Going to town

There’s been a lot of discussion lately about the numerous factors leading to the continuing contraction of the legal profession in smaller urban centers and in rural outposts. Here’s another one: competition for legal talent. Large-center practice is operating at unprecedented levels of profitability these days; even if small-center practices were still reasonably feasible, large-center practices are now so lucrative that it’s hard for any but the most diehard devotees of small-town life to pass up the opportunities in urban Canada.

The law societies of British Columbia and Ontario have produced reports on this subject, and both identify it as a serious matter for the profession. I’m not entirely sure that it is, for a couple of reasons.

First, that belief presumes that a shortage or absence of lawyers in small centers results in reduced access to justice in those locations. Lawyers have long believed that only they can really provide legal services competently, even as the alternative legal services market (primarily paralegals, but also including title insurers and do-it-yourself will CDs) continues to flourish every year. It would hardly behoove the LSUC, for instance, to maintain that lawyers are a sine qua non for access to justice when the LSUC itself has battled successfully to gain the right to regulate paralegals.

Before we decide that only lawyers’ services pass the threshold of providing access to justice, maybe we ought to let someone else try. If lawyers really want to ensure the best possible world for access to justice, they should help throw open the legal-services marketplace to as many competitors as the market will allow, and let clients sort the wheat from the chaff. Perhaps needless to say, I don’t think that’s going to happen. Continue Reading

Family values

Big news: most law firms no longer consider a lawyer’s decision to start and raise a family to be an implicit violation of the employment contract. Many women lawyers can now take nine months or more of maternity leave and return to find their jobs still waiting for them and their career prospects not greatly dimmed.

This is good news, of course, and I applaud the architects and pioneers of parental leave acceptance. But in many firms, parental leave allowances are simply part of an effort to staunch the hemorrhaging of young talent. Firms have learned that if they want to keep young lawyers around, they could start by accommodating these lawyers’ desire to have kids and to be with them during the first several months of their lives.

But that young talent probably will continue to drain away regardless, because it’s not just about getting time with a newborn. Consider that for many of these lawyers, the hard part comes when they return to work and find the firm demanding exactly the same hours and dedication it did pre-leave — if not more. I know a lot of ex-firm lawyers for whom that was the breaking point.

Why do so many lawyers still have to choose between a fulfilling career in a law firm and a fulfilling role as an involved parent? There are always tradeoffs, naturally: you can’t be a high-powered, high-paid lawyer and still spend hours on the playroom floor with your kids. But lawyering and parenting don’t have to be mutually exclusive. And more to the point, the firms seem to keep mistaking the symptoms for the problem.

Law firms are businesses trying to turn a profit. But they’re hamstrung by how they go about it — by their addiction to the billable-hour system. When you sell your services, compensate your workers and evaluate your future partners on the volume of hours billed, you will disproportionately reward those lawyers who have few if any commitments outside the office.

If time equals profitability, and if profitability equals profile and promotion, a firm inevitably will exclude lawyers who want or need to spend time away from work (a group that remains overwhelmingly female). There are thousands of excellent lawyers who fall into that category. They form a vast pool of top-quality resources that continue to slip away from firms addicted to the billable hour system. Is the system worth that?

This post first appeared as the editorial in the March 2007 issue of National.

Dear client:

Probably you were expecting a greeting card from me — ‘tis the season, after all. The standard wintertime scene on the front, generic wishes inside for a joyful holiday, peace on earth, that sort of thing … you probably get one from your dry cleaners and your local MP, too.

Well, I’m not doing that this year. Instead, I thought I’d take this opportunity to pass along a few important things I think you ought to know.

First of all, I’m really delighted that you’ve retained me as your lawyer. Like the airlines say, you had your choice of many competitors, and I’m glad you came to my office rather than anyone else’s. You’ve been satisfied, and sometimes downright thrilled, with the good work I did for you. I’d like you to know that means a lot to me.

Secondly, I wanted to give you advance notice that I’m investing in some new software, which I expect will improve my efficiency and upgrade my practice overall. The software’s not cheap, but its price will be covered by the savings I expect to accrue, so I won’t be passing on the cost to you, and you’ll benefit from a higher quality of service.

Thirdly, I won’t be in the office as often next year. On the advice of friends and family, I’ll be taking more vacation time, including three straight weeks in the summer — I’ll make sure your interests are well-looked after by reliable colleagues in my absence. Why the extended time off? I finally figured out that no matter how important I might think I am to my clients, I’m the farthest thing from indispensable — we lawyers need to remind ourselves of that every so often. I’ll send you a postcard.

