The legacy of work-life balance

I think we’ll soon be closing the book on one of the legal profession’s most-used and least-understood phrases of the last decade: “work-life balance.” It was still all the rage just a couple of years ago — new lawyers invoked it as a mantra, talent recruiters bandied it about, and many legal publications (including those I’m responsible for) frequently referenced it. But even before the economy fell off a cliff, you could see the pushback growing — and not just from cranky corner-office partners who felt the youngsters hadn’t paid their dues. The pushback came from a growing sense that “work-life balance” (WLB) was a meaningless phrase that obfuscated some real issues lawyers needed to grapple with.

Essentially, WLB was shorthand for the widespread sense that the demands of a legal career had outstripped the personal benefits it conferred — or, as my father used to say, “There’s not much point in earning a living if you can’t live the living you’re earning.” WLB was applied most frequently within the context of large law firms, where even jaded observers would admit that billable-hour targets had escaped any rational trajectory. Across all firm sizes, though, people looked at the law and saw a career where effort and satisfaction were headed in opposite directions. It was not irrational to think that this could stand some improvement.

(It’s important to recognize, by the way, that WLB was not exclusively a Millennial issue. Lawyers of all ages reported dissatisfaction with the perceived effort/reward ratio of their careers, especially in larger firms — though Gen Y was the most willing to talk about it, at length. Remember that WLB was also often used to describe the plight of older small-firm lawyers whose clients had come to demand legal services far more quickly and cheaply than before, catching the lawyer in a vise between ever more work and ever less time. Wherever legal work seemed to grow beyond the boundaries of “worth it,” we heard about WLB.)

Most lawyers seeking WLB were really seeking an answer to the question: “Does a legal career have to be all-consuming and exhausting?” As to that, I’ve written before that lawyers now work long hours thanks to a competitive economy and our own inefficiency, and that we’ll always have to run fast enough to keep up with our clients. But during the economic bubble, lawyers who asked that question often perceived that the answer was “no.” The demand for legal services sufficiently outstripped the supply of lawyers, such that lawyers could start to dictate the terms of their availability to employers and sometimes even to clients. The whole thing got wrapped up too often in buzzwords like “personal fulfillment,” “family time,” and WLB, but what it really came down to was lawyers’ rational response to market conditions. They had a chance to get more rewards for their time and effort — unfortunately, many of them chose those rewards in $160,000 annual packages.

Now, of course, the market has changed just a little. After 10,000 lawyer and staff layoffs at large US and UK firms, even the most active WLB boosters have toned down talk that might earn them the dreaded “entitlement” label. Articles and posts that reference the term “work-life balance” now do so in an environment of cold pragmatism: Ashby Jones at the WSJ Law Blog and Dawn Wagenaar at The Complete Lawyer provide good recent examples. Realist observers like Dan Hull and Scott Greenfield have gained the upper hand in the WLB discussion — check out this slam-bang debate at Legal OnRamp about “work-life balance” generational expectations.

Where proponents of “work-life balance” went off-track, to my mind, was that they argued the duty to ensure a satisfactory proportion between a lawyer’s work and the rest of her life was an institutional responsibility — that it was up to the law firm, basically. The  firms disagreed, and all they had to do was wait for the marketplace to turn their way to make that clear.

Law firms aren’t going to unilaterally change their business models for the sake of WLB. No law firm ever budged an inch on its billable quotas or offered associates more money and perks because its partners genuinely felt they should be nicer employers — appeals to conscience at partners’ meetings don’t have a roaring record of success. Firms change their working conditions as the talent market dictates. In a seller’s market like the one we’ve just had, they play nice; in a buyer’s market like this, they don’t. If almost every potential legal recruit said, “I’m not going to work at that firm — the demands are ridiculous and the benefits to my career aren’t nearly worth it,” and did so for several consecutive years, then you’d see the firm think about changing its business model. That didn’t even happen during the boom, and I doubt it’s going to happen now.

