Your future legal survival kit: Another Law21 survey

I have a new survey for you to complete, similar to my previous questionnaire about building your own law firm — except that today’s quiz looks like a lot more fun. But first, some background as to what prompted this one.

Five years ago this month, I posted a short entry here at Law21 called “Core competence: 6 new skills now required of lawyers.” I identified six attributes that the legal profession has traditionally valued, the ones we’ve always assumed are the most important assets for a lawyer to possess (e.g., analytical ability, logical reasoning, persuasiveness). I then suggested that these skills, while still necessary, were no longer sufficient — that tomorrow’s lawyers will require new abilities such as financial literacy, emotional intelligence, and project management. I thought it was an interesting post, but to be honest, not much more than that.

In fact, however, “Core competence” turned out to be far and away the most popular post I’ve ever written on this site. It’s among the most frequently accessed posts every day of the year, and often this five-year-old article is the top daily entry.

The popularity of that post just underlines for me the tremendous demand, both from within the legal profession and among those who wish to join it, for information about what kind of abilities — practical, functional, and performance-based — you need to be a successful lawyer. This is a question that ought to be occupying virtually everyone with an interest in the practice of law over the next decade:

  • Current or potential law students (there are still a few out there) who want to know what attributes they’ll need to compete in a tough market with a heavy debt load;
  • Law school administrators who want to know what kinds of pragmatic, professional courses they should be offering to attract those students and impress employers;
  • Managing partners and law firm hiring directors who want to know what aptitudes should inform their recruitment, training and retention efforts;
  • Clients who want to know what characteristics they should require of both their outside counsel suppliers and their own growing ranks of inside lawyers; and
  • CLE directors who want to know what training and educational opportunities they should offer in order to maximize market interest and curriculum effectiveness.

Over the course of the last five years, however, I’ve found my own thinking on this subject has evolved. I’m still interested in skills — the ability to effectively execute important tasks will always be highly coveted — but a focus on skill that underplays other characteristics will result in a work force too heavily reliant upon technical abilities and shortchanged on the kind of dynamic talents that separate the merely good from the truly great. Not only that, but over-emphasizing skill ignores the reality that some people are simply born with innate talents that give them an advantage over others. Charisma, for example, is a talent, a remarkably effective one (especially for trial lawyers and rainmakers), but like speed, it simply can’t be taught.

So that got me thinking: if we were to expand our repertoire of potential abilities and advantages for lawyers — if we thought more broadly about what lawyers require to be successful in the coming years — then we could start to assemble a more diverse and well-rounded inventory of market-centred attributes for 21st-century lawyers. And that leads me to my new survey.

This survey, like my new book Evolutionary Road, was co-created with my friends at Attorney At Work, and it touches on the same basic issue: the future development of the legal marketplace (if you haven’t checked out the book yet, please click through to learn more). Evolutionary Road posits five stages in the transformation of the legal market and recommends ways in which firms can adapt.

But what about individual lawyers? What can they do to adjust their own inventories of market offerings? The answer to that question depends on another one: what precise individual skills, talents and resources will maximize lawyers’ odds of success in the coming years? I have my own answers to that question, but I’d like to find out yours first. So I’ve put together a survey that tries to elicit your responses, and in an innovative way.

Have you ever taken one of those survival quizzes, like Survival At Sea or The Sub-Arctic Plane Crash Survival Test? The idea is that an accident has stranded you in a harsh and desolate location, and you must choose, from among a small array of remaining supplies, the items most important to your survival. In some tests, you can only take a limited number of items with you; in others, you can take them all, but you must prioritize them in order of importance. These quizzes test, to a certain extent, your knowledge of basic wilderness survival techniques — but also, and more importantly, your ability to think creatively and cleverly about how you can use the tools and resources available to you.

Using these tests as inspiration, allow me to present: Your Future Law Survival Kit Quiz:

Evolutionary_Road_takeTheSurvey (1)

You’re stranded in a future legal market, vast and unfamiliar, and you need to launch a new legal career. Luckily, you get to start off with several skills and talents — but it’s a limited supply, and you’ll need to choose carefully. Which ones will help you most? Below you’ll find 15 resources that seem like they’d be useful, including innate abilities and valuable skills. You have 100 points to assign among these resources, according to how important you think they’ll be.

And here are the 15 attributes (listed here in alphabetical order, but randomized in the quiz):

  • Connections: Strong and productive relationships with clients in your chosen field.
  • EQ: Your emotional intelligence fosters great relationships, especially with clients.
  • Famous Brand: Start off your new career widely known and respected in your field.
  • Financial Facility: You have a business background and a great head for figures.
  • Innovation: A talent for and enthusiasm about improving upon current practices.
  • Legal Knowledge: Good old-fashioned legal know-how, the black-letter kind.
  • Moral Fibre: You’re renowned for strength of character and high levels of integrity.
  • Nice Niche: Start your career with a strong grasp of a narrow but very promising field.
  • Pricing Strategies: You know how to price your work effectively and profitably.
  • Process Mastery: A knack for developing systems, procedures and efficiencies.
  • Recruiting Prowess: You easily attract talented colleagues and collaborators.
  • Risk Acceptance: You’re not averse to risk; you’re confident about taking chances.
  • Solutions R Us: A gift for solving seemingly intractable challenges, legal and non.
  • Techno-Wizardry: Facility with programming, web design, apps and all things tech.
  • War Chest: A bank balance to help finance many (but not all) of your future needs.

Which of these would you choose to launch a legal career in the future legal market described in Evolutionary Road? How much weight would you give the attributes you choose? As with the previous test, you’re given 100 points, which you must distribute throughout the list according to which features you think will prove most important; you will almost certainly have to leave some out, and you will have to award some choices more points than others.

Here’s the link to the survey — it’s open as of today, July 22 , and will stay open until August 12 (or until I have enough responses to draw some conclusions). Please take the survey — Note: print out your choices before pressing “Done,” so that you retain a copy — and forward it to your friends and colleagues. And then check back here next month to see how your answers compared with your fellow readers — and with mine.

Available now! My first two published books: Content Marketing and Publishing Strategies for Law Firms (co-authored with Steve Matthews, published by The Ark Group) and Evolutionary Road (e-book published by Attorney At Work). Click the links to learn more and order your copies today.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

Transforming Bar associations

So I’ve been busy writing again, this time about what the changing legal marketplace is doing to two longstanding members of that market: law librarians (for Thomson Reuters’ Legal Solutions column) and bar associations (for the ABA’s Bar Leader e-magazine). The latter article, co-authored with the great Fred Ury, prompted a post by Sam Glover at Lawyerist: How Can Bar Associations Stay Relevant? Sam was skeptical about our prescriptions for bar associations and suggested one of his own:

In addition to offering free forms and CLE, I think what would get me most interested in my bar association would be a return to basics: building relationships among members. This could be especially valuable for solos. I get the best forms from my colleagues, but I wish I had an easier time finding mentors when I moved into a completely new practice area. I like to learn about technology and marketing and stuff, but I always find that the people doing the most interesting things in their law practices are in the audience at CLEs, not on stage. And, perhaps most crucially, I can get CLE credit just about anywhere, but I don’t have a local softball team to join.

