Category: Law21

This will be my last post here at the Law21 blog for awhile. It’s also my first post here in a while, and these two are connected. Today, I’m launching a Substack newsletter that will effectively replace this blog. This is a pretty major change for me, and I feel I owe you an explanation of why I’m shifting gears so radically.

My first blog posts about the law appeared at Slaw.ca in the fall of 2007, and they laid the groundwork for Law21, which launched with this post in January 2008. I’ve honestly lost track of how many articles I’ve written here, but about 500 seems a reasonable guess. I took an 18-month break from blogging in 2015-16, and since I returned, I’ve posted less frequently, but in greater depth and detail. One of the first pieces of advice about blogging that I ignored was to blog even if I had nothing new to say, in order to keep up my profile. Instead, I post when I feel I have something original and worthwhile to say; otherwise, I keep my peace.

Even for all that, though, Law21 has been pretty quiet lately. Much of that is down to the two massive consulting projects for Canadian regulators that have consumed much of my pandemic period. But I’ve also let the flame of blogging burn low these last few years — which is odd, because I still have a lot to say about the legal sector. My Twitter feed has been busier than ever. I think my problem has been that I’ve got more to say than a Twitter thread could contain, but less than the 2,000-word monoliths I’d come to establish as the norm here.

And here’s the thing about blogs that’s both great and not: There’s no publishing schedule. Nobody is expecting a post from you; nobody has paid for a subscription and is looking to see their money’s worth in their inbox. The absence of that pressure has its upside; but in the long run, it discourages writing, draining it of some vitality and urgency. The demands of a schedule and an expectant readership were key elements of the spirit and strength of traditional print publishing, where I started out back in 1996.

That’s why I was so intrigued by the arrival of Substack, which seemed to offer an ideal third way: Mid-sized posts on a semi-regular schedule delivered directly to the inboxes of people who had specifically signed up to read what I had to say.

Substack offered me an opportunity to rekindle my flame of writing about the law, effectively placing guardrails around the length of my articles and minimum expectations for frequency and value. And while I didn’t start writing about the law to make money from it (see: 500 free posts, above), I found the possibility of eventually developing a paying readership enticing after all these years.

So that’s why I’m launching, today, a new Substack newsletter. Here’s the description:

I’m here to help you think differently about the legal sector. I write about making the legal system more effective and accessible, improving the formation and competence of lawyers, modernizing legal services business models, and reforming the regulation of the legal sector.

I’m also deeply interested in how building a better legal system can help bring about a better world. So I also talk about professional responsibility, the humanity essential to good legal assistance, and establishing a truly just legal system.

From time to time, I’ll also touch on personal topics like parenting, running a solo business, and grappling with my faith. Be advised that there will be Simpsons, sci-fi, and baseball references throughout.

My goal is to publish roughly once a week, though I’ll be writing more frequently during these first few months. The newsletter will be free at the start, and will remain free unless and until the subscriber base is sufficiently robust to justify a switch to paid subscriptions (although some material will always be outside the paywall). I love the name “Law21” and I never want to lose it; but I also feel like it belongs here, on this blog and website. So I decided to give my Substack newsletter an eponymous title — “Jordan Furlong” will appear as the sender in your inbox if you subscribe.

And I really do hope you subscribe. Whether you’ve been reading me and following my work since January 2008 or since you began this post or sometime in between, I am deeply grateful for your interest, more than I can say. But I have so much more I want to talk about — artificial intelligence, and professional values, and law firm profitability models, and lawyer formation and licensing, and exploding the supply of legal providers, and saving the lives and well-being of lawyers, are just some of the topics I’ve already got lined up for the first months of my Substack newsletter. And there’s much more to come.

I’ll still publish here at Law21 from time to time, especially if I have a mega-post that Substack can’t contain. And I’m still doing all the writing, consulting, and advisory work for legal organizations and legal sector stakeholders described in my “Services” tab. But I’m ready to write for a regular audience again, to help you better understand everything going on in the (legal) world, as you carve your own path towards a better legal system.

Today, I’m starting a new path in that direction myself. I’ll meet you on the way.

 

It was February, and I was in Chicago. I was there to attend ABA TECHSHOW, for the first time in what felt like ages. And I was mostly hanging out in the trade show between sessions, meeting some Twitter friends in person for the first time and running into old friends who I’d first met here back in the ’90s. The conversations, as they tend to do, would inevitably turn to what we were up to these days. And in my responses, I found myself coming back to a recurring theme.

Work was fine, I said. I had several speaking gigs lined up for the spring and summer. But I was also feeling a little worn down and, if I was being honest, kind of burned out. There are only so many times you can stand in line to board an airplane, only so many times you can roll your luggage down a hotel hallway, and only so many times you can climb onto a stage and tell a group of lawyers things they didn’t really want to hear. I’ve always maintained, half-jokingly at most, that I only ever became a paid speaker so that I could afford to keep blogging — yet here I was, writing at Law21 less than ever before.

There were also the big-picture aspects. Were my presentations about innovation and the future of law firms really making any difference? Even if they were, did I want my epitaph to read, “He helped lawyers make more money?” I was becoming more concerned with access to justice, regulatory reform, and lawyer formation, blogging about these subjects more than about the practice of law, about which I felt I’d said all I could say. My kids were accelerating into adolescence. I’d passed the half-century mark myself. It really feels, I’d sum up, like I need to make a change. It feels like time to do something different — I’m just not sure what.

Four weeks later, we were all in lockdown, all my speaking engagements had been cancelled (except for one that was converted to online), and it was clear that all of us were going to get something different, with a vengeance. We were all going to take a different path now.

 

For my part, as the pandemic struck, I felt like everything I’d been writing and speaking about for the last decade had reached its culmination. There wasn’t much point in talking about how to prepare for the future of law anymore — the future was here, and either you were ready for it or you weren’t. Most of us weren’t. I was deeply discouraged by that — but I was also energized by the system-wide change that was about to get underway.

I began writing a series of posts about what the pandemic would do to the justice system and the legal market, and how we needed to start building the foundations of a new system and a new market now to replace the ones that the pandemic and its consequences would dismantle and sweep away. Only by the end of the series did I start to recognize that I’d been writing kind of an elegy for my own work in this area. If I ever get around to it, I’ll adapt that ten-part series into a short e-book and offer it free to anyone who’s interested.

All well and good. But there remained the minor issue of what I was going to do with myself for what looked to be 12 to 18 months of very few earning opportunities. Luckily for me, however, I did at least one smart thing during those first few weeks.

One of the engagements that had been cancelled was to help organize, speak at, and facilitate a meeting of the “Benchers” (elected lawyer directors) of the Law Society of Alberta, the regulator of lawyers and legal services in that province. This meeting was going to be devoted to a deep reconsideration of Alberta’s lawyer licensing and competence systems. I had already done a fair amount of research and laid some groundwork when the pandemic hit and the event was cancelled — but it was enough to confirm my early impression that these were enormously important subjects, critical to the future of the profession and its ability to serve clients and uphold the rule of law.

So I contacted the law society and said, essentially: I’m genuinely interested in this topic, and — given that I now seem to have a lot of time on my hands — I’d be happy to continue working on this until the meeting can be rescheduled, or to write a white paper for you, or something along those lines. That call led to further conversations, which led to a proposal, which led to an 80-page report and recommendations for lawyer licensing and competence in Alberta, which was accepted by the law society earlier this month and officially published earlier this week. You can read all about that report in this companion post.

I’m pleased with the report, and I’m immensely grateful to the law society for giving me the opportunity to write it. I’m especially grateful because writing the report, interviewing all the experts, and reading all the excellent research in this area, made me confident that I’d found my “next thing.”

The legal profession’s approach to how lawyers are educated, trained, mentored, licensed, and continuously monitored for ethical proficiency is slapdash, archaic, and grossly inadequate. With rare exceptions, we educate lawyers in isolation from how law is practised, we lazily and amateurishly assess their fitness to practise, we credential them and send them into the market much too early, and we fail to give them the ongoing support, tools, and professional infrastructure they need to lead a healthy and fulfilling legal career. The results of this massive failure are obvious everywhere you look in the legal sector — if you’re willing to see them.

• It’s the infuriating #barpocalypse tragedy in the US, the worst thing ever done to any incoming class of lawyers in the profession’s history.
• It’s the refusal or incapacity of law schools to adapt their missions to the piercingly clear needs of the legal profession and its clients — and the corresponding refusal or incapacity of regulators to demand better from their major supplier of legal talent.
• It’s the abandonment of new lawyers to the cruel vagaries of the market, the terrible doubts of imposter syndrome, and the frequent consequent self-destruction of addictions and mental crises.
• It’s lawyers’ lackadaisical approach to their continuing competence, so deeply ingrained that the cynical and useless “minimum CLE hours” system is not just the default standard, but is virtually sacrosanct.

We take ourselves so seriously as a profession. But we treat our professional formation and continuing proficiency with a degree of negligence that borders on contempt. This cannot continue.

This is where I’d now like to principally devote whatever talent and energy I can bring. I’d like to work with law schools, law professors, bar examiners, bar admission entities, regulators, professional development architects, law firms, and innovators of all kinds to help rethink, re-engineer, and reconstruct the lawyer formation process. My report to the Law Society of Alberta encapsulates my views in this area and serves as an example of the projects I can work on and the outcomes I can help deliver.

