The best and the brightest?

It’s a small thing, but it’s been bothering me disproportionately, so I want to say a few words about one of my least favourite current phrases in the law:  “the best and the brightest.” It’s normally used in a talent recruitment or institutional marketing capacity to describe the very small group of the very best lawyers and law students, and I must have come across it a half-dozen times in the last week alone. An archetypal example was uttered in April by US Supreme Court Justice Antonin Scalia, in response to a question put to him by a law student who asked what she had to do to become “outrageously successful” without “connections and elite degrees.” Justice Scalia’s response eventually came around to her chances of clerking for his court:

“By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?”

Justice Scalia’s criterion for identifying excellent future law clerks is depressingly common within the profession. He doesn’t actually know how to identify the best and brightest law students and new lawyers, and he’s hardly alone in that. He’s one of many people who rely upon a law school or law firm’s exclusivity, elitism, household name or other purported quality signifier as a substitute for having to actually determine “bestness and brightness” for himself. It’s a habit hardwired into tens of thousands of annual decisions about  which school a 1L should attend and which schools a law firm should recruit from, and it doesn’t do us any good.

Let’s start with the law schools. Everyone knows there are elite schools and non-elite schools, right? Even if you don’t read the noxious US News & World Report law school rankings or their equivalents in other countries, you “know” which are the “best” schools, especially if you graduated from one of them. How do you know? They have the best reputations, of course — even if you couldn’t name one aspect of the educational experience that justifies “elite” status or name three elements of substance that differentiate any one school from another. “Reputation” and “prestige,” based on countless dimly illuminated factors poked into the crannies of our minds, might hold sway, but we have no empirical evidence that an “elite” law grad is any better or brighter than a “non-elite” grad. Magazine rankings and law blog chatter serve only to confirm our existing region- and class-based prejudices about what places one school above another.

The great majority of law schools are largely indistinguishable from each other, in terms of the nature of their education, the quality of their teaching, and the (negligible) practical elements of their training. Almost every law student is smart and works hard — that’s the baseline standard of admission (along with, in most cases, tremendous pre-existing socio-economic advantages). Some schools keep class sizes intentionally small or raise tuition beyond most peoples’ reach, but while that may make them more “exclusive,” it doesn’t make them any better at teaching students the law. If there are ways of determining the “best and brightest” law students, finding out where they take their classes hasn’t proven to be one of them.

None of that keeps law firms (and Supreme Court justices) from relying on school pedigree to make interview selection and lawyer hiring decisions for them. But that raises an even more pernicious problem: let’s say you could figure out who the “best and brightest” law graduates are — how do you know which of them will turn out to be great lawyers? Law school prowess has little relevance to eventual lawyer success — the absence of correlation between LSAT scores and lawyer success has been proven. Yet those who hire new lawyers continue to rely on law school performance as a hiring factor, even though it tells us little about whether a student possesses or can quickly acquire the skills that practising lawyers need, the appetite and aptitude for client service, business management, persuasive advocacy and ethical steadfastness.

Now, here’s the funny part: the system has in fact come up with a way of determining which are the “best and brightest” law students  — they’re the ones who get hired by the “best and brightest” law firms! And how do we know which firms fall into that category? Well, they’re usually very old, very large, and very well-known (and big old famous organizations are all but guaranteed to prosper, right?) But the main reason these firms are considered the best is — wait for it — they recruit only from the best law schools! The Cravath system has been around for so long that the “top” law schools and the “top” law firms now perform a little pas-de-deux, each using the other tautologically to confirm its own higher sense of self (“our graduates go to the best firms”; “we recruit only from the best schools.”)

And that brings me to the final aspect of the “best and brightest” phenomenon that’s so problematic: this belief  that the “top” lawyers are to be found at the “top” firms. I am not saying, not a for a nanosecond, that large well-known firms don’t count among their  ranks some of the finest lawyers the profession has produced. Of course they do. But they don’t own the exclusive monopoly on that particular asset. I’ve met brilliant lawyers of extraordinary skill in midsize regional firms, solo practices, corporate law departments and public-sector environments. And I’ve met lawyers who work for famous law firms whose skills and talents are pedestrian. Succeeding in a BigLaw environment is undoubtedly a sign of the fact that you have the qualities to thrive in that kind of environment — but those qualities are not automatically equivalent to superior talent and execution. In our big-firm, AmLaw-obsessed legal culture, this obvious truth keeps getting lost.

