-year increase in the number of lawyers on LinkedIn, from 118,000 in April 2008 to 563,000 in March 2009. David Bilinsky started at Slaw an intriguing discussion of the relative value of Twitter for lawyers. And Ernie Svenson of Ernie The Attorney said thanks but no thanks to Martindale-Hubbell’s offer to post its rating of you on your website for $59.

I – Religion

In a week that saw Passover, Good Friday and Easter Sunday, the legal blogosphere did not disappoint on the religious front. Heather Milligan of The Legal Watercooler brought us the Passover story as told in Facebook updates. Not to be outdone, Simon Chester of Slaw drew our attention to the Passion Play delivered via Twitter. For Sunday’s holiday, Scott Weese of the Worms & Germs Blog warned against buying children bunnies for Easter, while Brett Trout of BlawgIT brought us the best of Easter patents and Mary Alice Robbins of Tex Parte Blog referenced a new book that “raises questions about capital punishment in the United States by comparing the American system to Jesus’ trial and death.” And no Eastertime Blawg Review could be complete without Charon QC‘s foray to the Vatican.

J – Comics

Finally, every good newspaper has a good comics page — the other 90% have bad ones, or no comics at all. So in that vein, we offer you the best Courtoon of the week, as well as a Dilbert strip that sums up the economic mood nicely.

K – Editorial

It’s true that the blogosphere, legal or otherwise, often relies upon professional journalists to bring them many of the stories they discuss. Blogs are destined to supplement and integrate with journalism, not replace it. But a surprising number of bloggers do their own original research and report the results to their readers, and the legal blogosphere is especially good at that. We shouldn’t underestimate the tremendous capacity for powerful journalism that the legal community collectively wields — we know more, and are better at circulating that knowledge, than we think. Blawg Review is the best demonstration of that, and deserves to be celebrated.

Exactly four years ago this week, Blawg Review made its debut. Two hundred and seven installations later — stop and think about that for a second, of all the work by Ed, Colin,Victoria and others — it’s still going strong. If you’re a law blogger who hasn’t yet stepped up and hosted this brilliant and critically important example of citizen legal journalism, you owe it  — to yourself, to your blawgging colleagues, and most importantly, to the public at large that needs to hear what we know — to sign up now.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

The three types of collaboration

There was a lot to take away from yet another excellent ABA TECHSHOW in Chicago last week. One thing I didn’t take away, though, was my laptop. I managed to lose it the night before leaving and spent a fruitless morning searching all over the Hilton Chicago hoping to find it. Happily for me (and for the CBA, whose laptop it actually is), a good samaritan at the ABA (yet to be identified and thanked) found it and is shipping it north as I type. But until it arrives, I’m bereft of all the notes I took during the conference (aside from those recorded in my irregular Twitter feed from TECHSHOW), and so the detailed report  I had hoped to file for you is essentially sitting at Customs for an indefinite period of time.

In the absence of said notes, and since many other attendees have already written excellent reports from and summaries of TECHSHOW, I thought I’d instead focus on something that occurred to me while attending the CLE sessions, touring the trade show, and engaging in the various social and cyber events connected with the conference.

We’ve been talking about collaboration in the practice of law for some time, and it now appears to be arriving in force. But what’s interesting is that you can detect three different streams of collaboration starting to manifest themselves, each distinct in nature and impact from the others. I think they can usefully be referred to as lawyer-to-lawyer (L2L), lawyer-to-client (L2C) and client-to-client (C2C) collaboration.

Lawyer-to-lawyer (L2L) is the simplest, if not always the easiest, type of collaboration for lawyers: working with other lawyers (colleagues, opponents, or interested observers) to further a goal or increase their knowledge. There are numerous options within law firms: shared calendars and documents, meeting managers, instant messaging, wikis, and videoconferencing. Lawyers can also collaborate with other lawyers outside the firm, of course: marking up an agreement or prospectus on Google Docs or with the advanced collaboration tools on the newest Adobe Acrobat versions. Online meetings and webinars can put lawyers in the same space without incurring travel time and costs. And social networks represent a whole new frontier of L2L collaboration. (Read Dennis Kennedy and Tom Mighell’s now-definitive text  The Lawyer’s Guide to Collaboration Tools and Technologies for more.)

All these tools have the effect of making lawyers’ interactions with each other more powerful, streamlined and efficient. This is a good thing for lawyers insofar as civility and collegiality are easier to extend to collaborators than to competitors, a bad thing insofar as many lawyers’ business models reward inefficiency — expect to see more of the former and a lot less of the latter as the years go by. There still remains the old cultural obstacle, lawyers’ unwillingness to share knowledge and insight even with colleagues. But I suspect that over time, the evidence that collaborating lawyers are happier and wealthier than hoarding lawyers will become overwhelming, and natural selection will do the rest.

Lawyer-to-client (L2C) collaboration is in some respects a simple variation on the L2L version, only with clients at the other end of the line. In addition to the L2L instances cited above, extranets are the most common examples of L2C collaboration, with online project management and real-time document assembly growing as well. But L2C collaboration is less a matter of technology and more a matter of adopting a fresh attitude and mindset towards a lawyer’s role. L2C collaboration is harder for lawyers because it builds into the foundation of the client relationship elements of trust and transparency with which a lot of practitioners are acutely uncomfortable.

