What will lawyers do now?

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Posted in: Purpose

Modern Law Magazine in the UK asked me to submit an article for their January 2020 issue, which featured a host of luminaries discussing the near and mid-term future of the legal marketplace. You can find the current issue here, with my article (“What will lawyers do now?”) starting on page 7.  Below you’ll find an excerpt from the piece, but I’d encourage you to read the full issue online and in particular, the terrific contributions from Mark Cohen, Jane Malcolm, Stephen Mayson, Helen Phillips, Richard Susskind, and Joanna Swash, among others.

The rise of a new legal economy over the next several years will require a thorough review of all our assumptions about what legal work consists of and, ultimately, what purpose it serves. Everyone in legal services, buyers and sellers alike, will need to rethink their possibilities, interests, and opportunities.

For the legal profession, one question above all others demands our attention: In the new legal economy, given the rise of “I don’t need a lawyer for this,” what will lawyers do?

Answering that question will, or should, preoccupy the leaders of the legal profession over the course of this coming decade. My small contribution to that effort would be to suggest the following four categories of responses, which can be arranged in the consultant’s favourite diagram, the four-quadrant chart.

What will lawyers do in the new legal economy? One of at least four things:

1. Retreat to higher ground. The rising waters of commoditization and systematization will submerge many of the low-lying sectors of activity that have traditionally supported legal careers. But some lawyers will be able to escape the surging tide by virtue of their specialities.

There will be fewer trial lawyers in future, as I’ve argued; but there will still be some, and they will be the most exceptional advocates practising at the highest levels. Clients will also still need empathetic advisors and well-informed counselors, even more than they do today, and some lawyers will develop these skills to their utmost. A few genuine experts, possessing unparalleled knowledge and insight that cannot be adequately reflected in a database entry, will also thrive.

The coming changes to our legal ecosystem will not render all species of lawyer extinct — even in the distant future, there will be lawyers performing services and helping clients in ways that will be familiar to those of us with roots in the 20th century.

2. Support the new systems. Many lawyers who find that systems and software are performing tasks for which they once billed hours will decide not to rage against the machine, but instead to support the machine, maintaining and further developing its effectiveness.

After all, someone will still have to understand how the law works, in order to translate statutory guidance and common-law reasoning into lines of code and algorithms. And someone will have to create the risk-monitoring mechanisms, design the workplace standards, and carry out the data analysis in the examples cited at the start of this article. These are lawyer tasks, and lawyers will be needed to perform them.

The development of artificial general intelligence is a very long distance away, and most AI developed in the meantime will augment human reasoning and ingenuity, not replace it. The machines still need us more than we need the machines.

3. Address unserved markets. It is a truth universally acknowledged, although seldom addressed to any practical degree, that only a small fraction of the legal problems and opportunities that people and businesses face ever make their way to a lawyer. That will change.

All the new legal systems and software coming our way sound wonderful — but not everyone will be able to afford them and access them. While rich people and large in-house law departments will experience a Golden Age of Law, the vast majority of individuals and businesses will be left to struggle through increasingly underfunded government programs and antiquated courts. These people will be in truly dire need of help — and some lawyers will respond, sacrificing higher incomes and more prestigious postings in order to serve the greater public good.

Providing community-based legal aid, building street-level systems to help people get the benefits they’re entitled to receive, crowdfunding the resources to fight for just causes — those are just some of the tasks lawyers will render in the early days of the new economy. As time goes on, more will emerge. And that bring us to:

4. Create new opportunities. If the only answers to the question, “What will lawyers do?” are “Retrench,” “Assimilate,” and “Help the poor,” then the future of the legal profession will be significantly less interesting than its past. But I’m willing to bet on lawyers, and on our creativity and passion, to do better than that.

In a legal economy premised on fewer problems, higher standards, faster performance, and integrated solutions, lawyers will be challenged to come up with new value propositions, new ways of helping people live better lives with fewer complications. What will they come up with? Maybe a “law school” that educates individuals on their legal rights and risks? An affordable online “legal utility” that replaces arcane legal information with clickable solutions? An AI-guided digital resource to replace linear and analog advice paths? A travelling dispute resolution roadshow with pop-up locations in marginalized communities?

