Don’t think like a lawyer

This article was just published in the “I Wish I’d Known” column in the October 2014 issue of Student Lawyer, a terrific publication of the ABA’s Law Student Division. My thanks to Marilyn Cavicchia and Darhiana Mateo Téllez of the ABA for the invitation and opportunity.

“You’re going to learn to think like a lawyer,” said one of my professors in the first week of law school. She didn’t mean it as the threat it turned out to be.

Law degrees might be three years long, but let’s be honest, you’ve begun thinking like a lawyer within one. I still remember, in that first year, walking past a tall ladder propped precariously against a city building and thinking not about the worker’s safety, but about his liability.

It’s a small, insidious change. You start to view others not as people, but as tortfeasors, claimants, or consignees — parts to be played, with fault to be assigned and damages to be assessed. Cases become puzzles, games: Spot the issue! Identify the error! Feel justified as you deny coverage to the quadriplegic accident victim who didn’t see the light turn red. Distance yourself from him with the insulating, all-excusing logic of the law.  [do_widget id=”text-7″ title=false]

Thinking like a lawyer is easy and fun. But I wish that “thinking like a lawyer” had been provided as a complement to my already-installed “thinking like a person” system, not as a replacement for it. I wish I’d been shown the off switch.

Equally, I wish that law school had gone on to instruct me in “feeling like a client.” Few lawyers, and hardly any law students, know what it’s like to be a client — the anxiety, the vulnerability, the isolation that accompanies a problem we don’t know how to solve and whose consequences could ruin us. Many lawyers forget this, if we ever knew it or felt it in the first place.

I wish there’d been a mandatory second-year course called, simply, “The Client.” And as part of that course, each student had to visit a local lawyer incognito for a 20-minute consultation about a hypothetical problem. And to come back afterwards to report: how were you made to feel? Like the subject of a human event, or the object of a legal process? Were you engaged, or just acknowledged? Looked at, or looked through?

And, oh man, the price. What it feels like to ask a lawyer the seemingly simple question, “How much will this cost?” And either the lawyer hedges and quotes an hourly rate that doesn’t help, or she actually drops a real number on you. And in 10 or 15 years’ time, if you’re financially successful, maybe that number won’t faze you. But today, as a law student, with debts and middling job prospects — that number will chill your blood. As it should.

Legal education is a powerful drug; but if you’re not careful, it can drown out your instincts, stifle your emotions, and numb your heart. Law school molds and enhances your intellect, but frequently neglects to enlighten and illuminate your soul. The damage is predictable.

Great lawyers are more than just brilliant tacticians: they’re instinctive, heartfelt, caring, and real. No matter what else you do in law school, start learning how to be a lawyer like that.

Jordan Furlong is a lawyer, consultant, and legal industry analyst who forecasts the impact of the changing legal market on lawyers, clients, and legal organizations. He has delivered dozens of addresses to law firms, state bars, law societies, law schools, judges, and many others throughout the United States and Canada on the evolution of the legal services marketplace.

A word in Spanish

Earlier this summer, I was asked by Mario Ferrer of Responsea, an online lawyer platform in Spain,  if I could answer a few questions for their readers, especially those who are just starting off in the law or grappling with the onslaught of technology. My brief replies sound much better and more elegant when translated into Spanish, as the resulting Responsea post demonstrates. But I thought you might be interested in reading the original English version, especially if you’re in the early stages of your legal career.


1. How can a lawyer prepare himself or herself to prepare for the future?

There are three things every lawyer must know as well as possible in order to thrive in the new legal market:

1. Your clients. Understand their concerns, walk in their shoes, look at the world through their eyes. Identify their goals and hopes, worries and ambitions, so that you can advise them as well as possible. Help them anticipate problems and opportunities before they arise.

2. Your competition. Not all your competitors will be other lawyers: online providers and non-lawyer rivals will become more common in the next several years. But among lawyers, understand clearly who else wants to serve your chosen client group in your chosen area, and what they offer in terms of service and price.

3. Your business. Too few law firms have a sufficiently clear picture of how much they spend to provide their legal services. Fewer still have installed tools and procedures to help make their businesses more efficient and productive. Run your legal business to be as cost-effective and quality-controlled as you can manage, and always be aware of your cash flow.

2. How can a law firm be competitive nowadays?

You can’t be competitive for every client in every market for every type of work. You also can’t be competitive for work that just walks in off the street. You can only be truly competitive when you identify the specific type of work you want to do, for the specific type of client you want to serve, to accomplish specific sorts of outcomes or values for those clients. If you know all of these, and if you can explain why you’re the right choice in these circumstances, you’ll have no difficulty outclassing other firms in these areas.  [do_widget id=”text-7″ title=false]

3. Which are the priorities of today’s clients? Time, money …?

Clients want different things in different contexts: the multinational corporation and the single mother are obviously completely different entities. What all clients want, however, is peace of mind. They want a worry resolved, a pain eliminated, an opportunity filled, a step forward taken. How can you give your client peace of mind? Answer that question, and you’re well on your way to meeting the client’s priorities.

