Pandemic VI: Lawyer formation re-engineered

As I noted in my previous post, the pandemic is accelerating and accentuating all the trends that were already going to bring the existing lawyer formation system to a grinding halt. Less than eight months ago, I wrote here at Law21 about how the lawyer development system is breaking down and how we could replace it with something better.

At the time, I thought that the system would break down because law firms would hire fewer and fewer new lawyers and would thus remove themselves from their longtime de facto role as “on-the-job lawyer trainers.” This would have knock-on effects up and down the new lawyer pipeline.

Legal regulators, I wrote, need to unify the disparate strands and fragmented shards of lawyer formation and assert control over the lawyer development process in their jurisdiction. Education, training, licensing, and ongoing competence assessment all need to be carried out under unified supervision and against a comprehensive, authoritative vision for creating competent, confident lawyers to serve clients and society.

That, as they say, was then. A process that I thought last August would unfold over the course of years is now happening in weeks. So I’d like to recommend that post for your review, and to now use it as a launching point for the following proposal for reinventing lawyer formation in the post-pandemic era, whenever that arrives.

To make this change possible, we have to stop thinking of lawyer formation in terms of the organizations we’ve allowed to handle different segments of lawyer development — law schools, bar admission entities, law firms — and start thinking in terms of, from the perspective of, the lawyers we are helping to form. We need to figure out what lawyers actually need, in terms of structured instruction and supervised experience, in their first 10 years in the legal community, and only then turn our minds to which sorts of entities are best positioned to provide it.

Right now, out there working on ways to rethink and re-engineer lawyer formation, are many very smart people with extensive experience in legal education. I fall into neither of those categories; nonetheless, I’d like to submit for your consideration this rough breakdown of the three elements that I believe lawyers need to acquire during their formative years.

1. Education in core legal principles. What are the foundational building blocks of law? Before a student learns the first thing about the rules of evidence or the standards of contributory negligence or what makes a will valid, they first need to know the essential elements of law and the benefits it offers to society. These include:

  • underlying principles of law (fairness, due process, precedent, the rule of law, etc.)
  • essential features of law (rights, obligations, remedies, solutions — recall the consumer legal hub)
  • key manifestations of law in society (procedures, guarantees, title, disputes and their resolution)

Law is not a trade, and law school is not a trade school. There is a genuine role for what we think of as “traditional legal education,” and this is it. But it does not involve textbooks and lectures and exams in “Contracts” or “Land Transactions” or “Tax” or any other “practice area” course. It involves, yes, “thinking like a lawyer,” but more importantly, understanding why we have law and why we have lawyers — the benefits both provide in terms of safeguarding and promoting social stability, inter-personal reliability, individual dignity, and collective responsibility.

Examples of the principles, features, and manifestations of law would be drawn from all the standard “practice areas” — not to “teach” those areas of law, but to illustrate points about precedents and obligations and guarantees and so on. This segment of the process would be best administered in person, a group of novices learning together under the guidance of experienced educators, in order to help with socialization of new lawyers and the building of their networks.

By the time a student finishes this segment (and demonstrates to their instructor’s satisfaction their command of it), a student would know the “why” and “how” of law; only then would they dive deeply into the specific “what.”

2. Knowledge of legal subject matter. While this might look like all those substantive “practice area” courses from law school, there are a couple of key differences.

One difference is that these courses would be learned mostly online, through recorded video instruction and the completion of various “modules” that could consists of dozens or even hundreds of units, depending on how much of a specialty a student wanted to develop. Assessment of a student’s learning would be conducted by expert practitioners in each area authorized by regulators to test students as soon as they wish to be certified as having completed some or all of the course. Completing and “passing” 20 modules, say, would give you a basic grounding; 40 would makes you moderately informed; 100 would make you a budding expert.

The second difference is that there would be no mandatory courses. I recognize this is controversial, and you might protest that there are some things “every lawyer should know.” In terms of professional identity and responsibility, I agree, and these are covered in the third section below. I also agree that there should still be “pre-requisite” courses for some subjects — for example, you would not enrol in “Mergers & Acquisitions” until you’ve first completed a minimum number of law “Business Law” modules.

But in terms of requiring every student to master an (increasingly arbitrary) array of legal subjects, I disagree. We need to stop forcing future lawyers to spend the first precious years of their lawyer formation learning about areas of the law they will never use. A highly specialized legal market needs equally specialized lawyers who learn continuously and fluidly throughout their careers.

Under this proposal, nothing would prevent a lawyer who, having completed and been certified in, say, employment law, from later changing their career plans and completing a course in patent law. The lawyer’s “classmates” at any given time would therefore encompass a broad range of novice learners and experienced practitioners,  producing a far more diverse, dynamic and collaborative learning environment. “Law school” in this system stops being a place where you spend the first three years of your career and never return again; it becomes a lifelong learning resource — what CLE should have been, but never was.

We should no longer use the legal education system to satisfy an antiquated vision of a profession filled with jacks-of-all-trades and Atticus Finches; instead, we should empower law students to build the types of legal careers they want to lead and serve the parts of society they want to serve in a rapidly changing world.

3. Skills and standards of a lawyer. This is the part of the lawyer development process that many veteran practitioners refer to as “the real world.” I draw no hierarchical distinctions regarding whether these subjects are superior to any others. But here is where you’ll find subjects such as:

  • professional identity
  • legal ethics
  • professional conduct
  • character and integrity
  • personal empathy
  • customer service
  • business fundamentals
  • workflow management
  • financial literacy
  • technology training
  • project management, and
  • cultural competence.

Through a combination of in-person and online education, learners would acquire mastery of these subjects and the practical realities of their application.  But more importantly, they would be given the chance to test these skills and this knowledge, either in three- to four-month work placement opportunities in the private and public sector, or in virtual classrooms and simulated law firms.

Does that last part sound too far-fetched? It’s already happening, right now. Check out the Practice Readiness Education Program provided by the Canadian Center for Professional Legal Education, which is now replacing the bar exam process in Alberta, Saskatchewan, Manitoba, and Nova Scotia. And check out the Law Practice Program already well-established in Ontario.

I’m confident that other Canadian regulators will soon convert their articling requirement to completion of the PREP, LPP, or similar programs. Other countries should study and adapt these innovative and timely new-lawyer-competence assessment methods. The template for modern, practical, supervised hands-on lawyer training is available for you right now here in Canada.

A couple of final points in this third category.

(a) This third category of learning can (and often should) take place contemporaneous with the second category. Our current lawyer formation system teaches students knowledge of a legal subject area, and then years later, exposes them to the practical implementation of it. That’s a needless disconnect born of provider fragmentation. Students should be encouraged to learn how to be a lawyer in practice at the same time as learning how to be a lawyer in theory. (Integrated courses that combine items in the second and third categories could be considered.)

(b) This third category is not exclusive to the private practice of law. “A lawyer” does not exclusively refer to people who serve multiple clients on a serial basis in the private sector. Corporate counsel, public-sector counsel, and public-interest counsel are all lawyers. This third category should provide both instruction and experience in all these different dimensions of being a lawyer (and especially in ethics and professional responsibility, which currently is taught 95% from the perspective of private practice). Among the many shortcomings of our current lawyer development system is that “private-practice lawyer” is the default setting. That needs to change.