I left a comment on Sam’s post, which I’d like to expand upon here, since this whole question is drawing a lot of attention — and rightly so. Bar associations are facing some existential challenges right now, and I wouldn’t want to see them just disappear beneath the waves without trying to extend a hand.

Many bar associations find, when they do a sober inventory of their true assets, that they have fewer than they supposed, especially in terms of the relevance and distinctiveness of their activities and services. Almost everything they offer to lawyers can be replicated in some way by other service providers, most of which have neither the overhead costs nor the organizational slow-footedness that hamstring associations. Like law firms, these are legacy organizations with legacy costs and legacy thinking, and they find adjustment to be a very difficult process.

But what most bar associations can still boast, the one legacy holdover that’s helpful to them, is their reputation: the brand recognition and authority they can still muster among lawyers. These assets have been developed over the course of many years of service, albeit service to a very different profession in a very different market than this one. But the respect survives as brand awareness, legitimacy and trust — much as it does for many historic law firms whose name partners died a long time ago.

Legitimacy is not a standalone asset, of course: what matters is what you do with it. And if bar associations are going to survive, they need to apply that legitimacy by providing lawyers with services that have one thing in common: they are distinctive. Bar services have to differentiate themselves from similar services available elsewhere. Here are a few examples that expand upon the points Fred and I made in our article:

Forms: It’s not enough simply to stick the association’s logo on a boilerplate legal document and suppose that that will carry the day. The document has to be distinctively different and better: assembled by leading practitioners in a given subject area, subject to scrutiny by blue-ribbon oversight committees of judges and lawyers, approved by the local professional insurance provider (ideally, a bar-affiliated one). Create forms and documents like these, demonstrably and qualitatively better than what other providers sell — and then provide them for free solely to members. That has value to the lawyer and will help set the association apart.

CLE: Bar association CLEs often are no different than what private providers offer, while association annual meetings have tended to become exercises in both self-absorption and self-congratulation. But what Fred and I proposed is distinctive CLE: extremely practical and law-business-oriented programs would stand out all on their own (most CLE offerings are retrograde black-letter law-based), while (as I wrote two years ago) fresh new formats would invigorate attendees: un-conferences, speed-roundtables, micro-panel discussions for small, specialized groups, and so forth.

Relationships: Sam emphasizes this, and it’s true that building relationships among lawyers has real value. But most lawyers now have multiple channels for facilitating relationships (both old and new), and importantly, they don’t need an association to help maintain them. A good route forward here would be to affiliate relationship-building with the distinctive CLEs mentioned above: get lawyers out of their seats and walking around, talking to other lawyers about practice and business issues. Associations could also host “private study groups” that give lawyers the opportunity to interact, come to rely on each other, and build distinctive networks available nowhere else.

Advocacy: Again, as I’ve written before, “lobbying” doesn’t exactly have a inspirational ring to it, and issues activism can be highly divisive and detrimental to member retention. So I think lawyer associations should transform themselves into lawyers’ marketplace evangelists. They should adopt as their mission a sustained campaign to trumpet the unique advantages of choosing lawyers over the many other options spreading throughout the legal services market. Advocate to clients why a lawyer is better than the “non-lawyer” alternative. Nobody else is carrying out that kind of lobbying, and bar associations are perfectly placed to do so.

Associations should recognize that the residual (and in fairness, often continuing) level of recognition, trust and respect they command among members of the profession is their most outstanding asset — but it’s an asset with which to start the reinvention process, not end it. Maintain that recognition and respect, seek always to improve them, and most importantly, find ways to leverage them. But along with the process of identifying that value comes a recognition and acceptance of some tough choices about who you are as an association and what you stand for.

A bar association that tried taking the steps I outlined above would immediately run into stiff opposition, both internally and externally, from people who resist change and prefer the longstanding ways of doing things. It’s my belief that sticking with traditional services delivered in traditional ways inevitably will result in gradual, relentless attrition for the association and ultimately, a smaller organization. But making the tough choices and radical changes described above will deliver much the same result, albeit far more quickly. Either way, associations are going to experience member loss. So the questions become: (1) If you’re going to lose members anyway, don’t you want to lose them in service of being the organization you want to be? And (2): As between these two paths forward, which do you think holds more promise for renewal and revival down the road?

I addressed the National Association of Bar Executives (NABE) a few months back, and one of my messages to them was this: you need to get used to the idea of being smaller. Associations (like many other entities in the legal market, such as law schools and legal publishers) have long been accustomed to equating size with success: if you have lots of members and are always adding more, then you’re winning. I suggested to these bar leaders that they abandon the idea of growth for growth’s sake and start aiming to become focused, distinctive groups that, yes, might be smaller, but that have very high levels of satisfaction and loyalty, because they do things differently and they do them extremely well.

The legal market now and in the future is too fractured and specialized for an all-purpose, general-interest association to adequately and comprehensively serve — especially if it looks and feels like every other service provider out there. Decide what you want to be, and who you want to be for: that’s good advice, as far as I’m concerned, for both bar associations and the lawyers they hope will join them.

Available now! My first two published books: Evolutionary Road (e-book published by Attorney At Work) and Content Marketing and Publishing Strategies for Law Firms (co-authored with Steve Matthews, published by The Ark Group). Click the links to learn more and order your copies today.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

The secretarial canary in the law firm coal mine

“A really far-sighted law firm would give its secretaries the chance to ‘skill up’ and take on more responsibility, accomplishing more advanced tasks. … Change ‘secretary’ to ‘workflow manager’ or ‘logistics director,’ and you’ve accomplished three great things at once: increased the role of software in handling clerical and financial duties, reassigned your valuable secretarial help up the productivity chain, and attended to an area in which you can find real efficiencies and carve out a true competitive advantage over other firms.”

– Yours truly, “Legal secretaries 2.0,” January 24, 2008

In recent months, a number of major law firms have offered buyouts to legal secretaries, accelerating a trend that began before the downturn. This week New York law firm Weil, Gotshal & Manges LLP cut about 110 staff positions, including about 60 legal secretaries. “I would imagine that the remaining secretaries are going to take on a heavier workload,” said Lee Glick, a legal secretary with Weil who has worked there more than 25 years and still has a job.

The Wall Street Journal, “Legal Secretary, a Dying Job,” June 27, 2013

Contrasts like this one guarantee that I’m at no risk of overestimating my impact on the business of law.

