I’ve come to believe differently. In most markets, athletic and otherwise, there’s no shortage of talent: the physical and mental attributes of today’s new recruits surpass what most members of previous generations could boast. What’s missing, in many cases, are the skills, the knowledge of how to deploy those talents to maximum effect as a performer. Almost every good athlete coming out of high school and college can run fast; relatively few, however, learn to run well.

These thoughts came to me while reading (and commenting upon) an excellent post by UK law professor John Flood, in which he laments the complete disconnect between the legal education system and the rapidly evolving profession into which that system’s graduates will be deposited. If you asked your average law school professor to identify names like Axiom, Acculaw, Lawyers On Demand or any leading LPO, as John suggests, they wouldn’t know what you were talking about.

Law schools are so far behind the legal market’s evolutionary curve (and apparently so uninterested in catching up) that they seem extremely unlikely to lead conversations towards a better legal education and training system. But if so, where do we start fresh? I’d like to suggest that we begin by re-examining some fundamental assumptions about “talent” versus “skills” in the legal profession.

Virtually everyone in law school and the legal profession today has talent: some combination of raw intelligence, analytical and logical adeptness, and/or communication ability. That’s primarily thanks to the undergraduate education systems that produced these lawyers, the Law School Admissions Test that judges them, and the law school admission personnel who value these criteria head and shoulders above any others.

So the talent is there. Virtually everyone who’s in or preparing to enter the legal profession has speed. But not everyone in the legal profession can run well. And the newer you are, the more this is true. It’s almost universally the case for law students and new lawyers, in fact, who have received almost no training to help turn their talents into skills with which they can serve clients and make a living. (And I don’t just mean “practice” training; the tools with which you become a great lawyer include a really solid grounding in jurisprudence, legal history, and ethical philosophy, and not many law degrees can say they deliver that.)

Law schools haven’t been much help in this regard; but in fairness, it really wouldn’t have made much difference even had they spent the last 20 years teaching students “how to be lawyers.” That’s because the market for which those fantasy schools would have been preparing students is quickly disappearing. Nobody (not least me) can say with certainty what law practice in 2026 will look like, but it seems a pretty safe bet that it’s not going to look remotely like it did in 1996. Just as well, then, that we have mostly raw talent that doesn’t need to unlearn old habits before acquiring new ones.

But we still need someone to lead the way in the new skills-acquisition process for the legal profession — and that leads me to think there’s a huge market opportunity, right now, for a legal skills training company geared towards early 21st-century law practice. Never mind preparing students for Skadden or Linklaters; prepare them for Axiom, Lawyers On Demand, Clearspire, Quality Solicitors, Eversheds Legal, and similar operations that look like they’ll be offering an increasing percentage of legal jobs over the next couple of decades.

But — and this is important — we need to skill lawyers up, not down. We don’t want to be developing data entry clerks or automated-contract proofreaders here, and tomorrow’s best legal employers won’t be hiring those people. We need to train new lawyers in leadership, problem solving, project management, cultural fluency, emotional intelligence, technology, entrepreneurship, and other traits that have a decent shot at being the skills future lawyers will need. Give them the tools with which they can harness their talent and take it into any high-value or socially meaningful career, whether it involves the sale of legal services or not.

Law schools, as mentioned, might as well not be in this discussion. I don’t have a great deal of confidence in the practicing bar, either, especially given CLE administrators’ continued fondness for offering legal updates and calling it “professional development.” These are yesterday’s approaches; we need to find tomorrow’s. Solo Practice University remains a powerful model for this sort of innovation; we need more organizations interested in training lawyers to be gainfully and usefully engaged as lawyers in the decades to come. We need far greater use of true, supervised, mentor-based apprenticeship, because “doing” has a multiplier effect on “training.”

What we need, essentially, is a new breed of coaches who can deliver future-oriented professional development. There is no lack of opportunity awaiting them. There are thousands upon thousands of lawyers out there who can run fast but aren’t getting anywhere. They need someone to teach them how to run well.

Allow me to suggest, however, that some of the future capitals of law have already been nominated. Here are seven worth considering, in alphabetical order:

• Belfast, Northern Ireland
• Carrollton, Texas
• Dayton, Ohio
• Fargo, North Dakota
• Hamilton, Ontario
• Overland Park, Kansas
• Wheeling, West Virginia

These seven cities, of course, are home to low-cost law offices or legal outsourcing facilities, many of which have just opened or are in rapid growth stages. More specifically:

• Belfast is home to back-office outsourcing centers for major UK firms Allen & Overy and Herbert Smith.
• Carrollton is a Dallas suburb recently announced as the first stateside Pangea3 office to open under Thomson Reuters management.
• Dayton was chosen by WilmerHale as its “onshore” headquarters for middle- and back-office legal support.
• Fargo has been the US host city for LPO provider Integreon for several years now (and in the UK, Bristol).
• Hamilton is home to high-efficiency mortgage foreclosure and collections services for Canadian firm Gowlings. (PDF)
• Overland Park is currently consolidating its status as worldwide headquarters for LPO firm UnitedLex.
• And Wheeling started the whole trend in 2005 when Orrick outsourced its low-cost back-office functions there.

These law firms and companies are choosing these locations not just because of lower costs, but also because of good-quality legal talent in the area and proximity to transportation hubs. Skeptics who complain they’ve never heard of Carrollton or Overland Park should remember that no one used to know where Bentonville is, either. If our clients are in smaller regional locations, why shouldn’t we be there as well?

This is by no means an exhaustive list, of course — many Indian cities host legal outsourcing operations, and similar entities can be found in South Africa, New Zealand and Australia. But two factors in particular are marking many of these operations as a whole new animal. The first is closer physical proximity to law firms’ national headquarters — “onshoring,” if you like, as opposed to “offshoring.” This approach to outsourcing has long had political and public relations benefits — opening plants in Tennessee rather than Tianjin pays numerous dividends — but as wages in previous outsourcing hotspots start to rise, the cost gap is narrowing and other non-financial factors are coming into play.