The thing is, “work-life balance” is a lawyer’s personal choice and responsibility. If money and “prestige” are that important to you, you’ll sign up to work 3,000 hours a year at a law firm, and you can reap the rewards and suffer the personal consequences accordingly. If keeping your work hours within a predictable box is important to you, you’ll be seeking out public-sector jobs or setting up a practice with just enough reasonable clients to pay the mortgage — and you’ll always have one eye on your bank statements. When we talk about “balance” in lawyers’ lives, we’re really talking about the tradeoff everyone has to make between compensation and lifestyle. If WLB stood for anything, it was for the fact that we all have the right and the obligation to make that tradeoff on the terms we want.

But here’s the caveat, and here’s where “work-life balance” proponents were right —  most lawyers in their first several years of practice don’t really have that choice. There are two institutional flaws in our system that hurt our newest colleagues. First, there’s the unspoken symbiosis between law schools and law firms — the former charge students huge amounts of money and provide little practical lawyer training, allowing the latter to hire low-skilled and heavily indebted graduates to fill virtually the only positions lucrative enough to pay off their loans. And secondly, billable-hour targets for associates at more than a few firms simply can’t be achieved without damage to one’s health or ethics, or both. These problems are neither natural nor inevitable — they result from our neglect of the system, and they annually damage our profession’s standards and morale.

In the heyday of WLB, we were at least starting to talk about these things, and the whole debate should have shined a light directly on them. What we were groping towards, under the banner of WLB, was the gnawing sense that most everyone starts their legal career behind the eight-ball for no particularly good reason. Now that the moment has passed, I worry that WLB will be relegated to the status of a mere generational quarrel during a freak economy. We need to do better than that. There are still some serious institutional problems for our profession to resolve — dealing with them openly and effectively would be the kind of legacy “work-life balance” deserves.

Trust and the marketing department

Timothy Corcoran’s excellent and essential new blog tracks and expands upon a provocative article at the AmLaw Daily called “How essential is a CMO?” As many large firms scale back their marketing spending or lose their Chief Marketing Officers, Tim finds both lawyers and marketers can share some blame. I was especially drawn to this dead-on observation:

BigLaw partners operate under the amusing notion that a flat governance model in which every partner is an equal owner with equal authority is somehow a rational business choice, when in fact it’s an inefficient, extraordinarily dilutive and disruptive structure that persists due to inertia.  To be clear, the partners can organize their sandbox however they want, but this scenario rewards senior marketers who have learned to please partners above advancing the financial interests of the firm.  Indeed, there are countless examples of experienced marketers from other disciplines stymied by the bizarre world of BigLaw.

As one CMO put it to me without irony, “Success in a large law firm is all about credibility, which means accepting that we don’t often do things the right way, we do them our partners’ way, but after about a year of serving their needs you should have built up enough credibility to gently make suggestions, most of which they’ll discard, but to survive you can’t try to do too much too quickly.”

Politics and personality do take on outsized importance in a large enterprise, such that the merits of any given initiative often take a back seat to figuring out which important people’s interests require catering or flattering. By effectively giving every partner veto power over business decisions, law firms make that situation a lot worse. Appeasement replaces innovation, expectations are lowered repeatedly, and pretty soon nobody has the heart to try anything new. It’s no way to run a business of any substantial size, and if non-lawyer ownership of law firms ever catches on worldwide, that might well be the beginning of the end for this model.

For the foreseeable future, though, the flat partnership structure is a fact of life.  But I tend to think the organizational model per se isn’t the problem so much as the fact that many lawyers seem incapable of letting other professionals do their jobs without interference or second-guessing.

Lawyers seem to come factory-shipped with the notion that they know better than you how to do things you’ve been trained to do. People who work with or for lawyers — secretaries, paralegals, marketers, recruiters, PD experts, consultants, and so on — can all relate eye-rolling stories of lawyers who really believe that their fleeting sentiments on a given subject merit equal consideration to what the trained professional in question has advised. It seems that only IT people escape this kind of treatment, probably because many lawyers are intimidated by anything more technological than a BlackBerry.