4. How can a law firm encourage its workers to adapt to the online environment?

Everyone now searches for everything on the internet. Vast numbers of people buy vast quantities of products and services on the internet. Having a weak or non-existent internet presence is like moving your law office out of a prime commercial office building in a major city and into an unmarked house on the outskirts of a small town. It’s really no more complicated than that.

5. Which are the most common errors committed by the legal sector on the Internet?

The failure of lawyers to offer products and services that are created and delivered partly or entirely through the internet is the error that will cost law firms the most in the years to come. Some legal services can only be delivered face-to-face, hand-in-hand, in person. But many, if not most, can be delivered partly or wholly online. If you believe the internet is useful only for hosting your firm’s website, then you’re going to miss out on some valuable emerging opportunities in the near future.

6. What would you recommend to a lawyer who decides to open an office on his or her own? 

Never assume that the legal market owes you anything. The market asks, of every provider who enters it, “Who are you, and why should I care?” You need to have an answer ready. Create a website that tells your chosen market who you are, what you do, who you do it for, and what results your clients will get from using you. Write posts on your website showing off what you know and giving people information they can use. Speak to gatherings of and in the communities you want to serve. Hang around afterwards to answer questions.

Act like a startup. Even better, act like you’re still in law school. Keep your costs under tight control. Be frugal and innovative: do more with less. Buy nothing unless it’s truly a necessity or truly an investment. Be humble. Be grateful. Be helpful. Be trustworthy. Be the kind of lawyer you’d recommend your parents hire. Be the kind of lawyer your grandchildren will boast about someday. Serve your clients and your community with integrity, class, and grace under pressure. Everything else will fall into place.

Jordan Furlong is a lawyer, consultant, and legal industry analyst who forecasts the impact of the changing legal market on lawyers, clients, and legal organizations. He has delivered dozens of addresses to law firms, state bars, law societies, law schools, judges, and many others throughout the United States and Canada on the evolution of the legal services marketplace.

The decline of the associate and the rise of the law firm employee

Earlier this month, Greenberg Traurig became the latest large US firm to take a new approach to its legal talent. Rather than firing secretaries or de-equitizing partners, however, as is all the rage elsewhere, Greenberg proposed something different and potentially groundbreaking: the introduction of a “residency” program for new associates. Here’s how the Am Law Daily describes it:

Join the firm as an associate, but only if you’re willing to spend a third of your time training rather than churning out billable work. The catch? Those who sign on will be paid considerably less than the typical starting associate, will bill at a much lower hourly rate—and may wind up only sticking with the firm for a year.

The offer is the basis of what Greenberg is billing as a new residency program that is being rolled out across its 29 U.S. offices. Firm leaders envision the program as a way of recruiting talented associates it wouldn’t have hired during the traditional on-campus interview process for one reason or another. It will also allow the firm to assign junior lawyers to client matters without billing their work at the usual cringe-inducing hourly rates.

Greenberg is simultaneously creating a new non-shareholder-track position, practice group attorney, that is akin to similar jobs created by Kilpatrick Townsend & Stockton; Orrick, Herrington & Sutcliffe; and others that have moved beyond the up-or-out structure typically employed by large law firms. …

[C]lients have been eager to use the junior lawyers, who cost less than a typical associate, and have allowed them to sit in on meetings and calls—at no cost to the client—as part of their training. The rest of the training, MacCullough says, comes via online courses with the Practising Law Institute, the professional development courses the firm offers all associates, and extra “hands-on learning” with partners without concern about billing for the time.

This initiative emerged from Greenberg Traurig’s Fort Lauderdale office, where new graduates are offered the chance to be “fellows” who resemble associates, but are paid less, bill less, and spend more time training. This innovation has now spread firm-wide. “Once the initial one-year period ends,” the Am Law Daily reports, “residents will either become a regular-track associate, take on the new practice group attorney title, or leave the firm.” (This reminds me of the old college football coach’s admonition against the passing game: “Only three things can happen when you throw the football, and two of them are bad.”) [do_widget id=”text-7″ title=false]

Response to Greenberg’s program has been generally positive, and I can understand why. Anything that offers even partial employment opportunities to new law graduates these days has to be considered a good thing. The “residency” approach contains echoes of the “apprenticeship” programs that firms like Drinker Biddle, Strasburger, Ford & Harrison, Frost Brown Todd, and Howrey pioneered about 3-4 years ago and that I thought might herald a whole new approach to associate training. (They haven’t.) And Greenberg’s residents bear a close resemblance to Canada’s articling students, whose one-year apprenticeship in a law firm is a widely admired (although increasingly flawed) way to introduce new lawyers to practice.