L2C-collaborating lawyers need to be so confident about their own processes and the value they deliver that they will have no compunction about giving clients the run of the factory floor, so to speak. They also need to be willing to cede some control over the relationship — always a challenge for this profession — and to actually listen to what clients are saying and work hard to accommodate their needs within their own procedures. Lawyers who open up their practices and processes to clients and who solicit clients’ active participation in the progression and resolution of their matters are the gutsy exceptions today; not too far down the road, they’ll be the general rule, because the market will require it.

That brings us to the third and and most powerful form of collaboration: client-to-client (C2C). Every lawyer should be paying extremely close attention to C2C collaboration, because it has the power to disintermediate them, in whole or in part, from the legal services delivery process.

It maddens clients that lawyers constantly reinvent wheels that have been invented thousands of times before, at substantial cost in lawyers’ time and clients’ money. They think, justifiably enough, that the amount of time a given lawyer spends to complete a task should be inversely proportional to that lawyer’s experience and expertise in this area. Lawyers’ failure to implement this simple marketplace rule can be traced directly to their habit of selling their hours rather than their expertise. Clients have had just about enough of that. And it’s occurring to them that many, many other clients must be in exactly the same position.

In C2C collaboration, clients pool their own legal knowledge and resources to form a vast living database that has the potential to replace much of what lawyers sell. One of the disruptive legal technologies discussed by Richard Susskind in The End of Lawyers? — and emphasized by him during his TECHSHOW keynote address — is “closed client communities” that draw upon their members’ collective experience and wisdom in legal matters.

Imagine millions of social networks cropping up, each peopled by and devoted to a single specific legal matter — divorcing spouses with children in Ohio, laid-off white-collar workers in British Columbia, high-tech startups in County Durham, industrial CLOs with environmental issues in New South Wales. Members contribute their own stories to wikis, supply both questions and answers to Q-and-A sections, and console or encourage fellow members in forums. The end result can be a civilian version of the kind of KM systems many clients wish their law firms would create and make available to them: a database of known facts, creditable experiences, and reasonable extrapolations of what will happen in a typical matter of this type.

This is a prime example of what a C2C collaborative system would look like — and there’s really nothing to stop clients from forming them right now. The best current example is Legal OnRamp, which gears its focus to high-level corporate counsel worldwide. But OnRamp also counts law firm lawyers and others as members, and makes conversations between lawyers and clients about legal services innovation one of its deliverables. In the Susskindian future, many such communities will emerge, cutting deeply into lawyers’ traditional inventory.

Will C2C collaboration make lawyers irrelevant? Of course not — there are extremely few areas of law where even the best-informed clients can wisely go it alone. But C2C collaboration will be one of the forces that will greatly narrow the range of profitable services lawyers can sell. It will hasten the arrival of the day where most of what lawyers do consists of high-value analysis, judgment and counsel, rather than knowledge and process. And quite frankly, it would also constitute a step towards greater access to justice for a lot of people.

As more instances of collaboration emerge in the practice of law, watch to see into which category each instance falls. L2L collaboration will become increasingly common and should be welcomed for its efficiencies. L2C collaboration will also grow and should markedly improve levels of lawyer effectiveness and client satisfaction. But the C2C collaborations are the game-changers, and we need to watch them carefully, because they will directly affect the fundamental nature of what lawyers can sell.

The problem, of course, is that lawyers may not hear about these C2C instances until it ‘s too late — because we’re not going to be part of those conversations.

To the class of 2012

….and so once again, best wishes from all of us on the faculty to you, the class of 2012, as your journey through law school begins.

Before I yield the microphone, I have some news to share both with you and with my colleagues: that little lottery ticket I bought on a lark at the corner store last month turned out to be the sole winner of the $6.7 million jackpot. When the dean returns to her office, she’ll find my graceful letter of retirement on her desk.

And so, as this is my last official function here, and as I happen to be at the podium, I thought I would share with you, the class of 2012, my unfiltered thoughts about the legal education you’ve signed up for and the legal profession you’ve begun the process of entering.

Many of you have already approached me and other faculty members to ask about the job market for law graduates – as well you might, since every day brings news of fresh casualties from the Great De-leveraging. This is undoubtedly your primary concern ¬– a far cry from my first day of law classes 19 years ago, when our chief interest lay in finding out what downtown club was hosting the latest orientation event. We didn’t start thinking about jobs until our second year; I’d be surprised if anyone here hadn’t thought about jobs by your second day.

Of course, in my first year – it really wasn’t that long ago, you know — the classrooms weren’t named after law firms, and the career services office was a locked and unstaffed storeroom full of firm brochures halfway down a basement corridor. Most of the faculty considered employment for graduates a subject beneath their attention – at least, employment other than as a law professor or judge. This was to be expected, since few of them had more than a passing acquaintance with life at the private bar, and more than a handful had philosophical objections to market-based economies in general.