But marketing seems to get the worst of it. I’ve heard one business consultant, who has worked with professionals in numerous fields, say that nobody treats their own marketing people with as little respect as lawyers do. Many qualified law firm marketers are reduced to menial publicity tasks after yet another initiative of real substance has been stalled or buried. I’ve seen worthwhile legal marketing and branding campaigns snuffed out because one or two lawyers in the room didn’t like a particular tag line, image, or even colour scheme in an advertisement — even when it’s made clear that the campaigns are not directed to lawyers at all, but to clients.

Why are lawyers so prone to this kind of behaviour? Some of it certainly can be traced to the particular strain of arrogance that legal training seems to inculcate. Being a lawyer can operate as a kind of expertise multiplier, making a small knowledge base suddenly seem much larger. My English degree may be gathering dust in a closet somewhere, but I can at least remember Pope’s Essay on Criticism: “A little learning is a dangerous thing /Drink deep, or taste not the Pierian spring / There shallow draughts intoxicate the brain.”

But I think a lot of it comes down to trust — many lawyers are just plain reluctant to trust the opinions and instincts of people from outside the profession. One of the reasons lawyers invite a colleague into partnerships is that they trust the lawyer’s skills and acumen — a partner by definition is someone you trust without even thinking about it. I wonder if one of the reasons most ethics rules prohibit “non-lawyer” (a hateful phrase) admission to partnership is that lawyers can’t quite bring themselves to grant that same level of trust to those outside the bar. Yes, you’re qualified and diligent, experienced and savvy — but you’re not a lawyer, and that still matters for some reason. Few lawyers trust the merits of something they can’t authenticate through direct experience; most lawyers have never marketed; and marketing looks easy from the outside.

This is more than just an annoying quirk — this is a major obstacle to the efficient operation of legal enterprises of all sizes. If you’re constantly overruling or second-guessing or stymieing the best efforts of your qualified professional associates — if you just can’t accept that someone without a law degree knows more about a business management issue than you do — then you’re wasting time, missing opportunities and burning money. Law firms everywhere are doing all three, at a time when the importance of these professionals to the firm’s survival has never been greater.

Successful law firms have figured out that there are some things lawyers do very well and some things that other professionals do very well, and they delegate authority accordingly. Good lawyers do more than just hire a marketing or recruitment or strategic professional — they trust them enough to follow their advice and give them enough room to operate. Good lawyers have the  wisdom to accept that they don’t know everything and the confidence to yield control to those better qualified. Of course they consult with these professionals and raise concerns when they have them. But at the end of the day, there’s no substitute for trust and no disguising its absence.  If you don’t trust your professionals to do the jobs you hired them to do, everyone in the firm figures it out pretty quickly and behaves accordingly.

So the fundamental problem might not be that lawyers can torpedo or hijack a given initiative. The problem is that they do, often reflexively, without sufficient grounds. Few lawyers have the discipine and confidence to keep from wading into unfamiliar waters until they’re over their head. Law firm leaders need to keep improving trust between a firm’s lawyers and its other professionals, until the latter can maximize the firm’s value and effectiveness without having to constantly look over their shoulder at the former.

Get ready for the process era

You know the old expression, “Life’s not a destination, it’s a journey”? I have to say, it’s never worked for me. I’m all about the destination — the journey is the time-consuming necessity between Point A and Point B that I’d dispense with if I could. I don’t have much interest in the scenic route — my itineraries are designed to provide the shortest distance and quickest trip (though I’ll make an exception to avoid ever having to go through Heathrow again). Similarly, I never liked having to “show my work” in math class, or to follow the standard procedures, or to get bogged down in anything that delays my arrival at a solution. Let’s just get to it already!

I’ll also be the first to admit that this isn’t a particularly healthy or sensible way to be. Scenic routes are, well, scenic — they deliver numerous physiological benefits and they’re, you know, nice to look at. Showing your work demonstrates you actually understand the formulas and how they’re applied. Everyone should go thr0ugh Heathrow once, just so they can tell their grandchildren scary stories one day. Nonetheless, I appear to be wired for the destination first and the journey second, and I’m finding that it’s very hard to change.