These are my suggestions for rethinking, re-engineering, and reunifying the lawyer formation process. Next up in this series are my thoughts about what the pandemic is going to do to private law practices, and what a rescue mission and re-engineering project might look like in this highly vulnerable sector of the legal economy.

Pandemic V: Lawyer formation rescued

As was the case with the justice system breakdown I described in Posts 2 and 3, and further to the problems with lawyer formation I laid out in my previous post, I want to suggest two sets of responses to the crisis in lawyer development.

The first set, presented below, is designed to get our current system and the people who rely on it through these next couple of years. The second, presented in my subsequent post, is intended to outline a new and better system to replace the one that’s breaking down.

In the short term, here are seven suggestions for how we can help get law schools, regulators, and law firms through this lawyer formation crisis.

1. Drop the LSAT.

Law schools should stop using the LSAT as part of their applicant assessment system. Many people won’t be able to write the LSAT this year, and the conditions for those who do write it will be unequal; those two facts alone are reason enough to follow this approach. Law schools can still use undergraduate marks, work experience, and personal qualities to decide who to admit. But let’s be honest: The LSAT is an elitist artifact anyway. It tests only a small number of skills and attributes that lawyers need, and it has no correlation whatsoever with one’s future success as a lawyer.

2. Do online lectures properly.

As long as physical distancing lasts, schools should arrange for all lectures to be video-recorded and (along with lecture notes) uploaded, so that students can access them asynchronously rather than having everyone pile in to a Zoom session. This should be done at least semi-professionally, with good audio, lighting and framing. Each lecture should be 20-30 minutes maximum. The designated course professor need not deliver them all. We need to shift away from “remote teaching” to online learning.

3. Adapt student participation.

Create online message boards with questions for students to answer and discuss among themselves; active or high-value contribution to these discussions would improve a student’s final assessment. Increase the number of assignments for students to carry out, and encourage multimedia responses (video or podcast instead of or in addition to a written submission). Assign more work to groups, using online collaboration platforms (e.g., Google Docs); if isolation is lifted, these group projects can be converted to in-person.

4. Maintain Fail/Pass/Honours.

Let’s get real for a moment. Hardly anyone ever fails a law school course or fails to graduate, so we’re really talking about “Pass/Honours.” In practical terms, that is absolutely no different from “Consonant/Vowel.” I think most professors would agree that they could divide their students into “those who did the work and learned the concepts” and “those who really stood out as brighter, harder-working, and more effective than the others.” Why do we need finer distinctions? Law school is not Grade 3; we’re past the stage of incentivizing children to try hard and do their best. We’re developing professionals to serve the needs of others. Let’s keep a system that recognizes this reality.

5. Forget the bar exam.

This is simultaneously the easiest and hardest advice. Easiest, because the bar exam is little more than “an excellent barrier to entry …and a superb hazing ritual,” in the words of Joan Howarth; it “tests the ability to take tests, not the ability to practice law,” added Allen Mendenhall. It’s archaic, discriminatory, and a waste of time. But also hardest, because the profession just can’t quit the exam, partly out of habit, partly out of fear that law school didn’t prepare students to practice, and partly no doubt because of exam prep industry pressure. The pandemic has made sitting for the bar almost impossible; take this as a sign, and an opportunity.

6. Issue “progressive” law licences.

To mollify bar exam defenders, and as a step towards a better licensure system in future, all graduates who were unable to take the bar exam should be given conditional admissions to practice with “progressive” law licenses that allow the lawyer to practice but would place limitations on, say, the types of actionable legal advice that can be dispensed to individuals. Lawyers who hold progressive licences would be equivalent to “interns” who’ve graduated from medical school but haven’t yet achieved full “doctor” status. Passing a future bar exam (or a superior procedure; see the next post) would be sufficient to convert these “lawyer learner permits” to full law licences. (Also check out the Institute for the Advancement of the American Legal System’s thoughtful discussions of new lawyer licensing options and lawyer competence assessment.)

7. Incentivize new lawyer hiring.

Governments should encourage law firms to keep hiring new law graduates by making the salaries paid to these new lawyers entirely tax-deductible for as long as the crisis lasts. Large firms can go further and split the costs (and the tax benefits) of new lawyer hiring with corporate clients, where the new hires can spend half their time. Governments should also order suspension of repayments of all student loans for this cohort of graduates, and should issue partial loan forgiveness for graduates who enter public service or who move to smaller or rural locations to practise law.

These are seven short-term steps that all the participants in the lawyer development process can take right now and over the next 18-24 months to help us through this crisis. But these measures are by nature temporary, or at best transitional, as we start shifting towards a new lawyer formation regime.

Just as we’re buying time by keeping the crippled court system functioning until we can build better justice institutions and procedures, so too the foregoing measures will help keep the “lawyer pipeline” going through the emergency while we develop something better to replace it. That’s what I consider in the next post in this series, “Lawyer formation re-engineered.”

Starting your legal career

I received an email last week from a third-year student at a Canadian law school asking for advice. He’s set to graduate next spring, but like a growing number of other soon-to-be or recent law grads, he hasn’t been able to line up an articling position. (For those unfamiliar, articling is a one-year apprenticeship period that a law graduate must complete before he or she can be called to the Bar.) He struggled in his first year of law school, and his grades reflect that; but even though he’s adjusted since then, he can’t get potential employers to look past his first set of marks, and isn’t sure what to do now.

This is not a post about all the things wrong with the articling system in Canada. There are enough news items out there with terms such as “articling crisis,” “crisis of values,” “what’s wrong with articling,” “the abolition of articling,” and “the end of articling,” that you can safely conclude the system is not in great shape. For a definitive data-driven look at these problems, especially regarding the degree to which many people’s articling experiences are scarred by sexual harassment and racial discrimination, this report from the Law Society of Alberta is a must-read.

But whatever law societies do or don’t do about articling someday, my correspondent’s concerns were far more immediate. And there are countless law school graduates in his position in many countries — unable to get a job as a first-year associate or even in a “law-related” role, terrified about imminent loan repayments they have no way to meet.

Unfortunately, I didn’t have any short-term solutions to offer my correspondent, nor did I know enough people in his jurisdiction to connect him with a network of potential employers or mentors. All I could come up with were some longer-range, bigger-picture suggestions — not what he needed today, which I regretted, but maybe something he could use shortly down the road. Having written them down, I thought they might have some value to other people in his position, and so with his permission, I’ve adapted (and anonymized) my response and provided it below:

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You mentioned that you have “a story to tell” potential employers, and suggested that if employers were aware of that story, it might enable them to look past the first-year marks and consider you as a candidate “whole and entire,” someone whose first-year grades don’t tell the whole story. I think that’s a great approach, and if you can fully develop that narrative, you could potentially turn this into an opportunity to stand out from the mass of other job-seekers. Here’s what I mean.

Most law students take a conventional and conservative approach to the job-search process. They participate in on-campus interviews, lead with their grades and CV, and try to convey a sense of being the best candidate for this particular interviewer. In turn, employers (or at least, the people they choose to represent them in the recruiting and hiring process) fall into the habit of expecting these kinds of pitches. So it becomes a kind of dance, a formulaic process by which A tries to interest B and B expects A to try to interest it through a limited number of established criteria.