Coming in a close second on the list of “what I’d like to do now” is to work with regulators, governments, foundations, and community groups on the reconceptualization and reform of legal services regulation. I’ve been fortunate to provide some advisory services to other regulators over the course of this past year, and in fact, I’m strongly considering the development of a new strategic intelligence service for a limited number of institutional subscribers in 2021. If this sounds like something your organization might be interested in participating in, please let me know.

None of this is to say that I won’t also advise or write about law firms from time to time, or about other aspects of the legal sector. It’s a very big, complex legal world out there, and my interest in that world  is, like me, very catholic. I’ll happily hop onto an occasional Zoom webinar (or, less happily but inevitably, an airplane) to give a presentation about the present (not the future) of law.

But to any law firm that might have some interest along these lines, let me say: First go read this post, from my pandemic series. It contains a link to download my book about law firms (for free), links to more than two dozen posts about law firms that I’ve written since the book was published (also free), and as much wisdom as I can provide about law firms in 2020.

Send that post to your lawyers and professional staff — it’s the next best thing to having me in person, and a whole lot less expensive. If you’d still like to engage me to speak or to advise your leadership about future strategy, that’s awesome — please drop me a line. (And if you’re looking for other speakers in this area, well, I’m cooking up something for next year in that regard too).

None of this will happen overnight — this website, for one thing, now needs a complete overhaul, which I’ll be starting on in the new year. (While I’m at it, I should probably replace a photo that was taken during the Obama administration).

This change in direction isn’t something I’m undertaking lightly or without lengthy consideration — I’m moving away from an area in which I have a pretty decent track record and into an area in which I don’t. But I’m also feeling very good about this decision, that it’s the right thing for me to do and the right direction for me to go. So many opportunities are opening up now, for all of us, to re-examine “what we’ve always done” — and what we might now do instead that’s better, more meaningful, and more attuned to people whose needs are greater than our own.

Thank you for reading this far, and for indulging this update on what I’m up to. I sincerely wish you a safe, satisfying, and recuperative holiday season, and a better year ahead for all of us. May your own roads and horizons brighten with every step forward.

 

• Part 1: What we’re up against
• Part 2: Justice system down
• Part 3: Justice reconstructed
• Part 4: Lawyer formation disrupted
• Part 5  Lawyer formation rescued
• Part 6: Lawyer formation re-engineered
• Part 7: Law firm essentials
• Part 8: Law firm transitions
• Part 9: Law firm transformation

This tenth and final instalment in what became a “pandemic series” of posts isn’t a standalone entry so much as an epilogue to what I’ve written over these past six weeks. Mostly, it’s a message to the graduating law class of 2020, although it also applies to the subsequent cohorts of 2021 and 2022, and to recently called lawyers as well.

This pandemic will be a turning point for all of us, but especially for you. A new set of external conditions beyond our control now governs everyone’s day-to-day lives and will do so for the foreseeable future. That’s the backdrop against which the first years of your legal careers will unfold. Let’s talk about what that means for you and what you can do about it.

Law Firm Jobs

The most obvious disruption for the class of 2020 (and those that follow in its wake) will be your post-graduate employment. Midsize and large law firms, which account for roughly half of all first-year lawyer hiring in the US and Canada, are laying people off, reducing partner draws and cutting employee salaries. Summer and associate programs are being postponed, cancelled, or converted on the fly into remote onboarding.

It’s not hard to see why. The prospect of a global economy destabilized for at least two years, as a virus tears through populations and severely constrains economic activity, is making law firms deeply concerned about their future. They are going to sharply reduce what they regard as non-essential activities — and you should be aware that in most law firms, the only essential activity is keeping partners happy and well-paid. Law firms’ lawyer population is therefore going to take a significant hit over the next couple of years.

I’ve been warning for awhile now that law firms will hire ever-fewer new associates, as more entry-level client work normally assigned to inexperienced junior lawyers stays in-house, is redirected to specialized law companies, or is given over to software programs. Our current and coming economic seizures will likely compress years of this gradual reduction into several months of substantial cutbacks in lawyer employment.

So one outcome on the other side of the pandemic will be that larger law firms will no longer be the default career starting point for tens of thousands of new lawyers every year. On balance, this isn’t entirely a bad thing.

Working as an associate in a law firm is excellent training for continuing to work as an associate in a law firm and, if that’s your dream, someday working as a partner in a law firm. But “law firm lawyer” is only a plurality of all law jobs today and will be a minority of law jobs throughout your career, and it doesn’t prepare you especially well for the other options.

There are obviously financial and brand-association advantages to starting out with a well-known law firm —  but there are steep costs as well, and risks to your personal well-being. Ultimately, there’s nothing magical or inherently meritorious about working in a law firm, and it shouldn’t be your default entry point into the law.

Your Next Jobs

What should be your entry point? During this crisis, it should be anywhere you can rack up some experience, build some skills, and add some contacts to your network while pulling down enough to pay your bills another month. Let’s dive into that.

● What kind of experience? Ideally, it will include on-the-ground problem-solving, as you help individuals and organizations move from a problem to a remedy in real time, learning as you go how to handle people in crisis. It will include opportunities to look outside “the law” for solutions, working with people from other technical and professional backgrounds and appreciating just how much they know. It will include occasions where you have to make the best call you can with limited information, hopefully with colleagues and supervisors to help you deal with the inevitable times when you get it wrong. This is exactly the kind of experience your future employers, colleagues and clients will prize.

● What kinds of skills? In addition to the triage responsiveness described above, there is an almost overwhelming array of “future lawyer skills” to choose from, any of which will make you a more valuable and effective lawyer. I’ve written extensively about these skills. Researchers have studied them. Law schools are offering graduate certificates in them.  Regulators are starting to provide and require them. Legal operations professionals, whose ranks will expand significantly this coming decade, have provided extensive resources for them. Review these lists, identify the skills that attract you the most, and look for opportunities (paid, if possible) to develop them first-hand.

● What kinds of contacts? There are almost no bad contacts to make in the legal world, and I hold out hope that the legal profession’s traditional helpfulness towards new practitioners will survive the pandemic. But I say again: Break out of the lawyer bubble. Connect and collaborate with other service providers and technical experts. In particular, build out your demand-side networks, from in-house counsel to legal operations professionals to small businesses to community organizers to advocates for the marginalized to government officials. Use Twitter to find people and LinkedIn to connect with them, or more modern platforms better suited to your demography.

There will be some full-time jobs out there to be had, but I suspect that most of the opportunities that surface in the coming months will be shorter-term, project, flex-time, and informal. If that’s what’s available, grab it and use it to get experience, develop skills, and/or make new contacts. Push your law school’s career services people to point you in promising directions here, and don’t hesitate to draw on every contact you’ve made during your brief time in the legal community for help.

You could also form “search parties” with your law school friends and classmates to hunt for opportunities, pooling your findings in a spreadsheet or Google Doc and meeting online once a week to compare notes. Think of it as study group for legal employment — each member contributes some research and benefits from everyone else’s efforts. You might uncover an ideal opportunity for someone else, and they for you. (No better way to develop your collaboration skills, too.)

The bottom line is, if you can wrangle some paying work that allows you to survive these next few years while ticking even two of the foregoing three sets of boxes, you’ve done really well for yourself. And if you can land something steadier and more structured that delivers these benefits, that’s even better.

But many new lawyers won’t be fortunate enough to fall into either of these categories, and the reality is that you might be among them for awhile. If so, then the only other point I can make, and I want to make it very strongly, is that there is absolutely nothing wrong with you if that turns out to be the case. None of this is your fault. You and your cohort drew the short straw. History found you. It’s not right, and it’s not fair — but it’s not your fault. I’m not sure if enough people have told you that.

That’s as much as I can usefully tell you about dealing with this tsunami and learning to tread water as it continues to surge inland. So I want to take the balance of this post to talk about what it means to launch a legal career in tandem with a global health crisis and severe recession. In order to do that, we need to understand as clearly as we can what’s really happening out there.

The Nature of This Crisis

Many people have correctly observed that we can’t “go back to normal,” that the post-pandemic world will be fundamentally different from the one we left behind in March. That’s true, but it doesn’t tell the whole story: that the “normal” world we left behind was an unsustainable, slowly collapsing mess.

We all saw the same things: political dysfunction and xenophobic tribalism, loss of faith in institutions and social norms, decaying physical and societal infrastructure, staggering inequality and the shredding of the social contract, accelerating environmental breakdown, and widespread addiction and loneliness. So many problems, so few solutions and a dwindling capacity or inclination to seek them out. Why would we want to go back to that?

We need to appreciate that COVID-19 isn’t only, or even primarily, a public health crisis. It’s a political system crisis, in which a serious threat to public health fully reveals and further exacerbates the failure of disintegrating political systems, public institutions, and social norms. COVID-19 is not “merely” a crisis like the 2007-08 recession — it’s a catalyst, perfectly timed both to signal and to bring about the end of one era and the beginning, for better or worse, of another. The old world is passing away, mostly because it was time for it to pass away and to be replaced by something else.