Finally, I’d like to give you my annual reminder that while I’m a good lawyer, I’m not a miracle worker. I can’t answer your question five minutes after you e-mail it to me. I can’t make your ex-supplier, ex-spouse or ex-employer behave rationally or treat you fairly. I can’t change the rules by which the law operates. And I can’t turn back the clock so that the whole thing never happened.

But here’s what I can do. I can deliver the insights and advice you need. I can help you plan a better life, business or career from here on out. I can be your trusted partner and advisor as you make important decisions. I can look after your interests and give you my best counsel, even if it’s something you don’t want to hear. I can keep your confidences and sympathize with your frustrations.

In short, you can count on me to be on your side, no matter what. Because I’m your lawyer.

Thanks again for the opportunity and the privilege to have you as a client. I’ll give you a call early in the new year to see how things are going and whether there’s anything I can help you with.

Oh, and have a joyful holiday. Peace on earth.

This post first appeared as the editorial in the December 2006 issue of National.

Law practice in the 21st century

This article was first posted at Slaw on September 29th, 2006.

Earlier this month, I visited San Francisco for the first time. I’d long been fascinated by the thought of a city built on a geological time bomb, and walking its streets was quite an experience.

Everyone knows there’ll be a massive seismic rupture underneath the city someday. But San Franciscans are neither hot nor bothered by it; they go about their lives in their historic city. Their chances of being engulfed in an earthquake remain extraordinarily small, and there’s nothing they can do to prevent it anyway, so why worry?

I think you could draw a few parallels between San Francisco and the legal profession. Great forces are in motion, seismic change is in the offing, and while prosperity reigns today, ripping upheaval is inevitable. I don’t pretend for a moment that lawyers are threatened with annihilation – so long as there’s law, there’ll be lawyers – but after the strike comes, we’ll have trouble recognizing the landscape. Continue Reading

21st-century legal education

This article was first posted at Slaw on September 28th, 2006.

I wasn’t much of an articling student. I worked hard, but not smart: my learning curves were more like sheer cliff faces. I’m sure I wasted a lot of clients’ money and lawyers’ time during my year of service, and the firm was right not to ask me back.

In retrospect, I can see many things I should have done differently. But at the time, I was seriously peeved that no one had prepared me for this, that I hadn’t the first clue of what the practising Bar required. That’s been a pretty common experience for many new lawyers before and since.

Many lawyers blame the law schools, using overworn clichés like “ivory towers” and “here in the real world.” But law schools aren’t trade schools, and I don’t think they ought to be. A good legal education teaches students that the law has a history, a purpose and a soul, that law matters; it’s an incredibly rich and fulfilling experience that gives us the right to call ourselves “professionals.”

But law schools will have to adapt to changing circumstances in the years to come; they won’t really have much choice. Continue Reading

21st-century legal technology

This article was first posted at Slaw on September 27th, 2006.

As someone who still pays his bills with a chequebook and stamps, I’m a little reluctant to address the whole question of technology in the legal profession. But here we go anyway:

To get a sense of the degree to which the law is still a pen-and-paper profession, listen to the language that lawyers use. “Paper the other side,” articling students are told. “Note up the case. Write a memo to file. Docket your time.” In our mind’s eye, it seems, we’re working in the age of bound ledgers and three-ring-binder timesheets, and the phrases we use unconsciously reflect that. That’s going to be a problem for 21st-century lawyers, for whom trying to ignore technology will be like trying to politely overlook that tornado outside the window. Continue Reading

21st-century legal publishing

This article was first posted at Slaw on September 26th, 2006.

“I’ve been a lawyer in Toronto now for four years. Over this time, a lot of law magazines, newspapers and newsletters have crossed my desk. Even though these are publications for lawyers, I never feel like they are really talking to me. They always feel a little old, a little earnest and, well, a little boring.”

That’s not me talking — these are the words of Melissa Kluger, Editor-in-Chief of a new blog titled “Precedent: The New Rules of Law and Style.” It’s pretty good — entertaining and thoughtful, and that’s a tough combination to pull off. Hers is another fresh voice in the legal blog world.

But I was struck by her quote above, since I suspect she’s not the only lawyer who finds the publications offered to Canada’s lawyers old, earnest and boring (three characteristics my daughter will someday ascribe to me; I suspect I’ve got the second and third down already). Here’s a brief look at the major national and regional legal periodicals: Continue Reading

21st-century legal innovation

This article was first posted at Slaw on September 25, 2006.