I had fond hopes, 5 1/2 years ago, that law firms might take advantage of a dynamic environment and re-engineer their organizational workflow. Recognizing that secretaries’ purely clerical tasks could be done more efficiently elsewhere, for example, they would outsource or automate those tasks and liberate secretaries to take on more challenging, valuable and productive work.

As it turned out, however, firms only got as far as the first step: they sent the work to lower-cost providers. Then, instead of upgrading the qualifications of their loyal and experienced secretaries, they simply canned them. Surviving secretaries at a growing number of law firms are now expected to serve four lawyers at once — at some firms, that number is going as high as six or seven. Hands up if you think either the secretary or the lawyers are going to be better off as a result.

Five years ago, in an atmosphere of financial and social crisis, law firms threw numerous staff and associates overboard, in an effort to keep profitability levels from plummeting and sparking a rainmaker exodus. Not the best tactic in the world, but understandable at the time. Today, though, it’s as if those sacrifices were never made — the purges have intensified (staff, associates, and now other partners) as firms target for elimination any perceived drain on profits.

Based on all these cuts, I’m left to conclude that law firms apparently wish to be populated exclusively by extremely high-earning equity partners. In a magical land where complex legal businesses were run by invisible fairies, that would be a pretty nice outcome. In our world, however, where those partners need actual people to make their profits possible, the latest round of bloodletting bears a closer resemblance to profit-preserving cannibalization — a tactic that has its short-term merits, I suppose, but few long-term strategic advantages.

I want to take a look at what’s happening with law firm secretaries, and then I want to use that to illustrate what I feel is a growing, and serious, issue at the heart of law firm management.

First, why has it come to this: the evisceration of the legal secretary role? I can see three factors intersecting at the same time:

1. Many lawyers seem determined to view “secretaries” in their stereotypical role of clerical helpers, and as clerical tasks inevitably migrate to machines, secretaries themselves are perceived as serving no further purpose. I see secretaries differently: as lawyers’ “managers,” the people who quietly organize lawyers’ lives and enable them to practise law productively and effectively. The emergence of new technologies does not remove the need for lawyer management; if anything, it intensifies it. But if you really believe that a legal secretary performs low-value and easily replaceable functions, you will treat that position accordingly.

2. Many law firms seem equally incapable, even with countless high-tech tools and processes now at their disposal, of reconfiguring their workflow to be more sophisticated and cost-effective. The smart way to improve profitability is to outsource truly fungible tasks and upskill your existing resources (including, but not limited to, secretaries)  to take on more complex tasks that can deliver more value and/or reduce internal inefficiency. The stupid way to improve profitability is to fire people and give their work to their frightened surviving colleagues, thereby reducing personnel costs. Many law firms, near as I can tell, are choosing stupid.

3. Profitability pressures in law firms (more about that in a moment) have short-circuited any creative impulses that might have led firms to different outcomes for their secretaries. For instance: many lawyers still struggle with practice basics like client communication, marketing, and professional development. They would benefit tremendously from a dedicated resource whose job is to manage and organize all these aspects of their career — someone who has worked with them for years and knows them very well. If firms are going to reassign traditional secretarial duties elsewhere (and there’s good reason for them to do so), why not divert secretaries into these high-value and highly necessary roles, rather than just cutting them loose altogether? It’s not just a lost job, but also a lost opportunity.

It’s on that last point, I think, that we approach the heart of the problem. Law firms could help secretaries reimagine their roles, add more value to the firm, improve morale, and save jobs — they could do all these things, if they wanted to. But they don’t.  They don’t care about these things nearly as much as they care about maintaining or growing profitability. And the intensity with which law firms have come to care about profitability is starting to look a little sociopathic.

Something has gone seriously wrong at the core of a number of law firms. I don’t how else to describe it except as a mean streak — a level of selfishness and ruthlessness among decision-makers that we’ve not seen before. The triggering event was probably the massive change in client behaviour and the deeply unnerving drop in business that followed, combined with lawyers’ utter inability to adjust their own practices in response. But it seems to me that many lawyers aren’t just troubled or worried by what’s happening — they’re angry. Their income has fallen, and they’ve taken it personally, because that was income to which they were entitled. They’re feeling victimized, hard done by — and they’re lashing out, seeking instant remedies for themselves regardless of the long-term costs to others.

I’m not sure what it is about this latest round of cuts that feels wrong to me. Maybe it’s that it just seems so petty. You need to fire a secretary who earns a fraction of your annual billings in order to save your firm? That’s unlikely. You need to fire her in order to maintain the profitability to which you’ve become accustomed? That’s unseemly. They say you can judge a society based on how it treats its most vulnerable members, and I think the same applies to law firms. And I wouldn’t feel very proud to be a member of some of these law firms right now.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

Available now! My first two published books: Evolutionary Road (e-book published by Attorney At Work) and Content Marketing and Publishing Strategies for Law Firms (co-authored with Steve Matthews, published by The Ark Group). Click the links to learn more and order your copies today.

 

Book No. 2: Evolutionary Road

And now, presenting …. my second book! I’m the sole author of this one, but it’s not a solo effort by any means — it’s a co-production with my great friends at Attorney At Work: Merrilyn Astin Tarlton, Joan Feldman and Mark Feldman. I’m very proud to announce the publication today of Evolutionary Road: A Strategic Guide To Your Law Firm’s Future.                                                              Print

This 40-page electronic book, based on a series of posts here at Law21 last fall, lays out the future of the legal marketplace through the year 2020 and beyond, in the context of what lawyers and law firms must do today to prepare for what’s coming. Here’s how Attorney At Work describes it:

In this new ebook from Attorney at Work, Furlong envisions and details five distinct stages of development for the legal profession:

  • The Closed Market
  • The Breached Market
  • The Fully Open Market
  • The Expanded Market
  • The Multi-Dimensional Market

He teams discussion of the evolutionary timeline with essays on Regulation, Law School, Competition and Pricing to deliver the mind-bending whole in the context of an easy-to-use Strategic Discussion Guide. Smart law firms large and small will use this 40-page downloadable book to tee up effective strategic planning and market innovation. 

Evolutionary Road is an ideal blueprint for annual retreats and partnership planning meetings. The book includes specific facilitation exercises and discussion starters prepared in collaboration with Attorney at Work.

As the foregoing implies, Evolutionary Road goes beyond my original blog post series. New features exclusive to this book include:

  • Standalone analyses of changes in legal education, legal regulation, competition, pricing, and law firms themselves.
  • A Top 10 list of steps law firms can take today to begin transforming themselves for the coming legal market.
  • A blueprint for using this guide to plan a strategic retreat at which your law firm can chart its own future.
  • Brainstorming and challenge questions to galvanize your strategic retreat and produce actionable outcomes by your partners.