Yet something still seems off. By crafting the position of “practice group attorney,” Greenberg has joined many firms in creating a class of associates who aren’t going to be partners; by introducing “residents,” Greenberg appears to be creating a class of lawyers who, most likely, aren’t even going to be associates. What’s not clear is why either of these new groups of lawyers are inside the firm at all. If what you’re looking for are low-cost, non-essential generators of legal work, why not talk to Axiom or The Posse List or any LPO with offices in Mumbai, Manila, or Minneapolis? Why introduce and maintain yet another costly group of lawyers who aren’t here for the long term?

One possible reason is that the whole point of the residents is to eventually replace the associates altogether. Lower salaries? Essential for continued partner profitability, and more reflective of actual associate value. Lower billing rates? Clients aren’t paying the higher rates anyway, so you might as well find a rate that they will pay. Lower billing targets? There isn’t enough work available for partners to make their targets, let alone new lawyers. As the article makes clear, these are really the only differences between a “resident” and an “associate.” Which of these two classes do you think the firm will want to sustain?

The law firm associate market is way overdue for a serious compensation correction: $160,000 starting salaries were and are ridiculous, relative to both the availability and value of new associates. New lawyers can’t and shouldn’t be expected to bill 1,900 legitimate hours a year, and a system that required them to do so was impractical and unwise at best, improper and unethical at worst. Something had to replace that system, and this may be the replacement.

Greenberg’s model is obviously still in its formative stages, and there’s not much point in exploring it further with such limited data. But it’s possible that it might be part of the next stage, maybe the final stage, in the decline of the law firm associate and the rise of the lawyer employee.

Go back several decades to the emergence of the Cravath model, which originally viewed a small class of salaried associates as future partners who could nonetheless generate profits through leveraged work along the way. The distortion of that model, over time, led to much larger and more profitable associate classes, of which only a few members would make partner — but all the same, the firm and its clients still treated those associates as professionals with potential long-term value. We’re now on the verge of entire associate classes whose only purpose and value is to generate leveraged work. They are not meant to be future partners: they are temporary employees meant to sustain the practices of current partners for as long as those partners need them. [do_widget id=”text-8″ title=false]

You might object that that’s not a good long-term stratagem. But a lot of law firms these days aren’t being managed for the long term, and there’s nothing more long-term than associate development: the investment of serious time and money in hopes of producing future partners. Many firms are employing fewer new lawyers than ever, and they have little incentive to invest heavily in the long-term development of the ones they do. They don’t need more equity partners — many firms are busily culling their own ranks — and if they do, they’ll get experienced, plug-and-play veterans with books of business via lateral acquisitions in the free-agent market. (Where laterally trained partners will come from in future, if firms no longer commit to investing in new classes of associates today, is not firms’ leading concern at the moment.)

It’s therefore possible that the era of the “law firm associate” — the partner in training — is now coming to an end, as I suggested back in 2009. Replacing it might be the era of the “lawyer employee” — here today, gone tomorrow, with a completely different set of expectations on each side about the nature of the relationship. It’s true that at several firms, the transition I mentioned above has long since taken place: most associates are essentially revenue generators. But the title of “associate” has a lengthy history and carries powerful expectations: “associateship” has been the precursor to “partnership,” just as adolescence has been the precursor to adulthood. Take away the title of “associate” and replace it with something smaller and poorer — “intern,” “resident,” “employee” — and the impact is profound.

This must surely be an attractive route for many law firms eager to reduce salary costs, minimize training expenses, and boost partner profits. But there’s a risk to the law firm that trades associates for employees straight-up, that diverts resources from internal development to external acquisition: it might permanently lose its capacity to develop any lawyers at all.

The ability to onboard a new lawyer, bring her into the firm’s cultural and structural orbit, develop her capacity to produce higher value over the course of time — this is an organizational skill, no different than any other a firm might possess. A firm that ceases to take internal development seriously will see that skill atrophy: it will become a muscle rarely exercised, with predictable results. PD professionals may leave the firm for better environments elsewhere; partners may lose whatever remaining interest they might have had in bringing along new lawyers; potential recruits may regard the firm as a dead end. These outcomes might not matter to the firm today. I guarantee that they’ll matter down the road.

Once a law firm switches off its lawyer development engine, it’s not easy to rev it back up again — and if you intend for your firm to be operating more than five years from now, it’s an engine you will desperately need to work at some point. That’s the tradeoff, whether they realize it or not, that some law firms now seem poised to make.