I have a theory that many lawyers are like that, too. We think our essential purpose is to solve problems, and we focus our energies on cutting through the clutter in order to reach that destination. But you know, clients think the clutter is kind of important: telling the story of how they got here is at least as important to them as finding out where to go next. This applies to both corporate clients — who wish their lawyers would take a big-picture view of their ongoing business realities, not just the legal matter at hand — and individual clients, who want to relate personal stories of complex and difficult life events, but whose lawyers often dismiss all the “background” in favour of summarizing the facts and reciting the applicable law.

So I think we could all stand to be better at holistic legal services — putting the client’s well-being on par with the legal issue he or she has brought, paying more attention to the process by which we address client concerns. Now, you might not buy that, thinking it’s too touchy-feely for a gunslinger like you. If so, then you ought to consider that process is about to become the most important feature of modern legal services delivery.

There’s a process revolution coming to the legal industry. For decades if not longer, law firms of all sizes have tackled client issues the same way: by creating a file and giving it to a lawyer to complete (although the dullest tasks sometimes made their way to secretaries and paralegals). The lawyer’s process was simple: (a) identify the legal problem and work out a legal solution, (b) using a pen, a legal pad, and whatever precedents are on hand, (c) taking as long as required and docketing time spent along the way. Clients invariably didn’t know enough to question this process, and in any event, many tools by which more efficiency could be introduced didn’t yet exist.

Now, however, the tools are appearing — not just through technological advances, but also with the development of business process theory and the rise of logistics. There are now entire disciplines devoted to making manufacturing and service provision more efficient, from workflow analysis to project management to business process outsourcing to just-in-time delivery systems. Contrary to what many lawyers might believe, a substantial amount of what law firms do is susceptible to the application of workflow and logistics. (You think document review can’t be automated, due diligence can’t be systematized, legal knowledge can’t be distilled and packaged?) Modern clients, especially on the corporate side, understand these systems very well and believe quite sincerely that they can apply to what law firms sell.

Ron Friedmann touched on these points in a post at Strategic Legal Technology late last year:

I think most GCs are failing, however, to focus enough effort on process, on how lawyers practice law. [Early case assessment] and staffing controls go to the “how”. Where … are efforts to require matter budgets, application of best practices, automation, risk analysis with decision trees, document assembly, and proper use of KM systems? … Real costs savings mean changing the process, focusing on how lawyers practice. The profession needs to overcome its “I am an artiste” attitude and develop better ways of working.

In The End of Lawyers?, Richard Susskind talks about “decomposing and multisourcing” legal tasks, chopping them up  and directing each segment to the solution with the best combination of competence and cost-effectiveness. Lawyers simply aren’t wired to think this way, but systems analysts are:

Sometimes, by decomposing legal work and viewing it with the eye of a systems analyst rather than a lawyer, it will become apparent, in the jargon, that some “re-engineering” can occur.  This means that some fairly fundamental reconfiguration or reorganization of the tasks can be introduced which of itself might being greater efficiency. An analyst, looking at some legal work with a fresh mind, might pinpoint, for example, some opportunities for avoiding the duplication of tasks or might identify some tasks as redundant. From a systems and process analysis point of view, the lawyer sometimes cannot see the wood for the trees.

I was listening to Richard deliver the keynote address at the ABA TECHSHOW last month when it occurred to me how fundamental a change this will be within our profession. We’ve never needed to worry about process or efficiency before — we dictated the terms of the marketplace, so we could take as long as we liked to do our work and in whatever fashion pleased us. That’s coming to an end, and most law firms will face a huge challenge converting their business models to adapt. I twittered as much during Richard’s presentation: “Future legal business: process consultant for law firms. Lawyers will need help mapping out and re-engineering their practices.”