The unexpected gift to lawyers of the new legal economy is this: Losing our old tasks will liberate us to find new purpose. Lawyers’ future will be limited only by our imagination, ambition, and compassion. We can forge the legal profession we truly want, not the crumbling legacy institution that was bequeathed to us.

What will lawyers do in the new legal economy? It’s really up to us — which means, of course, that it’s really up to you.

The rise of the lawyer

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Posted in: Big Firms, Careers, Ethics, New Lawyers, Purpose, Technology

Earlier this year, I received an invitation to write the epilogue for a book called New Suits: Appetite for Disruption in the Legal World, by Michele DeStefano (founder of the groundbreaking Law Without Walls program based at the University of Miami Law School) and Guenther Dobrauz-Saldapenna (partner and leader of PwC Legal Switzerland and leader of PwC’s global legal tech efforts). New Suits is an enormously ambitious and illuminating exploration of the frontiers of technology-powered legal practice, especially for large enterprise clients and their outside counsel, and I highly recommend that you read it.

Soon to be a major motion picture. Well, no.

Of course, I’m no technology expert, and I felt supremely unqualified to say anything useful about the impact of blockchain, AI, RegTech, and so on. But I thought that lawyers who read New Suits, especially newly called lawyers or law students, might reach the end of the book feeling a little overwhelmed by the scale of change facing them, and wondering whether the legal world of the future would in any way resemble the one they had already entered — and if that world would need, want, or even welcome lawyers.

So I wrote what was essentially a message to those lawyers, to explain what all the forthcoming changes would mean for them, what the new legal world was going to demand of them, and what they should feel both empowered and required to demand in return. With the kind permission of the authors, and with a few small edits, here is that lengthy but heartfelt message. 

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As I was preparing to write this epilogue, an email alert flashed across my screen with a message from a legal technology company. It announced itself in breathless terms: “AI has once again triumphed over a human lawyer.” (The task in question was the screening of a non-disclosure agreement.)

What an appropriate starting gun for this undertaking. The book you’ve just completed has catalogued in amazing detail the changes rippling along the foundations of the legal market worldwide, the technology that’s rewriting the rulebook for practising law, and the market forces that are fundamentally changing the nature of legal demand. Enterprise legal services — that sector of the market devoted to the legal needs of large companies, corporations, institutions, and governments — will never be the same again.

Yet it’s worth pausing to think about the deeper implications of that message. Why does it say “triumphed”? Who’s rooting for the machine here, and why are they rooting against the human? What benefit is being created by the application of this new technology — and who will ultimately reap that benefit? Are we celebrating because a human lawyer will be liberated from drudge work and assigned to deliver wise counsel to sophisticated clients? Or is it perhaps more likely that that lawyer will instead be liberated from a steady paycheque, and that fewer rather than more opportunities for human judgement will result?

We live in an age when the ultimate goal of many corporate activities is to “enhance shareholder value,” a phrase that has become a mantra not just for corporate boards, but also for the equity shareholders of large law firms. But you know, not everyone out there is a shareholder, and not everyone is seeing their value enhanced.

There are some who instead characterize our era as “late capitalism,” and who suggest that we’re entering the decline phase of one system and the gradual emergence of something else, something new. Is either of these opinions correct? What mantras should we be adopting for an enterprise legal market populated by blockchain, digitization, smart contracts, and Reg/Sup/PropTech? What is the real purpose of lawyers in the intelligent machine age?

For lawyers, these are not academic questions, and we should not act as if they are. If you’re a lawyer whose career trajectory is likely to carry you up to or past the midpoint of this century, I believe these questions are vital for you to contemplate. The answers you come up with will determine not just the sort of work you find yourself doing, but also the ultimate ends towards which your efforts will lead you, your clients, and everyone else. This epilogue is intended to help you through that contemplation.

To my way of thinking, there are three critical considerations for you, the 21st-century lawyer, to ponder during this process of discernment — three factors that merit at least as much time and bandwidth as any other. These concepts are “System,” “Service,” and “Self.” Here are my thoughts on each.