The same can be said for the pandemic’s impact on law. You’re probably aware that the legal system’s failure to provide adequate access to justice has massively worsened over this past decade. You might have heard that lawyers are overworked, overstressed, and more prone than most to depression, substance abuse, and suicide. You know only too well that your own path into this profession has driven you hundreds of thousands of dollars into debt while giving you little preparation to deliver legal services. Some of you might even live in a place where you have to show up in person during a pandemic to write a bar exam.

All of this is “normal.” None of it is right. The gap between what we’ve been doing in the law, and what we should be doing, has grown too large. The pandemic is now forcing us to reckon with that gap, to come to grips with how it developed and to deal with it once and for all.

Here’s how the gap developed: Over the last 40 years, demand for legal services exploded in terms of both volume and complexity. But supply failed to keep pace — although the number of lawyers increased, our service delivery remained narrowly simplistic, our justice infrastructure became dangerously archaic, and our legal institutions stubbornly refused to adapt to changing needs. We could never have produced enough lawyers and built enough courthouses to meet the surge in demand, but we went the opposite way — lawyers blocked the entry of new providers, judges rejected the use of technology in courts, and both stood by while governments eviscerated justice system funding. The resulting scarcity of authorized providers and the absence of robust systems drove the price of legal services beyond the reach of all but the rich and the corporate, creating massive backlogs that delayed and denied justice while preserving the profitable status quo for a select few.

This was just not sustainable. Our old legal institutions — judicial, regulatory, educational, private-sector — have been worn down to exhaustion trying to serve new legal needs they were never designed or updated to meet. Now comes the pandemic, to present us with the bill for our neglect and to ring down the curtain on this turbulent era in the legal services sector.

And now come the people who will lead us into the next era in legal services. Now comes you.

The Part You Will Play

It’s very important to me that you understand this fact: Your legal career will outlast this pandemic. Your legal career, in fact, is going to bury this pandemic — you will be sailing along as a happy, successful, fulfilled lawyer when COVID-19 has long been just a bitter memory. You’ll be active in the law, or in business or in your community, well into the 2050s and 2060s. “I started practising law in a pandemic” will be how you begin a familiar story to your grandchildren.

You will not be defined by this pandemic. Lawyers who entered the practice of law in 1929 are not known today as the Stock Market Crash Generation. Those who entered it in 1933 are not remembered as the Depression Generation. They are all collectively known as the Greatest Generation. They are remembered not by what was done to them, but by what they did. The same will apply to you.

You will be defined by, and remembered gratefully for, the mandate you accepted to renew the law and build a better legal system. You responded to an unexpected change of plans, and an unfair burden placed on your shoulders, with courage, compassion, and creativity. You recognized that the law was trying to solve complex new challenges with old worn-out institutions, so you kept the finest principles underlying those institutions and threw out the junk and wreckage that had accumulated around their foundations.

You entered the law encumbered with debt and anxiety, but unencumbered by the cultural baggage of “the way we’ve always done things” or by allegiance to self-preserving barriers to change. You decided that law firms ought to be smart businesses where a diversity of ethical professionals solved law-related problems and provided good counsel at a fair and predictable price to clients who trusted them. You decided that legal needs could be met by a wide range of trustworthy providers at different price and complexity points, or by free automated systems for the simplest matters. You decided that civil justice should be a universal public utility and the court system should only manage conflicts between the state and its people.

Or maybe you didn’t do any of these things, but you did an array of others. It doesn’t matter what your accomplishments ultimately end up being — it matters that you entered a legal system in desperate need of revitalization and renewal, and you took on the job, because it needed to be done and it was worth doing. And because you’re a lawyer, and that’s what you do.

I have immense confidence in both your willingness to take on this role and in your ability to absolutely crush it. I said earlier in this post that “history found you” — but in truth, you are exactly who we needed history to find. You are smarter and more capable than any generation of lawyers who came before you, and you will prove your resilience, your reliability, and ultimately your wisdom throughout this crisis. You will lead.

We all need to buckle up for the roughest ride of our lives. We’ll all play our part in the dismantling of a broken legal system and the design and construction of a new one. You’ll have plenty of help along the way, probably more than you’ll know what to do with. But most of us will be stepping off this bus in the coming years and decades, whereas you’re going to be here for the whole trip. The first problem you’re going to solve as lawyers is the legal system itself — and believe me, after that, everything else is going to feel like a walk in the park on a sunny day.

This pandemic, and the legal system crisis it’s catalyzing, are going to be incredibly tough. But you’re tougher, and you’ll win. Go get it.

• Part 1 in this series: What we’re up against
• Part 2 in this series: Justice system down
• Part 3 in this series: Justice reconstructed

If you’ve spent the last few weeks focused on what’s happening in law schools, you might think the pandemic has triggered a crisis in legal education. If you’ve spent that time instead focused on bar exams and articling, you might think the crisis is actually occurring in bar admission and lawyer certification. And if you’ve been focused on law firms’ early personnel and recruitment decisions, you might instead think we’re heading into a crisis in lawyer hiring and employment.

In fact, this is all one crisis in one system — lawyer formation — manifesting itself in different locations. The sooner we accept that fact, the sooner we can begin the process of both organizing triage to get us through the short-term hardships assailing us, and drawing up blueprints to unify the shattered fragments of lawyer formation and create an effective and legitimate system for developing new lawyers.

Here’s a brief survey of the eruptions taking place across this landscape.

● Every law school in North America has had to close its physical doors because of the pandemic’s physical distancing consequences. As is the case with courts, legal education revolves around the school building to which everyone has to come, the professor in whose presence they must gather, and the legacy paper-based knowledge centre anchoring the whole institution. And as with the courts, the transition from real world to virtual world has been chaotic and jarring.

● Also like judges, many law professors are now having to learn video-conferencing on the fly, in order to convert their lectures to an online format. Most are doing their best, but the effect is still something like televising a radio play. Teaching a “digitally native” class, one that was designed from the start to be online, is a different beast than delivering an in-person lecture to a camera and scattering the participants to the four winds.

 

● Law schools in the US, after an initial period of struggle and a series of debates within faculties, are also (mostly) coming around to accepting that their grading systems will have to change to Pass/Fail during this crisis. (A US school-by-school breakdown can be found here.) For the most part, Canadian law schools are doing the same.

● In the United States, some jurisdictions have postponed their bar exams, while others aren’t sure or haven’t yet. (This situation changes daily, so these links are probably already out of date.) Since new graduates who can’t take the bar can’t be admitted to practice, the focus has now turned to emergency diploma privilege for 2020 grads, or to skip the bar exam this year. In Canada, Ontario became the first province to cancel its lawyer licensing exams.

● Speaking of my home, one Canadian jurisdiction has already decided to shorten the articling period from 12 to 8 months to allow articling students to be admitted to practice. Saskatchewan’s decision will almost certainly be followed elsewhere in the country, which should help alleviate concerns about law firms simply laying off their students before their term has been completed.

● Law firms, predictably in the teeth of a global recession, have already begun to lay off associates and staff members. Many more surely will follow, as I doubt any but the most ironclad-brand firms will avoid the same fate. Summer law programs will therefore almost certainly all be shut down, and the on-campus interview process will move to next winter, if not later.

● And, oh yeah — law schools also have to worry about postponement of the LSAT and consequent delays in admitting future cohorts of students. It’s not just the system’s output mechanisms that are struggling — if the input mechanisms go too, legal education has a whole new problem.

That is a staggering collection of disruptions and challenges, none of which the lawyer formation system was prepared to handle, all taking place in less than a month. (Credit where it’s due: For all the chaos and upset involved, law schools and their students have managed to shift almost all their operations from in-person to online in the space of a few weeks. Has it been seamless? Hardly. But schools and students have so far succeeded where many law firms and courts failed.)

But here’s the problem: It’s almost impossible to tackle any one of these issues without having significant knock-on effects on the others.

When law schools change their grades to pass/fail, law firm recruiters have to change their student assessment systems. When the new lawyer licensing process stalls out, firms can’t employ these new graduates as lawyers. When law firms scale back or postpone the hiring of new grads, new lawyer unemployment climbs and fewer people apply to law school. And so on.

More problematically, all the relevant actors in this mad scramble are independent from the other, mandated to pursue their own goals and their own survival regardless of whether that pursuit damages the other stakeholders. Nobody has either the overarching interest or the requisite authority to coordinate a unified response. Licensing bodies can’t tell law schools what to do, law firms can’t tell licensing bodies what to do, and law students can’t tell anyone what to do because they have no power and nobody to advocate for them.

We need to appreciate what’s actually going on here. These are not myriad individual problems and complications in several related areas of lawyer education and training and licensing and hiring. This is one big problem.

The lawyer formation process is breaking down in front of us. It’s breaking down because it’s a disjointed, cobbled-together collection of self-interested fiefdoms that have been allowed to call their own shots and pursue their own goals for decades.

Just as the court system is failing because it’s really about what judges and lawyers want rather than what clients and the public need, so too lawyer formation is failing because it’s really about what law schools want and what regulators want and what law firms want. Lawyer formation is not about the lawyer who’s being formed.