All this, plus handsome custom illustrations by Rob Johannsen — and the price is just $19. Visit Attorney At Work’s bookstore to learn more and to purchase your downloadable copy today (and while you’re there, check out the many other great legal publications AAW has made available).

I’m really proud of Evolutionary Road — it represents my complete vision of the evolving legal market and what I see as the imperative for lawyers to adapt their practices while retaining their professionalism and value(s). In my 5+ years at Law21, this is the first product I’ve ever developed solo for sale, and I’m hoping that it will find an audience with which it truly resonates. My sincere thanks to Merrilyn, Joan and Mark for helping make this vision a reality.

Available now! My first two published books: Content Marketing and Publishing Strategies for Law Firms (co-authored with Steve Matthews, published by The Ark Group) and Evolutionary Road (e-book published by Attorney At Work). Click the links to learn more and order your copies today.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

What do lawyers sell?

The first time I heard Richard Susskind speak was at a Canadian Bar Association conference in Montreal in 2007. That was also the first time I heard one of the best parables about professional services ever told. I’ll try to paraphrase Richard’s delivery from memory:

“Black & Decker, the power tool company, had just hired a new CEO. He walked into his first meeting with his board of directors, held up a power drill, and asked, ‘Is this what we sell?’ The directors looked at each other and looked at the drill and said, ‘Yes, that’s one of ours; that’s what we sell.’ ‘No, it isn’t,’ replied the CEO, and he put down the drill and picked up a board with a hole in it. ‘This is what we sell,’ he said. ‘This is why the customer comes to us. This is what he wants.'”

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That’s a magnificent illustration of the best way, the only correct way, to look at the process of buying and selling anything — that is to say, from the buyer’s perspective. Given the legal profession’s struggles to cope with a newly evolving market — as exemplified by the shocking cuts and wholesale retrenchment of many large law firms recently — it seems like a good time to apply that question to lawyers.

What do lawyers sell? Ask 100 lawyers that question and you’ll get, not 100 different answers, but a very narrow range of familiar answers, repeatedly proffered. “I sell my time,” some lawyers will respond. “I sell my expertise,” others will reply. The MBA types: “I sell solutions.” The ones who’ve been paying attention: “I sell value.” The ones who haven’t been paying attention: “I sell excellence.”

None of these, however, is a good answer, because none of these are things that clients specifically need and that can be identifiably described.

  • Time: No one in history has ever bought or sold one second of time. It’s not a commodity in any sense of the word.
  • Expertise: No client needs legal expertise for its own sake. Specialized knowledge has only applied, not intrinsic, value.
  • Solutions: Getting closer, but this is a buzzword that’s meaningless without context. And not every legal matter is a “problem.”
  • Value: Closer again, but really, “value” isn’t much better than “solution” — it’s another way of saying, “I sell you what you want.” It’s circular.
  • Excellence: Must try harder.

There’s a better answer to that question, I think — one that unites the many incredibly disparate strands of legal services. There’s one response that can legitimately cover all the myriad needs of diverse legal clients — from getting a will made out to clearing up a tax issue, from overseeing a bankruptcy to managing a high-stakes acquisition, from defending an assault charge to gaining a permanent work visa, from enforcing a child support order to appealing the loss of a business licence.

That one answer is this: Lawyers sell peace of mind. This is what clients seek when they turn to a lawyer. This is their “hole in the board.”

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“Peace of mind” is what you get when you find someone with expertise, someone who’s excellent at what they do, someone who comes up with solutions to problems and avenues for opportunities — you find them, and you speak with them, and over the course of time, you come to trust them. You trust that they will help you, that they will use their skills to remove a worry, manage a process, or come up with an answer that has eluded you. That trust delivers peace of mind.

Almost every client, when he first contacts a lawyer, is legitimately anxious about something important. He’s worried, he’s not sleeping well, his emotional well-being is compromised. “Peace of mind” is what that client gets in that blessed moment when he can say to himself, “It’s alright. I’ve talked to a lawyer, and she’s given me options, and she’s working on the matter, and she’ll take care of it. Someone is looking after it, or will help me through it. I can start to relax now.” And he does.

Look at your own client relationships. Think about the most rewarding engagements, the most satisfied clients. Maybe they won their case, maybe not. Maybe the deal closed, maybe not. But in most cases, the clients who speak most highly of their lawyers are the ones to whom the lawyers gave the gift of peace of mind — the trustworthy assurance that someone is sharing their burden and helping get them to a place where the burden will be lifted.

Clients buy peace of mind — that’s what they want when they hire a lawyer. Gear everything about your practice — your first consultation, your personal manner, your client communications, your dependable prices, your transparent activities — towards increasing your trustworthiness and reliability and relieving your client’s worries and burdens. You will be a happy, successful lawyer with happy, satisfied clients.

Available now! My first two published books: Evolutionary Road (e-book published by Attorney At Work) and Content Marketing and Publishing Strategies for Law Firms (co-authored with Steve Matthews, published by The Ark Group). Click the links to learn more and order your copies today.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

Book No. 1: Content Marketing and Publishing Strategies for Law Firms

Anyone who’s spoken with me in the last few years knows that, whenever I’m asked what my future plans include, my response invariably concludes with: “… and I really want to write a book.” So I’m really, truly happy to announce this week the publication of not one, but two books bearing my name.
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Book number 1 — I’ll announce Book #2 later this week — is a co-production with my friend and colleague Steve Matthews, founder and president of Stem Legal Web EnterprisesContent Marketing And Publishing Strategies For Law Firms has just been published by The Ark Group, one of the legal industry’s most respected publishers of high-quality books about the business of law. This book represents all the distilled knowledge and insights that Steve and I have gathered, over our combined three-plus decades in the legal marketplace, about publishing and content marketing for law firms.

What’s in the book? Take a look at the executive summary (PDF) for an overview; this excerpt sums up the book’s purpose nicely:

A publishing strategy is the critical link between the firm’s overall business development strategy and its content marketing efforts. It clarifies the firm’s publishing goals, its intended audience, its targeted content, its chosen methodologies, and its measures of success. It is the strategic framework within which all content marketing efforts take place.

We are now at a critical juncture in content marketing: how law firms proceed in these next several months may make or break all future efforts within the firm to conduct marketing based on published content. 

There is no shortage of material available to lawyers and law firms regarding the use of content marketing and social media. But there is a paucity of information about the strategic context within which these efforts should take place, and about the role of “publishing’”as the lens through which these efforts should be viewed. This report aims to fill that gap.

For a further preview, you can even download the first chapter of the book, “The Law Firm Publishing Strategy,” for free (PDF).