1. System

Now and for the foreseeable future, enterprise legal services will be created and delivered primarily through systems. For our purposes, we can define a “system” as an organized structure of interrelated and interdependent methods, procedures and routines, created to carry out an activity or solve a problem. If that concept interests or even thrills you, you’re going to love this line of work. If it puzzles or bores you, you might have a problem.

The reason we’re talking about systems is that we are long past the point where enterprise legal needs can be fulfilled by individual lawyers, sequentially and in single file, working in longhand and billing by the hour. As this book has made clear, both the sheer scale and the growing complexity of companies’ legal and compliance challenges require equally scaled and complex solutions. Enterprise clients compete in high-pressure environments and operate within unforgiving timeframes. They cannot be served in the same way you would serve a family business or a private client.

That’s going to have a profound impact on the types of people who will be drawn to this sector of the legal market. Systems analysts, software coders, design thinkers, and engineers of all kinds will be a natural fit for enterprise legal. People who can grasp the big picture of what the client needs, who can envision processes and flowcharts and logic statements that generate solutions to those needs, and who can build and maintain robust frameworks to contain and run those solutions rapidly, repeatedly, and reliably — those will be the architects and superstars of the enterprise legal market.

If you feel that the foregoing characteristics don’t describe you, then it’s possible that your legal destiny lies in a different direction. But don’t walk away yet! Because it’s also possible, and maybe even likely, that there is a place for you in the enterprise legal market — an important place, in fact.

Analysts and coders and engineers can capture the big-picture needs of a major enterprise client, and they can design and build astonishingly complex systems to meet those needs. But there’s still a role for human judgment here, because no matter how inspired and intricate a system might be, there are two questions that must constantly be asked about it:

  1. Is the system doing what it’s supposed to do?
  2. Is what the system is supposed to do actually the right thing to do?

To be clear, many engineers and software architects have not only the skills required to envision and build effective systems, but also the talent required to monitor, scrutinize, and judge those systems. But not all of them do. The “how” of a system is not the same as the “why” of a system, and both of these inquiries need to be made of, and met by, a legal system on a regular basis. We’ll want to have different people with different skill sets making those inquiries.

Legal systems also age and atrophy and degrade over time. Minuscule errors crawl inside and inaudibly misdirect the intended flow of data or invisibly unravel the logics underlying the processes. Since we can’t see or hear the initial errors, we need to watch the results, over and over again, and ask ourselves whether our incredible machines are delivering their intended solutions and client outcomes. That will require the attention of people who:

  • can detect patterns within a system and find emerging variations therein,
  • have built strong relationships with clients that allow them to understand their goals and priorities, and
  • can integrate these two bodies of knowledge into an effective system assessment regime.

Those are lawyer skills, and they will be needed in the enterprise legal market. But there’s more; there’s also the need to ask whether a system that’s doing what it was built to do is achieving what it ought to be doing.

A powerful and widespread misconception is that if a machine or a system is generating results, those results are necessarily good and trustworthy, because the machine or system is unbiased and objective. You’ve probably heard someone cite the results of some automated process or other as proof in an argument or to defend a political position: “It’s all math, and the numbers don’t lie.”

But it’s not all math, of course, and it never has been. There are already countless examples of how sexism and racism is baked into algorithms and processes by programmers who don’t believe they themselves are sexist or racist, but whose experiences and biases inevitably guide their “objective” decisions.

This problem will become worse as machine learning and data-driven decision-making spreads to judicial, regulatory, and administrative systems (especially for poorer individuals who can’t afford customized assistance). A system that performs exactly as it’s designed, but that keeps rejecting valid compensation claims from people with non-Anglicized surnames, is a bad system. But will anyone notice?

The future of law, especially enterprise legal services, is without any doubt systemic. But systems need people to run them, to remedy them, and to remind everyone else that we build systems to serve people’s interests. And that brings us to our next point.