There’s another risk to this development, by the way — a threat to the continuing development of the legal profession itself. But that’s for another post.

[Here’s the next instalment in this series: “Reinventing the associate.”]

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.  

Ready for the future? Your survival kit survey results

Previously on Law21 … last month, to be exact, I designed another survey for your consideration. This one was a good deal more complex than my first Law21 questionnaire, which simply asked you to prioritize 10 characteristics of a modern law firm.

This time around, we postulated a “future legal survival kit,” giving you 15 features with which to equip a future firm and asking you to assign them points according to how important you thought these elements would be. The survey was posted in the dead of summer, so I was pretty pleased to get the 73 responses that we did. I also suggested (and still recommend) that you check out Evolutionary Road, my new book published by Attorney At Work, as both a guide to help you complete the survey and as a fairly transparent, yet hopefully still effective, promotional effort.

So let’s get to the results, which I’ll follow with an analysis of each entry and my own rating of each one.

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So, the top choices of our 73 respondents (those options that received 10 points on average or more) were strong client relationships, integrity, and legal know-how. I can’t help but observe that if I had asked for the top five features of a traditional law practice in the halcyon bygone days of the profession, I would have wound up with a very similar list. This isn’t to say that Law21 readers are reactionary conservatives, which I’m pretty sure you’re not. More likely, it represents a yearning for the future profession to return to the fundamental bedrock values that we perceive underlay the successful law practices of our parents’ and even grandparents’ generations.

I can understand that desire, and I approve of it to a certain degree: there’s an emerging consensus that whatever lawyers and law firms have morphed into from the 1980s to the present day, more has been lost than gained in the transformation. But however much we may wish for a return to the old days (and they weren’t wholly fabulous, let’s keep in mind), they’re not coming back. We can’t simply revisit the past to build the future: the architecture of legal practice has to adapt.

Here’s my brief analysis of, and my own opinions on, the 15 features listed in the survey:

1. EQ.  Survey: 11.89. Me: 10

I was pleasantly surprised by how well emotional intelligence was rated, and it gives me hope that lawyers are coming to appreciate not just the importance of communication and client service, but also how these methodologies need to be infused with the virtues of attentiveness, sincerity, and personal connection. It matters that we care, and it matters that we get that fact across.  [do_widget id=”text-7″ title=false]

2. Connections.  Survey: 11.49. Me: 0

Here’s the first major diversion between me and all y’all. I can see the desirability of having strong relationships in place to help jump-start a future law practice. But to my way of thinking, this is a secondary characteristic, one that I can develop if I have many of the other listed skills and assets. My zero doesn’t suggest that I think this trait is worthless; it’s simply that I value other things more.

3. Moral Fibre.  Survey: 10.73. Me: 20

I’m reassured that you rated integrity so highly — this is an asset we don’t always think about when assembling our advantages. But for me, this is a cardinal virtue in a lawyer: not just having moral character, but having a reputation for it. In a future legal market riddled with noise and confusion, trustworthiness and personal reliability will be a tremendous competitive benefit, not to mention an inherently good thing to possess.

4. Legal Knowledge.  Survey: 10.16. Me: 0

Again, it’s not that I believe legal know-how has no value in a law practice; obviously it does. But I don’t need to personally possess this feature or have it in place, in-house, in my practice. Legal knowledge is now widespread and easily accessible, and its price keeps dropping. I can outsource this asset, retrieve it when and from whom I need it, and build up other resources instead.

5.  Innovation.  Survey: 8.63. Me: 0

We’ve now moved out of the top four and into the single-digit answers, although 8.63 is still above average (assigning equal points to all 15 choices would mean 15 awards of 6.66.) This one was a tough call for me, as it came down to a choice between Innovation and Risk-Taking, which are related but different ideas. But for reasons I’ll set out below, I went with Risk.

6. Solutions R Us.  Survey: 8.53. Me: 20

This was my first really big surprise: I felt sure that problem-solving would rank more highly. To me, this is a primary lawyer characteristic, one from which many other assets flow. People seek out lawyers when they have challenges they can’t solve: we’ve always been able to meet that need ourselves and we’d always better be ready to do so. Problem-solving lets us anticipate risks and opportunities, too.

7. Pricing Strategies.  Survey: 7.54. Me: 20

Given the array of other features on offer, I can understand how people might assign pricing a roughly average score. But to me, it’s a paramount ability, one on par with integrity and problem-solving. We cannot survive in a future legal market unless we are experts at pricing our services, which in turn implies we are experts at managing our business costs. This is the last of my three “20” scores.

8. Process Mastery.  Survey: 7.45. Me: 10

I almost gave this one a 20 as well, but the fact is that I can probably acquire skills and techniques in process management from third parties. But as a lawyer of the future, I require at least a familiarity with and appreciation for the importance of systems and procedures in running a profitable business in a legal market where many services are heading towards commoditization.