In the near future, it won’t be good enough for lawyers to ignore the journey and focus on the destination — we won’t be able to focus solely on the ends and let the means take care of themselves. The nature and quality of how we do our work will become at least as important as the work itself. That’s going to be very tough for us to wrap our heads around, but I don’t see any way we can avoid it.

Graduating into a recession

It’s rare that a reader asks me to write something on a specific topic, rarer still that multiple requests for the same subject come in. So the fact that a few people have now asked for a post about law students and the recession indicates just how much anxiety is rising in law schools and among new lawyers.

It really is amazing how fast everything changed. When the classes of 2009 and 2010 entered law school, the economy was booming (or more accurately, bubbling) and some big law firms were seriously contemplating $200,000 annual salaries for first-year associates. Now those same firms are rushing to cut salaries, while the economy, though probably past full-scale crisis, isn’t as strong as the markets would have you believe and likely is set for several years of mediocrity. So you can kind of see where young lawyers’ anxiety is coming from.

Not that everyone is sympathetic to their plight. But if you think they’re overreacting to the recession, try to remember how you saw the world in your twenties, and that no law school generation has ever graduated this deeply in debt. And try to remember, too, that our whole industry, from educators to employers, told these young people that the professional cow was full of cash and would only grow fatter. The growing ranks of unemployed young lawyers and frightened law students out there should remind us how poorly we’ve managed the business of law for years now. We raised their expectations too high and made promises we couldn’t keep, and it seems to me we bear at least some responsibility for helping them get through this.

I first wrote about graduating into a recession last January, and most of what I said then still applies. But in the intervening  months, it’s become clearer that this isn’t just another cyclical downturn. Economically, it’s all bad enough: many banks are still on life-support, people are still paying off or defaulting on various types of debt, and government spending can’t replace consumer spending indefinitely. These problems aren’t going away anytime soon. In the legal industry, the financial crisis has accelerated already-existing trends towards more power in the hands of clients and more downward pressures on lawyers’ fees — major change should now arrive ahead of schedule.

Most of all, though, the crisis has triggered upheaval for large law firms, which for years have been providing the profession with on-the-job training for its new law graduates. The newest trend is toward what NALP’s James Leipold refers to as the “collision of classes” — all those retracted job offers and deferred starting dates for 2009 graduates are leading towards their logical conclusion: no new hires from the class of 2010 (here are recent examples from the US and the UK). Granted, hiring untrained law grads and paying them scads of money to fill out dockets is a recruitment model long overdue for replacement; but for the purposes of new law grads, it means one of the tightest job markets in memory.

So what would I recommend? Well, students currently in law school need to ask themselves a tough question and come up with an honest answer: why am I here? It might well be that you’re a law student because you’re bright, well-meaning and helpful, and the law seemed like an interesting, prestigious and financially reliable career path — that pretty much describes my route. But if that’s all that brought you here, then I think you should give some serious consideration to quitting.

I know how harsh that sounds, especially since a lot of great lawyers went into law school not fully certain if this was their calling. But this is not the same profession that your parents or older siblings entered, where entry barriers were relatively low,  learning curves were pretty gentle, and steady employment was more of a question of “where” than “if.” Law is becoming a tougher profession for new entrants — standards are higher, footholds are fewer, breaks and opportunities are disappearing. It used to be that you could spend the first few years of your career learning the ins and outs of practice from large-firm employers — they’d work you hard and train you poorly, but they’d pay you well because they made money off you no matter how long it took you to get the hang of things.

Those days are ending. The vaunted law firm pyramid is being replaced by the law firm diamond — few partners at the top, few trainees at the bottom, a lot of experienced workers in the middle. Because of the economy, and because technology and outsourcing are taking away new lawyers’ traditional tasks, there just won’t be as many opportunities to get your professional sea legs in a law firm. It’s going to be a lot harder for you to gain work experience — and that’s a real problem, because these same firms, perversely enough, are also narrowing their hiring criteria to lawyers with  experience and skills. I need hardly point out that most law schools provide no training in lawyering skills, client relationships or anything else that firms are suddenly deciding they value.