All of which is to say, if you find yourself talking about “the best and the brightest” the legal profession has to offer, or you hear someone else saying it, ask a few questions: Best at what? Brightest according to whose standards? Based on precisely what criteria, and how many of those criteria are irrelevancies, assumptions, stereotypes or conventional wisdom? Let’s not buy into a myth that puts you down or puts other people up without sufficient cause. I think a powerful, sweeping assessment like “the best and the brightest” deserves and requires more scrutiny than that.

To the class of 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lawyers as a public good

Thanks to San Diego lawyer and blogger Joseph Dang, I belatedly caught up with an article in California Lawyer magazine about the University of California at Irvine’s intention to launch a new law school this fall. If you’re not familiar with this plan, UC Irvine ambiti0usly aims to debut in the Top 20 rank of US law schools, in no small part by adopting an innovative, non-traditional approach to the school’s purpose and curriculum:

“Relatively early in the 20th century,” [Dean Erwin] Chemerinsky observes, “preparing lawyers for the practice of law was relegated to the bottom rung of law schools, and the top law schools didn’t see it as their primary mission. Could you imagine if a school graduated medical students or dental students who never treated a patient? Yet most law students have never had a client.”

The new school aims to change all that, starting with its first year, when law students will be introduced to the practical tools of their profession through a lawyering-skills class that integrates clinical experience. Then, in their second year, students will work through simulated fact situations, honing their skills in a particular field of civil or criminal law, so that when they are ready to register for a third-year, semester-long clinical course, they will already have a working knowledge of how to represent clients. “My central vision for the school,” says Chemerinsky, “is that we will do the best job of any school in the country in preparing students for the [actual] practice of law. A top-quality clinical program is key to achieving this.”

Among UC-Irvine’s other goals is to encourage more interdisciplinary study among law students and produce a healthy ratio of graduates taking public-sector jobs. It’s a bold experiment, and the odds are long against it, but there’s no better time than this for a new kind of law school to take root within the profession. Perhaps needless to say, I think this is a great idea.

But what really caught my imagination, and sparked a whole other line of thinking, was one other aspect of the UC Irvine model: thanks to funding by a clutch of law firms, the university plans to offer every student a full scholarship — that is to say, free tuition. That’s a concept that, among other things, cuts to the heart of what law schools are for. If the idea behind a law school is to turn out the world’s best lawyers — and UC Irvine appears to be aiming that way — doesn’t it make sense to remove barriers to that goal raised by the ability of the best candidates to afford the program? And in turn, doesn’t that get us thinking a little about the role of the marketplace in the formation of lawyers and the services they will eventually deliver?

This ended up, interestingly enough, dovetailing with a growing discussion within journalism circles about the future of the newspaper. You’ve certainly read enough articles about it and heard me talk about it here before — the fact that most everyone accepts newspapers are dying (and TV is next) and that the web is the immediate future, but that no one knows how to build a profitable business model that can sustain a news-gathering organization.  Premium subscriptions, micro-payments, online advertising — it’s all been tried and nothing has really worked yet. So now people are starting to talk about radically different solutions.

In The Guardian, Maura Kelly looks at non-profit newsrooms and start-up media organizations like GlobalPost. But interestingly, Bruce Ackerman (of Freakonomics fame) and Ian Ayres effectively combine these two approaches and have proposed (also in The Guardian) national endowment systems for investigative journalism:

In contrast to current proposals, we do not rely on public or private do-gooders to dole out money to their favourite journalists. Each national endowment would subsidize investigations on a strict mathematical formula based on the number of citizens who actually read their reports on news sites. …

[C]ommon sense, as well as fundamental liberal values, counsels against any governmental effort to regulate the quality of news. So long as the endowment only subsidizes investigative expenditures, in-depth reporting will get a large share of the fund – provided that it generates important stories that generate broad interest.

The endowment must monitor media hits and circulation counts. This is doable. Advertisers already rely on independent audits. So can the government. Some governmental monitoring of financial matters is also necessary. News organizations would otherwise be tempted to obtain subsidies for marketing and business operations. Without minimizing the problems involved in institutional design, the creation of an effective and disciplined national endowment seems entirely realistic.