9. Techno-Wizardry.  Survey: 5.78. Me: 0

We’re now entering the final tranche, where all entries received below-average support. Technology, like process, is something with which every lawyer will require at least a nodding acquaintance and comfort. But tech expertise can be outsourced more readily, and the rapid evolution of technology tools argues against making it a core lawyer feature of a modern law practice.

10. Financial Facility. Survey: 5.46. Me: 10

I thought this one might rank more highly than it did. Thanks to self-selection bias and legal education failures, few current lawyers entered the profession with any degree of financial literacy, and many still lack much business knowledge or instinct. These lawyers already struggle to compete in a closed market against other equally challenged lawyers; how will they survive in a real market against real businesses?

11. Risk Acceptance.  Survey: 5.18. Me: 10

Why did I choose risk appetite over a flair for innovation? Because the former is, I believe, critical to both business and lawyer success: you can’t run a risk-averse business in a competitive market, and you can’t properly advise clients without recognizing and integrating the reality of risk in everyday life. Innovation is very useful, and I’d take it if I could. But it’s not as essential as risk acceptance.

12. Nice Niche.  Survey: 5.12. Me: 0

I actually do think niches will prove to be important characteristics of future law practices, especially for solo and small-firm lawyers: much of what we now call “general practice” law will be lost to private companies and computers. But I came to believe that a niche is a result of career success, not a cause, and you appear to agree with that assessment.

13. War Chest.  Survey: 5.1. Me: 0

Interestingly enough, this was the first entry I thought of when conceiving this survey, and I thought I would rank it highly. But eventually, I came to see it as a secondary, not primary feature, not least because it’s a non-renewable resource: once the money’s spent, it’s gone. There’s never been a better time to find venture funding for startups, and that applies to the law as well.

14. Recruiting Prowess.  Survey: 4.6. Me: 0

I should admit that I planted this one partly as a red herring. While I think it will be important to attract the right people with ease, this entry was added more as a test of whether people think the current frenzy for lateral hiring of partners with big books of business will continue to be a staple of law firm strategy in future. I sure don’t think it will, and happily, neither do you.

15. Famous Brand.  Survey: 4.33. Me: 0

Someone’s gotta be last. I actually thought this one would and should rank higher: reputation and prestige are like catnip for lawyers, and not without reason, because a well-known name is central to our ability to get our phones ringing. But fame and prominence are things you reap, not things you sow. If you’ve chosen among the other 14 features wisely and executed them well, this one will follow.

So there you have it: my prescription for a future legal survival kit:

20: Moral Fibre

20: Pricing Strategies

20: Solutions R Us

10: Emotional Intelligence

10: Financial Facility

10: Process Mastery

10: Risk Acceptance

Whether or not you took the survey, tell us now: do you think this is the best future survival kit? What would you have packed more of, or done without, and why?

And of course, keep in mind: this isn’t really a hypothetical scenario at all. This is the situation facing your firm, today, right now. So what will you do?

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.  

Disrupting the legal education marketplace

Are you old enough to remember when the only way you could send a letter or a package to someone in another city was through the Post Office? Do you remember what it was like to deal with the employees and policies of a company that had a complete monopoly on a vital service? Remember how much you enjoyed that?

Are you also old enough to remember when the only way you could phone someone in another area code was through long-distance services provided by your local telephone monopoly or duopoly? And how you had to wait and call after 6 pm to get a discounted rate, or after midnight for an even steeper discount? How did that work for you?

It’s easy to forget how much technology and globalization have changed and improved our everyday experiences in the last few decades. Today, we take companies like Fedex and Skype for granted. We have trouble picturing a world — a very recent world — in which there was no Ikea, no Amazon, no Samsung, no Starbucks, no SouthWest. You don’t have to use these companies or like their products to recognize that their arrivals changed the markets they entered, created more choice, forced the incumbents to lower their prices or raise their games or change their offerings or all three. And I can presume that you wouldn’t go back to those old, narrow, barren markets unless forced at gunpoint.

Now, take that frustrating, constraining, 1970s-malaise feeling you recall from the old days, and apply it to legal services. Because that’s the way many people and businesses still experience the legal market: one type of provider, one set of rules and procedures, one definition of adequate service. But that’s all about to change:  our cozy little market is opening up, and new players are entering.

These new players, like the Ikeas and Southwests that entered other markets before them, will undermine clients’ existing assumptions about how legal products and services should be created, priced and delivered, and they will find many willing customers desperate for a breath of fresh air. This isn’t really negotiable or reversible. All that’s left for us to decide, as lawyers, is whether we want to wind up as the future equivalent of the Post Office in a FedEx world.