The second element, though, is more interesting. Increasingly, these outsourcing centers aren’t just low-cost “drudge” work outposts — they’re growth engines. Orrick’s Wheeling office has increased from 75 people to 350 in the last two years alone, while Allen & Overy aims to have 50 fee earners join 250 support staff in Belfast by 2014. Pangea3, as this New York Times article points out, is busily hiring lawyers in the United States, which is more than a lot of U.S. law firms can say. These cities look like new magnets for legal talent in the 2010s and maybe beyond.

These legal jobs are for so-called “second-tier associates,” but the reality behind that insulting label is this: these jobs do work that isn’t extremely challenging and needn’t be performed in global financial centers. These jobs and their lower salaries are perfectly calibrated to the value of the work they produce. They aren’t based in New York or London because, as firms have been painfully learning the past few years, clients won’t pay the rates required to sustain mid-range jobs in high-priced locations. (And as the grim statistics make clear, new lawyers are paying the price for this change.) These jobs are in Dayton and Wheeling because that’s how much they’re worth, and there’s nothing the least bit wrong with that.

What we’re looking at here is the unbundling of law firms: the disassembly of the once-mighty law firm talent block into discrete groups of lawyers and para-professionals based in various locations to carry out several types of legal work in ways better aligned with its value. Law firms and legal enterprises are heading towards a hub-and-spoke model: small but focused strategic headquarters in a major financial center, revenue-producing satellites in a variety of lower-cost locations worldwide. Soon enough, we’ll look back and wonder why on earth a law firm ever kept all of its partners and all of its associates inside the walls of its major downtown office buildings.

It bears repeating: this is not a temporary, stop-gap response to tougher economic times and partner profitability demands. This is the beginning of a fundamental change in how law firms carry out the work their clients send them. Ron Friedmann, in a wide-ranging post that takes in both these developments and the emergence of a “Top 23″ in the AmLaw 100 (related developments, Ron thinks, and I agree), puts it plainly: “As more work moves to an AFA basis, firms will have to examine how the work itself is done: they will need to minimize time spent on matters to protect and grow profits. Wasting time on repeatable, wheel-reinventing matters simply makes no economic sense.”

This isn’t really about outsourcing, although LPOs have played an invaluable catalytic role in this process. This isn’t about new lawyers getting stuck in low-paying jobs, although my heart goes out to law school graduates caught in the breakdown between the old system and the new one.  And this isn’t about partners being greedy — or at least, no more than it ever was and no less than should be expected and encouraged from equity shareholders in a business enterprise. This is about how legal work is priced and delivered in a newly competitive marketplace. That’s the prism through which you should examine almost everything currently happening in the law, including the emergence of some unlikely new capitals.

Jordan Furlong speaks 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.

Face2Face is compared to and contrasted with another British operation, Quality Solicitors, which has been around for longer. Quality Solicitors is a network of about 200 independent law firms across the UK, ranging in size from solos to firms with more than 40 partners. Face2Face characterizes QS’s business model as one that rebrands existing firms, whereas its own model is “targeting start-ups, breakaways and firms looking to be ‘reconstructed,’ especially if there is a need to consider succession/exit.” In practice, the two models probably won’t come across much differently to clients; in both cases, they’ll see a small law firm with a franchised brand and the promises that come with it.

The UK, of course, is also home to the still-mythical “Tesco Law,” the widely mooted example of what the ABS provisions of the Legal Services Act would enable: legal services sold by supermarkets. This too would be a franchise operation, albeit with the franchised firms operating inside the mega-stores rather than in downtown or suburban storefronts. Canada has something similar with the “President’s Choice” line of banking and insurance services offered through Loblaw’s or the Great Canadian Superstore supermarket chains. (I enjoy telling US audiences that the Tesco Law equivalent in Canada would be “Loblaw’s Law”).

President’s Choice aside, however, the idea of franchise law firms hasn’t taken off in North America. I still remember the launch, back in the mid-1990s, of First American Law (not to be confused with First American Title Insurance or the First American Law Center), which planned to build a fleet of small branded firms across the US and Canada. Perhaps because it was ahead of its time, FAL didn’t take. The idea hasn’t gone away, though: Richard Granat recently floated the idea that LegalZoom might get into the same kind of business, supporting small firms with a brand and a back-office processing center.

The common thread in all these companies and concepts is this: a series of small firms, from solos up to about five lawyers but conceivably larger, operating independently but under a single brand name and supported by centralized web-based back-office support and marketing functions, serving consumers and some small businesses in heavy-traffic areas of law like family, real estate, wills, and business law. Because the work is what lawyers like to call “commoditized,” the brand becomes extremely important. Among the promises that QS firms make to their clients, for instance, are “no hidden costs,” “direct lawyer contact,” “same day response” and “the first consultation free.”

That’s one vision of the future. At the opposite end of the spectrum lie the global giants, and they’re taking a much different approach. Most of these firms dread the “commodity work” label and strive to serve a high-end market of major corporate clients with complex, challenging, high-stakes work that engages lawyers intellectually and rewards them stunningly. And while smaller firms are turning to a faceless brand to give them an edge, the larger firms are counting on faces, very specific ones, as their salvation.

The Wall Street Journal‘s recent report on lateral hiring trends was one of a growing number of accounts of law firms raiding rival firms for superstar partners with large books of business. These laterals don’t come cheap: many new arrivals expect compensation up to ten times heftier than what some of their new colleagues are earning. The compensation gap is to be expected, of course: just as LeBron James is paid a lot of money because he’s expected to fill a lot of seats, laterals are expected to earn their keep and more. But it’s still interesting to hear DLA Piper chairman Frank Burch explain the rationale behind lateral hires: “We are focused on making big, strategic hires, who can allow us to achieve greater stature and visibility in the business community.” That’s not a productivity argument; that’s a marketing argument, a profile-augmentation rationale.