If the lawyer formation process were really about the lawyer, it would be holistic and unified, focused on the individual striving to become a legal professional. Instead, look at how we’ve separated the first several years of a lawyer’s career into three disjointed periods, administered by three different entities:

• Law schools “teach the law” — even though the bulk of what they teach and how they teach it has not changed in more than 60 years. That scandalous fact alone could legitimately disqualify schools from having any further role in these conversations.
• Courts and regulators “licence the lawyer” — even though the bulk of this process involves re-teaching and re-testing students on what (we apparently believe) law schools didn’t teach effectively in the first place.
• Law firms — no, let’s be real here, clients — “train the lawyer,” by paying either the new practitioner or their employer to figure out, on the job, how they’re supposed to meet actual legal needs. Clients pay to make lawyers competent. What a disgrace.

We have separated lawyer education from lawyer training, and separated them both from lawyer licensing and entry into the profession. We’ve allowed this ridiculous process to continue year after year, despite knowing all its weaknesses and failings, and now we’re going to pay the price of that carelessness in one lump sum.

The pandemic is, of course, the proximate cause of all this. Physical distancing forced law schools to change their teaching and grading systems and forced regulators to rethink their licensing system. The global recession — and maybe that’s not a strong enough word — that’s about to strike us like an onrushing avalanche is forcing law firms to massively recalibrate their hiring and firing decisions.

But someday, probably years from now, the pandemic will end and the economy will recover. Will all these aspects of lawyer formation just “go back to normal” then? I strongly doubt they will, for two reasons.

One is that this ordeal is going to last so long — and feel even longer — that we’ll have a surprisingly hard time remembering what “normal” used to be like. Humans have a remarkable ability to grow accustomed to new conditions — if you’re not sure about that, look outside a month from now and see how many people aren’t wearing masks.

But the other, more important reason why we won’t just “snap back” to the old ways of doing things is that those ways have been permanently, irrevocably discredited. Those of us who’ve spent years advocating for change in the lawyer formation process have always been met with, “It doesn’t need to be done” and “Nobody would allow it” and “That would never work.”

Well, guess what? We did it anyway, because we had to, and it worked. And now we get to ask:

• If Pass/Fail is an acceptable grading system during an emergency, why isn’t it acceptable all the time? Having taught a couple of law courses myself, and having experienced as an instructor how letter grades are arbitrary and indefensible, I believe Honours/Pass/Fail is the ideal assessment system — it tells both the student and her potential future employers all they need to know about course performance. And I’m not the only one who thinks that.
• If we’re willing to grant emergency diplomas to law graduates who’ve not passed a Bar exam, why would we force future generations of lawyers to pass a test that we’ve effectively conceded is merely optional to the licensing process? Why would we not go a step further and officially do away with the bar exam altogether and pursue bar admission through alternative models?
• In Canada, we’re willing to say that eight months of articling is as good as 12. What about six? What about four? When articling is already under heavy attack, when it’s been shown to be an abusive and discriminatory experience for many students, when we’re already having serious discussions about whether the practice should be discontinued, why should we carry it on a day further, especially in a pandemic?
• Most seriously of all: If law firms are laying off experienced associates now, what are the chances they’re going to hire brand-new ones in three, six, or nine months’ time? What happens when the Class of 2020 (and maybe 2021) finds almost no job opportunities upon graduation or licensing? If the outsourcing of new lawyer training to law firms (upon which the entire lawyer development system hinges) stops, and firms survive without it — why would firms take on this role again?

Our “bucket brigade” approach to lawyer development, in which each participant takes the formative lawyer from one stage to the next, has been exposed (like all supply chains around the world) to be fatally vulnerable to disruption. Out of this crisis will emerge a driving need to re-unify the lawyer development system, to really rethink what it is we’re trying to achieve: to develop competent, confident lawyers to serve clients and society. In order to achieve that goal, we need to:

1. Reconfigure and unify all the systems and processes of lawyer formation;
2. Centralize and empower a single authority to be responsible for lawyer formation; and
3. Most importantly, refocus the lawyer formation system on the lawyer who’s actually being formed.

That’s how I see the impact of the pandemic on legal education, lawyer licensing, and legal professional development. For my thoughts about practical steps we can take to achieve these goals, in both the short term and the medium-to-long term, please see the next two posts in this series, coming tomorrow.

• Part 1 in this series: What we’re up against
• Part 2 in this series: Justice system down

I ended the previous post in this series by contending that while we need to do what we can to keep the old justice system in one piece for as long as we can, our primary goal should be to build new, safer, better quarters for our justice institutions and move everyone there after the crisis.

So how do we begin that process? Where is that safer location, and how do we get there?

Those are the most important questions facing the growing army of legal innovators and visionaries who recognize the sudden onset of system breakdown in the law and are rushing to help. We are so early in this process that it’s impossible to provide precise and detailed answers — we’re still coming to grips with the reality of our situation and only starting to develop an inventory of what needs to be done.

But I’d still like to offer three suggestions for how we can start to build a new and better justice system out of the ruins of the one that’s now starting to pass away.

1. Study successful triages. Right now, the law’s first responders (see the links in the previous paragraph) are already helping to set up the legal equivalent of field hospitals — online services that can deliver some or most of what the justice system would be providing if it hadn’t gone dark. Here are a few (including, it must be noted, some courts and regulators):

• Rent Relief Letter Generator (English and Spanish versions) by Amanda Brown and Diego Alcala
• Rent Non-Payment Letter to Landlords by SAJE, JustFix, and Community Lawyer
• Guided Immigration Document Preparation (English and Spanish versions) by Joe Rosenberg and Community Lawyer
• Emergency Family Law Referral Line, by the Law Society of Ontario and the Superior Court of Ontario
• Online and Virtual Legal Form Assistance by Dom Bautista
• California Rent Relief Letter Generator by Hannah Konnitshek
• Michigan Online Dispute Resolution Services by the Michigan Courts
• The Document Assembly Line Project by David Colarusso and the Suffolk LIT Lab

These and other hastily assembled projects are doing what the justice system can’t do while it’s offline; plenty more will follow in their path.

Study these projects, support them if and as you can. But also track and monitor them, and ask: What worked? What didn’t work as well? What were the success features and breakdown points of each one? What resources were required to carry them out, and what other resources would have improved them further? What can we learn about each effort? Innovation is an iterative process, and it requires the review and assessment of case studies to help us advance further.

But the most important question to ask about each of these efforts is: What was the user experience? Wherever possible, collect feedback from the people who used the service: What did this innovative solution do well? What could it have done better, and what did it not think to do? What outcome did you get from using this service, and was it what you needed? Would you use this service again or recommend it to others? (More on this subject in the next section.)

Keep a close record of all these triage projects — but don’t make the mistake of considering them “emergency alternatives,” interesting little lab experiments that can be switched off when (or if) the traditional justice system gets back on its feet. Treat them as if they are the foundation for a new justice system.

Because that’s exactly what they can and should be. If these new services can work this well on a shoestring in a pandemic, imagine what they’ll be able to accomplish with the full force and support of the legal sector behind them. Help turn these field hospitals into our new permanent care centres.

2. Design for people. I wrote a column at Slaw last month, “The Future of Justice in a COVID-19 World,” that profiled British Columbia’s Civil Resolution Tribunal, which I considered the world’s most successful legal system innovation even before the pandemic (and which, I note in passing, has stayed 100% open and operational since the crisis began.) That column contains pretty much everything I can say about the critical importance of incorporating human-centered design into the blueprints for our new justice institutions.

This excerpt from the post gets my point across as well as any:

Look at what the CRT does: It starts its design process by going to the people who have the greatest challenges accessing the justice system and online services. It asks them: “What do you need? How this should this be designed? Help us to understand. Correct us when we get it wrong.” Because if the system works for people with language and disability barriers, it will work for people without them. And if it works for all these people, it will work for lawyers and judges.

Our justice system is designed in exactly the opposite fashion. It is set up for judges and lawyers, and for nobody else. The opinions and experiences of people outside the justice professions are not sought out, because they are of zero interest. This is the real breakthrough of the CRT. It is an entire system designed from Day One to serve the people who need disputes resolved, not the people who are paid to resolve them.

My prediction is that by the end of this year, most Canadian provinces will have their own CRTs either in rapid development or up and running, and I urge American and other jurisdictions to study the CRT, adapt its principles, and copy its framework. (Utah has already gone some distance down this road.)

And for every court administrator or justice official out there who wants to know how to get started, I strongly recommend this invaluable Twitter thread by Darin Thompson at the BC Ministry of the Attorney General’s office. He has invented the wheel for you.

But remember that all of this hinges on human-centred design. As I said in the previous post: If you’re building a function or procedure or system for the fulfilment of legal needs, and you’re doing it from the perspective and priorities of a judge or lawyer or other justice professional, you’re doing it wrong. Build for the users.

3. Create an online consumer legal hub. Whereas the first two items on this list are shorter-term fixes, this is a medium-term project that will take many hands to lift off the ground and send into flight. But it’s not terribly complex, and almost all of the information needed to program it and launch it is readily available or can be relatively easily assembled and programmed. More importantly, if we start to build it now, it will be ready by the time the old houses of justice are ready to come down.

What I’m thinking of here is a website that does what lawyers and judges and courts have not managed to do — bring people into the legal system accessibly, and show them how to get the answers and outcomes they need easily and at no cost. (If I could come with a better name for the service I have in mind, I’d use it, but “hub” is the best I’ve got at the moment.)