What do we talk about in Content Marketing And Publishing Strategies For Law Firms? Among many other things:

  • Designing a strategy to guide your firm’s publishing efforts and integrating it with your business development and branding strategies.
  • Choosing the best platforms for your published content, including blogs, newsletters, microsites and other vehicles.
  • Distributing your content through a growing universe of channels, from magazines and other “old” media to Twitter, LinkedIn, Google Plus and other “new” media.
  • Creating a “publishing culture” within your firm, motivating and enforcing participation in and contributions to the publishing strategy.
  • Measuring the effectiveness of publishing efforts, with detailed explanations of the best metrics and tools to gauge the return on your publishing investments.

I encourage you to download the sample chapter and executive summary — and, if you like what you see, to visit the Ark Group for information on how to order Content Marketing And Publishing Strategies For Law Firms today. This book collects the best advice and insights Steve and I can provide about law firm publishing, content marketing, and social media strategies: we’re confident you’d find it an indispensable addition to your strategic arsenal.

Oh, and that second book? Here’s a teaser: it’s published by my friends at Attorney At Work, and it’s a strategic guide for law firms — but I’ve already said too much….

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

So you designed a law firm: Your survey results

Previously on Law21 … after discussing the apparent disconnect between what lawyers seem to believe they can accomplish within law firms and what they’re actually empowered to do, I set up a brief survey inviting lawyers to distribute 100 points among 10 features of a hypothetical law firm to create an ideal working environment. First, the results (click on each image to get a larger version):

Question 1: Below are listed 10 features of a law firm. You have been given 100 points to assign to these features. Please assign these 100 points among these features according to how strongly you would prioritize their presence in your law firm. 

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Question 2:

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And Question 3:

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Now, my comments:

1. Law21 readers, and those in their immediate professional circles, are not big questionnaire fans. The post containing the link to the survey received in the range of 1,500 unique page views over the past several days, yet only 82 people completed the survey. In future: free coffee with every survey filled out! Limit one per customer. Not actually redeemable.

2. Not surprising to me, anyway, but Law21 readers aren’t a typical cross-section of the legal profession. “Client Service” finished comfortably in the lead among all 10 options, to be followed by “Good Workplace,” with the pre-race favourite “Partner Profit” barely finishing ahead of “New Lawyer Development” for third place. I think it’s fair to say that few law firms in the physical world actually match that profile. But I’d happily work for the law firm you’ve collectively designed here.

3. Nor am I really surprised to see “Community” and “Diversity” in the lower third of results. But I do think you should all be more concerned about your pension situation than you evidently are.

4. Does it say something that the survey attracted more responses from support staff than from non-equity partners and senior associates combined? At this level of statistical significance, probably not. But it at least suggests that the “non-lawyers” (sic) who work in law firms have a vibrant interest in what their firms could and should be.

Now, given the small response size, I’m reluctant to break down and compare categories against each other. But you may find this interesting: when I isolate the “Equity Partner” responders from the overall group (40 in total), the results are virtually even: that is, out of the 10 responses, no option received more than 11% of the total and no option received less than 9%. The variations in the final overall results are almost entirely the work of non-equity partners, associates, and staffers:

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I want to draw two statistically indefensible but nonetheless interesting conclusions from this.

First: equity partners want their firms to be everything, all the time. They want to be profitable yet collegial, prestigious yet affordable, elite yet community-minded. This, of course, is not possible: when you try to be all things to everyone, you end up being nothing to anyone. My own extrapolation is that this is at the root of many law firms’ problems: the people running these firms can’t prioritize among competing visions and demands, making them vulnerable to those demands that have the shortest time frame and the most severe short-term impact (hello, Partner Profits).

The second statistically indefensible conclusion from this exercise is that when you move outside the equity circle, a law firm’s other stakeholders have a very clear vision of what they want in a firm: one that serves clients above all else, one that provides a positive working environment, and one that yes, makes lots of money for its equity owners  — so long as those first two conditions have been met. You might or might not think that’s a good vision for a law firm. But at least it’s a vision: it’s the result of choices among options that result in a firm with an identifiable personality and profile. The firm designed by equity partners, as described in the results above, might as well have been formed at random.

So my last word on this exercise is to reiterate my message to law firm partners: you can make your law firms into whatever you want them to be. You are not helpless victims, floating like flotsam of the surging tides of commerce — that would more accurately describe your associates and staff, who, as previously noted, have a much clearer idea of what your firms could be. You and no one else are the captains of your ships, and their direction and mission is up to you. Accept your power and embrace the opportunity to make hard choices about the purpose and personality of your law firms — you’ll be rewarded for your courage and determination with praise and recognition of your leadership. We’re all waiting on you — make it happen.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

Design your own law firm: A Law21 lawyer survey

Not for the first time, and probably not the last, I find myself reading reports from the legal marketplace and wondering why lawyers are asleep at the switch.

The latest head-scratcher comes courtesy of Altman Weil and its fifth annual Law Firms in Transition Survey of 238 US law firms. Importantly, only one-third of the respondents were within the AmLaw 200 — we’re not talking about the giants here, but about firms whose lawyer complements range from 50 into the hundreds, and whose clients likely include some national companies, a lot of regional businesses, SMEs, and individuals. Here are a few highlights from the Am Law Daily report:

  • 80% of respondents think the move towards non-hourly billing will continue — but only 29% had made significant changes to their own pricing practices.
  • 96% believe the focus on improved practice efficiency has become entrenched — but only 45% had made significant changes to improve efficiency.
  • 67% think smaller annual rate increases are also a permanent change — but between 21% and 40% of all fees at all firms are still simply being discounted.
  • And despite all the foregoing, when asked to cite the greatest challenge they expect to face over the next two years, the #1 response (15.2%) was “increasing revenue.” Coming in at #8 (5.6%) was “delivering value to clients,” while the afore-mentioned “improving efficiency” — which, remember, 96% think is here to stay — finished at #11, with  2.8%.

Near as I can tell, many of these respondents must believe that permanent, radical change in the market is something that’s happening to other people. The disconnect between “This is really happening” and “We’re doing something about it” remains perplexingly wide.

Now here are the results of another survey, one that didn’t get quite so much attention, but whose implications are far more chilling. The UK’s Legal Services Board released the results of an incredibly comprehensive survey of small businesses — an astonishing 9,703 of them, ranging from solo entrepreneurs to companies with up to 50 employees. (Although the countries are different, the two survey populations suggest a high degree of overlap between the law firms and the clients in each.) Here are some of the findings:

  • 38% had experienced a “significant” legal problem in the past year, almost half of which had a tangible financial impact — a total market value of £100 billion when scaled up across all small businesses.
  • 91% of respondents took action to respond to their problems — but most either handled it themselves or got help from family and friends.
  • Of the minority who sought formal advice, only about 40% went to members of the legal profession — the rest sought out accountant, trade associations and the like, especially for tax issues.
  • Bottom line: Legal service providers were involved in just 16% of these matters. That means that roughly £84 billion worth of potential small business legal services are being resolved without the legal profession.