Many of you, then, will find yourselves standing in front of the profession’s gates with a key issued by your law school, only to find they’ve changed the locks. And since most schools don’t seem ready to issue a new set of keys, you’ll need to find another way inside. You’re going to have to develop the necessary skills and gain the requisite experience on your own. That might take several years, during which you’re not going to earn much or make much of a dent in your student debts, and at the end of the process there’s still no guarantee of a job. So unless you’re driven to be a lawyer, unless this really feels like a calling and you’re prepared for a north-face assault on this mountain, you owe it to yourself to think about suspending or abandoning your law degree. I don’t say this lightly or happily, but I do think it needs to be said.

What if you’re among the committed, or you’ve already graduated, or you’re so close to your degree that, even taking account of the sunk costs fallacy, you might as well finish it off? To start with, you’ll need to reorient your expectations along the lines of what I’ve just mentioned, accepting that the rules changed on you mid-way through the game and that there’s nothing to be done about it. Don’t underestimate the importance of attitude: the faster you can readjust your mindset from disappointment or victimhood to determination and opportunity, the wider a gap you can create between you and your classmates-turned-competitors. Take all the time you need to fully make this transition, but don’t take a minute longer.

The next thing to understand is that it’s time for some career triage.  You might not yet be sure what type of law you really want to do, but you no longer have the option of  browsing through the racks and trying things on. Pick something you think you can do and where you already have some experience or contacts — if you DJ’ed in college, think about entertainment law; if you majored in engineering, think about IP; if you worked at a nursing home, think about elder law. This isn’t about making career choices that will bind you for decades; this is about finding a door to put your foot into, an area where you already come with some valuable attributes. You need a place to start, so choose one in familiar territory.

Next, start building networks and skills. Which networks to construct depends on where and what you want to practise. If you’re settling or setting up shop in a given jurisdiction, join the bar association of that state or province (new lawyer fees are generally low) and go to as many meetings of your local chapter and area-of-practice section as reasonably possible. Meet people, introduce yourself, ask questions, follow up. At the same time, investigate your industry: join trade groups, read industry newsletters and websites, get to know the issues facing your future clients.  And get involved in online networks: join LinkedIn and start making contacts. Join Legal OnRamp and make your mark in the groups, conversations and debates there. If it’s at all feasible, blog.

Skills, of course, are the hardest thing to acquire, part of the “how do I get experience/skills without skills/experience” vicious circle. If you’re lucky, you’re with a law firm that will actually pay you while it trains you in the lawyering skills you need. If you have the luxury of volunteer time, identify an organization (preferably in your chosen area) that needs and accepts unpaid legal help and use that opportunity to acquire skills and make personal connections. If you can afford to pay for an associate position, Dan Hull would be happy to hear from you (it would be a pretty good investment, actually).

But maybe your best immediate investment might be Solo Practice University, an online legal learning and networking institution that fills in the many practical gaps in your law school education. At SPU, lawyer faculty teach real-world skills required in numerous areas of practice as well as marketing, management and technology know-how. I received a guided tour the other day and came away impressed. Even if you don’t intend to go solo, you could learn a tremendous amount (inside and outside class) from some very knowledgeable people at your own pace for about 1/20th the cost of the average American law degree — give it a look.

Really, it might help to think of yourself as a start-up — because in a  lot of ways, you’re a start-up law business. You have a law degree, which is far from worthless; it’s now just a piece of the puzzle, not the whole thing. You also have talent, drive and dedication, which is pretty much all that most startups ever set out with, along with your own unique life experiences. Now you need to build your personal law business, from the ground up.

Like other start-ups, it might have to be a part-time effort, since you’ll likely need to take a non-lawyer position (or even one outside the profession altogether) to pay the bills. But that full-time  job is just a source of income; your part-time start-up is your calling and your passion, and it will occupy your nights and weekends. If you think that sounds like a lot of work and not much life, you’re absolutely right. Don’t leave your student lifestyle behind yet: the long hours and tight budgets will probably continue for a while, and the discipline they impose, while absolutely a short-term pain, will prove to be a long-term benefit.