That’s all changed now, of course. For better or for worse – and I can find you advocates for both sides – the evolving consensus is that law schools should make at least some effort to help you secure jobs and/or to ensure you possess some skills and knowledge geared towards private law practice. The career services office is now in spacious quarters on the main floor and staffed with full-time paid professionals. On-campus interviews by law firms are an unremarkable fact of life. Practicing lawyers teach numerous courses – at some schools, in fact, these sessional lecturers outnumber the full-time faculty. No one could seriously question whether law schools have made an effort to accommodate your career interests.

But is it enough? Some people say we’ve only improved the extra-curriculars, and that the fundamental nature of the degree is still traditional to the point of being reactionary. Here in Ontario, the mandatory first-year curriculum hasn’t changed in more than 50 years – you’re going to learn the same subjects this year as your predecessors did when JFK was the president down south. We still teach you the underlying principles of law and make you read judicial decisions about the application of these principles to various legal problems – and we still don’t give you the opportunity to apply those principles yourselves. Aside from a few procedure and ethics courses, most schools don’t give you much of a glimpse into the life of a practicing lawyer. Call it a J.D. or an LL.B., but your average law degree remains more a liberal arts education than a graduate or professional instruction, and certainly is not preparation to practise law.

Or is it too much? Spend enough time as a law school professor, and the drift away from actual pedagogy and towards market-readiness training seems irrefutable. I’m not naïve enough to believe that you or your predecessors ever enrolled in law school for the sheer joy of learning Land Transactions or Business Associations. But the drive to generate nothing but the highest grades in order to generate the most job offers has now become relentless. Too many students now make the pursuit of an A the primary if not the only purpose of taking a law course.  If many faculty members have been too slow to recognize the professional purposes of a law degree, many students – and the law firms that eventually hire them – have been too quick to turn law school into a jurisprudential version of the college football season and draft, with too much attention focused on what comes after graduation, not before.

The increasingly uncomfortable truth, unfortunately, is that we law schools are stuck between these two extremes. To a growing extent, we are losing our sense of direction and purpose: neither fish nor fowl, neither institute of higher learning nor professional training college. I fear, in trying to be both, we have ended up being neither. Forced to hew to our longstanding structure by both faculty and tradition, but pulled hard the other way by the private bar and the realities of the legal marketplace, we have spent the last two decades missing an opportunity. With few exceptions, we have yet to take a stand and say, “This is what law school is for. This is the part we play in the legal community and our society.” What is the role of law schools in the 21st century? I don’t know, and I’m not sure most of my colleagues do either.

This is a serious problem for us, because these are times of great upheaval, and if we do not choose change, change will be chosen for us and applied to us. The private bar’s unhappiness with legal education has never been higher – and the bar’s presence in our daily lives and influence over our students’ attitudes have never been higher either. More law societies and state bars are re-examining their bar admissions processes, and I foresee a growing belief that if law schools will not give the bar the sort of new lawyer training it wants, the bar will provide that training on its own and bypass law schools altogether.

But this is also a serious problem for you, because you will graduate into a 21st-century profession with which you will be largely unfamiliar and for which you will be largely unprepared. To the extent we here at law school are well versed with the practicing bar, it is with a 20th-century practice model, one based on:

• exclusive control by lawyers over the selling of legal services,
• technology as a tool for the completion of tasks by lawyers, rather than as a means of performing those tasks alone,
• uninformed clients who exist in either a fiduciary or adversarial position with lawyers, and
• work recorded and billed, and lawyers rewarded, by the hour.

Each of these pillars of the legal profession we’ve always known is now buckling, along with many others (and that’s not to mention potential changes to ethics standards such as client conflicts of interest and non-lawyer ownership of firms). The nature of the practice of law is changing, and none of us here know what it’s changing into. What’s worse, neither do the people who’ll be administering your bar passage or the people who’ll be hiring you. There’s never been so much uncertainty around what the nature of a lawyer’s professional life will be like – and yet your legal education will be remarkably similar to the one I received in 1990. I’m not sure whether there’s anything we can do about that – but I sure do wish we would try.

My fervent parting wish, in fact, is that law schools would take the lead in figuring out what tomorrow’s legal profession will look like, so that we can prepare tomorrow’s legal professionals to lead it. There are some very honourable exceptions to this, but as a general rule, law schools have kept a low profile in, or even absented themselves from, the important discussions and debates taking place right now about the future of law. Lawyers, law firms and lawyers’ organizations are doing most of the talking, and although we are constantly referenced in these discussions, we seem disinclined to take a central role. We must appreciate that the result of our failure to secure a place in these conversations will be that the decisions that flow from them will be applied to us, not by us.

But that is our problem, not yours. Your challenge is to prepare yourselves as best you can for a future profession that is still taking shape – to anticipate “unknown unknowns,” as the expression goes. You can’t know the final form of things to come, but you can discern the principles that will shape it: professionalism, collaboration, innovation, and above all, client service. So start now: get in the habit of cooperating with your classmates, join social networks with a lawyerly focus, follow the profession’s innovators through blogs and podcasts, and wring as much information as you can between classes from your sessional lecturers about the experience of the lawyer grind – and, yes, from your veteran faculty members, too: they’ve seen it all come and go, and they have wisdom you can only guess at.