Here’s the deal: This pandemic is going to do more than just close down courtrooms — it’s going to radically scale back the ability of the entire legal system to respond to needs and inquiries. Lawyers, legal aid providers, court services workers, and front-line justice officials all will have less time and bandwidth in the coming months, either because they’re trying to work from home, unable to access materials, swamped by the volume of inquiries, or sick and self-isolating themselves.

But we should not be trying to meet these needs on a linear, one-to-one basis anyway, and we certainly will not be able to do so effectively for many months to come. We need to scale our legal information and solutions provision — and we can only do that properly if we conceive and build from the start a system that is intended to scale and is designed for one-to-many solutions.

To my mind, a hub like this would provide two essential services: information about rights and obligations, and pathways to remedies and solutions.

(a) Information: Rights and Obligations

Almost all types of legal information inquiries — whether to lawyers, courts, or anyone else — can generally be grouped into three categories:

• What am I entitled, by law, to do and to get? What are others entitled to do and to get? What are people’s legal rights?
• What am I required, by law, to do? What are others required by law to do? What are people’s legal obligations?
• What am I not allowed, by law, to do? What are others not allowed to do? What are people’s legal limitations?

The hub would guide users looking for this information by asking the users to answer plain-language questions, in a human-designed process that elicits the key details about the user’s situation. This would not, in most cases, require the most advanced machine-learning systems available — flowcharts and decision trees could probably bring most people to the answer they need, although any appropriate AI assistance would of course be welcomed.

This type of service would likely not veer all that closely to “providing legal advice” or engaging in “the practice of law” — but frankly, even if it did, I’m not remotely troubled. Protecting lawyers’ monopoly on legal services is just about the last thing any of us should be worried about in a crisis of this magnitude.

(b) Pathways: Remedies and Solutions

There’s not much point in telling people about their rights, obligations, and limitations unless you can also provide them with the means to act on this information. This would be the more complex and challenging part of this project, because while there are existing precedents for accessing legal information online, there are very few for actually generating legal outcomes online. But that’s what people need, so that’s what this hub must also provide.

To be successful, this service has to do more than point the user to a form or document and tell them where to send it.

• It would generate the form or document for the user and send it automatically to where it needs to go — the user doesn’t have to fill out a single piece of paper.
• It would recognize the existence of a valid claim or assertion of a right — and where possible, issue an order or a directive to the executive branch of government to enforce that claim or right.
• Ideally, it would even enable the transfer or direct deposit of funds owing, or garnish the wages of a spouse or an employer.

This system, in other words, would incorporate the execution of legal remedies into its offerings.

Now, I know what you’re thinking. I recognize the dangers around the automated execution of anything in our imperfect world — I’m not suggesting that you get a machine to call the cops on someone. But I do think you can get a machine to enforce child support payments or fair wage legislation. We can start with the basics, the simplest and lightest execution of legal remedies. If we go no further than that, fine. But we can go at least that far.

Nor am I suggesting that all these capacities would be rolled out at once in a matter of months — obviously, there would be funding issues and negotiations among branches of government to make a hub like this a legitimate one-stop-shop for justice needs. But we don’t need to build the perfect justice hub right away — design principles remind us that we want to build skateboards and bicycles before we ever get around to building a luxury car. But just because we can’t provide everything doesn’t mean we should be content with providing nothing.

This whole project would obviously be a task for government, aided by legal/judicial/regulatory leaders, but guided (as with the CRT) by the people who need the information and services that the hub would provide. Initial iterations would be jurisdiction-specific and limited to the most urgent or frequently requested matters, but later versions could be far more expansive.

How much would something like this cost? I’ll leave that to the programmers and legal tech experts in the room, but if we could find $75 million for a company that aimed to serve Silicon Valley startups and sank beneath the waves shortly afterwards, I’d like to think we could find an amount in that vicinity to start helping hundreds of thousands of people and small businesses with much more pressing needs.

To wrap up this lengthy post, let me reiterate that yes, we should be embracing every available method to keep our current justice system going for as long as we can. Even battered and broken, it’s still the best system we have, and it retains enough strength and momentum that it can carry on some ways further yet. But we need to recognize, even as we do our best to prop the system up, that the pandemic has forced our hand. Our primary goal should be to replace the system, not repair it.

In a way, it’s a little like “flattening the curve” for the pandemic. By self-isolating in our homes, we’re buying time for the medical system to handle the flood of cases and expand its capacity. Similarly, we need to buy time for the justice system to stagger through this crisis as best it can — but before it’s all over, we need to ensure that the construction of new institutions, and the evacuation of people from the old ones, is at least well underway.

We need a new justice system. We’ve known that for a long time. We need to make this new one fit for the century we live in, not the century that ended 20 years ago — or, more accurately, three weeks ago.

Next up in this series: My thoughts about what the pandemic and its aftermath will do to our legal education and lawyer development systems.

• Part 1 in this series: What we’re up against

We need to recognize a couple of things about our justice system, in order to fully appreciate the fate that awaits it in the COVID-19 era and the tasks that now lie in front of us.

The first is that the system has nowhere near the capacity or resilience required to handle an emergency of this magnitude. Like our hospitals, which are about to be overrun with virus patients, our courts are perpetually underfunded, technologically handicapped, and already overloaded.

Case backlogs are common, hearings are routinely adjourned, and even straightforward cases stretch out over months and years. There is an entire body of constitutional law that addresses how long you can delay a person’s trial before their rights are violated, and it should tell us something that we don’t even find that remarkable anymore.

What happens when you take a creaking, overburdened system like this and place it in the path of the worst public crisis most of us have ever experienced? Our justice institutions can survive localized disasters — floods, wildfires, even terrorist attacks — because these events end relatively quickly, and the administrators can call in help from surrounding areas. What our institutions can’t survive is long, drawn-out, global emergencies of unknown duration, repeated multiple times, that disrupt schedules, force cancellations, and prevent in-person gatherings that could sicken or even kill their participants.

The justice system is not ready for this — but the hard truth is, it probably wouldn’t have been ready had this happened 10 years from now. And we don’t have the time or the resources to fix it now — the time to do that was 10 or 20 years ago. Just as you go to war with the army you have, rather than the army you wished you had, this is the justice system we’ve got.

Postponing hearings, allowing emergency e-filing, and teaching judges how to use Zoom is pretty much all that the courts have managed to do in response to the SARS-CoV-2 pandemic. Beyond that, as we’ve seen, the justice system’s best solution is essentially to give up, to shut down and hope for the best. There are no next steps.

Institutions need resilience in a crisis, just like people do. If your institution was forced to shut down because of the pandemic, then it failed its resilience test. It wasn’t there for us when we needed it.

The second feature of the justice system, though, is even harder to square with our new reality. In the short term, physical distancing is making it impossible for most trial courts to function normally. Some appellate hearings have continued by video, since no witnesses or exhibits need be present. But most civil proceedings, and almost every criminal proceeding, require people to gather together in small enclosed spaces for hours on end, waiting their turn to be called.

We’re not going to be able to safely or predictably do that kind of thing for a long time yet, especially since our current lockdown is likely to be just the first of many. How can you schedule a two-day hearing or a one-week trial eight months from now, when the government might lock down your community anytime, with little warning? How can lawyers arrange their schedules, how can witnesses book time off work or make travel reservations, under those circumstances? The logistics of court are easily derailed because there are so many moving parts that need to be tightly coordinated to get everyone in the same place at the same time.

Now, stop there. Go back to that last sentence and re-read those last eight words — “in the same place at the same time.” What this crisis has revealed is the central operating assumption of our justice institutions, which has now become our stumbling block: Everybody comes to the courthouse.

Every participant or stakeholder in a justice matter, no matter who they are or where they live, must at some point leave where they are and physically show up in front of the judge or her designate, inside the judge’s place of business, at a time specified by the judge, surrounded by the judge’s colleagues and employees, and do everything there according to the judge’s rules (including standing up when the judge enters the room). Failure to do these things will jeopardize your position; at worst, it could literally land you in jail.

Even when there’s not a global pandemic, there are enormous costs to a justice system that forces everyone to revolve around one person in one place. Every day, in criminal courts around the world, people in custody are placed in secure vehicles and escorted under guard to a courthouse, where they wait around until the judge or judge’s designate deals with their matter, after which they are either released or returned to custody.

Does it really make logistical sense (never mind hygienic sense) to round up all those people to stand in front of one person? Would it not make more sense for that one person to go to where these people are, and make whatever adjudications and decisions are required? Or to have many of these meetings take place by videoconference, so that nobody has to go anywhere?

 

I think that’s a discussion worth having. Or more accurately, it had been worth having, even though the vast majority of judges would never countenance the idea of going out and bringing justice to the world, rather than waiting for the world to come and get justice from them. But we’ve passed the time for discussions. We’re now building workarounds and assembling new solutions in real time, and the questions we’ll be asking are not “Will the judge approve of this?” so much as “Will this get the job done?”

Richard Susskind has made many insightful observations over the course of his career, but I suspect one will outlast all the others: “We have to decide if court is a place or a service.” For hundreds of years — right up until last month, in fact — court has been a place. By the time this pandemic has truly run its course, court will be a service.