None of this is new, of course: smaller firms that sell what everyone else is selling need to find a market differentiator (hence the interest in brands), while large firms want to sell services of a type or quality that no one else is selling and make that the differentiator. The question, at this stage, is which of these approaches makes more sense in the marketplace of the near future? It seems to me that going forward, the branded commodity approach actually has more upside.

I was speaking at a retreat for an AmLaw 100 firm last summer, and one of the lawyers asked me about what the future held for both “commodity” work and “bet-the-company” work. My response was that virtually every law firm mid-size and higher insists that it wants to pursue the latter kind of work, that that’s what it wants to be known for in the market. The problem, I said, is that there’s actually relatively little work of that kind available — companies don’t bet themselves every day — and thousands of law firms are all chasing it. Compare that to the “commodity” work: there’s tons of it out there and hardly anyone wants to provide it (indeed, judging from the number of self-represented consumer clients, there’s a massive shortage of supply). Which of these two areas looks more promising from a business development perspective?

The high end of the legal market is over-served and the low end is under-served, and there’s two reasons for that. One is that many lawyers don’t find the low-end work “challenging” enough (to which I say, find me a high-paid M&A superstar who can last a week in family court without breaking down). The other, of course, is that the low-end doesn’t pay enough. But I’ve written before about how it doesn’t matter how much the client pays, it matters how much profit you make after the costs you incur are subtracted from the price you charge.

National branded legal franchises look like an excellent way to accomplish the goal of providing more with less to this market. Let us do the things you hate, the franchisors tell lawyers, like marketing and branding and administration and whatnot. You do the things you love, like practise law and serve clients. Our efficiencies reduce your costs, so you can price competitively yet still keep more of what you charge (with a slice to us, of course). As more and more legal tasks pass through Richard Susskind’s five declining stages of work, from bespoke to commodity, the “low-end” “commoditized” share of the market is going to grow. Firms that took a more enlightened approach to this sector should reap the rewards.

And the big firms, the global giants? They have plenty of marketing and branding firepower, without question, and they’re awfully good at what they do. But they’re also susceptible to the weakness inherent in the traditional law firm model: your assets walk out the door every night, and you need to pray they come back the next morning or else you don’t have a business. The Lawyer reported this month on a survey of nearly 2,000 partner moves in London from 2005-2010 that found almost half of those hires left their new firm within five years, and up to a third left after three. Do you think those acquisitions were good investments of those firms’ time, money and effort?

As legal work drifts towards commoditization, lawyers drift towards fungibility. All five partners in your branded storefront franchise walked out today? You can probably find five other lawyers with very similar skill sets to replace them — and in this economy, you can probably do so fairly quickly. But brand names and logos — they don’t leave. Now suppose that all five partners in your large firm’s biotechnology practice group walk out the door; you have a much bigger problem. A wise manager once said that if he discovers he has an irreplaceable employee, his mission become making that employee replaceable. Large firms that boast about the irreplaceability of their top earners perhaps don’t realize the double-edged nature of that particular sword.

The oldest axiom in the legal business is that clients buy the lawyer, not the firm. This is true and always will be true, insofar as the lawyer brings something unique to the table: extraordinary skills, outstanding personality, or perhaps most importantly, the ability to craft and perfect a trusted relationship. But absent those conditions — and those conditions, I expect, will become increasingly rare — and with bespoke legal work diminishing, clients’ buying criteria are going to expand to emphasize factors like price, accessibility and reliability. When you’re sliding towards those criteria, you’re walking into territory where national brands have developed a very strong home-field advantage.

Are you selling clients your lawyers or your firm? Think carefully about the ramifications of your answer, now and down the road, because clients are starting to ask themselves the same question.

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

• the departure of Rio Tinto’s GC to take a top position with CPA Global,
• Microsoft’s move to send general legal work to India,
• WilmerHale’s outsourcing of back-office work to Ohio,
• CMS Cameron McKenna’s agreement to outsource its support services,
• Minter Ellison’s decision to send back-office work to New Zealand,
• Freshfields’ appointment of regional UK firms as referral sources,
• Taylor Wessing’s creation of an out-of-town corporate services business for their own and other firms’ clients,
• the revival of (now-)Hogan Lovells’ Wave system for sending routine legal work to smaller regional firms,
• growing LPO interest in the Americas and the Caribbean,
• Eversheds’ deal with Accenture to outsource numerous administrative jobs,
• the appointment by Slaughter & May of an LPO panel,
• the first of likely many LPO mergers, UnitedLex and LexScribe,
• growing regulatory interest in LPOs in the UK, and
• Herbert Smith’s relocation of support services to Belfast (previewing Allen & Overy’s similar move this week)

What’s clear by now is that law firms are sending increasing amounts of work outside the firm, in two streams: (1) back-office tasks (administration, financial support, etc.) and middle-office tasks (research, document review, etc.) to LPOs in lower-cost locations overseas; and (2) routine lawyer work to law firms in lower-cost nearshore locations (expect more of that, and soon). We don’t hear much about clients’ direct LPO activities, but like icebergs, those are 90% hidden from view. And Thomson’s Pangea3 acquisition promises intriguing new developments to come on this front.

So we’ve just come off the year of law firm outsourcing: traditional firms contracting with distant corporate entities in lower-cost jurisdictions to carry out basic or routine work. I think 2011 will see the further development of a related but more important trend: the shift of lawyer work away from full-time associates and towards independent, unaffiliated, networked and mobile practitioners. The corporate outsourcing stream is branching out into an individual outsourcing stream. 2011 should be the year of the free-agent lawyer.

Almost two years ago, John Flood and Peter Rouse pointed out that law firms’ historic tendency towards full employment — maintaining platoons of full-time lawyers on the immediate premises — might have run its course, in light of both the recession and new service models at “dispersed” law firms such as Axiom, Rimon and Lawyers Direct. “Although legal work has become more commoditised and an increasing proportion of it shipped offshore,” they wrote, “it is perhaps lawyers themselves, both associates and partners, who are the commodities, traded and marketed by recruiters and head-hunters.” The new law firm model will be based on “contract lawyers” — attorneys retained for a specific project or a limited time, then released back into the market.