Now, here’s the better news for lawyers: there’s a growing chance that we could experience the same kinds of consumer benefits arising from the opening and expansion of another dusty, moribund market: legal education.

As you know, for all practical purposes, there is one and only one route into the legal profession: a law school degree and a Bar-administered admission process. The degree goes by different names (e.g., Bachelor of Laws, Juris Doctor) and so does the admission process (e.g., articling, Bar exam, solicitor training, Bar admission course). But the basic structure is universal and hasn’t changed for decades: three years of law school followed by a competence assessment that, in most (but not all) cases, is not especially difficult to pass.

The practicing Bar’s unhappiness with the legal education system has been thoroughly documented. But the Bar also has no one to blame but itself. By allowing a law degree to stand as the exclusive means of legal education credentialing, the legal profession has also created a monopoly that works against its own interests. If you want to become a lawyer, you must first go to law school. Legal educators, gifted with sole possession of an extremely lucrative and perennially increasing market, have responded exactly as you would expect any monopolist to respond: jacking up prices, fending off change, and ensuring their own nests are comfortably lined. (Before you start feeling too resentful about that, go back and read the fourth paragraph again.)

Law schools, of course, are currently in the process of watching their pleasure domes start to crack and crumble. Thanks in large part to recessionary forces and changes to the way law firms hire and use associates, US lawyer employment has imploded, and law schools are paying the price. You could argue — I won’t, at least not strenuously — that this is unfair to the schools: they didn’t cause the changes to the market, and if anything, they’re doing a slightly better job preparing students for practice today than they did 10 and 20 years ago. Not that that will help them now — there’s an old saying that when you sow the wind, you reap the tornado.

Anyway, the most recent US law school data is remarkably grim: as you’ve probably read, applications to ABA-accredited law schools are down 20% from 2012 and are on track to nosedive 38% since 2010. If you go back to 2004, the drop is an astonishing 50%. This has hit the legal academy like a hand grenade tossed through a window: Paul Campos has been tracking the resulting panic and shrapnel for several months now.

The problem has become large and serious enough to have caught the attention of the mainstream press: The New York Times, The Atlantic, Forbes and The Daily Beast have all picked up the story, coverage that is just going to accelerate the race away from law school enrolment. I issued a “sell” advisory on law schools 20 months ago, and nothing that’s happened since has changed my mind. (Smart schools still interested in saving themselves should read Bill Henderson’s Blueprint, today.)

That, obviously, is the bad news. The good news is that this market disruption, like every other, can create opportunities for new players and new models. Here are a couple that you should note and encourage.

In England & Wales, now widely recognized as the world’s legal laboratory, apprenticeship is poised to make a comeback in the professions. “At the moment, to become qualified as a solicitor, accountant or in insurance, the typical route involves three years at university, then on-the-job training and professional qualifications,” wrote Skills Minister Matthew Hancock in the Telegraph. “But university is not for everyone. There is no reason why you can’t attain the same qualifications, without the degree, starting on-the-job training in an apprenticeship from day one. So I want apprenticeships spanning craft, technical and professional jobs that open up work-based routes to the top.” The minister cited approvingly an apprenticeship program under development at BPP Law School, which has close ties to the profession.

Now, if you’ve been reading my work for a while, you’ll know that I think highly of apprenticeship, and that I wrote a few years ago about some promising apprenticeship programs at a handful of US law firms. (Here’s the paper I submitted to a Georgetown Law symposium on the subject.)  I imagined and hoped that this was a trend that would take off in a recessionary climate; it did not. But that was apprenticeship as a training method for new lawyers; we’re now talking about apprenticeship as a non-school route into the profession.

Hardly anyone takes that path anymore; but if it could be revived, ideally complemented with a mini-degree that provided grounding in the essentials of jurisprudence and legal theory, then law schools would have more on their hands than just a PR nightmare and a shrinking inventory: they would have competition. And unlike those first two factors, which will spawn only destructive outcomes, competition can and should be constructive for schools. Competing models that threaten to siphon off the best applicants would spur schools to make real changes in their approach to the market — it would give them a target to focus on and a framework within which to reconfigure and rebuild.

Nobody wants law schools to disappear; we want law schools to thrive — but on their merits. Putting a viable alternative up against law schools would motivate them to reconsider their own models, defend their own visions of lawyer preparation, or adapt their approaches to more closely resemble what the successful options offer. Complaining about law schools didn’t work; trying to regulate them won’t work; and putting them out of business is pointless. So give them competition: unleash alternatives that can give them a run for their money, and let them fight their way out of this mess.

A similar sort of innovation may be unfolding here in Canada, which it seems fair to say is not widely recognized as the world’s legal laboratory. But the Law Society of Upper Canada in Ontario has recently done something which could be just as bold, in its own way, as the UK’s move towards apprenticeship.