We will not “go to court,” other than in exceptional circumstances (or in the case of criminal justice, which requires other serious reforms). We will “use the justice system,” from wherever we happen to be. Sometimes that will mean going to the courthouse and waiting for the judge to get around to our matter. But that will be the exception, not the rule — most times, we will access the justice system from our offices, our living rooms, our desktops, our mobile devices, our smart TVs.

Most family law matters, in particular, will leave courthouses and courtrooms over these next few years, and they will not return. They should never have been there in the first place. We can create, right now, an Integrated Family Law Agency to take over 90% of what a functional family court system should do, for a fraction of the time and cost. John-Paul Boyd laid out an entire blueprint for this kind of administrative model of family law dispute resolution almost two years ago. Seriously. It’s right there. Pick it up and run with it.

Our justice system is in trouble not just because it’s underfunded, under-resourced, and overburdened, as a global pandemic bears down on it like a hurricane. It’s in trouble because fundamentally, it’s all about the courts, the judges, the lawyers, and the law. It is not about the people whose rights and disputes need adjudication and resolution, or about the society that depends on the timely and affordable delivery of these outcomes in order to function.

This is why there’s not much point anymore in talking about “modernizing” or patching up our justice institutions. You can’t apply a Band-aid when you need a DNA replacement. By all means, we need to keep our system running as best it can through this crisis — we can’t let the walls give way and the roof cave in when there are so many people inside.

But everyone needs to be very clear: We are not going to all this effort simply to repair, patch up, and extend the life of a decrepit, crumbling edifice that’s already close to falling in on itself. We are keeping the old place together only long enough to clear everyone out of the building and move them to a safer location. We have to develop a new system, rather than trying to retrofit the old one. It’s time to start over.

For my thoughts about how we could begin to build those new and safer locations for justice, please see the next post in this series.

There is a line of thought within the legal community that the SARS-CoV-2 pandemic represents an opportunity for the legal sector to modernize.

The argument goes that this would be a good time for courts to introduce e-filing, to permit electronic signatures, or to carry out more video-based hearings. This is a chance for law firms, it is said, to shift their practices to the cloud or enable lawyers to work easily from home. It’s an opportunity for law schools to start getting the hang of remote teaching. And so on.

From my perspective, this is like watching a tsunami roar towards the beach where your seaside cottage is located and thinking that now might be a good time to spruce the place up a little.

To the extent this has not happened already, I’d like to suggest a tonal shift in our conversations about the impact of the global pandemic on the law, and a ratcheting-up of their seriousness and urgency, because I’m concerned that some in the profession still think this is primarily a short-term inconvenience.

In ten brief bullet points, as current as I can make them, here’s an I’m-not-a-scientist summary of what we’re up against in this pandemic.

• Nobody had ever heard of SARS-CoV-2 or COVID-19 before December 31, 2019. Today, just three months later, more than 40,000 people have died from it, more than 850,000 people have been infected by it, and literally billions of people are self-isolating to slow the spread of it, causing what looks very much like it will be a long-term global economic recession.
• COVID-19 is not “just the flu.” It is much more lethal and is infecting a planet full of people with no previous immunity to it. It infects all age groups, although it is likelier to kill people 50 and older and much less likely to kill children. Every carrier of the virus, including 25% who are asymptomatic, can infect between two and three others.
• At least 80% of the people who get COVID-19 develop mild to moderate symptoms, which can range from a bad cold to two solid weeks of the worst flu you’ve ever had. Up to 20% suffer more severe symptoms, which usually require hospitalization, intubation on a ventilator, and/or intensive medical care.
• Our best guess right now is that between 0.5% and 1.5% of those infected with COVID-19 will die from it. (COVID-19 deaths might also be under-reported currently.) That does not include people who would survive if given intensive medical attention, but who fail to receive it because hospitals are overrun with COVID-19 patients.
• This is why you and I are locked down at home. Once we stop physically distancing and start interacting with each other, the virus will restart its engines and resume spreading. But while we press the pause button in this way, everyone who was already infected and needs hospitalization has a better chance to get it. That’s what “flattening the curve” means. We’re buying time.
• We’re also buying time to slow the rate at which front-line health-care workers contract SARS-CoV-2 themselves, to acquire more personal protective equipment for health-care workers, to build and buy more ventilators and set up more temporary hospitals, to test people for the virus, and to develop a treatment and eventually a vaccine.
• Most optimistic estimates of the time frames required to accomplish these tasks vary from several months (expand our medical capacity, test a greater percentage of the population, identify possible treatments) to two to three years (develop, test, and produce billions of doses of vaccine). Expect our current lockdown to last at least through the end of June.
• As of today, most of us have been on quasi-lockdown for about three weeks. In that time, the stock market has lost about a third of its value, nearly 4 million North Americans have applied for unemployment benefits, supply chains have been stretched to their most vulnerable, and the IMF is predicting as bad a recession as that which followed the Great Financial Crisis.
• Here’s our dilemma: We can’t stay on even quasi-lockdown for more than a few months without potentially bringing the global economy crashing down and creating misery and chaos worldwide. But we can’t stop the lockdown without inviting hundreds of thousands of deaths, both causing and then amplified by the collapse of health-care systems for both pandemic victims and everyone else.
• A likely outcome is a series of lockdown periods, broken up by short scheduled breaks in which we can work and socialize again, during which time the virus will spread and people will get very ill before we all get sent back inside for a while. This would last for at least one year, quite possibly two and potentially even into a third, until we render this virus another annual survivable influenza.

It is still very early days, and we are still working largely in the dark. Everything changes daily. But one way or another, we’ll have to thread the needle between saving lives and preserving our health-care infrastructure on one hand, and saving the economy and giving people enough money to live on the other.

Every one of us is going to be put to the test, probably several times, before this is over, and so will all of our institutions and activities: economic, political, industrial, agricultural, recreational, scientific, academic, and yes, legal. “We’re just clambering into a life raft. Dry land is far away.”

This is why I’m not looking upon this pandemic as a difficult means to a happy end for legal innovation. To be blunt about this, millions of people are going to die worldwide over the next two years during this crisis. Governments are going to collapse, businesses are going to go bankrupt, economies are going to run into the ground. Perhaps just as bad, social and political norms are going to be corrupted or erased, and protections for the poor and vulnerable are going to evaporate.

In the face of a disaster of this magnitude, it’s easy to become overwhelmed. But we can’t take all the troubles of this world onto our own shoulders, and we’re not being asked to do that. We are being called upon to do whatever we can to help in our own corners of the world, our own communities and businesses and families.

For those us in the legal world, that means focusing our efforts on the justice system, the people who work in it, and the people and societies that the system serves. And believe me, we have our work cut out for us here.

Because in just its first few weeks in our world, COVID-19 has exposed the obvious and unsustainable incompatibility between the way the legal sector operates and what the world now actually needs. It is no secret to anyone that our legal system and its institutions (courts, law practice, legal education, legal regulation, and access to justice) have been gradually breaking down for most of the last 20 years. Let’s not fool ourselves by pretending otherwise — we know that they’re not working well, or even working at all anymore. We just haven’t been able to summon the will to do what’s needed to arrest that breakdown.

This pandemic and its global repercussions are going to accelerate the breakdown of our legal institutions, compressing that long, slow-motion collapse into a period of about 12 months. I am not exaggerating. That’s how long I think we have to hold our crumpling legal system together, while we simultaneously build temporary shelters and new legal institutions nearby and then evacuate people from the old houses of justice to the new ones.

If we haven’t built at least those temporary shelters for the law — assembled and rolled out promising new systems for solving legal problems and delivering justice outcomes — by the spring of 2021, then I really don’t know what will happen. I’m not even sure we have that long.

My next few posts here at Law21 are going to examine how the pandemic, the lockdowns, and the economic crisis are very likely going to mark the end of the old legal world and present us with a time-limited mandate to build a new one. I’m planning to look at three aspects in particular:

• the justice system,
• the lawyer development and licensing system, and
• the provision of legal services by law firms.

For each area, I hope to describe (a) the nature of the system breakdown, (b) short-term triage we can conduct to get us through the worst of the crisis, and (c) outlines for new and better systems that must emerge here at the end of the old ones.

This whole situation is moving fast, and I want to urge you, regardless of what role you play in the legal sector, to take it seriously and find something you can do to help. As you rightly look to protect your own business or organization, as well as the health and safety of your family and colleagues, please also look for opportunities to help your profession and the people it serves, right now if possible. Don’t hold back waiting to see if you’ll be needed. You are.

I want to close with two quotations for us to bear in mind. One is from Dr. Mike Ryan, executive director of the World Health Organization, from a March 16 news conference: “Perfection is the enemy of the good when it comes to emergency management. Speed trumps perfection. The greatest error is not to move. The greatest error is to be paralyzed by the fear of failure. If you need to be right before you move, you will never win.”

The other is from Geoff Gillespie, US Navy JAG Corps lawyer, writing yesterday at Legal Evolution: “Everybody’s a leader now. Against the steep curve of the coronavirus pandemic, each of our actions will have an outsized impact on our organizations and communities. … It’s time to accept our new reality, and move into action.”

• “Peace in our time.”
• “The Beatles have no future in show business.”
• “There’s no chance the iPhone will get any significant market share.”