Law firms themselves soon caught on to the fact that many of the associates they had cut during the financial crisis could be brought back into the fold at lower costs, with fewer benefits, at the firm’s sole discretion. Last summer, an Altman Weil survey reported that “a majority of responding firms expect that contract lawyers will become a permanent part of their firm’s structure.” Altman’s Tom Clay added: “As firms become more comfortable with contract lawyers, AFAs, fewer partners, and whatnot, they’ll see it as a way to deliver services more efficiently to their clients.”

This past December, contract lawyer hub The Posse List noted that temporary lawyers were becoming a permanent solution. “[D]uring the recession, in order to keep the troops busy, law firms gave their associates work that would have normally gone to contract attorneys,” TPL wrote. “But now, even as the economy continues to improve, the ranks of ‘other’ attorneys continue to swell due to their lower cost and often more targeted experience. We have seen that as many contract attorneys with specialized experience move out of the document review rooms and into more substantive work.”

CEOs in all industries, not just law, have concuded that their labour costs have been too “fixed” and insufficiently “variable” in the recent past — the shift towards contract employees addresses that perceived imbalance. This chart from a recent issue of The Economist starkly illustrates that although current unemployment rates remain very high, there’s one notable exception: temporary or contract workers:

It’s not just in North America — the Posse List reports a steep rise in European and foreign-language document review work for contract lawyers. It’s not just “temporary” or “contract” lawyers, either: the last few years have seen a steady growth in the percentage of part-time lawyers (including partners) in law firms. And even within the ranks of law firm associates, a two-tier reality is emerging, notes Jerome Kowalski: a small elite segment of associates paid top dollar and expected to slide smoothly into partnership, and a “vast underbelly” of staff lawyers who are paid much less and worked just as hard, but are not held to strict billing or business development expectations.

Law firms, for once, appear to be near the front of a business trend: the lawyer employment model is shifting away from full-time work in law firms towards temporary, contract, part-time, dispersed, and/or remote free-agent lawyers. And this should be no surprise, because legal work itself is making the same transition: from a model in which every task was performed (and billed) by full-time lawyers inside the law firm, to a model in which legal work is carried out by the most appropriate, efficient and cost-effective performer, regardless of status or location. Associate leverage ratios have declined from their historic mid-’00s highs and figure to stay lower for the foreseeable future; formerly bottom-heavy pyramid-shaped law firms have become and should remain noticeably slimmer.

It’s a rational development, and in the end, it will produce a legal labour model more aligned to marketplace reality than to lawyer traditions. But from now on, many lawyer jobs will be much less secure, and significantly lower-paying, than the last few decades have led us to expect. And it will give rise to a number of implications and repercussions:

• Law schools have not seen this trend coming and they have not adjusted their business model, which still pretends that huge tuition fees can be paid off quickly with a high-paying law job. At least three years’ worth of students have graduated into an entirely different market than the one on which their schools’ economic assumptions were based, and every year that schools fail to adjust adds another year of graduates with misaligned expectations. The long-term impact: a winnowing of the number of law schools and a general (although not universal) slump in revenue among the schools that survive.
• Professional responsibility rules and practices will prove equally unready for the new model. As a friend who operates professional development in a large firm asks: to which lawyers should PD be applied? The future stars, certainly. But what about the staff, temporary and contract lawyers who produce work for the firm’s clients but are not expected to stay long enough to be considered a good educational investment? If firms don’t provide associate PD, where will it come from?
• And what about conflict of interest rules? The same friend points out that contract lawyers who work for multiple employers on numerous matters will accumulate many more conflicts at a much faster rate. If the current rules on conflicts of interest are maintained and enforced, these lawyers will rapidly find themselves ethically obliged to turn down work, eventually becoming effectively unemployable. If we consider that to be a perverse and impractical outcome — and I think we should — are we looking at a two-tier ethics system? Or the collapse of an already unwieldy conflicts regime in the face of market pressure?

Despite all of that, however, I do think that this trend will eventually prove to be advantageous for this new generation of lawyers. I prefer to think of them not as “contract” lawyers or “temps” — terms that, in both reputation and reality, often aren’t so great — but as “free-agent” lawyers: agile, versatile, flexible, low-cost and high-quality sources of legal expertise. I think this new model will end up a net positive for the current and coming generation of lawyers. The advantages of free-agent lawyering should include:

• a wider range of work,
• more flexible work schedules,
• a greater ability to respond to changing market needs,
• more time for family and personal priorities,
• better and more efficient work habits,
• less attention paid to timesheets,
• more opportunities for niche careers,
• greater freedom to chart your own developmental path, rather than one shaped by the firm’s immediate needs, and
• the ability to carve out your own independent professional brand.

Interestingly enough, free-agent lawyers could ultimately make law firms less important in the legal services market. In sufficient numbers, they will effectively constitute a new set of competitors: armies of independent lawyers who operate without the overhead costs and institutional inertia of law firms.

Free-agent lawyers might work for Axiom-style dispersed firms for as long as it suits them. They might ply their trade as independents with the assistance of Posse List-like organizations. They might come together to form emerging legal business networks of their own and use them to build brands and careers. They won’t be “solos” in the traditional sense — they ultimately work for other businesses, not their own — but they will constitute a valuable option for clients who want legal work done quickly, cheaply and well. LPOs will have to keep an eye on free-agent lawyers, too: they could be each other’s primary competition. Equally, though, the two entities could form alliances and pose an even stronger challenge to law firms.

Make no mistake, free-agent lawyers have a steep hill ahead of them: it’s a legal career on the edge, providing little leverage or security and demanding an entrepreneurial spirit. They could use some organizational help. But it does seem like a career path custom-designed for millennial lawyers, who were raised to multi-task their way through numerous serial careers with maximum flexibility and personal fulfillment opportunities. They represent, if not the future of the legal profession, one of a growing number of available futures for a legal marketplace increasingly in flux.