The driving theory behind these efforts to save journalism is that investigative reporting — finding out what people don’t want to tell us — is a public good that’s too important to be left to the vagaries of the market. Just as we don’t rely on privately run firehouses to keep our cities from burning down, we can’t rely on privately run media companies to bring pressure to bear on our society’s power brokers. Newspapers, as Seth Godin says, wrap two cents of journalism with ninety-eight cents of overhead and distraction. Investigative journalism suffers from the tragedy of the commons: everyone benefits from its existence, but hardly anyone is willing to pay for it by itself. By removing (or at least reducing the impact of) market forces from its implementation, we can help investigate reporting to flourish and deliver real benefits of transparency and accountability to our society and its institutions.

What does any of this have to do with UC Irvine’s law school and its full-scholarship program? Think about this: what if every law school in the world had free tuition? (Or, more accurately, no tuition.) What if interested third parties covered all the costs of legal education in order to ensure it was done properly, freed from the shackles of market pressures and US News & World Report silliness? Now think about this: what if lawyers were free?  What if we decided that the provision of legal services was so important to the operation of a just society that market mechanisms preventing access to justice should be removed? What would our profession look like then?

Well, it’s a safe bet that our graduating law school classes would be far more diverse, especially socio-economically: the built-in bias in favour of applicants from wealthy backgrounds would fade. It’s also a safe bet that a law school curriculum designed to maximize the benefit of each graduating lawyer to the public good would be incredibly different from what most law schools now offer. Also very different would be the qualifications required of the people offering the courses.

What would become of the private bar? Remember, lawyers in this system aren’t charging fees directly; they’re billing the government or a non-profit entity for their work (but not, I’ll wager, for their time). Rationally, the funding organization would want to create certain standards of competent advice and productive service; it would be interesting to see which ones they came up with. Law firm compensation and advancement likely would not be based on hours billed but on other criteria — perhaps client satisfaction, risk reduction, value generation and so forth. Solos would be plentiful, mega-firms less so. Millionaire lawyers, like millionaire media and performing artists of the near future, would be rare. More people would go into the law not to make money, but to serve society. (Many doctors are already familiar with this sort of model, and I think those who have to answer to a for-profit entity would describe a very different quality of service than those who answer to a non-profit entity.)

This is, I readily admit, a thought exercise rather than a practical or even fully desirable scenario; think of it as Imagine for lawyers. There would be plenty of complications and downsides to a publicly funded legal profession. But there are plenty of complications and downsides to our current professional setup too. Today, law is a private-sector business that provides what is very arguably a public good. It’s fair to surmise that at least some of the difficulties and tensions between lawyers and society result from that misalignment.

If lawyers were considered a public good — if everyone knew and could access all their rights, could easily build legal risk management and problem avoidance into their lives and businesses, utterly free from worries about the direct cost because we were all collectively funding it for our mutual benefit — what sort of legal profession would we end up with? What would we lose? What would we gain?

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The crossed purposes of legal education

One of the signs that change is underway in the legal profession is that elephants in the room are becoming easier to talk about. One such pachyderm is growing increasingly obvious in legal education: the disconnect between what prospective law students imagine about the profession and what they eventually find when entering the legal workforce.

A good illustration is supplied by two recent items that zero in on the cost of a legal education versus the financial value it eventually delivers. One is an article in Forbes magazine, the other a post at the Tax Law Prof blog; it’s instructive that neither originated in the mainstream legal media (though the ABA Journal‘s Law News Now picked them both up).

The average US law school graduate, Forbes says, enters law with $100,000 in debt; the median starting salary for the US law class of 2007, NALP reports, was $65,750, and nearly 40% of all starting salaries were below $55,000. Most American lawyers are saddled with debt for a long time, and while the situation isn’t as dire in other countries, rising education costs have been pushing it that way. You can have an argument whether the debt is worth the career it enables; the more pressing issue is whether law students understand the financial realities of a legal career.

Forbes writes about “the great college hoax,”  drawing a comparison between professional schools and subprime mortgage hawkers: “Misguided easy-money policies that are encouraging the masses to go into debt; a self-serving establishment trading in half-truths that exaggerate the value of its product; plus a Wall Street money machine dabbling in outright fraud as it foists unaffordable debt on the most vulnerable marks.” A few law schools, the magazine reports, deliberately obfuscate the rewards of a legal career, but too many more finesse or downplay the reality of the debt versus the earning power of a law degree.