Law graduates cannot be admitted to the Bar in Canada until they’ve completed a year of articling — itself a form of apprenticeship with a practicing lawyer or law firm. More than a few US commentators have envied this approach and suggested its adoption in the US (or the British solicitor trainee program or German Referendarzeit). But articling in Canada is itself the subject of ongoing controversy, and in Ontario, articling placement — which used to be all but automatic — is now down to about 85%. That’s a problem that the US bar, facing a 55% new-lawyer law-related employment rate, would love to have.

In Ontario, however, concern about the articling crisis led to heated debates and finally, late last year, to the approval of a pilot-project Law Practice Program that would run parallel to articling and provide an avenue to those who cannot land articling positions. The program is not, shall we say, universally popular, and at this extremely early stage, it’s almost entirely speculative anyway. But I think it’s tremendously important nonetheless, for much the same reason as I think the possibility of apprenticeship is important: it creates competition for new lawyer training.

Up until now, articling in Canada has, in a sense, enjoyed a monopoly, in much the same way that law schools and lawyers have. There is only one “apprenticeship” method, one training route, for Canadian bar admission, and that’s the articling process. Knowing this, many Canadian law firms have felt free to offer articling positions without having to worry very much, if at all, about the quality of those positions. All they really had to concern themselves with was the provision of a competitive salary; it was accepted wisdom among lawyers and law graduates alike that the articling experience itself would always be uneven, and that whether you really learned much about being a lawyer would be partly a matter of your own efforts and partly the luck of the draw.

Now, introduce the Law Practice Program into this mix. Suddenly, articling programs can’t afford to be complacent, because now there’s another training option. Providers of the Law Practice Program (it’s envisioned that there would be several) can pitch themselves to the law student market thus: “Law firms won’t really train you to be lawyers, you know. They’ll have you photocopying and doing grunt work and picking up drycleaning. But we will train you, through competitive work placements and practical role-play sessions and other cutting-edge methods for inculcating business skills. We will give you the tools to be employable upon graduation.”

These providers will have to offer and deliver these kinds of benefits, because that’s the only way they’ll be able to make money. In order to attract candidates — and, much more importantly, to produce graduates attractive to employers — they will need to build a training program superior to articling (and based on some reported articling experiences, that might not be terribly difficult). They will have to do more than just be a consolation pathway for students who couldn’t find articles — they’ll have to persuade law graduates of all stripes that their programs are as good as or better than articling and are worth the investment.

And if they succeed — well, then suddenly, we have a race. New lawyer training stops revolving around the tired old question of “Whose responsibility is it?” that we’ve been grappling with for ages. It becomes a question of “Who wants the opportunity?” Which training option is better for new law grads? Which can deliver the best results? Which can draw the best students into their programs and produce the best subsequent employment rates? A market filled with new lawyer training options, competing with each other to attract law graduates into their program, would have many ramifications — the likely end of standard paid training for new lawyers almost certainly among them — but the overall impact on the profession would be highly positive.

That’s why I think the Law Practice Program for the Ontario legal profession has the potential to be a game-changer, and why the suggestion of an apprenticeship route into the British profession is equally significant. Our legal education and admission methods have grown stagnant because they are monopolies, no different from the post office or phone companies of the past. Break up those monopolies — open up these markets and let in some sunshine and fresh air — and you’ll have the first real opportunity for serious reform and improvement in the new lawyer development process.

And if it all breaks right, then just like with mail and long-distance calls, no one will want to go back to the old days again.

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. 

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.

Trading money for time in your legal career

One of the unexpected benefits of this blog for me is the correspondence I’ve received from people who’ve read something I’ve written and have struck up a conversation about it. Recently, I received an email from a reader in the western US, and I thought you might be interested in both his question and my reply — especially if you disagree with my conclusions. Here’s the letter:

I was wondering if you have any suggestions for me. I graduated with a degree in accounting and had worked in a Big 4 accounting firm for a year before I quit. It’s not that the work was especially terrible, but working 60-90 hours a week, 6-7 days a week, I just didn’t have time for anything else.

While I’m finishing up my accounting licensing requirements, I’m contemplating going to law school, because I have always had quite an interest in legal work. However, I want to enter a career where I am not working over 60 hours and get the majority of weekends off, even if it means less money.

Are there any sectors of law where lawyers have these kinds of hours on a consistent basis (with a comfortable and reasonable salary) or does becoming a lawyer come with the implied recognition that there is no semblance of a “9-5”?