Jordan Furlong speaks 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.

I’ve seen this scenario repeated many times, not only in law firms but certainly with unusual frequency there. The instinct to solve a problem by throwing more money at it — or more accurately, to interpret dissatisfaction primarily as something more money can cure — emerges with remarkable ease and frequency within law firms. Hardly surprising, since virtually every internal and external metric of success for law firms, and almost every major decision about strategy and tactics, involves revenue in the here and now. Money motivates. Money galvanizes. Money is why we’re all here, why we show up every day. So if you want something done in the firm, if you want to maximize your chances of success, just add money. Not happy? Here’s more money.

Yet while this belief holds firm inside partnership meetings, and seems to constitute the philosophical foundation of a remarkable number of law firms, a somewhat different picture emerges when you step outside that hothouse environment. The American Lawyer‘s most recent associate satisfaction survey (which, by the way, recorded its lowest levels since 2004) does highlight associates’ desire for salaries to return to pre-recession levels. But as Northwestern’s Steven Harper points out, the higher-ranked firms scored very well on factors such as “relations with partners and other associates, interest in and satisfaction level of the work, training and guidance, policy on billable hours, [and] management’s openness about firm strategies and partnership chances.” Associate salary does not drive associate satisfaction; there’s more to it than money.

Move outside the law firm world altogether and the evidence becomes more compelling. A widely circulated study of multiple Gallup polls found that on average, an annual salary of $75,000 correlates with the high point of people’s “day-to-day contentment.” Salary increases beyond that point improved people’s broader satisfaction with their place in the world, but it had no effect on their daily emotional well-being. The actual figure can be debated — it would certainly be higher or lower in various cities or industries — but the fundamental takeaway is that past a certain point, compensation fails to move the needle on happiness. Throwing more money at unhappiness is a waste of good money.

Then there’s the work of Daniel Pink, whose new book Drive explores what motivates people to do their best. His TED presentation on this subject is a masterwork. He describes extensive studies showing that people desire workplaces that give or encourage autonomy over their work, mastery of their subject and higher purpose behind their efforts. And he demonstrates not only that these intrinsic motivators are more important than extrinsic motivators (including money), but also that for certain types of work, increasing monetary rewards actually reduces people’s effectiveness. What types of work? Pink describes them as “right-brain, creative, conceptual kinds of [tasks, where] the solution, if it exists at all, is surprising and non-obvious.” That describes, among other tasks, most legal work of value. Monetary rewards narrow people’s focus, which is ideal for straightforward, mechanistic tasks. For creative problems, where the solution is on the periphery, monetary motivation does more harm than good.

This all matters if your firm wants to be successful for its clients and be competitive for legal talent in the 21st century. The factors that keep lawyers satisfied and that positively affect their ability to do their jobs are changing as we speak. Law firms that continue to act as if everyone and everything has their price, and that money is the fuel that drives performance, are going to struggle to keep the best talent and deliver the best results, and they’ll wonder why.

Now, of course money plays a role in satisfaction; but in most cases, what matters to people is less how much they make and more whether they’re being treated fairly. We all like to complain about new lawyers in large firms pulling down six-figure salaries that they “don’t deserve.” You hear the same criticism of professional athletes, whose income is wildly disproportionate to their actual societal contribution. But the measure to look at isn’t the stand-alone denominator of salary, but its percentage of the overall profitability of the company or industry: when pro athletes complain, it’s because they see the overall pie growing to mammoth dimensions and they want a proportionate share. Similarly, associates know exactly how profitable their law firms are. But when they see colleagues laid off and their own workload doubled while watching multi-million-dollar partner profits grow, they start to have understandable doubts about whether the firm is dealing with them in good faith.

So compensate your lawyers fairly, in the context of their contribution and your profitability. But once you’ve done that, turn your attention to ways in which you can improve their performance, illuminate their career path, and increase opportunities for communication. Focus on intrinsic motivational drivers of the best performance and attitude. And learn to de-emphasize the role of money in your efforts to motivate and satisfy your lawyers — especially if they’ve just walked into your office for That Conversation.

But what’s real, and what remains, is the widespread public support these figures received and what they represent: a daydream about the courage to quit a job that treats you with less respect than you deserve. And it underlines a serious trend in the workforce to which law firms should be paying close attention. As Daniel Gross explains in a Newsweek commentary, “the poor labour market and workers’ antagonism toward employers and customers are actually connected”:

I was reminded of this observation when reading the latest financial report from a large law firm: “Profits rose, revenue dipped at Baker & McKenzie in fiscal 2010.” I’ve seen a couple dozen of these stories in the mainstream legal press over the past few months, breathlessly announcing what amounts to the same thing over and over: firms are bringing in less money, but partners are reaping higher profits. That happy result comes from the important middle step that the headlines don’t include: “Revenues down, costs slashed in a surge of panic, profits up.”

We all remember the bloodletting committed by large law firms in the wake of the financial crisis, as staffers and junior lawyers found themselves out on the street. The firms that threw their most vulnerable over the side then are the same firms reporting rising profits now. It was ever thus — that’s how businesses work, chopping assets (including people) to ensure continued or improved profits for shareholders. But when you chop and chop, making abundantly clear that employees will always be let go at the first sign of profit trouble, then you also risk the full-scale alienation of your talent pool.

Tens of thousands of 2008-10 law schools grads are still deeply in debt and struggling to find law jobs to stay afloat, even to the point of moving to India to work for an LPO. Many law firm partners, I think, have forgotten just how frustrating and humiliating it can be to have no job and no prospect of finding one — and they never had to look for work in an economy like this, where unemployment shows every sign of becoming chronic. And to rub salt in the wound, the law firms that cast off their young lawyers love to blame the victim, castigating new grads for their “sense of entitlement” and “lack of work ethic.” This can’t continue without inflicting real damage.