Use these resources, and as many others as you can pull together, during your time here. Understand, above all, that your life at law school – the courses, the interviews, the grades, all of that – is not the only or a sufficient aspect of your legal education. It’s one piece of the puzzle, and you need to find the others. The days when a law degree was all you needed to be a lawyer, if they ever existed, are gone now. Your preparation for a legal career – a career that will be different from that of anyone who’s gone before you — is now your responsibility. Don’t look back three years from now and say, “Law school didn’t prepare me for a legal career.” Like it or not, we can’t do that anymore. Like it or not, that’s your job – and it starts right now.

As does my retirement. Drinks in the law lounge are on me.

Law21 to host Blawg Review!

I’m delighted to be hosting the next edition of Blawg Review (#207)  on Monday, April 13. For those not familiar, Blawg Review is a weekly collection of the best of the legal blogosphere, assembled each week by a different law blogger. This post is to invite all Law21 readers to nominate great posts made during this week (April 6-12) for consideration for Blawg Review #207. Not all entries will make the final cut — there’s a tremendous amount of content submitted for these things, and I’m actually hoping that my version will be a little briefer than some recent entries — but I still want to encourage as many submissions as possible.

The mid-April date for the Law21 Blawg Review reflects both the founding of the Canadian Bar Association and the establishment of Canada’s constitution and Charter of Rights. Accordingly, I’d like to make an extra effort to showcase Canadian law blogs for the rest of the world. (This week’s edition of Blawg Review, as it happens, by May It Please The Court’s J. Craig Williams, referenced Tartan Day’s Canadian connections). So this post is also an open invitation to Canadian law bloggers (and their readers) to submit their favourites — it’d be great to see a lot of nominees from our incredibly deep pool of law blog talent in Canada.

It’s best to make your submissions through the official Blawg Review channels rather than by direct email to me. You can submit your nomination by going to the “Submission Guidelines” page at Blawg Review and following the directions there. Thanks in advance for your assistance in showing off the week’s best law blogs!

At ABA TECHSHOW

I’m back in Chicago, my favourite US city, for ABA TECHSHOW. Looking forward to meeting old friends and making new ones while picking up the latest in legal technology, practice management, and innovation insights. This year, if all goes well, I’m also going to try some liveblogging, or at least, quasi-liveblogging, from various sessions, building in enough time to correct my two-fingered typing. Where feasible, I’ll also try my hand at Twittering during the conference — if you’re interested, you can take a look at whatever I have to say at my Twitter homepage. No matter how successful (or not) those efforts are, I’ll do another wrap-up post when I get back home.

Join “Legal Innovation” at LinkedIn

As I’ve mentioned before, I’m serving as Chair this year of the InnovAction Awards, an annual presentation by the College of Law Practice Management (which, by the way, has announced the September dates for its high-powered Futures Conference).  The InnovAction Awards recognize and promote law firms, legal departments, and other providers of legal services that are blazing new trails in how lawyers conduct their business and serve their clients. It’s been a tremendous success, and I strongly encourage you to look to your own and your colleagues’ practices to see if you have an initiative that meets the InnovAction criteria.

Anyway, as part of the promotional process for the Awards, I created a “Legal Innovation” group at LinkedIn. The purpose is twofold: to raise awareness of the Awards and encourage people to submit entries, and to help lead the accelerating conversation within the legal profession around innovation.  Here’s the group profile:

Innovation is finally breaking into the mainstream of law practice. A combination of technological advances, competitive pressures, and client demands have led to a tipping point for innovation in legal services. This group is dedicated to furthering the cause of legal innovation. We build enthusiasm for doing things differently and better in the law. We talk about how legal innovation can be encouraged in law firms and law departments. And we identify examples of legal innovation for others to follow.

Membership is open to all legal professionals (and their clients) everywhere who care about making the profession better through a willingness to innovate. The College of Law Practice Management’s InnovAction Awards, which recognize exceptional innovation in legal practice and client service, helped launch this group.

Please consider this an invitation to all Law21 readers to come join the more than 200 lawyers, clients, consultants, and law practice professionals who’ve already become part of what looks to be a really interesting and dynamic community. Applications to join require approval, but I’ll get to them as quickly as I can, Monday through Friday. Thanks, and look forward to seeing you at LinkedIn!

Rightsizing

The massive grocery superstore in my neighbourhood has something like 17 checkouts. Great, you might think — 17 lines, no waiting. But I do wait, often, behind two or three people usually, and it’s not because the store is bulging with shoppers at any given time. It’s because at least some of those checkouts are always unattended — in fact, in almost four years buying groceries there, even at Christmas and other high-volume times, I’ve never seen all 17 checkouts in use. I’m not sure I’ve seen more than 12, and I’ve often seen fewer than five. And invariably, I have to line up.