A good book to read right now might be Seth Godin’s The Dip: it’s about the importance of quitting the wrong things at the right time, sticking out the right things for as long as it takes, and knowing the difference between them. The most important lesson I took from it was that every worthwhile path has numerous barriers designed to do nothing else except winnow down the number of users. These barriers are what cause the dry spells, frustration, and pain that drive many people to pursue other paths that are easier or better for them — they constitute The Dip, and they separate the curious from the committed.

For a long time, law didn’t have much of a Dip, didn’t have many barriers — most everyone who acquired a law degree ended up with a law job if they wanted it. Now there is one — a law degree has become the start of your legal training, not the end of it. If you’re in law school or just emerging from it, you need to decide whether you can and want to make it through these barriers, the ones that right now are winnowing out thousands of people from this profession. If not, there’s no harm and no foul — life is long, and there’s a new century of opportunities opening up for you.

If you do decide to go for it, get ready for a long and often difficult haul, early-morning work and late-night second-guessing. And you still might not make it. But as that wise man Tom Waits once said: if it’s worth the going, it’s worth the ride. Good luck.

Figuring out Twitter

I’ve been on Twitter for a little more than six months now, and in that time, I’ve assembled a loose collection of reasons not to follow people. As a general rule,  I won’t follow your Twitter feed if:

  • your Twitter account doesn’t show your name or link to a web page
  • you’ve been on Twitter for more than half an hour and you don’t have a photo
  • you’ve posted hardly any updates before following me
  • you’ve protected your updates, giving me no reason to follow you
  • your ratio of following-to-followed is more than 5 to 1
  • your updates are mostly links to your blog posts or press releases
  • more than half your updates are RTs of people I already follow
  • not one of your last 20 updates contains a link I feel like clicking on
  • you’re selling something (a product, service, cause or belief)
  • your posts are political and bitter, or political and smug
  • you’re Oprah Winfrey

Many of these are characteristics of Twitterers who aren’t all that interested in their followers or inclined to find out what those followers might find worthwhile. They don’t want a conversation, they just want an audience  — a “follower”  in the narrowest sense of the word. They also seem to constitute the majority of Twitter users, and unfortunately, they include more than a few lawyers, legal professionals and legal industry suppliers. This doesn’t mean lawyers shouldn’t use Twitter, but it does mean they need to use it well, which means they need to understand what to use it for.

I’m coming to think it’s a mistake to describe Twitter to lawyers as a marketing tool, for a couple of reasons. First, most lawyers don’t really know what marketing is or how to do it properly, so they end up doing it as badly on Twitter as they do on their websites or in their advertisements. They think marketing is about telling everyone how amazing they are, which is why they talk far more about themselves than they do about clients. And clients, reasonably enough, find that dull and kind of insulting, so they tune it out.

But secondly, and more importantly, Twitter isn’t and was never meant to be a marketing mechanism. Twitter is a communications mechanism — it’s a publishing tool, and the way to use it successfully is to approach it like a publisher. That means learning who your readers are, finding out what they care about, and finding a way to supply it to them or point them in its direction. It’s not about you and what you have, it’s about them and what they need.

For what it’s worth, here’s how I use Twitter. First, I hardly ever talk about myself: what I’m doing, where I’m going, how I’m feeling, what I’m eating, etc. I assume you don’t care, so I don’t bring it up. Secondly, although I do link to my blog posts (and I get a lot of traffic from Twitter), I try to make those posts the exception — the rare commercials in between the programming. What I spend most of my Twitter time doing is trying to find good programming — worthwhile content. It comes in four main varieties:

1. A link to an article I think people will find interesting but that doesn’t merit a full blog post — a microblog (Dennis Kennedy pioneered this in the legal Twittersphere). I keep an eye on a number of legal, media and general news services, looking for something that will interest people who are following me; where possible, I add a short editorial comment of some value.