Honestly, I don’t know why anyone makes predictions about anything. A hundred unforeseen factors surface immediately after you finish prognosticating and shatter all your starting assumptions. Only a glutton for punishment would actually make predictions about the future on the record.

And so, naturally, I accepted a request recently from Lawyers On Demand to forecast the future of legal careers. The full result of my labours can be found here, but I’ve summarized it briefly below.

In five or so years from now, the traditional legal market should be approaching both its zenith and its logical conclusion. Record-breaking profits for old Boomer partners as they burn up their law firms on their way out the door; the relentless disaggregation of legal work to lower-cost platforms, with ever-fewer associate roles for young lawyers; a metastasizing crisis in the public legal system, coinciding with geopolitical upheaval in a post-Brexit, post-Trump world. So much to look forward to!

As much as this might seem like a first draft of the Avengers: Endgame script, all this really represents is the culmination of decades-long trends: an explosion of change in a legal market long overdue for it, against the backdrop of massive generational transition and technological chaos. The good news, and there is some, is that new opportunities for legal employment and value creation will start to flourish in this period, especially for lawyers with modern skills and diverse experiences. Radically different law firm business models will start to emerge.

Fast forward 15 years from now, and the picture gets brighter. There’ll be a new international order, and while it might not necessarily be one you like, at least it will be stable. Governments will hire lawyers to redesign and implement a new public infrastructure in which basic legal services are mandated and provided by the state. Courts will handle mostly criminal and constitutional matters, while most civil litigation will go to private arbitrators and online DR platforms. Family dissolution will be fast, cheap, and run by bureaucrats. You can decide if that’s a good thing or a bad thing.

What will lawyers be doing? Some will be unique specialists, tracking down violations of bilateral personal information protection treaties or building online systems for auditing clients’ compliance with carbon-trading laws. Others will serve regional enterprises from suburban mixed-use developments, or run home-based solo practices using deep knowledge of narrow subjects to draw a worldwide clientele. Others will program and upgrade online consumer law solution engines or deal with more complex matters beyond the software’s reach. And a hardy few will still bill by the hour for advocacy, judgment, counsel, and complex legal advice.

I have very little to say about the legal world 25 years from now, other than that it will probably be helpful to specialize in constitutional, immigration, real estate, or energy law. In a permanently hotter world beset by climate refugees, disappearing coastlines, forced population resettlement, and the rapid development of non-carbon fuels, there should be no shortage of work for you.

Now, look: Am I convinced that all the foregoing, and much more in the full report, will come to pass? Of course not. In case I hadn’t made it clear at the outset, predictions are a mug’s game, useful mostly for future amusement opportunities. But none of the factors behind these forecasts is imaginary or speculative — all you need do is look at the roads we’re driving down today to see that these potential destinations are not outlandish possibilities.

More importantly, the point of my forecasts is to give today’s and tomorrow’s lawyers not just a glimpse of what they might be doing in the 2020s and 2030s, but to remind them that no matter how great or how terrible things turn out to be, the world will still need lawyers. It might not always like us and it probably still won’t fully appreciate us, but it’s going to need us. And we need to be ready to meet those needs, because they’re going to be different and more complex and more challenging than anything we’ve dealt with so far.

So if you entered the law to become rich and influential, I’d suggest you consider another line of work, maybe hedge funds or America’s Got Talent! But if you entered law because you genuinely want to make the world a better place, then I’ve got great news for you: The world wants to be a better place. But it will need help to get there. And it will need you to step up and provide it.

A version of this article was first published by LegalWeek (April 17, 2019) as “Why Tomorrow’s Lawyers Will Be Needed More Than Ever.” My full-length forecast of the mid-range future of legal services, “Through the Legal Looking-Glass,” can be found at Lawyers On Demand’s website.

Suppose that, tomorrow, you needed to create a business that provides legal services — but law firms had never been invented, and you didn’t have that reference point to use as a template. Being a sensible and forward-thinking person, you might come up with an entity that featured many of the following characteristics:

• A privately owned corporation, perhaps with significant initial venture capital and the possibility of an IPO down the line, to assure yourself of operating and investment funds.
• A focus on markets where incumbent providers (lawyers) are scarce and where potential customers are therefore underserved and plentiful (say, consumers and small businesses).
• A range of affordable legal document assembly tools, accessible online 24/7, that can deliver extremely high-margin solutions to the basic legal needs of your customers.
• A network of reliable local lawyers to whom your customers’ more complex legal matters can be referred, and for whom your brand and market reach constitute a powerful marketing force.

In other words, you might wind up creating something like LegalZoom. 

Now suppose that, tomorrow, you needed to create an entity that resolves legal disputes, but courts had never been invented and you didn’t have them to use as a template. You might come up with an entity that featured many of the following characteristics:

• It recognizes that what people desire most in dispute resolution is speed and affordability, and so it would prioritize these two objectives on par with any other consideration. 
• It accepts that the best way to help people access dispute resolution is to meet them where they are, and so it would be native to and entirely contained within an online environment.
• It acknowledges that relatively few disputes truly require lawyers to resolve and even fewer really need judges, and so it discourages or does away with the use of either.
• It understands that continuous improvement is the key to any effective service, and so it engages in an ongoing process of intense user feedback and system enhancements. 

In other words, you might wind up creating something like the Civil Resolution Tribunal in British Columbia (or the HMCTS Public Law Project in Great Britain).

And suppose that, tomorrow, you needed to create a way to provide legal assistance to low-income people, but legal aid had never been invented and you didn’t have that to use as a template. Once again, you might come up with an entity that featured many of the following characteristics:

• Solutions begin with and are centred around the root causes of the problem, because legal matters are only one dimension of the multi-faceted “life matters” that people encounter.
• Legal services are co-designed with and collaboratively directed by partners in the community where the people live, rather than designed and delivered solely by a single heroic outside lawyer. 
• Legal assistance is channeled through those community partners that have strong relationships with community members, rather than through one-off fixes provided to individual clients.
• Legal services are provided between 4 pm and 10 pm, because that’s when most individuals with jobs, kids, or parents to take care of actually have the time available to seek legal help.

In other words, you might wind up creating something like the Community Activism Law Alliance in Chicago.

Take a moment to consider that none of these three foregoing entities was created by a legal organization, a law firm, or a court — and in fact, one of them is an international success despite opposition from and prosecution by the legal profession for most of its existence.

Now, it’s likely that if you were to take on those three design challenges above, the entities you’d come up with would differ in various ways from my three examples. But I’m also pretty sure of this: 

• If you’d never heard of law firms, and you needed a way to deliver legal solutions, you wouldn’t invent a business owned and operated solely by lawyers that sold their effort, used little technology, and had no access to non-lawyer capital.
• If you’d never heard of courts, and you needed a way to resolve disputes, you wouldn’t construct ornate buildings in downtown cores that are 70% idle space, can only be used effectively by lawyers, and are unbelievably slow and costly. 
• If you’d never heard of legal aid, and you needed a way to give poor people access to legal services, you wouldn’t come up with a system by which governments pay people from the first place to take problems to other people in the second place to find a solution. 

When you look at the traditional institutions of the legal services market — and not just law firms, courts, and legal aid, but also law schools and legal regulators — hardly any of them are what we would invent today if we needed to solve the problems they’re meant to address. If we had to start from scratch in all these areas, we would:

• understand in detail the goal(s) we’re trying to achieve,
• design around the end user or service recipient,
• use only the tools and resources we truly need,
• prioritize speed, accessibility, and affordability, and 
• constantly improve through assessment and user feedback.

As we all know, the traditional institutions of the legal profession and the legal services market have become slow, costly, inefficient, and inconvenient. Many people and a whole lot of money have been deployed trying to make these institutions faster, affordable, efficient, and convenient. These efforts, for the most part, have fallen short or failed altogether, as these institutions have also proven remarkably impervious to reform and innovation.

But maybe we’re going about this all wrong.

Rather than trying to fix law firms, reform courts, and save legal aid, we could recognize that maybe these institutions were meant to function (and did function, very effectively) in a different set of social and economic conditions than we have today. And maybe, as a result, we should instead strive to identify, build, legitimize, and support other ways of delivering legal solutions and resolving disputes promptly, affordably, and accessibly. 

I’m not saying we should dissolve law firms, shut down courts, and defund legal aid. I’m saying that we need to supplement these old means of providing legal services with new ones that are better adapted to the world we live in, not the one our parents or grandparents lived in. Create more channels. Open more pathways to solutions. Give other options a shot.

Could we have legal services without law firms, dispute resolution without courts, legal help for the poor without legal aid? Many lawyers would say that’s unthinkable. But we buy books without bookstores, get music without record stores, see movies without theatres — and not that long ago, these were all unthinkable too. 

But Amazon, iTunes, and Netflix didn’t destroy bookstores, record stores, and movie theatres. All these business are still out there — a lot fewer than there used to be, sure, but no more than the market requires. And they are catering to people who want a different and richer experience than simply buying and consuming content online. The new options haven’t eradicated the old ones — they’ve allowed the old ones to find their core customer base, and given everyone else much more choice and convenience than they ever imagined they could enjoy. 