Then there’s the check-in counter at the airport. I always get my boarding pass at home or at the self-serve kiosk, but I still need to drop off my bags and get my claim ticket, so invariably there’s another line waiting for me. And no matter how heavy or light the passenger traffic, I see the same thing — only a handful of the check-in stations are ever occupied. It should go without saying that checking out of a supermarket and checking into a flight are the most critical points of contact these companies have with their customers.

I wonder if my grocery store or airline has ever done the math here. You have to figure the cost of paying a reasonably diligent 20-something to run eggs over a scanner for eight hours would be covered by one family’s grocery bill, or that the cost of a few counter shifts at the airport ought to be paid for by one executive-class ticket. Meanwhile, the capital these companies have invested in their idle workstations depreciates away — a cost ultimately borne by those customers shifting irritably on their feet as they wait in a nearby lineup.

But this isn’t a post about understaffing in the food and travel industries; it’s about the growing downside of overcapacity. These companies evidently felt compelled to create a bigger footprint than they actually required or intended to fill. Possibly they anticipated greater growth in prosperous times ahead (though I think we just came through as much prosperity as we’re going to see for awhile).  More likely, though, they just thought (as we all tend to do) that size is self-evidently good. Maybe they liked seeing all those workstations on the blueprints. Maybe they liked being able to attach “bigger than ever” to a project that bears their name.

Here’s the problem: “more than necessary” is out. I don’t just mean as a matter of aesthetics, the fear of being seen as extravagant in a time of restraint. I mean that as a business imperative, carrying more than you need to get the job done is not just inefficient, it’s now dangerous. Seth Godin puts it this way:

Many businesses that are in trouble are in trouble for a simple reason: they’re the wrong size. A newspaper that only had a few dozen employees would be doing great today. But they have hundreds or thousands of employees because that was an appropriate scale twenty years ago. …

It’s tempting to get bigger. But is bigger better? In many cases, it’s worse, particularly when you can leverage reliable systems that are cheaper and faster and more stable in the outside world. If you can make your product better by assembling it yourself, you should. But if that action makes it worse, why do it?

That last paragraph applies to pretty much everyone except lawyers. Many law firms are as big as they want to be, not as big as they need to be. They hire and acquire and expand because of the peculiar financial logic of legal services: the more people you have working for you, the more you can bill and the more money you can make. In other industries, the market sets the price and demand drives profitability; in the law, the seller sets the price and supply drives profitability. But as the basic rules of commerce finally start filtering into the legal services marketplace, that’s all starting to change.

The mega-firms now chopping thousands of jobs are, as I’ve said before, not conducting layoffs: they’re reducing their full-time employee complement indefinitely. These firms were overlawyered (and often overstaffed) relative to the value of the services they were performing — but it didn’t matter, because there were no effective market pressures to reduce costs. Now, these firms are having to seriously consider ways to automate basic tasks, and to delegate and outsource mid-level work, in the name of efficiency. They have to “leverage reliable systems that are cheaper and faster and more stable in the outside world.” Reducing unnecessary capacity is only the first step; getting more efficient is the next and more important one.

This applies to firms of all sizes, even solos, because it’s not just about whether you have too many lawyers on the payroll. It’s about whether you’ve struck the right balance between the services you’re delivering to the marketplace and the resources you’ve accumulated to deliver those services. It’s the rare law firm that has fewer resources than it needs to service its clients. More often, firms overextend themselves in terms of workers, salary, bonuses, equipment, decor, locations, practice areas — overbuilding their capacity because, at least in part, the costs of overcapacity have always been directly transferable to the client.

Overcapacity is bad from a financial perspective, but it might actually be worse from a marketing and client relationship angle. One effect of a multitude of workstations at the supermarket or airport is to create an expectation of convenient and rapid service. That’s why the failure to utilize those workstations  is doubly irritating to the customer: it’s not just poor service, but poorer service than the company evidently is capable of delivering. An unstaffed check-in or checkout sends the message: “You mean so little to us that we can’t be bothered to put someone at a station we’ve already built and paid for.”

Take a moment to look around your law practice for empty check-in counters and extraneous check-out lanes — acquisitions that have outlived whatever usefulness they once had, promises you’ve made to clients that you no longer intend to keep. If you say you practise w, x, y and z law, can clients get equally effective representation in each of them? If you give them your phone, fax, email and web coordinates, can they get fast information and responses on any of them? If you’re offering clients a host of newsletters, is their content actually worth the investment of clients’ time? If you’re making them wait in a million-dollar lobby, are they going to get million-dollar service?

Figure out the capacity disconnects in your practice —  from underemployed professionals to extravagant premises, from inefficient workflows to dusty websites and abandoned blogs.  And as soon as you identify them, fix them. Think of it as a new definition of “rightsizing” — as your chance to make your practice the size and shape it needs to be.