2. Service

The law is a service profession. Both historically and etymologically, the very notion of “profession” is grounded in service towards others for the greater good. If you’re a lawyer, your central purpose is to serve other people and make things better for them — principally your clients, but not exclusively, and not to the intentional detriment of others.

Now, if you’re engaged (or you plan to engage) in the enterprise legal market, where you’re working for corporations and institutions and governments, you might think the foregoing homily doesn’t apply to you. That kind of thing is for lawyers in family law, or wills and estates, or criminal defence — “People Law,” as it’s been described. Your job, by contrast, is to help grow shareholder value, or improve brand penetration, or eliminate unwanted efficiencies. You don’t serve people so much as you serve productivity. Right?

Well, you can answer that question for yourself. But if I might suggest something for your consideration: No matter how massive and global your clients, no matter how complex and high-value the transactions, no matter how sophisticated and AI-driven the systems you’re using, it’s all People Law. Shareholders are people. Employees are people. Individuals whose lives are irrevocably altered by enterprise legal decisions are people. And you’re not allowed to conveniently overlook them in pursuit of your legal duties.

I don’t think it’s deeply controversial to note that in many parts of the world, perhaps including the place where you’re reading this book, the quality of both private lives and public infrastructure has deteriorated throughout the last few decades. In a world where capital outperforms labour by a widening margin, the rewards of ever-greater productivity are shared by an ever-smaller number of people. Many influential individuals seem to believe that economic productivity should be society’s highest goal. They’ve forgotten that both private corporations and public institutions were created in order to make people’s lives better. They were built to serve us, not the other way around.

I have some news for you, and you can decide if it’s good or bad news: One of your functions, as a lawyer for the people who’ve forgotten this truth, is to remind them of it.

When a corporation or an institution repeatedly crosses the line of acceptable conduct and ends up ruining itself and others, a question that invariably arises in the aftermath is: “Where were the lawyers?” The answer, in most cases, is that the lawyers were either helping to facilitate the client’s actions on its road to ruin, or were studiously looking the other way, having persuaded themselves that it wasn’t their job to challenge the sustainability or wisdom or even morality of their client’s decisions. That the role of a lawyer is to make happen what the client decides should happen. That their job is to serve power, not speak truth to it.

That is the wrong conclusion to reach. It’s wrong because it flies in the face of a lawyer’s ultimate duty, which is not to his or her client but to the rule of law and the courts. It’s wrong because it surgically removes ethical and societal factors from the lawyer’s consideration, transforming the lawyer into a rote enforcer or a random subroutine in the larger system of productivity. And it’s wrong because many people, both inside and outside the corridors of power, can sense when something the client is doing isn’t quite right, and they will look to see what the lawyers are doing — and if the lawyers are simply sitting quietly with their heads down, then that’s what they’ll do as well. People follow our lead in murky ethical situations, whether we want them to or not.

I’m not talking merely about the obvious kinds of scandal and self-dealing, which make even the most battle-hardened lawyer pause and think things over. I’m talking about the unexamined assumption that if the client wants to do something in order to enhance shareholder value, that is the highest and ultimately the only goal worth considering, regardless of the human or social or environmental consequences.

This challenge is made even greater by the rise of systems in the enterprise legal space. It’s easier to call out bad behaviour by an individual than it is to call out bad programming in a system that “objectively” issues eviction notices to the most vulnerable members of the community. There is a role for the lawyer of a commercial client to flag the negative social consequences of the enterprise’s activities, to bring them to the attention of the client’s leaders and insist that they look closely at the human costs of those activities. Maybe the lawyer’s duties extend no farther than that. But they certainly do not extend any less.

Believe me when I tell you that enabling or tolerating socially corrosive activities is the most pernicious trap into which an enterprise lawyer can fall. And it is especially dangerous because it disguises itself as “service to the client,” a salve to your conscience and a False North to your moral compass.

So you need to remember, throughout your life as a 21st-century enterprise lawyer, that if you silently endorse or willingly enable a client to advance its own interests through harm to others or to the obviously greater good, you are losing your way. And as we’ll discuss in the next section, you are also in danger of losing yourself.