This is an embarrassment, said the panellists at an AALS Committee on Research Program, the podcast of which is available at Tax Law Prof. The strongest words came from New York Law School Dean Richard Matasar: “We should be ashamed of ourselves.  We own our students’ outcomes. We took them. We took their money. We live on their money …. And if they don’t have a good outcome in life, we’re exploiting them. It’s our responsibility to own the outcomes of our institutions.” Southwestern Law Dean Bryant Garth added: “This group [the AALS] has stonewalled completely and killed any kind of real consumer information for 20 or 30 years, and that’s what made U.S. News own this particular enterprise.”

In some ways, of course, the debt problem will fix itself. One of the reasons law school tuition soared so high over the past decade was that credit was so easy to obtain. Those days won’t return for another decade, and you can expect to see law school tuition (and law school spending) decrease accordingly. Richard Matasar pointed out another self-corrective measure: LSAT applications are holding steady or decreasing at many schools, the first time that’s ever happened during a recession. “They’re catching on,” he said. And the ABA is finally looking at re-engineering its law school certification process, so that “output measures” like employment statistics will become more important.

But I think there’s a larger issue here. These concerns echo the longstanding complaint about law schools, that they don’t prepare students to practise law. But here’s the thing: law schools and the legal profession exist for two different purposes and serve two different ends. Schools are in no way obliged to report to the Bar or to take its priorities into consideration; so why are we constantly surprised that they don’t? The wonder is not that law schools don’t prepare students well for practising law; the wonder is that they prepare them for it at all.

Law schools are involved in one industry — the granting of legal degrees. Legal employers are involved with another industry — the selling of legal services. Law students mistakenly believe — and we encourage this belief — that it’s all one single industry. They believe they’re traveling on a single road that starts in law school and ends in professional employment. In fact, they’re on two different roads, connected only once and briefly by a crowded merge lane that’s now in some disrepair. Students wonder why the left hand doesn’t talk to the right — but these two hands are on entirely different bodies.

Most law schools don’t make a priority of clarifying students’ expectations of a legal career, providing them with data on career prospects, or inducting them into professional practices, because that’s not what they’re set up to do. They grant law degrees; if lawyers’ governing bodies have decided those degrees are a sufficient  preparatory step towards a legal career, that’s the profession’s business, not the law schools’. If that system is not working — and there’s a pretty powerful case that it’s not — then the onus lies on the profession to rethink its training and admission process, not on law schools to rearrange their affairs on orders from an industry to which they don’t report and whose interests they weren’t created to serve.

I’m not suggesting that law schools should be wholly owned and operated by law firms or corporations. I’m not suggesting bar leaders should sit on university boards of governors and direct law schools’ curriculum choices. I’m not suggesting that if law schools want to stay relevant and solvent, they should coordinate their curricula with lawyers’ governing bodies. All these things could very well come to pass regardless of whether they’re good or bad. I am suggesting that we’re not going to make any progress on improving legal training until we understand that we’re not dealing with a single leaking pipeline, but with two pipelines jury-rigged together. We need to take a closer look at our blueprints.

Note to regular readers: I’ll be in Vancouver next week at the Canadian Corporate Counsel Association’s World Summit — drop me a line if you’ll be there too —  so posting won’t resume until the end of the month.

Watch for falling dominoes

I don’t think Detroit’s automakers scored a $17 billion care package from the White House because anyone seriously thinks the cash will staunch the gaping holes in their business models and turn them into American Toyotas. More likely, the US government feared a massive ripple effect throughout the faltering wider economy if even Chrysler went belly-up, let alone GM. As the analysts at Stratfor put it last month, when the patient (the economy) is on life support, you don’t give it a healthful purgative that puts it into a coma.

There’s something instructive about this development for the legal industry as well. You’ve been reading a lot, here and all over the blawgosphere, about the recession’s impact on law firms. Today brought us one of the grimmer forecasts, and when it comes from Prof. William Henderson at the ELS Blog, you need to take it seriously. Bill looks at massively over-leveraged US law firms and sees bad things ahead:

[W]ith the potential for historically low collection rates, a large proportion of Biglaw firms are in one hell of a vise.  Salaried lawyers represent fixed costs.  And even if you lay them off, managers are under intense pressure to pay a reasonable severance (e.g., 6 months pay) to preserve the firm’s reputation for an eventual recovery.  Further, firms with the most human capital leverage will nonetheless be stuck with vast expanses of Class A office space under lease terms negotiated during the salad days.  If Biglaw revenues go down 20% for the fiscal year, which is certainly in the realm of possibility for many firms with large capital market practices, profits could dive by 50% or more.