How to solve the legal employment crisis

The cover story in last week’s Economist got me thinking about the looming crisis in lawyer employment. “When jobs disappear” paints a bleak picture of a rising wave of unemployment worldwide that will hurt more and last longer than past employment crises. The credit crunch has forced companies to cut costs rapidly, while the massive deleveraging underway in most consumer economies means that the eventual recovery will proceed slower and will crest lower than we’ve become used to. But the key point is this:

[W]hen demand does revive, the composition of jobs will change. In a post-bubble world, indebted consumers will save more, and surplus economies, from China to Germany, will have to rely more on domestic spending. The booming industries of recent years, from construction to finance, will not bounce back. Millions of people, from Wall Street bankers to Chinese migrants, will need to find wholly different lines of work.

In its editorial leader, the magazine drives the point home further:

[M]any of yesterday’s jobs, from Spanish bricklayer to Wall Street trader, are not coming back. People will have to shift out of old occupations and into new ones.

We’ve been bingeing on reports of law firm layoffs for a few months now, and there’s every reason to think those reports will continue through 2009. But we haven’t spent as much time looking at the big picture: there is a growing population of lawyers whose jobs are gone for good, and a larger group of lawyers whose underlying business models are fast becoming obsolete.

Many of the junior associate and staff positions cut in the past several months won’t be filled again. We’ve always known that low-level associates billed out at a handsome profit by midsize and large firms would survive only as long as clients continued to tolerate the law firm business model and its rank inefficiencies. During the recession, clients just won’t be able to afford that; when the recession finally eases, they won’t be willing to afford it, hardened by the lessons meted out in the financial wilderness. Similarly, legal support staff still carry out many automatable and outsourceable tasks. By the time the recession ends, those tasks simply won’t justify a person sitting in an office or cubicle adjacent to a lawyer.

You could actually argue that there hasn’t been a “market” for many of these positions, in the sense of a financial justification or imperative, for some years now. Firms could be as inefficient in their workflow as they liked, because they could always pass the cost of that inefficiency on to the client, who would put up with it for reasons unknown. But the recession is bringing all that to an abrupt halt, and firms suddenly are having to either rectify those inefficiencies or absorb their cost. The results are plain to see on the unemployment line, which figures to get longer before it’s all over.

That’s all bad enough. But the same fate awaits other legal jobs still to disappear, including some held by senior associates, partners, and even solo and small-firm lawyers. There will still be a market demand for these positions after the recession. But the level of demand will be lower because the economy figures to putter along below its recent peak for as much as a decade, so fewer such lawyers will be needed. Moreover, the nature of what the market demands of these positions will be so different from what it is now that many lawyers will be unable to meet it.

During the recession, we’re all going to learn to do more with less. Cost-saving efficiency and “good-enough” quality will be the twin standards by which purchases of all kinds will be made, including legal services. Lawyers have never needed to be efficient and they’ve always preferred an exhaustive answer to an adequate one; they’re not going to adjust easily, and some won’t adjust at all. Clients also will need their lawyers to focus more on high-value services that demand advisory skills and judgment, and less on than repetitive tasks that require boxes to be ticked off and i’s to be dotted. That’s going to be more than a business model challenge; that’s a new way for many legal professionals to view themselves and their functions, and again, some simply won’t  have the wherewithal to meet the new expectations.

So there are two separate problems that need imminent addressing:

1. A legal employment crisis. Before it’s all over, tens of thousands of lawyers and legal support professionals will have lost their jobs and will have little prospect of finding replacement positions (the Economist reports that the chances of an unemployed American worker finding another job soon are the lowest since records started being kept 50 years ago). Younger lawyers are deep in debt and short on experience; older lawyers have families to support in the teeth of an economic meltdown and are too highly specialized to be easily retrainable and transferable to other professions or industries. What will they do?

And more importantly for the profession, who will help them do it? Governments are preparing aid and retraining packages for workers in manufacturing and other hobbled industries; who’s doing the same thing for lawyers whose careers have been cut down by the financial crisis and the recession it spawned? Whose job is it to do that? Law societies and state bars exist to govern the profession, not to care for its members. Bar associations look out for lawyers, but they are strapped for resources, and not every lawyer is a member. Law schools lose interest in their students shortly after graduation. Who will help meet the unemployed lawyer crisis?

2. A legal training crisis. As heart-wrenching as the fate of jobless lawyers is, an arguably bigger problem is arising profession-wide: the adjustment to a new type of legal career. Technology, globalization, and extra-professional competition have already damaged or even eviscerated many types of legal careers. It doesn’t take long to count all the residential real estate lawyers in jurisdictions where title insurance has taken hold, or the thriving general practices anywhere (but especially in small towns). Estates and family lawyers were already feeling competitors’ breath on the back of their neck. But when the recession really takes hold, few legal positions will be safe: who, for instance, will be able to afford to go to trial? Pro se representation is now a growth industry.

The types of work for which lawyers will be in demand and from which they can make a living are changing, and no one really knows into what. But our law school, bar admission, and continuing education systems continue to grind along churning out lawyers suited for 20th-century practice. Practitioners have complained for years that law schools don’t prepare their students for practice; but the irony is that even if every law school changed overnight to become full-scale career preparation institutes, it still wouldn’t help that much. That’s because no one can say what market demands and consequent skills will be required of lawyers in the year 2015, 2025 or 2035. It’s a serious problem for education generally (the linked video is incredibly insightful), but no less an issue for the legal profession for that.