Dress for the job you want to have.

It’s understandable that the process has evolved this way, because both law students and law firms are conservative, risk-averse entities. What student wants to take a chance at missing out on a job because they were too unconventional? Equally, what recruitment person wants to risk the wrath of the partners by recommending someone unconventional who might not work out? Better for all concerned to go with the “tried and true” signals and markers. And that’s how we end up with the mess of a system we have.

Your first-year grades are making it difficult for you to succeed in this conventional process, because they make it easy for the recruiter to glance at them and strike your application off their list. (Speaking as someone who’s hired many people, one of my goals was to find quick and easy ways to reduce the large pile of applications.) So if, in fact, the conventional process is not going to serve you, it might make sense to abandon it in favour of something less conventional, more tailored to you as an individual.

So I think the first thing you might want to do is to change your focus from “How do I get a job?” to “How do I want to begin my legal career?” I readily admit: That’s a tough shift to make, with graduation and debt looming, and it might well be that your financial circumstances won’t allow you to deviate from the norm in this respect.

But if this shift is possible, I’d encourage it, because I think that change alone is going to set you apart, in terms of your capacity to establish yourself as a successful lawyer, among the members of your graduating class. Most of your classmates have zeroed in on that “first job,” both because it’s the entry gate into the profession and because a successful first year in a law firm holds out the promise of ongoing employment. (Not to mention the whole debt payment thing.) But they’re probably not thinking much beyond that. Lawyers and law students are box-tickers, and “getting a job after graduation” is just the next box to tick.

But here’s the thing: Articling, or first-year associateship, is just one year. Your legal career, should you choose to spend most of your working life in this sector, will stretch to 30 or 40 years. I’d encourage you to think about that career: What do you think you might like to do with it, at least in the beginning? What areas of law, or what types of practice, seem best fitted to you at the moment? You don’t need to (and couldn’t, anyway) make decisions today about what you’ll be doing in 2028 or 2043 — just about the first two to four years of your working life in the law.

This line of inquiry, in turn, patches in to your own history, experiences, and personality, and this is where we get back to “your story.” Everyone’s story is unique, intertwined with what we’re passionate about, what we have an aptitude for, and what our upbringing and life experiences have shaped us to be and prepared us to do. Everyone I’ve ever met is passionate about their own story, and they can create a compelling narrative about who they are, how they got here, and what they’re good at doing.

Anyway, here’s Champagne Supernova.

So a question you might think about, and use to ground and guide your next moves, is: What’s your story? What’s different about you, what stands out about you, in terms of the talents you own and the skills you’ve honed and the good things you want to do with them? And once you’ve got that narrative in your mind — or ideally, written it out and run it past friends and family members for their feedback — ask yourself: “To whom would this story be of particular interest?”

These questions can’t be answered in isolation, of course — they hinge on other factors. Where do you plan to live after graduation, and for the next few years? If your narrative and your ambitions involve a particular type of practice area or industry or community or other setting, then you’ll of course factor those in as well. There might also be relationship obligations or family duties to consider. But these are part of your narrative, too — try not to regard them as restrictions or limitations, because they’re part of who and where you are right now and they have full legitimacy to be in your story formation.

The more you think along these lines, the more you can narrow and sharpen and focus in on precisely how you want your legal career to begin. And with that focus becomes a certainty and confidence that will help carry through in your applications and interviews, because you’re not just another law graduate looking for a place to draw a paycheque and start paying down debts. You know who you are and where you want to be and what you want to do — which again, I strongly suspect is a place that many graduating law students haven’t gotten to yet.

Part of the narrative you’ll form, of course, is the struggles you experienced in first year. The marks are obviously there, and you’ll be asked about them. Your best bet, I think, is to weave them into your story, as part of the journey you’ve undertaken to get to this point. And as with all good stories, it’s important to fashion this difficult period as a trial or test that you passed and came out of better and stronger: You overcame the challenges that caused your marks to be low, and emerged clearer-eyed and more focused on your goal.

What matters most here, I think, is that you select the right audiences to whom to tell this story. Your average boring office of a national law firm is probably looking for your average boring law student, and that’s fine for them. But you want to identify those places where you feel confident that you (and your narrative) are a great fit — where you’re the person they didn’t even realize they needed until they met you.

When you’ve narrowed down these places, then I’d encourage you to contact them directly — but not necessarily to ask for a post-graduation job. Instead, I’d consider positioning yourself as a bright, hard-working, self-made law graduate with a strong and well-thought-out plan for the start of your legal career, who has identified this employer as a place where you can contribute value while learning about being a lawyer.

Such employers might not have articling or first-year positions available. They might not even offer such jobs! They might not be legal workplaces at all! But if they’re persuaded of the value you can offer them — if they’ve heard from you on the phone and met you in person and have had a chance to think about how you, specifically, can help them, specifically — then maybe they could be motivated to help you get into the profession. And maybe they know someone at a small firm or in-house department nearby who’s willing to take on an articling student or first-year lawyer, just so that you can get that first step out of the way. Or they might have other options that I don’t know about.

These are all just possible points of departure for the start of your legal career. But as a resource to help you think about the career you’re going to create and the paths you’re going to carve out along the way, there’s a brand-new and highly compelling book by Mike Whelan called Lawyer Forward. It also emphasizes the importance of stories, and I highly recommend it for your review and consideration.

I wish I had more immediate solutions or more practical “right now” advice to offer. But I hope the foregoing observations might have some longer-term value for you. I’d try to lean away from “getting articles” or “getting a job after graduation” — as critically important as these goals are — and more towards “starting my legal career,”  which includes both the short-term one-year needs as well as bigger-picture, more thought-provoking goals and considerations.

It will help you figure out the kind of people and the kind of organizations where you’ll feel like you belong and where you know they’ll benefit from your contributions. And it will help you really figure out what kind of lawyer you want to be.

Should you go to law school?

“Letters! I get letters!” Well, actually, I get emails, and sometimes direct messages on LinkedIn, but the main thing is, people frequently write me with questions about what they should do in the new legal market. I respond as best I can, but I’ll give particular priority to anyone asking, as one person recently did, whether now is a good time to go to law school.

Best theme song for viewer mail ever.

These days, that question is almost begging for a putdown — are you trying to throw your money away? And as you’ll see, especially given everything I’ve been saying about the shrinking legal profession and the steep decline in law firms’ interest in associates, my response wasn’t filled with unbridled enthusiasm for the prospect. But it’s still a question worth regularly revisiting, because nothing ages faster than conventional wisdom, and the conventional wisdom right now is that law school is a mug’s game. That has become today’s pat answer — but it doesn’t address what tomorrow’s answer might be for the class of (I can’t believe it) 2020 and beyond.

My correspondent was writing from Europe to ask whether he should accept an opportunity to attend law school in North America. As I told him right off the top, a lot depends on context. Future legal careers will vary considerably by jurisdiction, industry sector, and practice type. So my response to him was necessarily broad in scope. But I thought it had enough generally applicable value that I would reproduce it, with some edits, here.