There are plenty of archaic traditions in the legal profession that have no place in the 21st century. But one tradition that deserves its place of pride is the responsibility to help usher in the next generation of practitioners. The recognition that today’s juniors are tomorrow’s leaders was sufficiently widespread that firms took care of their people as a matter of course. As stewardship in the legal profession has faded, first gradually and then dramatically, lawyers’ trust in the firm and the partnership has faded with it. This isn’t just something we should feel bad about. This is a collective decision to exploit legal talent at the worst possible time.

Throughout this coming decade, we are going to see the continuous rise of lawyers engaged in legal services but employed by non-lawyer entities. Legal process outsourcers, e-discovery providers, document assembly companies, legal project management experts, legal knowledge professionals, and many other entities outside the law firm world will be hiring experienced lawyers to populate their offices. Law firms that took care of their people in the tough times will have nothing to fear; those that didn’t will be astonished and appalled at how easily their lawyers and legal professionals will be poached. Steven Slater’s real-life jump, no matter how contrived it might have been, reflects employees’ economy-wide readiness to jump from jobs that treat them as fungible, exploitable, and expendable. If that’s how you’ve treated your people, you can look forward to the day when they return the favour.

It’s an intriguing question, but not because of whether it would be feasible — it already is. Firms following this model are blossoming across North America and Europe. They offer corporate clients the services of lawyers with pedigreed credentials (large-firm and law-department experience) who will work from the client’s office or from home, for limited periods of time, at much lower rates than traditional law firms charge. The selling point for clients is the services of an excellent lawyer on the client’s terms, at a competitive price that excludes traditional firm overhead costs and revenue expectations; for lawyers, the challenge of high-end work on a short-term, flexible or even itinerant basis.

Maybe the best-known of this new breed of firms is Axiom Legal, which is closing in on the 300-lawyer mark, but there’s a growing collection of similar operations like Virtual Law Partners, FSB Corporate Counsel, Paragon Legal, Cognition LLP, Virtual Law [UK], The Rimon Law Group, and Keystone Law. They’re often called “virtual firms,” but that’s a little confusing, in light of the growing number of small cloud-based law practices. I prefer VLP’s self-description, a “distributed” law firm, or Keystone’s, “dispersed.” Concerns about these firms usually focus on the scope of their expertise, their value for money, and their KM and quality-control systems, all reasonable worries.  There doesn’t seem to be much question, however, that these firms are sustainable and are already legitimate players in the marketplace.

No, what’s really intriguing about these firms is the fact that they developed at all — that the traditional law firm has become sufficiently unpalatable to the people who retain it (and to some of the people who work inside it) that something new and different can flourish. Dispersed law firms directly challenge the traditional law firm model, presenting themselves as at least a complementary service to what traditional firms offer, and at most, a full-fledged alternative provider. These new firms question the fundamental nature of traditional firms, arguing that the physical concentration of legal talent in a high-priced centralized location with a rigid hierarchy and pyramidic revenue structure is outdated and self-serving. Flexible, project-based, techno-savvy, client-focused law firms are the way of the future, they contend: they’re more efficient, more accessible, and more rational.

So the battle lines have been drawn; which side you come down on may be influenced by how much you think physical proximity and legacy superstructure contribute to the expertise and collegiality of lawyers and to the power of the law firm brand. But is this the battle that will determine what “the law firm of the future” will look like? I’m not inclined to think so. As I’ve said before, what we’re seeing emerge now are multiple potential models for law firms, any or all of which could prove sustainable; the distributed or dispersed law firm is a firm of the future, not the firm. And I tend to think that traditional and dispersed firms will come to resemble each other over the course of time anyway.

That’s why, for me, the most fascinating new entry in this area is an operation called Lawyers on Demand (LoD) — it’s a dispersed law firm owned and operated by a traditional law firm. And it opens up a whole new conversation.

Lawyers on Demand is a service of UK law firm Berwin Leighton Paisner, and while both will undoubtedly be familiar to UK readers, LoD at least will be largely new to the North American legal marketplace. Lawyers on Demand bills itself as “an alternative resourcing solution for in-house legal teams, providing talented and experienced interim lawyers to meet client needs … a flexible pool of high-quality, freelance lawyers who are trained, vetted and supported by BLP and who work directly for clients.” Designed in part to attract good lawyers seeking more flexible work arrangements (it was launched during the height of the talent wars in 2007), LoD also very much resembles the dispersed law firms that compete with traditional firms like BLP. In fact, LoD’s co-founder describes it in part as “a reaction to the growing trend for clients to move against firms’ traditional hourly-rate charging format. … [We] wanted to establish a pioneering program that would enable clients to receive legal advice at a fraction of the usual cost….” That’s a remarkable thing for a traditional law firm to say out loud.

Lawyers on Demand is not to be taken lightly: it recently added Cisco to a client base that includes Dell, UBS and Gucci, and it led all comers in the Client Service category of the FT 50 Innovative Lawyers awards last year; in some respects, it’s the natural evolution of secondments. But it’s arresting to see a distributed law firm, every other instance of which is competing directly with traditional firms, owned and operated by one. It raises some fascinating questions.

For instance: what is the effective difference between a BLP lawyer and an LoD lawyer? Yes, the type of work they do is different — LoD lawyers work on-site with the client for limited periods of time for a specific purpose, whereas a BLP lawyer stays in the firm and carries out traditional tasks pertaining to ongoing client files — but that’s a difference in implementation, not in basic nature. Berwin Leighton takes pains to emphasize the high quality of LoD lawyers, which I’m sure is true, but if the quality and support are comparable and the LoD lawyer is considerably less expensive, where does that leave the BLP lawyer, competitively speaking? Would a client be inclined to favour the less costly and more flexible lawyer? Is there a risk that by operating a nigh-virtual and less encumbered version of its own firm, BLP effectively highlights for its clients some of the drawbacks of traditional law firms?