I had the great fortune to attend the annual meeting of the College of Law Practice Management in San Francisco earlier this month. The topic of the day was at the heart of 21st-century lawyering: innovation. Specifically, why lawyers aren’t very good at it.

One of the delegates made an important distinction at the start. When it comes to actual legal work, lawyers can innovate like crazy. Corporate lawyers have designed some of the most innovative (and profitable) financial instruments around; litigators are always finding new angles from which to argue cases, and so on. Where we have trouble innovating is in our two main professional mechanisms: practice management and client relations.

I’ll leave the first one alone — that’s a whole other steamship of fish — and go after the second: how lawyers relate to their clients and deliver services to them. It’s pretty apparent that lawyers’ relationships with clients could use, shall we say, a little sprucing up. Continue Reading

Don’t believe the hype

Whenever I drop by a law school campus, I’m reminded of one tremendous difference from 10 or 15 years ago: the near omni-presence of the practising bar. Back then, you noticed the profession on Careers Day (no OCIs back then) and maybe when the CBA President came to speak; otherwise, law practice might as well have been on another planet. Legal periodicals didn’t bother going into the schools at all, and of course there was no Internet.

Today, you’re deluged with news, information and opinions about practice. It’s not only from the law firms, which have had a huge impact on many faculties through sponsorships, donations, lectures and marketing efforts. It’s also through legal magazines and newspapers, which provide pipelines of impressions about life at the bar, and websites like Lawbuzz, which provide pipelines with fewer facts but more interactivity.

The multiplicity of information sources available today could lead you to believe you’re getting a broad cross-section of legal life. But I don’t actually think that’s the case. What you’re really getting is an intense sales pitch from numerous directions. Every element of the legal profession with a law school presence is there for a reason: you’re a valuable demographic, and they’re trying to sell you something.

What you’ll often find offered to you is an image or a model of the profession. You’re already familiar, for example, with magazines that promote a certain type of career and lifestyle as the norm, when in fact the profession is far too fragmented and diverse for any one style to be predominant. Buy into that image if you want, but don’t mistake it for the mainstream of Canadian law practice.

There are other sales pitches going on, too: consider this or that law firm for your summer and articling positions. That’s your call — in fact, it’s all your call, in fact. It’s not always easy, but try to remember that the practising profession is far more diverse, nuanced and complex than the images pitched to you can express. Don’t feel boxed in by an illusion of limited choice.

There are as many different legal lives as there are lawyers, and you can choose any one of them — or reject them all and create your own. It’s your career, not theirs.

This post originally appeared as the editorial in the 2006 law student issue of National magazine.

Rage against the machine

You’re surely familiar with those lists of famously bad technology predictions that make the rounds by e-mail every so often. One of the most commonly cited is Digital Equipment Chairman Ken Olsen’s 1977 observation: “There is no reason anyone would want a computer in their home.”

Amusing, sure, but rarely quoted in the proper context. Olsen was talking about the undesirability of household super-computers that would control every aspect of our lives. He was fully aware of the desktop PC and its potential as a powerful business tool; his point was that there are certain aspects of our lives that no rational person would want to delegate to a machine.

So when you hear someone say, “Computers will never be able to replace lawyers,” consider what that might mean. Could a computer someday stand and cross-examine witnesses in court? Could it deliver wise counsel to a CEO preparing for a takeover bid or a spouse preparing for a custody battle? Could it form a trusted advisor relationship with a family business over 20 years of service?

Probably not. But how many lawyers are doing that now?

Here’s what many lawyers are doing today: they’re guiding testators through wills, assisting on house purchases, and filing complicated forms for everyone from immigrants coming to Canada to companies going public. They’re answering client questions by applying established legal rules to fact situations and predicting likely outcomes. They’re resolving disputes by finding appropriate financial settlement points between parties.

In short, they’re facilitating transactions — and in the 21st century, transaction facilitation is machine work. Just ask your instant teller, or your e-mail server, or Amazon.ca — or the secretary you haven’t needed since Windows 95 came out. Raise your hand if you see something in that previous paragraph that a sophisticated software program simply can’t do — and be assured, software has become extraordinarily sophisticated.

The threat to our profession isn’t from computers replicating what lawyers can do. The threat is from lawyers replicating what computers can do.

When we apply specialized knowledge from legal databases, use logical analysis skills to answer a question, or escort a client step-by-step through a complex process, we are on computers’ turf. When we display sincere empathy, use real wisdom and intuition, and connect with our clients as people, then computers can’t touch us.

For the moment, anyway.

This post originally appeared as the editorial in the October 2006 issue of National magazine.