Here’s my response: Continue Reading

The next small thing

This article in The Recorder is mostly about the free-fall that the real estate legal marketplace in California is experiencing. But my attention was caught by Mark Greene, a real estate lawyer there who diversified his practice at the height of the boom and has seen his foresight pay off:

Wise to the cyclical nature of the real estate practice, Greene began to take on other — and, for him, more nontraditional — projects about two years ago. While the bulk of his practice today continues to center around large institutional clients, work for high-net-worth individuals is making the difference between being busy and not busy, making up about a third of his practice now.

A lot of lawyers spend their time looking for the next big thing — the practice area that’s been quietly building up and is poised to become red-hot. But they don’t spend nearly as much time looking for the next small thing — the practice area that’s about to go stone-cold because of changes in economic, technological, cultural or political circumstances. If that next small thing is part of your book of business, you need to know about it. And if it constitutes a major portion of your work, you have a serious, fundamental issue on your hands.

Greene and others like him were smart enough to recognize the bubbly froth developing in the real estate boom and act on it. It’s easy to say, with hindsight, that any lawyer could have forecast the end of feverish times in their practice area, but not many actually do (Cadwalader, for instance). And even if you’re a short-selling economy-watcher with a keen eye for coming disaster, you can’t always tell which way the impact cracks will branch out from a major economic change. Continue Reading

Articling abolition? A groundbreaking LSUC report

It arrived quietly and without fanfare. I’ve seen no reports of it in the mainstream media or the legal press. In fact, the young-lawyer-focused law blogs Precedent and Law Is Cool are the only places I’ve seen talk about it so far. But the Law Society of Upper Canada’s Licensing and Accreditation Task Force Interim Report To Convocation, delivered last week in Toronto, is set to completely overhaul the process of admission to the practice of law in Ontario and, eventually, the rest of Canada. If you’re a law student, a lawyer who intends to hire new lawyers someday, or interested at all in the present and future direction of lawyer training in Canada, this report is an absolute must-read.

The main interim report is 44 pages long, followed by an additional 152 pages spread out over 10 appendices. I doubt there’s ever been a more comprehensive report on the bar admission process (nor will any other province likely try to duplicate the task force’s efforts or findings), and I can only imagine what the final report will look like. For what it’s worth, I think the report’s findings are accurate, timely and sorely needed.

I don’t have time here to break down the report in detail — I’ll be writing a more comprehensive commentary that will appear at SLAW in a few days’ time and will be cross-posted here. But this is what you need to know:

1. The Task Force recommends the abolition of the current Skills and Professional Responsibility Program from the bar admission process in Ontario. Of all the reasons the task force gave for this recommendation, perhaps none is more suprising than its assertion that right now, law schools are doing a better job of teaching students skills and professional responsibility than the law society is.

2. The Task Force offers three alternatives to the current articling process by which lawyers ostensibly receive sufficient practical training to enter the practice of law. These are:

(a) make it extremely clear to all current and prospective law students that the law society does not guarantee articling placements, and accordingly cannot guarantee that a law graduate can become a practising lawyer (laissez-faire).

(b) set up or certify a parallel Practical Legal Training Course that provides law graduates who could not obtain articles the chance to earn an equivalent certification in practical legal skills training (Australian model).

(c) Abolish articling outright (the U.S. model).

The Task Force makes no recommendation concerning these three options — it offers pros and cons of each — but it makes quite clear that the status quo is not sustainable, not least because the Ontario bar admission process is facing a tsunami of rising applications over the next few years, culminating in an expected 2009 application class no less than 38.7% larger than in 2001.

The report is groundbreaking, if for no other reason than that it squarely lays out the numerous shortcomings of Ontario’s present bar admission process and demands that the profession act, now, to change. Go read it.

Out of law school, into a recession

Everyone’s talking about it, so we might as well tackle it, too. It seems immaterial at this point whether the US economy is approaching, entering or currently experiencing a recession — it’s clear that the economy is slowing down and, more importantly, that people are getting worried and even scared about it. Some of this can be attributed to the mainstream media doing its usual frenzy-whipping, but there is genuine cause for concern out there. This is the first time the US economy has tanked in the globalization era, and that’s going to have some nasty results (such as, US consumer spending power will drop but oil prices won’t, because for the first time, it’s Chinese, not American, consumption that’s pushing oil demand).

Things ought not to be as bad in Canada, but it’s still no fun graduating from law school, carrying a huge debt load, to find a mediocre or poor job market waiting for you. If you entered law school within the past five years, you paid boom prices for a law degree and you might end up in a bust marketplace. It’s not fair — but it happens. You won’t be the first new lawyer to experience it, but if you’re a Millennial, you’ve also never seen one of these things before, and they can be more than a little disconcerting.

There are lessons to be drawn, however, from those of us who landed in similarly soft job markets in previous downturns. Here are a few thoughts on what to do if you’re taking a new LL.B. or J.D. into a recession. Continue Reading