Or is that less a risk and more a strategic plan? What intrigues me is the idea that through the creation and operation of LoD, Berwin Leighton is both protecting itself against this new competitive threat and adopting some of that competitor’s advantages. It’s telling clients they don’t have to choose between the old-style firm and the new-style firm — that they can have either or both, depending on their needs and circumstances at any given time. At this point in the evolution of the legal marketplace, when corporate clients are simultaneously pressured to reduce cost but also to maintain a sense of quality control, effectively offering clients two firms — one traditional, one innovative — could prove to be a remarkably powerful competitive advantage. Berwin Leighton is the first law firm to do this, to my knowledge — I doubt it’ll be the last.

So maybe there’s no need to carve all the bad things out of a law firm, or abandon all the good things in order to start something brand new. Maybe you can put two ordinarily competitive models side by side in the same organization, let each complement the other while doing what it does best, and let clients pick and choose what they want from the resulting menu. Maybe the future isn’t “lawyers on demand” so much as it is “law firms on demand.”

The fundamental client objection to lawyers’ fees is uncertainty: the client rarely knows the final price before the work is done. Neither, in most cases, does the lawyer — either because the price is truly unpredictable or, far more likely, because the lawyer has neither the means nor the incentives nor the inclination to figure it out beforehand. The fundamental variability of legal fees powers a business model that has proven enormously profitable for lawyers: because the fee varies according to the amount of time and effort devoted to the task, the lawyer has every incentive to maximize that time and effort. Uncertainty creates risk — 100% to the client — and reward — 100% to the lawyer.

The radical change facing law firms today is the end of variable fees as law firms’ financial engine and their replacement with non-variable fees — or, in the parlance of the day, fixed fees. Evidence continues to emerge not only that fixed fees are the immediate future of how lawyers’ services are sold, but also that they’re long-term future of how lawyers’ entire businesses operate.

Fees that vary according to the lawyer production process, rising in tandem with time and effort expended, naturally give rise to inefficient workflow, reinvented wheels, maximized activity and over-accomplished tasks. Conversely, fees that are fixed in advance by the purchaser naturally give rise to proportional efforts, recycled know-how, streamlined processes and hyper-efficient workflow. The first type of law firm business model is starting a steep decline; the second is in sharp ascendancy. In the result, we’re going to witness a sea change in the culture and operations of many law firms. It’s not destiny or professional genetics that makes law firms houses of horror for both the lawyers who sweat to docket the hours and the clients who grimly pay for them — it’s the fever grip of the variable fee. The rise of the fixed-fee-driven law firm is going to demonstrate just how different and better a law firm can be.

Two examples: first, an excellent article at LegalBizDev by Steve Barrett, former CMO of Drinker Biddle, with a title that says it all: “Alternative fees demand improved project management.” It argues that any firm thinking about adopting a fixed-fee approach to sales must be prepared to overhaul its internal systems and business culture. Fixed-fee firms can’t survive massive writeoffs by lawyers who made clients promises about price that they couldn’t keep, or succeed without tracking the progress of past fixed-fee approaches and instituting technological tools to analyze them. And no firm can even contemplate fixed fees without a very clear understanding of the most important aspect of their business: what it has cost them in the past to deliver their services:

Many firms mentioned that a good understanding of cost patterns has never been developed in their firms.  One said (paraphrasing) “We should know how much an ‘XYZ financing transaction’ typically costs, since we do hundreds of them every year.”  Another (again, paraphrasing) said “I can’t believe we don’t know the cost of a typical deposition, since we must do thousands a year.”

As clients ratchet up the pressure on their lawyers to deliver results on a fixed-fee basis, firms will be obliged — forced is probably a better word — to implement these systems and gather and use this data. Just as the variable-fee model discouraged the adoption of these processes and approaches, fixed-fee models will require it.

Second example: firms’ use of associates. Pamela Woldow and James Cotterman of Altman Weil warned law firms in a recent seminar on associate compensation that they need to cut associate salaries much more deeply and accept the fact that clients will never again pay for new associates billed out by the hour. Clients would much rather rely on their own contract lawyers or on offshore professionals than on inexperienced associates; but the opportunity to train associates with this work –  and, much more, the ability to generate revenue off these associates’ billed hours — is key to law firms’ success. The solution to this impasse: fixed fees.

Woldow pointed out that corporate clients are more amenable to using first- and second-years on their matters in fixed-fee arrangements. “So if you really want to use and train your first- and second-years, then up the alternative fee arrangements,” she said.

Endless battalions of associates only make sense in a variable-fee system. When the amount of money you make is tied directly to the number of people working on a file and the amount of time they take to do it, you have every incentive to increase both. In a fixed-fee system, profitability flows in precisely the opposite direction: fewer people hired, fewer hours spent. Law firms that abandon variable-fee structures will shortly find themselves completely rethinking how many associates they hire, how much they pay them, and what tasks those associates are assigned. Under a fixed-fee system, a firm that genuinely wants to train its associates can afford to do so, not least because there’ll be fewer of them — the demand for associates will plummet, along with their cost.

As variable fees give way to fixed fees, we’re seeing a corresponding shift of burdens from the client to the lawyer: the risk of financial shortfall, the maintenance and analysis of relevant data, the obligation to control costs, the necessity of working smarter, the requirement to properly define productivity, and the responsibility to prioritize value. These changes are poised to transform lawyers’ incentives, processes, systems, and attitudes — for the better. Forget the billable hour: the future of law practice is tied to whether lawyers’ fees remain variable — or, put differently, to whether the client or the lawyer decides how much the client will pay. If I were you, I’d bet on the side that’s holding the money.

That observation comes from Bruce MacEwen of Adam Smith Esq., and I share his concern that false confidence will lead too many large firms to believe that everything’s going to be basically okay. For large firms, everything is emphatically not okay.  The past couple of weeks have delivered a series of examples that demonstrate one thing: the ways in which large law firms have operated over the past few decades are coming to an abrupt end.

First, consider this this Legalweek report that two major international firms, Mayer Brown and Reed Smith, are jumping onto the fixed-fees bandwagon. Mayer Brown is readying itself to offer fixed fees for all its transactional work, as well as to make more frequent use of abort agreements and success fees. Reed Smith, meanwhile, plans to use fixed or capped fees in its financial industry group, in its corporate and real estate practices, and for transactional work.