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This is not a good time to enter law school if you’re intent on becoming a “traditional” lawyer — that is, someone who knows the law, carries out various legal functions, collects a paycheque every two weeks, and repeats the foregoing for six to ten years until partnership comes calling. That type of career is close to being on life support.

The truly elite lawyers — unparalleled expertise, tremendous advocacy skills, heavyweight presence — sure, they’ll still call their own shots and make scads of money. But there’s no way for you to know whether you’ll become that type of lawyer. The safer thing is to assume you won’t, simply because the odds are heavily against it. That’s not a knock against you — it’s simply a reflection of the fact that maybe 1 in 100 newly graduated lawyers will follow that path to a successful conclusion, and most will be as surprised as anyone that they wound up there.

It’s a better time to enter law school if you have a relatively clear vision of what you want to achieve with the law degree and where you want it to help take you. Because if there’s one change I’ve seen with regard to a law degree over the past 10 to 15 years, it’s the evolution of the degree from being an end in itself to being a means to an end.

When I entered law school in 1990, to the extent I had any effective vision of why I was doing so (which I didn’t really), I viewed a law degree as an asset that, once obtained, I could immediately put to use by being hired somewhere to work as a lawyer. I don’t think you should rely on that outcome anymore.

Obtaining a law degree to help you get somewhere specific, though — eyes wide open and fixed on the prize you want — that makes a lot more sense to me. If it’s your goal to acquire a specific type of position within a particular industry or government sector, and you’ve concluded (with some evidentiary support) that a law degree is both a qualification and an experience that will help you get there, then it’s a much better bet. That’s a law degree worth pursuing — a stepping stone towards a larger goal that you’ve set for yourself and that you reasonably believe, because of your other qualifications and assets, you can achieve.

If you don’t have a specific life goal in mind, though, or if you’re set on engaging in the private practice of law regardless of what form it takes in future — well, on balance, I’d still endorse obtaining a law degree, so long as each of the following criteria are met:

1. The financial cost of the degree won’t crush you, now or later. Basically, if you can afford the risk that you could sink $150,000 (more or less — in some cases, way more) into something from which you’ll never derive much value, then sure, go for it. Bursaries and scholarships aren’t a solution unless they cover about half of all your costs — otherwise, they function more as enticements to enrol in a system that has a very loose connection between qualification and employment. It’s true that some legal education providers are trying to reform the system, and we should support those efforts; but it’s also true that many law schools have decided they’re okay with being training grounds for the already elite, and they assume at this point that you know this as well. So if you simply can’t afford the risk that this investment won’t more than pay for itself, act accordingly.

2. You’re bringing something to law school other than intellect and enthusiasm. My 23-year-old self brought nothing to law school beyond those two qualities, and I was finished as a practicing lawyer within 18 months of graduation. And that was back in the 1990s, when even halfway-decent law graduates could wind up on a six- to seven-figure partnership track. Try that today, and you’ll be a statistic before you know it. But if you’re older, if you’ve already acquired some skills and qualifications, if you’ve got first-hand experience managing or running a business or organization, or if you can use a law degree to amplify your existing assets in a known direction, then it’s worth pursuing. This is especially the case if you have technology, systems, or engineering skills — you will be in serious demand, and not just by law firms.

3. You’re truly flexible about what you might end up doing. It’s a myth that “you can do anything with a law degree.” But I think a slightly alternative take on the old saw applies: “A law degree can lead you almost anywhere.” A good legal education, in addition to providing you with some marketable knowledge and skills, should also set you up to pursue myriad paths in life. This is especially true now that a wide range of new legal careers is opening up. Recognize that “practising law” represents only a sliver of the many legal employment options that will be available to you from 2020 to 2060, and that many of the “alternatives” will wind up being more engaging and fulfilling than you might currently imagine. And if your path takes you outside the legal industry altogether, well, that’s fine too. A law degree should change your mind about some important things and set you looking, if not travelling, in unexpected directions.

That last point is important. There’s still pedagogical and intellectual value in a law degree, and while tallying up the very real costs and risks of obtaining that degree, it’s also important to weigh on the other side of the scale the equally real rewards that a legal education, properly delivered and properly received, can provide. And that brings me to a final argument in favour of going to law school: We need more good people to be lawyers.

I’m convinced that from a business perspective, the role of the lawyer will change profoundly in the years to come. But I’m equally certain that from a societal perspective, the importance of lawyers will not change at all — unless it’s to become even more pronounced. Every few decades, during a moment of crisis, society remembers why it really has lawyers: to protect the rule of law and advance the cause of human dignity. Society calls on lawyers to do that every so often, and it’s really, really important that enough good people become lawyers that we can respond in sufficient numbers. I’m not saying the legal profession deserves all these good people — I voiced my concern more than five years ago that the profession has squandered its inheritance in this respect — but we need them all the same.

Now, if you’re reading this, and the thought of defending the rule of law at a moment of crisis bores you, then please, go become a hedge fund manager or something, where you can rake in money and prestige until the day the revolution comes. But if the prospect instead stirs in you a feeling of urgency and purpose, if you feel drawn to a profession that will offer a broad spectrum of engaging activity but is rooted in a single unifying mission — and you can somehow afford the risks involved in getting there — then please sign up. We need you.

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Hey, you know what? All this talk of law school makes me feel like having a book sale. Start of the school year, and all that.

From now until the end of the month, or while supplies last (whichever comes first), Law Is A Buyer’s Market: Building a Client-First Law Firm is available at a 10% discount. Visit the sales page for Law Is A Buyer’s Market, proceed to the checkout, and in the “Discount Code” slot, enter “SEPT”. The discount does not apply to bulk orders of 10 or more copies, for which reduced prices are already available.

Disrupting the legal education marketplace

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How to kill (or save) a law school

Back in August 2010, I wrote a post called “How to kill a law firm” that continues to receive a steady stream of traffic and responses. Recently, John P. Mayer on Twitter suggested it was time for a law school version of that article. I agree.

My interest in applying a legal education focus to this topic was further heightened by the recent publication of two op-ed pieces by law school deans: This one by the dean of Case Western University Law School in The New York Times and this one by the dean of the University of Ottawa Faculty of Law in Canadian Lawyer. You can also read thorough critiques of each article at The Girl’s Guide To Law School and Slaw, respectively. The articles and their responses neatly frame both the enormous challenges facing law schools and the apparent inability of their leadership to appreciate those challenges.

My goal, I should probably make clear, is not to help annihilate law schools across Canada and the United States — I like law schools, and I hope they prosper. Nor is my goal to create a road map for potential competitors to carry out that destruction — believe me, they don’t need any road map sketched out for them. The schools have all but drawn up the blueprints themselves, although they don’t realize it.

What I want to do is encourage law schools to participate in an exercise around creative destruction. I want them to think: if a new competitor for the role of legal education provider were to target us, how would they do it? If they wanted to knock us down and replace us, how would they go about it? What weak spots and vulnerabilities in our model would they attack? What market needs, unmet by us, would they strive to meet? Then, once they’ve identified their strategic exposures, I’d like law schools to exploit those vulnerabilities themselves first, before the upstarts can do so. The world’s most successful companies, from GE to Apple, do this regularly — they set out to destroy their own business before anyone else can. Law schools badly need to do the same.