Similar to what happened at Heller Ehrman, the grim financials could put the firms in violation of their bank lending agreements, see Drew Combs, Why Heller Died, The American Lawyer (Nov. 2008), thus requiring partners to pony up more cash.   Sensing trouble, lawyers with the most options start heading for the doors, initiating a sudden and rapid death spiral.  In short, there is good chance that several hallowed Biglaw firms, particularly those with weak balance sheets, will cease to exist sometime in early to mid 2009.

Large firms, especially those in the US that were deeply committed to corporate work, look most vulnerable to the rising economic winds. But really, I don’t see any size or type of practice in Canada, the US or the UK that won’t take some kind of hit from the recession, anywhere from a glancing to a body blow. The question is whether the collective force of those hits will be enough to seriously stagger the private bar as a whole. If not, then we’ll muddle through alright. If so, well….

Vehicle manufacturers are at the heart of the auto industry, but of course they’re not its sole residents. Surrounding them is a circle of  parts suppliers, local dealerships, service depots, used car showrooms, and other ancillary businesses. Then comes a further concentric circle of dependent businesses like gas stations, car rental agencies, transport truck companies, satellite radio installers, and so on — not to mention all the businesses that depend on employees of these inner-circle companies to buy, rent, visit or consume their products and services. Fear of a domino effect through these circles was a powerful argument in favour of government help.

Likewise, although private law firms lie at the heart of the legal industry, there are many other ancillary industries, companies and institutions whose own business models assume a certain level of spending and productivity by the private bar. While we might understandably fixate on the ups and downs of law firms of all shapes and sizes, we should also keep an eye on the long lines of dominoes radiating out from the private bar, because some of them look none too steady either.

Bill Henderson links to an insightful post by Michael Cahill at PrawfsBlawg, who raises the spectre of a “legal education bubble.” The problem of law school tuition increases have usually been passed on to big law firms, which are supposedly poised to pay law graduates (or some of them, anyway) equally high salaries; but if those firms stumble or fall, who’ll help new grads dig themselves out of debt? Not only that, but with credit still mostly frozen, who will lend law students that tuition in the first place? And with fewer private-law jobs available at any salary, Michael worries, when does a law degree slip below the cost-benefit line? If even some of these consequences come to pass, the legal education industry will be looking at a major contraction of its own.

Then there’s legal publishing. If both firms and schools are forced to cut back, law book publishers have a new set of problems, because that’s basically their entire marketplace. Those that have branched out into online legal research will find little help, because they haven’t really diversified: the markets for e-research are pretty  much the same as for books. Legal periodicals depend heavily on advertising from law firms and their suppliers. I’ve already heard of planned cuts to law firm marketing and advertising budgets for 2009, and suppliers like software companies are going to find it harder to sell upgrades and new releases when people are more willing to hold on to their older versions and wait for prices to fall. And so forth.

Lawyers in private law practice tend to forget sometimes that they serve a more complex and important function in this industry than mere sellers of legal services. They’re also buyers of private law practice supplies, everything from students to books to software to newspapers to photocopiers to recruiters to memberships and much more. In The Elastic Tournament, Profs. Henderson and Marc Galanter point out that “large law firms have become immensely fragile institutions.” But really, the entire legal services industry is a fragile ecosystem, and if the center should ever give way, the domino effect could be extraordinary. And I don’t think anyone’s preparing a bailout package for that.

The perils of squandering talent

Malcolm Gladwell has written a new book about the factors that most influence the likelihood that you’ll achieve (traditionally defined) career success. Outliers: The Story of Success posits that much of what affects our success is out of our control, and that arbitrary or even trivial factors play a disproportionate role in what we end up doing and how well we do it. As part of the book promotion tour, he spoke with the Globe & Mail the other day and made an observation that I think resonates deeply with the legal profession.

Giving an example of arbitrary success factors, Gladwell noted that a huge percentage of professional hockey players have birthdays early in the year. That’s because the standard cutoff date for hockey programs is January 1, so when all-star teams and other squads are recruited, the players who seem most talented are invariably picked — but in fact, they only seem more talented because they’re older and more physically capable. But then these players get special attention, more coaching, more opportunities, and by the time they hit their teens, they actually are more talented. The same applies in school — Jan. 1 cutoffs mean kids born later in the year are younger and therefore farther back on the learning curve. His point is that arbitrary dividing lines can have huge unintended consequences.