Oh, and here’s the kicker: When asked to assess the statement that “lawyers provide a cost-effective means to resolve legal issues,” only 13% agreed.

So I find myself wondering: faced with reliable, overwhelming, and readily available data that shows a near-complete misalignment between them and their markets, why are law firms doing so little in response? Why are firms, even while openly admitting that many essential marketplace fundamentals have permanently shifted, moving so slowly, it at all, to address these changes? I’ve previously suggested the confidence of the dinosaurs as a culprit, but I think there’s something more at work here.

When I talk with lawyers in law firms about these issues, I’m sometimes struck by the impression of powerlessness that I get. Lawyers, including partners, seem to almost shrug, as if to say, “Yes, but what can I do?” The structure and culture of the firm are presented as an unalterable reality, a mix of good and bad that’s just the way it is. The firm delivers profits, prestige, and security — albeit ever-decreasing amounts of each — but it’s also hidebound, reactionary, and highly vulnerable to change. But what are you gonna do? Priorities have been set and choices have been made, and we have to live with the results.

There are times, when confronting this malaise, that I feel like responding, with some force: “Yes, but you own the firm! It’s yours; you’re the equity owners. Nobody else is in a position to make the firm something different and better than what it is. The associates, the staff, the clients — they might not much like the state of affairs either, but it’s not their show; they consider both the firm’s successes and its shortcomings to be entirely your responsibility. If you’re not in charge, who is?”

What I would really, truly like is for more partners to accept full responsibility for their firms — to recognize the need for decisive action to adjust the firm’s bearings, to take that action, and to fully own the changes that follow. I’d like to see them act as the owners they are, not as the passive sideline observers many of them seem to have become.

To that end, I’ve decided to try introducing a third questionnaire into this mix — my own. I’ve created a very short survey — only three questions — at SurveyMonkey, and I’m making it available to anyone who wants to take it. It’s directed towards lawyers in law firms, and I hope they constitute the majority of respondents, but anyone in the legal industry is invited to take part as well.

The title of the survey is: Design Your Own Law Firm. And that’s exactly what you’re invited to do. The survey provides you with 10 features of a law firm, gives you 100 points to distribute among those 10 features any way you like, and asks you to use those limited resources to design the kind of law firm you want to be part of. Here’s a preview of the 10 features, listed in alphabetical order (they’re randomized in the actual survey):

  • Affordability: The firm’s services are priced for maximum client accessibility.
  • Client Service: Clients reward the firm’s efforts to provide extraordinary service.
  • Community Leadership: The firm is widely praised for its active community efforts.
  • Diverse Workforce: The firm is more race- and gender-diverse than its peers.
  • Elite Reputation: The firm is considered among the very top tier in its market(s).
  • Funded Pensions: The firm ensures post-retirement income for both lawyers and staff.
  • Good Workplace: A positive, collegial atmosphere produces collaboration and referrals.
  • New Lawyer Development: Junior lawyers receive superb training, mentoring and work.
  • Partner Profit: Equity owners derive highest levels of annual revenue from the firm.
  • Prestigious Clientele: High-profile or respected clients frequently retain the firm.

Here’s the link to the survey — it’s open today, May 23, and will stay open for either one week or until I have enough responses to draw some conclusions. Please take the survey — Note: print out your choices before pressing “Done,” so that you retain a copy — and forward it to your friends and colleagues. Be honest with your answers: give the responses you really feel, not the ones you think you “ought to” give.

I’m very interested in finding out how — when given several good options, but only a limited amount of resources — lawyers prioritize the structure and culture of a law firm. And I’m hopeful, maybe even optimistic, that by going through this process, lawyers will realize that they really do have the power to make their firms the way they want them to be.

Here’s your chance to be the architect of your law firm. You’re responsible for its priorities. What will you create?

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

 

What disruption really means

You keep using that word,” said Inigo Montoya. “I don’t think it means what you think it means.”

“That word,” in the current legal marketplace, is “disruption,” a terrific word that’s instrumental in understanding what this market is going through, but one whose overuse is generating a growing backlash. The tipping point might have been the ReInvent Law Silicon Valley conference, or it might have been the wave of updates from ABA TECHSHOW that seemed to feature “disruption” every few tweets. Any buzzword, if adopted too widely and too quickly, risks burning out its meaning simply because people get tired of hearing it all the time, and “disruption” is at risk of that outcome right now. Sam Glover at Lawyerist put the sentiment best in a post last week:

Here’s the thing: disruptive innovation is not coming to the law. At least, not quickly. …

LegalZoom and Rocket Lawyer are not disruptive innovation, either. They are basically just selling forms and pre-paid legal services, which have been around forever, in one form or another. People who think this is disrupting the legal industry do not have a very good grasp of the legal industry. Customers of LegalZoom and Rocket Lawyer were never your potential clients. They may have been Office Max’s, or Hyatt Legal‘s, but they were never yours.

So far, the only disruption to the practice of law has happened around the edges. Sure, Rocket Lawyer and LegalZoom may have siphoned off a few clients. And predictive coding will put some contract lawyers out of their jobs (although doc review is only “legal work” due to a technicality), but can anyone point to an imminent threat of disruption to the legal market? I don’t think so.

So who is actually threatening the legal market for lawyers representing clients? I’m not sure. In fact, I’m not sure anything is going to.

I’m in qualified agreement with Sam on this, as I responded in a comment on his post that I’m expanding upon here. What I really want to do is help establish some specific parameters around the use of “disruption” in the context of the current legal market. I summoned Inigo Montoya to this discussion because I don’t think “disruption” is the empty vessel its critics believe it to be. Disruption is real, and it’s a contributing factor to change and upheaval in the legal market; but not every change or upheaval is an example of “disruption.”

When we talk about disruptive innovation, then we’re squarely in Clayton Christensen’s territory, because he gave us the idea of “sustaining technology” vs. “disruptive technology” in The Innovator’s Dilemma. Sustaining innovations (we can safely substitute “innovation” for present purposes) provide improved delivery or performance of an established product or service, “along the dimensions of performance that mainstream customers in major markets have historically valued,” in Christensen’s words.

Most innovations are sustaining, and while incumbents might struggle with them a little at first, they can and usually do handle and implement them. Sustaining innovations in law firms include email (a more efficient communication medium than letters or faxes) and time-and-billing software (a more efficient docketing methodology than making hand-written entries on timesheets).

Under this definition, LegalZoom and Rocket Lawyer are actually sustaining innovations: they are providing a more efficient and accessible method of acquiring legal documentation. Any law firm in the world could do what these companies are doing right now — offering legal documents over the internet — without having to completely re-engineer their operations. (That they’re not bothering to do so says more about lawyer intransigence and biases about “low-value” products than about these companies’ offerings). Incumbents eventually find an answer to sustaining innovations: they can adjust to them without tearing apart their basic structure in the process.