Finally, it’s worth explaining who I mean by “competitors.” Most law school faculty and administration would probably dismiss outright the idea that they have any competition at all, except for other law schools that operate exactly the same way they do. This tunnel vision itself qualifies as a major vulnerability, but we’ll let that pass. The primary competitors I have in mind are:

  1. low-ranked law schools in danger of closure and therefore with nothing to lose from experimentation (i.e., the “fourth-place network”);
  2. universities or other licensed educational institutes without a law school but seeking to create one clearly differentiated from the current model;
  3. non-academic business training providers already aligned with the “practical skills” demands of both students and law firm recruiting directors; and
  4. the legal profession itself, through governing bodies or bar associations, moving to create competing legal education programs geared to their needs.

There are almost certainly others out there, especially in the rapidly expanding online education sphere (Solo Practice University has been building its lead there for several years now), but we can start with these four because they’re all plausible present-day candidates for disruptive market entry.

So, with all that established, let’s start noting the weaknesses in law schools’ current approach to the market. As you’ll see, there is no shortage.

1. Price. The first and easiest pressure point to identify is the price of a law school education, which at almost every school in North America has risen by multiples of 100% over the past 15-20 years. More affordable tuition would be a legitimate drawing card for good applicants, and it’s a sign of law schools’ cartel-like behaviour that few if any schools have pursued this path.

Is it realistic to expect a challenger to offer a robust legal education at below-market prices? I think it is, because almost all the factors driving up the price of law school are institutional, not curricular — that is, they have everything to do with internal educational politics or arbitrary external forces, and little to do with the quality and substance of the law degree itself. We’ll examine these factors in #4, below.

2. Faculty. The single greatest impediment to law schools’ ability to change is their faculty. Many if not most law school faculty members have held their positions for decades and are fully insulated from outside pressures by virtue of both tenure and age-discrimination laws. They are researchers and publishers first, teachers second or third. Most have never practised law (at numerous schools, more than two years in a law practice disqualifies law professors from tenure) and they have no interest in the Bar. They fight change almost as a matter of course. They are a millstone around the law school’s neck when it comes to innovation.

It will take at least 5-10 years for attrition to solve this problem at most schools; in that time, new entrants can make their move. Legal education disruptors will identify respected practitioners, retired judges, and even non-lawyer experts to lead their courses. They will train these individuals in 21st-century teaching methods, assign them courses with tightly controlled syllabi, and operate a streamlined and strategically coherent educational system. They will recognize that extensive academic pedigree, admirable and worthwhile as it certainly is, is neither a necessary nor a sufficient qualification to teach the law.

3. Curriculum. Closely related to the obstacle of faculty is the conundrum of curriculum. The first-year courses mandated for students at my alma mater today are the same as when I enrolled 22 years ago and have not changed substantially since the 1950s. The menu of optional courses has expanded significantly, especially those taught by “adjunct” (freelance) faculty, but most are still delivered as lectures and graded by exams, as if everyone involved were still in junior high. But the primary vulnerability is and always has been the paucity of courses that strive to prepare future lawyers in some way for their first few years in the marketplace.

Law professors are fond of saying that it’s the Bar’s responsibility to prepare students for practice, not law schools’. But that is precisely the point they miss — it isn’t a question of responsibility, but opportunity. What courses might a school teach that would differentiate it from other schools and prove more attractive to both students and recruiters? What programs could it create that would bridge the gap between basic legal knowledge and initial professional competence? That’s the opportunity most (but not all) schools continue to miss, and it’s one that new providers will exploit.

4. Status. This is, in some ways, the most important vulnerability, because it goes to the heart of the current legal education system. Defenders of the law school status quo will say that these foregoing points are very nice and all, but they’re also irrelevant: law schools’ ability to innovate is utterly constrained by external factors.

Two factors in particular dominate the conversation, in the United States at least: the ABA accreditation process and the US News & World Report rankings. The former mandates a minimum amount of infrastructure investment to obtain and maintain accreditation; the latter holds so much sway among applicants and recruiters that schools are forced to act foolishly (and sometimes illegally) to squeeze their programs into the rankings’ pre-defined mould. A third factor, receiving increasing attention recently, is the role of the university itself, which counts on the law school as a steady and ever-increasing source of revenue and which places immense pressure on law school administrators to keep the money flowing in.

Combine these external forces with the internal albatrosses of faculty self-interest and institutional inertia, the defenders say, and there’s no blaming law schools for acting the way they do. And perhaps they’re right.

But I can tell you this: that doesn’t matter an iota to the disruptors that are targeting law schools right now. They’re thrilled to see so many arbitrary constraints on legal education incumbents, because they can choose to be entirely free of them. They can ignore ABA accreditation or the US News rankings if they wish. They can refuse to enter a losing game, to accept the same shackles that are paralyzing law schools. Think about it: why would they want to acquire the incumbents’ handicaps?

The biggest advantage that legal education disruptors have today is that they can enter the market unencumbered by the legacy burdens of law schools. They don’t have to be big, important, recognized and expensive — they don’t need “status.” They can be small, modest, flexible and affordable — or at least, they can start off that way. They can align their strategies with the interests of their target market, not those of their teachers or their affiliated academic institutions. They can negotiate directly with Bar admissions officials and satisfy them as to both the academic and practical merits of their degrees. They don’t need to compete for all “the best and the brightest” applicants, whatever that means: they can target the students they want to attract and the employers (law firms, law departments, governments, individual clients) they want to connect those students with.

Innovators don’t duplicate the existing model; they improve it. No new private legal enterprise today would copy the AmLaw 200 partnership model, and no new legal education provider would copy existing law schools. Disruption in legal education is poised to come from innovators that reject the standard assumptions about what a legal education provider looks like, where it’s housed, who it employs, who it recruits, what it teaches and how it’s taught.

That, I think, is how you kill a law school. You come to understand, better than the law school does, exactly what business it’s in, exactly what its inventory is, and exactly who its customers are. And then you figure out where the law school has failed to meet those needs, and you rush to fill the gap.

So, then — how do you save a law school? If you’re in a school today and you find this scenario frighteningly plausible, you’re probably wondering what you can do. Here are my brief closing suggestions about self-destructing a vulnerable model.

1. Make it clear that you’re on the side of the angels. Law schools are weathering one of the most intense instances of continuous negative publicity the legal marketplace has ever seen, although many schools seem blissfully unaware of it. Don’t underestimate the power of publications like Above The Law or the “scam blogs” to create the lens through which your markets perceive you. Right now, many law schools are viewed (with some justification) as either actively antagonistic to students and the profession, or quietly complicit with those that are. As you kick off your efforts to reinvent your school, make sure that your honest, well-meaning efforts are publicized and that you are seen to be on the “reform” side of the ledger.

2. Send differentiating signals to both recruits and recruiters. Law schools get into trouble when they forget what business they’re in: getting paid by students to help them obtain gainful employment in the legal field. (Sorry, but that’s what their business is.) Most law schools have forgotten this, and maybe yours has, too. Those few law schools that have achieved clarity in this regard are carving out new brands that will appeal to these players (Washington & Lee for its practice-based third year, Michigan State for its computational legal studies, University of Miami for LawWithoutWalls, etc.). Create a standout innovative feature — a bridging program, a CPD offering, an Innovation Center, a solo incubator, or something brand new — and join with a private-sector partner to deliver it.