What brought about this sudden departure from the easy-and-profitable billable-hour system? The firms’ leaders cite client relationships first and foremost, which is nice to hear. But perhaps equally instructive are two other articles linked from that Legalweek story: 55 job cuts at Mayer Brown in March, Reed Smith hiring a restructuring consultant in July. Few firms undertake changes of this potential magnitude unless the outside pressures exerted on them have made things very uncomfortable. (It’s worth noting, as Jim Hassett’s webcast does, that these are not the first AmLaw 100 firms to  climb onboard this train.)

Even more revealing are the contents of a leaked strategy memo from O’Melveny & Myers that appeared on Above The Law. The firm plans to “adopt a single rate card by FY2012, with volume and ‘investment’ discounts and appropriate alternative fee arrangements … becoming the leader in providing high-end legal services on a fixed fee basis, reducing costs to clients and achieving superior economic performance through practice management oriented toward cost effective client service.” Especially noteworthy are plans to reduce associate leverage to as low as 2-1, a ratio that’s positively Canadian.

Fixed fees, if done right (a big if), are demonstrably better both for the client and the lawyer. The question is whether large firms constructed on billable-hour pyramids can really adapt their culture and systems to make such a monumental change. Many big firms still think the key to flat fees is to take the last ten bills issued for this kind of work, average them out, add 10% for contingency, and present the final figure with a flourish. Fixed-fee veterans in smaller firms are skeptical, to say the least. Here’s Valorem’s Patrick J. Lamb on these big firms’ moves:

The essential element of alternative fees that actually work is that they shift risk to law firms, meaning the value changes from leverage and body count to experience and fewer bodies.  More brain power, less body count.  So a goal of reducing leverage “in some practices” to “as low as” 2 to 1 will make anyone experienced with alternative fees laugh out loud.  O’Melveny might as well take out a full page advertisement saying it really won’t be changing a damn thing.

I’m prepared to give O’Melveny’s initiative the benefit of the doubt, actually — every journey has to start somewhere, and I want to encourage every green shoot of innovation I see. But man, is this a long journey — changing a law firm’s fee and billing structure is like re-engineering your DNA, and the best will in the world won’t make it any less difficult. And for every large firm that is finally acknowledging that the horse they’ve ridden for years has died, ten more are still clinging on to the saddle.

The O’Melveny memo states at one point: “In the very recent past, our business model, as a whole, has yielded disappointing financial and practice growth results. … [O]ur litigation clients are looking for rate and fee reductions, and we expect that mindset will continue into the next good economy and beyond.”  That understates the size of the challenge. It’s not just litigation clients — a lawyer at a large firm confirms to me that the pressure for lower and/or more predictable costs is intense and is coming from across the client spectrum. This is the new reality, and large firms will struggle to make the sort of fundamental changes needed to adapt.

Let’s look at another key element of law firm success: personnel. The results of a survey published in The American Lawyer are interesting, if not surprising: associates in large firms are measurably more unhappy than their counterparts in smaller firms. Not only that, but graduates of the “elite law schools,” from which so many big firms insist on drawing most of their recruits, are the unhappiest of all when compared to their colleagues from “less elite” schools. (It doesn’t help that, as Ron Fox points out, law schools of every rank tend to funnel their graduates towards large firms and away from opportunities to serve ordinary consumers in smaller practices.)

You can probably guess the advice that the study’s authors offer big firms as an antidote: recruit outside your usual law school boxes, and make life for your new lawyers a little less punitive. It’s advice unlikely to be accepted, says Aric Press, editor-in-chief of American Lawyer: “I fear that we will look back at the exuberant spree of the last few years as the high-water mark of nonelite law school hiring. … This leaves an opportunity for the firms wise enough to seek first-class talent no matter what brand is on a diploma.” But how many firms will risk the CYA comfort of consistently recruiting from “the best and the brightest,” let alone make substantive changes to the overall associate model?

The study’s authors note that big-firm attrition is particularly frequent among women and minorities. Underlining that concern is this account of an event celebrating Working Mother magazine’s 50 Best Firms for Women Lawyers. Many of last year’s winners didn’t make the cut this time — in part, perhaps, because despite wishful thinking to the contrary, leaner times at big firms have made it harder, not easier, for women to advance and succeed:

It’s optimistic to believe that most large law firms are rethinking the work/life balance equation during these hard times. Frankly, most firms today are focused on survival and on a need to bring in more business — they are not, it seems, focusing on the larger questions of the meaning of work and job satisfaction. From where we sit, covering women in the profession for almost a decade, we don’t see a revolution on the horizon.

So: profits are dropping fast, more firms are getting ready to change the basic business model, the young talent is alienated, and diversity has been back-burnered. But that’s not the worst of it for big law firms. Because all this time, solos, small firms and midsize operations keep picking up all the opportunities that the large firms keep dropping.

While big firms allow women to walk away, one small firm encourages its employees to bring their children to work — not to an on-site day-care, but into the office, all day long. While big firms burn through their young talent, innovative companies like DirectLaw offer new lawyers reduced pricing to start up a solo virtual law platform — with 90 days’ free tuition to Solo Practice University to boot. While big firms set up committees to consider fixed fees, small firms have long since figured it out and will even tell you, as Jay Shepherd does, how they set their prices. All the momentum in the legal services marketplace today favours small, adaptable, innovative, client-focused, value-oriented, business-savvy providers. Most large law firms answer to immobile, traditional, self-centered, profit-oriented, and business-challenged. It’s not hard to pick the winner here.

Every marketplace, even one as artificially stunted as legal services, operates according to the law of supply and demand. The demand is changing, irrevocably. The suppliers that change with it will survive; the ones who don’t, won’t. Some more large firms are waking up to this fact and doing their best to change — but I’m concerned that 2009 is simply too late to be starting the change process.

“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.