So we have an immediate problem — a growing crowd of lawyers whose jobs aren’t coming back and whose interests have no obvious advocate — and a mounting crisis — a fundamental change in the nature of legal services for which our profession seems largely unprepared. Are there any roads leading out of this morass? I think there’s at least one: opening up the deep and largely untapped potential of the latent legal market.

Several commentators have pointed out the unrealized market of millions of people who, as Richard Susskind memorably expresses it, need a fence at the top of a cliff, not an ambulance at the bottom. Preventive legal services — customized legal checkups and health regimens that anticipate and reduce the occurrence and impact of legal problems — is the way of the future for many lawyers. Whether online or in person, for corporations or individuals, bespoke or varying slightly from a standard construction, these kinds of services promise the dual benefit of using lawyers’ most valuable skills as well as helping achieve the larger social good of a more legally informed and prepared population. A legal problem may be solved in months or weeks; good legal health requires a lifetime of wise legal advice.

If you’re a person, organization or corporation looking to catch the next wave, here it is: open up an institute dedicated to retraining current lawyers and training prospective ones to provide preventive legal services to latent legal markets (here’s a great model). It’s not enough simply to teach lawyers to carry out their current practices more efficiently and effectively; we need to start training them in the ways of an entirely different type of legal business from that which now holds sway in the profession. We need lawyers who can not only see and analyze legal problems that have occurred, but who can anticipate and reduce the risk of problems that could or will occur if left untreated. We need fewer antibiotics and surgeries in the law; we need more flu shots, vaccines and diet-and-exercise regimens.

A legal profession centered around the prevention of problems first and the resolution of problems second would be a better, happier, healthier and more socially beneficial profession than the one we have now.  We’re facing both a drop in the demand for traditional legal services and the rise of a jobless lawyer population ready and willing to try something different. There may be no better time to give this approach a legitimate shot.

Peer pressure

“If all your friends jumped off a bridge, would you do it too?” Every parent has uttered some variation on that line to a child who insists on doing something unwise, over-priced, or physically perilous simply because “everyone else is doing it.” Training children to resist peer pressure is one of the thankless but necessary tasks of parenthood, one we hope will pay off later in life with adults unafraid to assert their independence and chart their own paths.

Lawyers, unfortunately, don’t receive that kind of parental guidance — if anything, we’re over-encouraged to copy the example of our predecessors and to always rely on  precedent. And of course, the financial rewards of the traditional lawyer billing model are so obvious that lawyers have a lot of incentives not to blaze any new trails. Hence, the “mastodons” of which Sun GC Mike Dillon memorably wrote a couple of years ago — vast herds of massive beasts that stay tightly packed and lumber together in the most convenient direction. Generally speaking, law firms recruit, hire, compensate, bill and manage their affairs pretty much the same as other firms — a recipe for disaster in the corporate world, but a guarantee of continuity in the bubble-wrapped legal universe.

But with the recession grinding steadily on, and many firms forced to make increasing resort to staff, associate and even partner cuts, something interesting is emerging: the upside of peer pressure. Just as firms felt obliged to match their rivals’ associate salaries and bonuses in the boom, they now feel even more obliged to make equivalent provisions for those cast aside in the bust. Most large-firm severance packages cluster around the 2-3 months’ notice mark — and there’s a vocal community ready to track all those packages and publicly note any firm that deviates from the norm.

Firms that exceed the average, like Latham & Watkins, rescue or even improve their brand among recruits; firms that fall short can be excoriated. Take the example of DLA Piper’s London office, which managed to squeeze several years’ worth of bad publicity into a single week.  A series of memos and meetings following the firm’s decision to cut 140 staff and lawyers revealed a huge amount of internal animosity that still has the UK bar talking. In the wired age, the cost of looking cheap or insensitive in the eyes of the blawgosphere just isn’t worth the risk of pinching pennies.

But the positive effects of peer pressure can reach beyond severance packages. When Simpson Thacher & Bartlett hit upon the innovative idea of sending underemployed associates into public service work, it was only a matter of weeks before other firms copied the idea themselves. And Norton Rose’s decision to explore four-day work weeks in order to save jobs is already generating positive press — it’s likely only a matter of time before this one picks up  momentum too.

The upshot of these developments is that firms are being strongly motivated to do as well by their current and former employees as possible — the astounding level of animosity levelled at AIG executives these days should frighten any rational organization — and that can only be a good thing for both law firm workers and the overall level of workplace relations. But the really neat thing is that the herd mentality might actually help the larger cause of innovation and practice management reform in law firms. The need to be seen as actively and creatively responding to the crisis is pushing more firms to try new things and announce them publicly.