Would you give up Amazon, iTunes, and Netflix — and all the choice, convenience, and accessibility they’ve given you — so that we could revive bookstores, record stores, and movie theatres? I think it’s unlikely. Well, someday down the line, someone will ask the equally inane question: Would you give up LegalZoom so that we could have more law firms? Would you give up online dispute resolution so that we can open more courthouses? Would you give up community legal networks so that we could return to the golden age of the perennially underfunded legal aid certificate? 

We need more LegalZooms, more CRTs, and more CALAs. We need to authorize them, fund them, and support them. They’re not going to replace law firms, courts, and legal aid; they’re going to relieve these older institutions of the burden of trying to be everything to everyone in every circumstance — the burden of monopoly. Fighting to preserve that monopoly will go down in history as the least sensible and enlightened thing the legal profession ever did.

It’s time we stopped fighting. It’s time to set aside our preconceived ideas and conventional wisdom about what our legal institutions ought to look like. It’s time for us to start from scratch. 

 

 

 

 

George Meyer, producer and head writer of The Simpsons in its glory years, was once asked about his favourite line from the show’s run. He cited the closing scene from the Season 8 episode “Homer vs. the Eighteenth Amendment,” in which the town is celebrating the end of a brief period of Prohibition. Homer stands atop a pile of beer barrels, hoists a sudsy glass, and proposes a toast to the gathered crowd: “To alcohol! The cause of — and solution to — all of life’s problems.”

In a similar vein, I would like to propose, if not an actual toast, then an explanatory observation for the business of legal services: “To lawyers! The cause of — and solution to — all of law firms’ problems.”

Take a moment to review the most frustrating afflictions of your own firm, or if you’re a client, the firms with which you do business. From an internal perspective, firms are bedevilled with difficult personalities, intra-competitive strife, short-term profiteering, and a focus on the interests of individual partners rather than on those of the firm. From an external perspective, problems include unpredictable pricing, lack of responsiveness, widespread inefficiency, and a failure to identify and focus on client value.

These are not problems created by tough competition or demanding clients. They are not challenges inherent to the delivery of legal services (as opposed to, say, accounting or architectural services). These stumbling blocks to happy, healthy, productive, and value-enhancing law firms arise from the decisions and behaviours of the lawyers who own, design, lead, and manage law firms and who price, sell, produce, and deliver their services. In a business where every facet of production and every detail of strategy is controlled by lawyers — and where every dollar of profit and accolade for success goes to lawyers — there really isn’t any other place to assign responsibility for the business’s shortcomings.

This is not a jeremiad against lawyers, much as it might resemble one. The problem is not that lawyers are bad people; the problem is that lawyers are doing too many things in law firms that they’re not best qualified to do. Lawyers in law firms are wearing far too many hats.

Let’s consider the sheer ubiquity of lawyers throughout the law firm business:

• Who owns law firms? Lawyers. For the moment, anyway, only lawyers are permitted to own equity in law firms.
• Who designs law firms? Lawyers. Most firms evolved haphazardly from lawyers’ longtime, habitual business activities.
• Who leads law firms? Lawyers. Most law firms are led by managing partners, occasionally in conjunction with a chief administrator.
• Who manages law firms? Lawyers. To the extent there is any formal management function in law firms, lawyers occupy it.
• Who prices legal services? Lawyers. They set a billable rate, track their hours worked, do the math, and bill the result.
• Who sells legal services? Lawyers. The most successful ones are “rainmakers.” The least successful ones are asked to leave.
• Who produces legal services? Lawyers. More than 99% of law firm inventory is lawyers’ billed time and effort.
• Who delivers legal services? Lawyers. Much client contact and most service provision is conducted by lawyers.

This isn’t even an exhaustive list of every facet of law firms. Purchasing approvals, hiring decisions, compensation systems, marketing priorities, everything down to the choice of colour for the firm logo — lawyers are in charge of it, lawyers spend their time and energy to accomplish it, and lawyers jealously guard their power over it.

Lawyers wear almost every hat there is to wear in law firms. They do this for three reasons:

1. Because they always have.
2. Because they need to be in control.
3. Because they believe they can do these tasks as well or better than anyone else.

I couldn’t tell you which of these three behavioural drivers — tradition, authority, ego — is the most significant. I only know that all three are immensely important to lawyers and are incredibly difficult to talk them out of. But the end result is that lawyers in law firms have overburdened themselves, taking on too many responsibilities that lie outside their expertise and not doing any of them as well as they ought to be done.

Here’s my complete list of the law firm roles and activities into which I think lawyers ought to be investing their time, talents, and efforts:

1. Using their legal expertise and judgment to create client value.
2. Using their personal empathy to strengthen client relationships.
3. Using their ethical compass to guide the firm’s vision and direction.

Come up with solutions that meet clients’ needs and opportunities, build relationships of trust and reliability with those clients, and provide the firm with the vision and wisdom to run a successful and sustainable professional business. Nobody else in law firms can fill these three roles as well as lawyers can — collectively, they represent lawyers’ unique value proposition to their own firms. Other individuals and resources should supplement lawyers’ efforts in these areas, of course, but lawyers should have the lead role and primary responsibility.

But that’s the extent of it. Lawyers in law firms should have a three-hat maximum. Putting any other hats on top of those is distracting and counter-productive. Here are just three roles that lawyers should at least share with qualified personnel, if not relinquish control over completely.

1. Law firm workflow. There are much better legal workflow systems available today than “Lawyers work until they’re finished and then bill their efforts.” We can build knowledge and experience management systems, create project management frameworks, use technology to do work faster and cheaper, and re-route simpler tasks to lower-cost performers. Judging from Baker & McKenzie’s recent hire of David Cambria as Global Director of Legal Operations, law firms might be ready to implement these systems. But first, lawyers need to accept that orderly systems for getting work done add financial value to lawyers and outcome value to clients. This means hiring experts in operational design, giving these experts the authority and resources to build better legal workflow systems, and following their advice about re-allocating lawyers’ efforts to higher-value activities.

2. Law firm pricing.  There are better ways to price law firm work than “lawyer hours x hourly rate.” Chief pricing officers are increasingly common in law firms now, supplemented by independent legal pricing consultants. Pricing experts, however, grow frustrated by lawyers’ reluctance to negotiate a price in advance. Lawyers don’t like being paid for results (which they can’t control) rather than efforts (which they can), which is why their compensation systems incentivize revenue over profitability. To overcome this problem, lawyers will have to trust their pricing experts that profitability beats revenue, that price certainty pleases clients and differentiates firms, and that the experts can build systems with objective data and subjective experience to deliver these positive outcomes. Let the people who understand pricing better than anyone else take charge of it.

3. Law firm sales. There is no better example of a task for which most lawyers lack the talent or skill, but that firms insist on keeping within lawyers’ authority, than the sales process. The cultural directive that “every partner must bring in business” effectively requires full-time professional lawyers to also be part-time amateur salespeople. Law firms claim that ethical rules against fee-sharing with “non-lawyers” stand in the way of a professional sales force. But I suspect the truth is that even though most lawyers don’t like selling, they do it anyway because they don’t want any “non-lawyers” interfering with the client relationship. Lawyers could save themselves (and their clients) much grief by hiring sales directors and working with them to develop focused value propositions for their clients, rather than playing at a role they didn’t go to law school to perform.

You’re probably seeing a common theme emerge here. To accomplish what I’m suggesting, lawyers would have to:

• trust “non-lawyers” with expertise in areas beyond their own,
• delegate to these people control over several facets of their firms,
• follow recommendations by these people that will change their own habits and activities.

I know as well as you do how improbable that sounds. And believe me, I’m fully aware of the reflexive objections that firms’ leaders always raise. I can already hear managing partners and practice group chairs lining up to tell me, “Forget it. Our lawyers will never do any of those things. You’ll have to think of something else.”

Here’s what I need these leaders to understand: There is nothing else. If you’re looking for a solution to your law firm’s challenges that doesn’t involve fundamental behavioural shifts among your lawyers, then you might as well be looking for the end of the rainbow. The road to the transformation of your law firm into a modern, sustainable, client-first legal services business runs right through your lawyers’ comfort zone, right over their core belief that they know better than any “non-lawyer” how everything should be done. This belief is not defensible — simple reality disproves it every day — and your firm’s best hope for future success is for your lawyers to willingly divest themselves of it.

Because this all comes down to what lawyers believe — and if I’ve learned anything during my years on this earth, it’s that people believe what they want to believe. The facts have very little to do with it. If your lawyers don’t want to believe it’s time to loosen their grip on the reins of the firm, then they won’t believe it, and they won’t do anything about it. If they do want to believe it, then they will, and they’ll act.

And that brings us back to the Simpsons line that started this post. Lawyers are the cause of law firms’ problems — but they are, absolutely, the solution to those problems as well. Because they hold all the power in their firms, and only they can choose to share it. Law firms need their lawyers to do more of the things they’re best qualified to do (deliver client solutions, build client relationships, guide the development of law firms’ strategies and culture) and fewer of the things they’re not (almost everything else). If you haven’t already made the case to your lawyers that this is the best way forward, now is the time to do so.

But once you’ve done that, then you need to stand back and let the lawyers make the choice. Because it’s their choice, made in accordance with what they want to believe is true about the world. You can’t control what they decide. Like the rest of us, you can only watch and wait for their decision.