3. Change the weather around your faculty. Intransigent professors, in many cases, may simply have to be waited out for a period of generational change. But there’s no reason you can’t accelerate the attrition process. Encourage changes to the school’s strategy and direction, introduce more practice-related courses, increase dialogue and project partnerships with practitioners and in-house counsel, provide more guest-lecture spots for local sole practitioners, and so on. Basically, change the environment surrounding your faculty — the “tone” of the school — wherever you can. Your faculty members might still consider the law school to be their retirement property, but if the weather clouds over, they may be motivated to move to sunnier climates sooner rather than later.

4. Think hard about blowing off the US News rankings. Most law deans would probably blanch at the thought of dropping out of the US News lists, fearing a catastrophic response from both applicants and recruiters. But I think every school should at least consider it, if for no other reason than to regain some self-respect and control over your destiny. Look closely at the US News criteria and ask yourself: do they align with what we’re trying to do here? Is it fair to our students, our faculty and our mission that we dance to this tune? If the answer is no — and in many cases, it will be — then I think it’s time to leave the dance floor. Build an airtight publicity and communications campaign explaining why you’re ignoring US News from now on, with supportive testimonials from high-profile employers, and test-drive it with major donors. Then go do it.

5. Think equally hard about whether to keep ABA accreditation. This would be far more difficult for most law faculties to justify dropping, and maybe impossible, given various jurisdictional requirements. But the same principles that apply to US News apply here: do the requirements of ABA accreditation line up with the key strategic drivers you feel your law school must feature? If they don’t — if they cause you to spend more than you can afford on things that don’t improve your educational experience — then ask whether the risks of deliberately and strategically withdrawing from (not losing) accreditation outweigh the benefits. The ABA has been talking about switching to output measures in accreditation for years now, and we shouldn’t expect any progress for more years to come. You might not want to wait that long.

These are five places where a law school can begin the process of exploiting its own vulnerabilities and reinventing its own model. Whether and to what extent these are practical for any given law school will depend on its specific circumstances. I can only say this: the traditional law school model simply doesn’t serve the legal market anymore. Whether it’s new entrants or familiar incumbents, someone is going to replace it with something better — and soon.

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

Walking away from a losing game

And suddenly, everyone’s talking about Procurement. Not that long ago, warning lawyers about the rise of the corporate purchasing function was a little like a medieval parent telling their children about the goblin who lived under the floorboards: you’d better behave, or he’ll come and eat you up. Now the goblin is loose: Procurement’s importance in the purchase of outside legal services, which has been slowly and quietly growing over the past few years, is exploding into view.

Silvia Hodges writes at Bloomberg Law about Procurement’s growing role in Legal, Ari Kaplan provides procurement examples at Law Technology News, and Toby Brown at 3 Geeks gives us three separate columns on the intersection of procurement and legal spend and the implications thereof. You should take the time to read all of these entries, but I think the authors’ overall point is that

(a) Procurement is here to stay,
(b) Procurement’s traditional approach to purchasing is a questionable fit with best practices for legal spend, and
(c) the ideal outcome would be for procurement representatives, the in-house department and the outside law firm to work together towards arrangements that try to serve everyone’s interests.

I’m not confident that (c) is a likely outcome, given each party’s dramatically divergent self-interests, but it’s certainly worth a shot.

What interests me more about the rise of Procurement, however, is how it illustrates a broader trend throughout the legal community: our tendency to let third parties set the rules by which we operate. Procurement at least has a good argument for being at the table: it’s an important aspect of the corporate client that pays the bills. But I’m talking more generally about lawyers ceding control over our own business and professional destinies — our ongoing acquiescence to more aggressive players who have set the standards by which we judge ourselves. The two highest-profile examples, interestingly, are magazines.

For lawyers in large US firms, of course, it’s The American Lawyer. I don’t need to tell you that AmLaw is an excellent periodical, among the very best in class. But the AmLaw 100 rankings are a remarkable thing. A magazine chooses a single metric (average profits per partner) by which to assess large law firms and invites those firms to submit annual financial information so that the magazine can judge them on that metric. And the law firms do exactly that. Has that ever struck you, at any point, as, well, a little odd?

The AmLaw 100 (and 200) rankings, and their progeny in other publications, have arguably done a great disservice to law firms’ own sense of identity and success. Average profits per partner is a flawed metric in many ways (not least mathematically — even median PPP would be a more accurate gauge of a firm’s financial situation, since outliers don’t skew the result so much). It’s especially flawed because it regards annual profit for individual owners as a direct proxy for the health, success and prestige of a law firm. Recent history nicely illustrates the problem with that — Dewey & LeBoeuf was profitable and prestigious until shortly before it crashed.

We already know that good law firms provide more than just partner profits. They also deliver enterprise-wide productivity, a satisfying vocation for employees, a positive corporate social footprint, and above all, value for clients specifically and the legal system generally. Those features aren’t as easy to measure as PPP (especially when the firms conveniently supply all the figures), but they’re no less important. The pernicious modern belief that “The purpose of a business is to create wealth for its owners” was never all that accurate even for ordinary businesses. Law firms are not ordinary businesses — they’re fiduciary professional businesses that operate in a very favourably regulated environment, and they require both responsible management and responsible measurement.

You can probably guess, at this point, that I’m no big fan of PPP rankings. But as much as this approach to measuring law firm success alarms me, I’m more alarmed by the degree to which law firms have surrendered to it. Large US law firms routinely make important decisions about partner recruitment, associate development, legal service pricing and a host of other issues based upon whether the outcome will affect their PPP.

The spectre of a precipitous dive down the AmLaw rankings, and the legitimate fear of the subsequent loss of key partners to firms higher up the list, drives any number of short-term tactical moves by law firms. Some of these moves are sensible; many others aren’t. But the point is that we’ve allowed someone else to set the criteria that drive these decisions. We judge our success on their terms, rather than setting our own standards and taking our destiny into our own hands.

Similarly, take a look at law schools and the degree to which they’re beholden to magazine-based rankings. The US News & World Report — a publication I once referred to as the RC Cola of weekly news periodicals — is infamous for the influence it wields over American law schools. A publication — this one without any actual connection to the legal profession — adopts a series of criteria that it considers important and uses those criteria to rank the schools.

These rankings and their criteria subsequently become vitally important to the schools, which start making decisions — about applicant admission, student classification, faculty hiring, even the number of books in their libraries — not on what’s best for the school and its community, but on what will help them move up the rankings. In many cases, as Brian Tamanaha notes, these decisions have driven behaviour that was not only unwise, but also flat-out dishonest.

In-house counsel now face, with Procurement, a similar phenomenon. Just as the AmLaw rankings care about a single metric (partner profit), procurement officials tend to care about a single outcome: lower expenditures. If that becomes the sole focus of in-house law departments, then it will drive very different types of internal behaviour by Legal — some of it good, some of it not; but all of it determined by someone other than the lawyers involved.