2. A response to a question or a point someone has raised in reply to an update. Again, I try to make sure the reply has some original content or additional observation that furthers the discussion (obviously a challenge in 140 characters). I also try to keep these exchanges brief, on the theory that people aren’t interested in hearing an extended conversation (or worse, half of one, if they don’t follow the other person).

3. A retweet (or RT) of something other users have said or linked to — I try not to overdo this, especially for Twitterers whom I know have a large following that overlaps with mine (I know I get tired of reading the same post RT’ed by three or four people who all read the same Twitter account that I do).

4. Less formal stuff: expressing thanks to people who’ve RTed my blog post (I always try to track those, and my gratitude is always genuine) or linking to something I found odd or amusing.  (I’ll confess a weakness for breaking news, which is a bad habit — racing to be the first to relay a big event, happy or sad, carries the tang of sensationalism or exploitation.)

In the result, my Twitter feed is a personalized news service, but not about me — about what I find interesting. It gives you information and perspectives that I consider useful, insightful or entertaining, relayed to you in the hope that you’ll share my sentiments about them and find value in them as I did.

The price of that feed — the advertising, if you like — is the occasional update about a new blog post. I know that those advertisements work, because my Twitter feed has driven more regular traffic here. But although that’s a clear benefit from Twittering, it’s not the reason why I Twitter — I do it because I like informing people about things that, based on their interest in my feed, I know we share a common interest in. You can call that marketing if you like, but it’s the very definition of publishing.

Of course, most lawyers aren’t publishers, and their interest in Twitter extends only so far as there are tangible benefits to their business (and rightly so). But I think the same principles that guide my Twitter use can apply to lawyers’ hard-nosed business use of Twitter.

Above all, you need to remember that no one reads Twitter because they care about you — they do it because they care about themselves. So talk to them, and talk about them. Give them links to news and knowledge that benefit them, no matter where these links lead (even, I’d go so far as to say, to a competitor’s website). Offer tips, pithy observations, and checklists in serial form (no one uses Twitter this way better than Matt Homann). Ask questions relevant to your practice area, and blog the results (and link to the post from Twitter, of course). Strive to make your Twitter feed an important source of knowledge to your readers.

But, you say, how do you know what your Twitter followers care about? Well, you could do what I did: accidentally and organically assemble a group of people who must be interested in what I have to say on Twitter. Or you could take a serious client-development approach to it. Here are some steps you should consider if you really intend to use Twitter as a business tool.

  • Conduct a Twitter audit — if you don’t know who your readers are, you’re not going to derive much business value from it. Make a list of your followers, divide them into current or potential clients and the merely curious, and cultivate relationships via email or direct messages with the former group.
  • Use the @yourname function to figure out who’s RTing you, and send these people very nice personal notes — they’re  doing your Twitter marketing for you, and for free.
  • Solicit feedback on your Twitter updates — create an email address,, to which people can send criticisms, questions and ideas. Then act on them.
  • On a regular basis, assemble your best Twitter updates into a blog post — as Steve Matthews says, Twitter is a river, and most people step in and out of it only occasionally, so make sure your pearls of wisdom are collected for future reference — theirs and yours. (Steve’s list of Twitter do’s and don’ts, just posted at Slaw, far outstrips anything I have to say here).

Finally, don’t concern yourself with how many followers you have — it’s a meaningless statistic, not least because a lot of people are gaming the system to try to build up impressive-looking follower totals, to make themselves look more popular than they deserve or just to stroke their egos. Concentrate on quality over quantity — ten loyal readers, any of whom could bring you business any day, are worth more than a  thousand followers who added you out of curiosity, reflex or politeness.

The only point of using a communications and publishing tool like Twitter is to know who your readers are, know what they care about, and provide it to them. If you do that right, you’ll establish yourself as a trusted source of knowledge in an area of importance — which, last I checked, is what marketing is about anyway.

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 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 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 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!