Disruptive innovations are different: in Christensen’s words, “they bring to the market a very different value proposition than had been available previously.” Disruptive innovations normally offer worse, not better, performance or quality than the incumbents when they first arrive. But they arrive at a time when the market is ready for something smaller, cheaper, easier, or more convenient than what’s already out there. They almost always start out at the lowest level of the market, or even tap into markets that have previously been invisible. Most importantly, they offer something that the incumbents can’t replicate, even if they wanted to, because the attempt to replicate would require such a radical reconfiguration of the incumbent’s business and production model as to cause it to be fundamentally undermined.

Neota Logic, to take an example, is disruptive technology: it guides users through an automated process of data gathering and analysis, based on a powerful legal KM engine, and produces an answer to a legal, regulatory or compliance question. Neota cannot replace a lawyer — yet. But it is going to displace lawyers, to start taking on some of what lawyers now do. What Neota wants to do is provide a way in which legal questions can be answered more efficiently and cost-effectively than the standard law firm model allows. It is being picked up first at the market’s edges — law students, in this case, in Georgetown Law’s Iron Lawyer competition, are using Neota to create apps that can address legal needs for people who don’t want to or can’t use lawyers. Disruptive innovations never start at the top. They start at the bottom and work their way up.

Here’s what’s important: The vast majority of law firms cannot replicate this type of innovation, because it would essentially destroy their businesses. This is because law firms are not in the business of solving legal problems; they are in the business of billing hours devoted to solving legal problems. That’s a key distinction. Law firms don’t really sell legal solutions — if they did, they’d price everything on a flat fee or as a percentage of the value of the solution. They sell hours, and if you’re in any doubt about this, pick up a law firm invoice and see what’s actually being charged out. Neota, however, is in the business of solving problems, quickly and efficiently. These are two quite different production models.

A law firm that integrated this kind of disruptive program into its operations, and contributed to the ongoing expansion of its capabilities, would soon find itself cutting loose many of its associates, because they would no longer be necessary: the computer would be performing tasks they previously undertook. In most business models, this would create greater efficiency and drive profits up; but in law firms, reliant upon leverage for profit, creating greater efficiency drives profits down. If you make money by selling inventory, and if your inventory is billed hours, reducing your inventory is going to kill your revenue stream.

This returns us to the original question: can law firms employ disruptive innovation? If we use the strict definition we discussed above, then the answer is no. Disruptive innovations start at the bottom of the market and introduce offerings that are inferior in quality, but that engage the market on new criteria such as price, portability or accessibility. Law firms, by their nature as incumbents, are bound to be the high-quality disruptees, not the low-quality disruptors. They’re destined to be the ones from whom market share will be taken, as the disruptors get traction in the new market and move steadily up the food chain.

If we’re true to Christensen’s definitions, in fact, then almost the only true disruptors among law firms are the likes of Berwin Leighton Paisner’s Lawyers On Demand and Pinsent Mason’s Vario, contract lawyer agencies that run parallel to the incumbent firms and essentially compete with them for the attention and affection of clients. Christensen taught that companies seeking to “disrupt themselves” cannot do it within the incumbent enterprise: the cultural inertia will be impossible to overcome. The disruptive forces must be housed in a separate location and allowed to chart their own course. Extremely few law firms have the intestinal fortitude to take those steps, not least because of the possibility that the parallel disruptor might actually succeed.

All that said, I do think it’s possible for law firms to introduce changes and innovations within their own operations that qualify as at least quasi-disruptive to their status quo. For an excellent example, consider the two winners of last year’s InnovAction Awards, handed out by the College of Law Practice Management: Littler Mendelson’s CaseSmart knowledge management system and the firm-wide implementation of Lean Six Sigma at Seyfarth Shaw.

In both cases, these firms ripped out their internal machinery, rewired and re-engineered the way they did things, and ended up with better procedures and more efficient systems that delivered improved results for clients and increased revenue for the firm. It wasn’t easy and it wasn’t overnight, but these firms recognized an opportunity to work differently in ways that mattered to clients. They no longer work the same way they did before, and that’s as close to pure disruption as you can ask from market leaders in a conservative industry like law. We should welcome and encourage these innovations, while recognizing that they don’t quite strictly qualify as “disruptive innovations” for the legal market as a whole.

The thing about truly disruptive innovations is that you can’t forecast them. Show me any futurologist who, when we were all making millennial predictions back in 1999, predicted the smartphone. All you can do is watch the market and identify the disruptors when they appear. If you want to know what they look like, ask yourself:

  • Does this innovation deliver a decrease in quality, rather than an improvement?
  • Does it interact with the bottom or periphery of the market, rather than the top?
  • And if a law firm tried this, would it drive itself to the brink of breakdown, having to partly or even completely reconfigure its financial, procedural and cultural infrastructure?

If the answers to these three questions are yes, then what you’ve got there is a disruption. If not, then, as Inigo advises, it might be best to stop using that word.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.          

 

The MCLE question no one wants to ask

Here’s a conversation I sometimes like to imagine, between an elected official in the government and a representative of a state bar or law society.

“So, I understand that law is a self-governing profession, and that you’re the governors.”

“That’s right.”

“I assume you know that self-regulation is a privilege, and that the government allows you to oversee various matters that would otherwise fall within our jurisdiction.”

“Of course. Lawyers’ independence from government is critical for us, so we’re zealous about regulating ourselves, in the public interest, to maintain it.”

“How does that work in practical terms, though? For instance, how do you make sure lawyers are competent enough to serve their clients?”

“We’ve instituted mandatory continuing legal education, or MCLE. Lawyers must complete a certain amount of post-call education every year.”

“Do you mandate specific courses lawyers must take or skills they must learn?”

“No, we generally allow lawyers to choose courses based on their own interests.”

“I see. Do you test them on what they’ve learned in these courses?”

“Well, no. But they always receive binders of materials that they can bring back to their offices.”

“Uh-huh. How do you know they’ve even attended these courses?”

“Well, they report it in their annual filings. But they wouldn’t lie about that. They would risk serious discipline if they were found out.”

“Okay, let me ask you this: Let’s assume every lawyer in your jurisdiction completes the full amount of CLE you prescribe every year. Does it work?”

“Does what work?”

“Does mandatory CLE work? Does it ensure that your lawyers are competent? Are there studies establishing that MCLE verifiably improves the quality of legal service by lawyers?”

“Uh, none that I’m aware of.”

“No? Do you mean in this jurisdiction only, or in any jurisdiction?”

“Er, any jurisdiction, really.”

“Alright, let’s back up. How about ordinary CLE, the non-mandatory kind: are there any studies proving that taking CLE is directly and causally related to maintaining or improving lawyers’ competence?”