Take the example of lockstep compensation, a longstanding tradition that has merit in tightly focused, culturally solid firms, but has the effect elsewhere of rewarding lawyers simply on the basis of seniority. When Howrey LLP set out to overhaul its lockstep compensation system two years ago, the response from the profession was dismissive at best. Now, firms are jostling with each other to be the latest to institute merit-based pay and similar sins against the status quo. Not even partners are safe from the change in the herd’s mood — either from the prospect of potential explusion or from having to share the pain of the firm’s struggles.

Then there’s annual rate increases, a law firm tradition as reliable as the spring equinox. Even as recently as last fall, firms fully expected to issue their normal rate-increase notice to clients. Now, though, as Altman Weil’s Tom Clay puts it: “Nobody is that naive — or dumb.” In worst shape of all might be the almighty billable hour itself. When managing partners of top-rated firms talk to the New York Times about killing the billable hour, you know a paradigm is shifting.

And where paradigms go, law firms hasten to follow, even if it means facing up to some pretty radical changes in how they do business. Lawyers don’t like change, but they like isolation much less. As more and more lawyers and firms shuffle hastily towards new ground, it looks as if a watershed shift in private law practice —  a cross-over moment, a critical-mass point — is now only a matter of time. Where’s your nearest bridge?

This is not a drill

I’ve experienced it, and maybe you have, too. In mid-flight, the seat-belt light comes on and the pilot announces that the airplane is entering an area of turbulence. Shortly afterward, various shakes and jolts start bumping you around, and while it can be unnerving, you knew it was coming and you’re not too concerned. Then, with no warning comes a WHAM, a sickening two- or three-second drop, as a particularly powerful air pocket rocks the plane. There’s a lurch in your stomach and you think for an instant: this could be really bad.

Yesterday, at least 800 jobs disappeared from law firms in the US and the UK — there may well have been more, because rumours of “stealth” or “performance” layoffs have been circulating for awhile. White & Case accounted for half those firings, divided equally between lawyers and staff — but remarkably, the firm also talked openly about a partnership cull too,  something I suggested last week was imminent. In addition, Morgan Lewis not only joined the layoff parade, but also postponed the start date for its incoming lawyers by one year, meaning the firm will have no first-year lawyer class in 2009.

These are just the most notable developments in one day from the largest firms — the mainstream legal media isn’t looking at what’s happening to small, mid-size and regional firms. But the lurch I talked about isn’t just from these numbers, or even from the thousands of layoffs that preceded them: it’s from a couple of hard realities hitting home. One, job losses in the legal profession are just getting started — this thing is picking up speed and no one knows where or how it will end. And two, “this thing” is a lot more than a recession.

Put those law firm numbers — vanishingly small in the greater scheme of things — in the context of some truly sobering economic news worldwide. Evidence is accumulating that our situation is leaving “recession” behind and is rapidly approaching something that requires adjectives like “Great.” But this isn’t a depression, capital-D or otherwise — it’s something altogether new. The New York Times identifies it as a fundamental reshaping of the economy in the US and other western countries, a shift into different types and means of  productivity.  Jeff Jarvis calls it a Great Restructuring: “It’s more than jobs lost and companies folding. It’s a new economy built on a new society that we are only just beginning to recognize if not understand.”

Many underlying beliefs about how economic value is generated are simply falling away, and we don’t yet know what will replace them — all we know is that it’ll be different from what we had before. That’s why many of the legal job losses we’re seeing, in firms of all sizes, aren’t temporary layoffs that will return when the recession ends. They’re eliminations — positions that won’t come back, because the underlying mechanics of value in legal services are changing and the new environment that emerges from this crisis won’t require them.

The first wave, as we’ve seen, is the beginning of the end of large groups of associates in law firms. But we’re also seeing transactional legal work transformed  by online document assembly, changing the face of smaller practices and tapping into new latent markets. We’re seeing law firm partners find competitive and personal benefits by becoming virtual lawyers. We’re seeing that large firms themselves require reconstruction at the business-model level, and some of the problems are so severe that the solution is not realignment or re-engineering, but replacement. And we can foresee major changes to lawyers’ regulatory environment and firms’ subsequent evolution into full corporate entities.

The frightening thing — or the exhilarating thing, depending on how you view it — is that nobody knows what’s going to happen next. This really is an unprecedented development. The legal industry has been through recessions before, and it has a pretty decent idea of how to cope with those. But there are no blueprints for a fundamental reordering of the rules of business — both our clients’ businesses and our own. The Wall Street Journal notes that the most significant employment crisis underway right now is in the professional sector, and that “we are totally unprepared for this phenomenon.”

I don’t know what to tell you at this point. There’s not much you can do during the earthquake itself, beyond trying to keep your balance and hoping nothing large will collapse on top of you. Don’t rely on previous procedures to get  through this, but do rely on your professionalism and commitment to service. Invest in anything that will enhance your ability to collaborate with others. Stay as close to your clients as you can, and grope with them towards what new definitions of value and service in the law will look like — under no circumstances let them arrive at those conclusions on their own. And remember that we’re approaching a moment of maximum possibility in the law — you’re getting closer to being able to define the terms of exactly the legal career you want. Everything’s up for grabs — so grab something.

Note to regular readers: I’ll be out of town for several days and hope to return to blogging later next week.