I want to emphasize here that Procurement is not a villain, and neither is US News nor The American Lawyer. These are corporate entities making business decisions that happen to involve or affect the legal profession, and they have every right to do so. The problem, from my point of view, is that lawyers and legal enterprises haven’t responded strongly enough to advance our own priorities in turn. We’ve allowed ourselves to be drawn into games in which we didn’t write the rules, in which those rules don’t serve our best interests, and in which other players’ moves dictate our own. Is that really the best we can do? Are we so insecure that we’re content to be the raw material for other people’s platforms?

Maybe so. But I would hate to think that we went down that road on anyone’s terms but our own. If we allow other people’s criteria for success to become our own, and then blame those criteria when we engage in highly questionable behaviour, then we have an existential problem. But we’re powerless only if we decide to be. We can decide for ourselves what behaviour is important to our mission and values. We can assert broader and better criteria for success, and transparently self-publish them. We can make it perfectly clear, both internally and externally, what matters to us, and then let the world judge us on those choices, not on someone else’s.

The only way to win a game in which you’re set up to lose is not to play. The only way to gain control over your own destiny is to ignore anyone outside your core constituencies who asserts otherwise. There are exactly two constituencies that law firms have to please: the clients who buy their work and the lawyers who are paid to produce it. There are exactly two constituencies that law schools have to please: the profession that hires their graduates and the students who pay to graduate.

Law firms’ and law schools’ conversations about strategy and destiny need to start with those constituencies, and they should end there, too. Everything else, no matter how popular or pervasive, is ultimately just a sideshow and a distraction.

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

 

Law school revolution

One of my favourite bumper stickers, back when such things were popular, read as follows: “Where are we going? And what’s with this handbasket?” If you’re involved in any aspect of legal education these days, or if you have even a passing interest in how law schools are doing their job, you might feel that bumper sticker is especially appropriate.

Law schools and legal education are in an uproar. There’s a host of factors at work, most notably an extreme and rapid change in how legal work is done and who is required to do it — a trend that’s making things difficult for law firms but that’s positively brutalizing law schools. There’s plenty of upheaval going on in legal education and admission in Canada, in the United Kingdom, and in Australia, but I’ll focus this post on the US, where the worst of the storm is centered. Here are some highlights:

As you might gather from all of that, law schools in the US are feeling tremendous pressure from would-be, current and former students — the three groups that control almost all of their funding and reputation. Much more so than law firms, law schools are extraordinarily conservative and change-resistant places, yet they’re now grappling with the same forces transforming the wider legal marketplace and have fewer resources with which to cope.

The fact also remains that despite these troubles, a great many law schools, administrators and faculty members remain serenely unaware of or unmoved by these developments. Law schools are, in the context of other professional schools and legal entities anyway, stable and profitable institutions whose personnel are remarkably resistant to what few demands for change are presented to them. Law schools have never had a superb reputation within the practicing bar — too many lawyers remember their desperate attempts to figure out their new profession even after three years of “education” — but the bitterness towards and condemnation of law schools by lawyers has never been this strong and this sustained.

I’ve had plenty to say on the subject of law school myself over the past few years, little of it heart-warming. But the fact is, amid all the noise and vitriol around this subject, quiet success stories are being written. If we spread our contempt for the current system’s failings too widely and indiscriminately, we risk missing out on the fact that right now, the very revolution we wish would break out is starting to unfold in front of us.

I want to bring your attention to an array of initiatives, innovations, and courageous pioneering efforts that could, if they catch on and receive the support they need, usher in a new era of legal education. In the areas of technology, informatics, apprenticeship, online learning and structural innovation, the future is already starting to arrive.

Technology

Last term, Georgetown University Law Center in Washington, DC, offered a new experiential seminar called “Technology, Innovation and Legal Practice” that explored how the first two elements can transform the third. Student teams were required to develop applications that either increased access to the legal system or made legal practice more efficient. The results were on display in the school’s “Iron Tech Lawyer Competition,” as described in this PBS news video. Here are two of the projects, one on citizenship acquisition and the other on same-sex marriage legality; all the projects were powered by Neota Logic, a legal tech pioneer that I profiled last year.

At the mobile end of the technology spectrum is another innovative program, Apps For Justice, spearheaded by Ron Staudt at the University of Chicago-Kent Law School (home of legal access software A2J Author) and Marc Lauritsen of Capstone Practice Systems, among others. Apps for Justice, as Marc explains in this six-minute video at Ignite Law 2011, enables law students to create software applications like document templates, guided interviews, dynamic checklists and interactive advisers. These apps perform useful legal work, from helping lawyers work smarter to helping clients resolve their own problems and opportunities. Apps For Justice won the 2011 Future Ed competition sponsored by New York and Harvard Law Schools.

Informatics

Related to but a breed apart from legal technology lies the field of legal informatics, which Wikipedia helpfully defines as the study of the structure and properties of legal information, as well as the application of technology to its organization, storage, retrieval, and dissemination — data crunching in the law, if you like. William Henderson of the University of Indiana-Bloomington Maurer Law School, who also writes urgently and incisively about crises in legal education and large law firms, was the first law professor I found paying attention to the study of data in the law school context (which he continues to do with his company Lawyer Metrics). Stanford Law School’s CodeX initiative is also worth attention in this regard.

This envelope is really getting pushed, however, at Michigan State University Law School, where professors Daniel Katz and Renee Knake are engaged in some of the most avant-garde work in legal education I’ve seen in a while. It includes the Computational Legal Studies program, which features courses in Quantitative Methods for Lawyers and Entrepreneurial Lawyering, as well as presentations with titles like “Quantitative Legal Prediction” and “The MIT School of Law.” There’s also an upcoming legal laboratory called Reinvent Law. In addition, MSU Law has launched the 21st Century Law Practice Program, which this summer features LawTechCamp London, in association with the University of Westminster Law School, presenting courses like “Legal Information Engineering and Technology” and “The Legal Services Act and UK Deregulation.”

Apprenticeship

Long-time readers will remember my articles about apprenticeships at law firms (PDF) and the potential I see for law schools to step into this arena. The pioneer in this regard, of course, is Washington & Lee Law School in Virginia, which ripped out its traditional third year and installed an entirely experiential curriculum “comprised of law practice simulations, real-client experiences, the development of professionalism, and development of law practice skills.” The program, which involves a broad range of clinics and externships, continues to thrive. Experiential legal education has since been embraced widely, including at Northeastern University Law School. (And it’s not only law firms that can benefit: corporate law departments are the subject of similar programs at the University of Chicago Law School and Columbia Law School.)

Now, here comes the next phase of apprenticeship, one I’ve been eagerly awaiting. Arizona State University Law School, running with an idea first proposed by law professors Brad Borden and Robert J. Rhee, is creating a “teaching law firm,” a kind of residency for lawyers that resembles teaching hospitals at many universities. Upwards of five experienced attorneys would act as “partners” to supervise 15 to 30 “resident lawyers,” recent ASU grads who would spend up to two years providing bankruptcy, family and corporate law services to middle- and lower-income clients. Above The Law, as harsh a critic of law schools as you’ll find these days, thinks it’s a great idea; I think it’s potentially a game-changer. (See also the small but growing number of law school “solo incubators.”)