“[long pause]….”

You see my point. There might be jurisdictions where the MCLE requirements are stronger and more specific than what I’ve hypothetically described above, but if so, there aren’t many. The foregoing conversation is quite plausible — frighteningly so, if you’re a regulator.

Mandatory CLE is the rule in 44 of 50 US states and in eight Canadian provinces, although curricular and reporting requirements vary across jurisdictions. In every state and province, however, the original impetus for mandating CLE was the same: we need to ensure lawyers are up to date on the law in their areas of practice, thereby maintaining lawyers’ competence and fulfilling our self-regulatory requirements. At least, that’s what I assume: I’ve not been able to find a really fine statement of MCLE’s purposes on the website of any legal regulator that imposes it.

Generally, the reasoning in support of MCLE seems to be implicit: CLE makes you a more knowledgeable lawyer, which makes you a better lawyer, and we want to mandate better lawyers. QED. It’s a great idea, obviously. But is it true? Does requiring lawyers to take a minimum amount of CLE every year make them better at what they do? Intuitively, one supposes that it does, but intuition is not evidence in any court. Can it be proved? Has it been proven?

I’ve spoken with some of the smartest minds in lawyer professional development and asked them if they’ve ever seen a study showing conclusively that MCLE is causally connected (or even strongly correlated) with lawyer competence. None of them has. Nobody, as far as I can tell, has published a study proving that even ordinary, voluntary CLE produces better lawyers. The benefits of CLE can be reasonably assumed, but apparently that’s all they are: an assumption. And mandatory CLE is an assumption squared.

If you want an excellent example of how messed up the legal profession has become over MCLE, read this report of the Supreme Court of New Jersey that led to the state becoming the 44th to approve MCLE in 2007 (HT to Michael Williams). Here’s how the report dispensed with the threshold questions of MCLE’s necessity and effectiveness: “[W]hat reasons, other than the absence of empirical data, mitigate against making CLE mandatory? We have found few, if any.” I’d love to see the reaction of a New Jersey Supreme Court judge to a factum that included this line of reasoning in its arguments: “We have no empirical data to support our position. But there is very little, if any, evidence against it, so we ask this court to rule in our favour.”

I can think of three significant reasons why no one has successfully demonstrated a causal link between MCLE and lawyer competence.

1. It’s very difficult to measure competence. And even more difficult, for that reason, to measure increases or decreases therein. I’ve written before that competence testing in the law tends to be forensic: we find out which lawyers are incompetent only after they wreck a client’s case or their own careers. But defining “competence” for a lawyer is extremely tricky: what standards do you use? Should those standards vary according to practice area, year of call, degree of oversight or autonomy, geographic location, sophistication of clients? How do you test for competence? Who pays for the process? None of these questions has an easy answer. But they are all good questions, and the public whom lawyers serve has a right to know that they’re at least being asked, if not answered. As far as I can tell, the legal profession is not even asking.

2. It’s in nobody’s interest to question MCLE. Continuing legal education is big business, and some of the most heavily invested players in the market are regulatory bodies. The people who decide that lawyers must take CLE are often the very same people who sell CLE to lawyers, which by any standard is a glaring conflict of interest. Many voluntary bar associations are kept afloat in part by CLE revenue, and they view MCLE as manna from heaven. And frankly, lawyers themselves, even though they might not love MCLE, have learned to live with it by gaming the system: sitting in the back of the room checking emails during a lecture, or logging in to an online CLE session and doing billable work with the sound off. It’s a reasonably cozy arrangement.

3. There isn’t any causal link between MCLE and lawyer competence. We might as well get that out there.

None of this may be new, although I’ve seen very few people talk about it openly. But the problem remains: what could a regulator say if a legislator started asking the questions at the start of this post? Should CLE be mandatory? If so, why? How should it be structured, and how should its effectiveness be measured? Here are my suggestions for dealing with this issue:

1. Attend to the absolute basics. A regulator should ask itself:  “What must we ensure that lawyers know, and can do, in order to maintain baseline professional competence that satisfies the standards of self-governance?” Regulators can answer that question, I think, by looking at where lawyers make the most mistakes, and start there. Every regulator and/or professional insurer keeps close track of the nature and cause of complaints and malpractice claims against lawyers. It is well-known that “knowledge of the law,” the subject of 90% of all CLE programming, is nowhere near the top of the list. Generally speaking, here’s where lawyers are getting in trouble:

  •  Failing to establish clear expectations at the start of the client relationship.
  •  Failing to keep clients informed on a timely basis.
  •  Failing to respond to client inquiries in a timely manner.
  •  Failing to identify and avoid conflicts of interest.
  •  Failing to maintain lawyer-client confidentiality.
  •  Failing to ensure security of client information.

Your mileage may vary according to your jurisdiction, but these are the basics that recur state to state, province to province, year after year. Yet I’m not aware of a single jurisdiction that specifically mandates education in these areas, and I’m aware of some that won’t even accredit business- or professionalism-related courses that would cover these topics. Lawyers need to know how to operate a law practice in a viable, ethical and professional manner. If they did, they would commit fewer basic errors and incur fewer penalties. So figure out how many hours would be required to deliver this information, add it up, and there’s your minimum MCLE requirement.

2. Make the knowledge tangible. How do you test this knowledge? Provide lawyers with checklists, templates, protocols and step-by-step processes they can follow to check for conflicts, issue comprehensive retainers, and keep clients continuously informed. Then have them draw up a sample retainer, list the steps involved in checking for conflicts, and describe what they do to keep in touch with clients. Throw in a few other ethics or professional responsibility questions, if you like — every lawyer should be able to answer one or two of those. These are the fundamentals of lawyer professionalism: lawyers can learn them, and their learning can be tested.

3. Monitor the signals of competence. How do you know this is working? Track the number of complaints reduced and malpractice claims reduced year over year. That might not be direct proof of causation, but if the trend lines are strong enough, it would be pretty persuasive correlation. And a really good study would back up the quantitative results with qualitative data derived from focus groups, lawyer interviews, insurance experiences, and so on. Ask yourself: what would the government look at in order to measure improved levels of lawyer competence? They’d probably look here.

There’s a lot more I could talk about in this area — the wisdom and feasibility of mandating substantive-law CLE, the relative merits of online delivery, the best way to teach skills (as opposed to knowledge), the role of private-sector CLE, and perhaps most importantly, rethinking the entire traditional methodology of post-call lawyer learning. But this is where regulators can start, at least, to redefine and reconfigure the profession’s approach to mandatory CLE.

The question nobody in the profession wants to ask about MCLE is, “Does it work?”, because the implications of a negative answer are deeply problematic. I understand that. But we still need to ask the question, and there are ways to answer it that would satisfy any outside inquiry. So let’s ask it already.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.