Then the interviewer asked Gladwell, at the end of their conversation, why anyone should care enough about this to actually do anything about it. His reply made me sit up straight:

Because we squander talent. Even in a country like Canada, where hockey is a priority, an obsession, we’re squandering a huge amount of hockey talent without realizing it. We could have twice as many star players if we just changed the institutional rules around finding talent. To me, that’s such a powerful lesson. Because it just says, look, in a simple area like hockey, in a country that cares more about it than almost anything else, if you’re still squandering 50 per cent of your ability, how much more are we squandering everywhere else?

I’d go further and say that squandering talent actually has two components: failing to realize the potential universe of talent at your disposal, and then failing to maximize the talent that you do choose. When you apply that analysis to talent identification, intake and management in the law, you come to realize just how arbitrary and undisciplined we’ve been. Look at it in these terms: Continue Reading

Can’t get no LSATisfaction

Here’s something interesting: the consultancy Kerma Partners recently conducted an in-depth study of more than 1,300 current and past “timekeepers” on behalf of an AmLaw 25 law firm. The study identified which personal qualities and attributes of lawyers correlated most strongly with firm success factors such as productivity and longevity. Lawyers possessing the best of these attributes, it turns out, doubled or even tripled other lawyers’ showings in terms of profitability. The authors don’t reveal what these “best” attributes are — presumably, the firm will keep that information close to its vest – but lawyers’ law school rank and GPA were not among them.

Those results are in themselves serious food for thought. What’s significant about this study, though, is that it happened at all – a very large and successful law firm set out to rationally reconsider all of the assumptions it makes and criteria it uses in its lawyer recruitment process. It’s part of what I’m coming to think is the quiet but very real advancement of empirical analysis in the process of how the legal profession understands itself.

Of course, rational, evidence-based analyses of legal education and legal practice have been around for a while. There are excellent blogs that examine empiricism in the context of law schools (Best Practices in Legal Education and Law School Innovation, to name two) and law firms (Empirical Legal Studies and Adam Smith Esq., to name two more). But just last month, I flagged some emerging studies that cast serious doubts on, respectively, the utility of the LSAT, the traditional criteria for law professors, and the importance of law school grades in identifying and shaping good lawyers.

There are also academic institutions that study how we train our lawyers and run our law firms. Georgetown Law’s Center for the Study of the Legal Profession is probably the market leader. But again, last week also saw the arrival of William Mitchell College of Law’s Center for the Empirical Study of Legal Practice, which aims to “research the daily realities of the work of a lawyer and the business of the legal profession.” The new center is led by political science professor Herbert Kritzer, who quotably describes himself: “I am to lawyers what Dian Fossey is to gorillas.”

Some smart and dedicated people are putting the profession’s habits and assumptions, particularly those relating to who should be a law student and what makes a good lawyer, under the microscope. Not a moment too soon, I say. And at this moment, the magnification is being turned up especially high on that old standby, the LSAT: the increasingly maligned test that figures prominently in many law school admissions systems (and in the equally maligned US News & World Report rankings of US law schools). Continue Reading

Dispelling the myths of lawyer education

There’s an old story about a supposed experiment in which five apes are placed in a cage containing a stepladder. A banana is hanging from the roof of the cage, and a sprinkler with ice-cold water is positioned above it. Whenever an ape tries to climb the ladder to get the banana, the sprinkler comes on and drenches all the apes until the ambitious ape abandons the effort. Eventually, after numerous attempts and soakings, the apes learn to avoid the ladder altogether. Then the sprinkler is turned off completely.

Now one of the apes is replaced with a new ape, who, not surprisingly, heads straight for the stepladder to get the banana. The other apes set upon him immediately, beating and shoving him until he gives up — even though the water never comes on. Then another replacement ape arrives, and when he tries to get the banana, the other apes attack him — including the previous new ape who has never been soaked! Eventually, five new apes who’ve never been showered with ice water will nonetheless avoid the stepladder and the banana. And that, the story goes, is where policy comes from — that’s the way we’ve always done it around here.

The legal profession resembles that cage in a lot of ways, but how we educate and recruit new lawyers might be the best example. Our beliefs and practices about the legal training process owe far more to our professional myths and oral traditions than they do to the cold light of evidence. Here are two recent examples. Continue Reading