Online Learning

If ASU Law’s “teaching law firm” is a game-changer for law schools, then coming up on the horizon is a development that could be vastly more influential and devastating to the traditional law school model. Online education is in the early stages of changing everything we assume and believe about learning, led by the Khan Academy and countless fellow travelers. This article in The Atlantic relays a telling account by Harvard professor Clayton Christensen of his first, eye-opening experience with online classes.

To get a sense of what distance learning could mean to legal education, read this New Yorker article about Stanford University, in particular the final page about Stanford’s recent experiments with online learning (and watch this TED video, wherein one of the professors talks about teaching a class with 100,000 students). A law school course with 100,000 students? Why not? Someday soon, some law school is going to invest seriously in online learning, and will turn their industry upside down in the process. (The private sector is already several steps ahead on this one: witness Solo Practice University, which is doing in this area exactly what law schools could and should have done years ago.)

Innovation

Then there are the pure innovation engines within law schools, driving full-scale change not just in their own institutions but industry-wide. Law Without Walls, as this ABA Journal article reports, is “a collaborative academic model that brings together students and faculty from 11 international law schools and one business school, law practitioners, business professionals, entrepreneurs and venture capitalists to develop innovative solutions to problems facing law school and practice.” LWOW’s participating schools (it’s based at the University of Miami Faculty of Law) hail from the US, England, Australia, China, Spain and Colombia. The initiative’s third annual ConPosium is set for next April; check out the extraordinary Projects of Worth that the 2012 version created.

Further west, you’ll find the Institute for the Advancement of the American Legal System, a standalone institution at the University of Denver, and in particular the IAALS’s Educating Tomorrow’s Lawyers initiative. ETL’s mission is “to encourage and facilitate innovation in legal education” in line with the Carnegie Model of legal ed reform, in pursuit of which it researches and designs innovative teaching methods to share with other law schools and showcases those school’s own innovations. (Here’s my own curriculum wish list, if you’re interested.) More than 20 US law schools are part of the ETL’s Consortium. Denver Sturm College of Law is also home to other innovations, including the transformation of the standard first-year legal writing course into a Lawyering Process Program.

The IAALS, by the way, describes itself as “a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system.” In that respect, it shares much in common with a growing number of research and innovation Centers at various law schools, devoted to improving both the legal education system and the legal services industry domestically and globally. These programs can be found at Georgetown Law, Indiana-Bloomington Law, Stanford Law and Harvard Law.

That’s more information about legal education reform, and more links to a wealth of rich content, than you can get through at one sitting, yet there are still law school initiatives and innovations that I haven’t touched on here. (If I’ve overlooked one that we should know about, please detail it in the comments.) I’ve provided you with all this data for two main reasons:

1. I want to increase your awareness and appreciation of what some legal educators are doing, their recognition that the present model is unsustainable and their commitment to trying something new to make the system work better for all concerned. Not every law school is clueless or manipulative, and it’s a disservice to lump the reformers together with the reactionaries.

2. I also want to encourage you to get involved with these initiatives at the law school or with the organization closest to you. I’m a volunteer with Law Without Walls and I’m speaking at an Educating Tomorrow’s Lawyers event in Denver in October, and I’m actively speaking with law deans about innovations in their own schools. The more the profession gets involved, the better the chance these projects will succeed.

You say you want a revolution? There’s one starting up right now. Grab your bullhorn.

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

Learning to run

There’s an old expression among professional sports coaches: “You can’t teach speed.” It’s usually meant to indicate that there are things you can train athletes to do well (skills) and things that are simply God-given (raw talent), and it encourages the traditional view that talent is more valuable.

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.

The decline and fall of law school

As every frustrated customer knows, there comes a time when you stop trying to negotiate with a stubborn supplier and start looking for alternatives. I think that time is just about here for the legal profession in its relationship with law schools.

If you’ve been reading this blog for awhile, you probably already know that my general opinion of law school is a fairly jaundiced one (if not, those links sum up my feelings pretty well). To their credit, some legal educators and administrators have recognized the serious if not fundamental problems with the current model and are trying to tackle it. In particular, you should be aware of:

But these are the happy exceptions, and the general rule against which they’re struggling is widely followed and deeply entrenched. For the most part, law schools are legal research and publishing platforms that finance their activities by granting law degrees, enabling aspiring lawyers to join a practicing bar that generously allows the schools to conduct the first three years of new lawyer training. The price of a law degree has risen steadily for almost 20 years; arguably, the value of that degree has stagnated or fallen throughout that time.

This state of affairs has bred an inefficient and sub-standard approach to legal education and new lawyer training, culminating in the crisis of confidence now apparent in the law school-legal profession relationship. Lawyers have been grumbling for years about law school, but they’ve never done more than complain. That’s about to change, because the facts on the ground have become impossible to ignore.

Stable careers are long gone and contract work is becoming the norm for many, even at the training level. Education, it seems, is transforming into training without the benefits that true education can bring. More and more the employers, as in the case of KPMG, are taking charge of selection, leaving the academy as a mere processing plant. And an expensive one at that. The current model of legal education is unsustainable in its present form. It can’t make up its mind as to whether it is education or training for jobs, or worse, some cackhanded attempt at both. This failing besets legal education in both the US and the UK and others too. Legal education is a perverse mix of cheap delivery and expensive consumption.

What’s really remarkable about this is that most law schools are (or pretend to be) completely unaware of the gathering storm. They continue to value faculty scholarship more highly than the classroom experience or students’ career paths. This calculation that the average law review article costs about $100,000 isn’t as shocking as this additional revelation:

“… 43% of law review articles are never cited by anyone. ‘At least a third of these things have no value…. Who is paying for that? Students who will graduate with six figures of debt.'”

What role, precisely, do law schools serve? They’re not really trade schools — they don’t take career preparation or placement very seriously — and they’re not really graduate schools — the law degree, as I’ve argued before, is a glorified undergraduate program. Their value to the legal marketplace resides in a few magic letters — J.D. or LL.B. — and they seem to be daring the profession to find alternative providers of this three-year credentialing service. I’m not sure why they’d take that risk. Most schools are heavily reliant upon law firms’ continued willingness to hire enough new graduates (often with high salaries and bonuses) to justify those schools’ tuition — at a time when the bible of large law firms, The American Lawyer, has flatly referred to those outlays as “a waste of money.”

Law schools that value their continued involvement in the legal education industry need to understand just how dangerous their position has become. The lawyers and legal regulators to whom I speak sound close to giving up on law schools, writing them off as partners or even stakeholders in the bar admission reform process. These people are the schools’ customers — the annual buyers of their inventory — and they’re despairing of any movement by the schools towards a different approach or even a real conversation with the profession about its needs. There just doesn’t appear to be anyone home.

John Flood writes: “The academy has the present advantage of providing the only route into the legal profession, or what’s left of it. I imagine it won’t retain that monopoly.” I think he’s right. The bar needs better options for the education, training and admission of new lawyers, and it is a motivated buyer. Next week, I’ll look at the whole question of new lawyer admission in some more detail and at the early signs of some new entrants to this market.

If you work in a law school, I’d suggest you track these developments closely. Because schools are poised to become something far worse than simply an irritant to the profession. They’re poised to become irrelevant.

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