3. Self

Early in my career as a legal magazine editor, I wrote in an editorial that the most important person in your law practice was your client. Shortly afterwards, I received a letter from a health and wellness expert who took exception to that idea. The most important person in your law practice, he said, is you. Upon reflection, I’ve come to believe he was right.

It’s easy to overlook this fact — and at times, it can even seem noble to do so. Haven’t I just finished saying that the ultimate role of a lawyer is to serve others? Doesn’t this suggest that a lawyer should strive to diminish herself or himself, to substitute the good of others for the good of ourselves? That seems like it should be an attractive notion to a serving profession.

But self-diminishment and self-negation have proven to be destructive in all walks of life, and especially so in service-oriented professions like medicine and the law. What we need instead is a more fully developed sense of how we should regard our selves, and where we should place our selves, within the dynamic array of needs and priorities of the 21st-century lawyer.

Technology makes this goal more important, not less. The very first promise of the machines we build has been that they will make our lives better — that they will save us time and energy, allowing us to devote these precious resources to enhancing our freedom, leisure, and personal advancement. Raise your hand if you feel like technology has gifted you abundantly with these assets. Raise your other hand if you look forward to the rollout of a new technology in your office and how much you’ll enjoy the extra time it will provide you.

The truth, of course, is that even those technologies that really do save us time and effort rarely do so to our benefit, but rather to the benefit of our employers. Think of all the amazing technologies that have arrived in the law over the last couple of decades, from document automation to contract drafting to e-discovery: Have lawyers enjoyed a windfall of unallocated hours and clear horizons with which to better ourselves and those around us, or to engage in more fulfilling and higher-value endeavours? Or have those “freed-up” hours been immediately captured by others and filled with ever more work, all in service of “greater productivity”? Especially if you work for an employer who measures your productivity in hours billed, and for whom “freed-up time for you” is the last thing they want?

Machine learning and artificial intelligence are going to amplify and accelerate these trends and concerns. Remember that email from the legal tech company I quoted at the start: “AI has once again triumphed over a human lawyer.” Guess who the human lawyer in this story is.

So long as the prevailing philosophy of the corporate world is to prioritize profits over people, it’s going to be your responsibility to look out for yourself — and to look out for your self. There are two areas in particular where you need to focus your efforts.

One is the broad category of your health and wellness. You have to safeguard and strengthen them both. Previous generations of lawyers failed to do that, and they left countless unhappy lives, broken marriages, emotional breakdowns, and substance addictions in their wake. Quite possibly you were raised in a home afflicted by these ills; if not, you almost certainly know someone who was.

Now it’s your turn to run this gauntlet — but you can do better. You can reject the proposition that your highest or only function is to be a cog in someone else’s machine, to forever be on call for those who pay your wages, or to substitute your client’s judgment for your own on a daily basis. You can instead assert that your physical health, mental wellness, and emotional stability have value, apart from and above your work. You can invest in your health the way previous generations invested in CLEs and association memberships. This will pay off throughout the course of your legal career and your life.

But there’s another way in which tending to your self will be important: In understanding and applying your own unique value proposition as a lawyer.

The ironic effect of the rise of automation and systems in the law is that lawyers’ human qualities will actually become more important to employers and clients. Job interviews in the near future are likely to feature the question, “What can you do that our machines can’t?” Previous generations of lawyers shared a common set of basic skills that are now being automated and systematized, which means that from now on, a lawyer’s personal distinctiveness will be more valuable than ever. Your unique humanity will be your best selling point.

In a sense, this challenge will also be the great opportunity for your generation of lawyers. You’ll be able to re-engineer the blueprint, or reformat the DNA, of what it means to be a lawyer. But be warned: As systems and software proliferate, you will constantly be tempted to serve the machines that were created to serve us, to prioritize productivity over people.

You’ll have to resist and reject that temptation. You’ll have to lead the evolution of the lawyer’s role back towards the enforcement of positive social norms, the enshrinement and protection of personal dignity, and the pursuit of service to the improvement of lives. That leadership might be the greatest legacy of the 21st-century legal careers that you will build.

Conclusion

One final thought as we close this book. The greatest responsibility of being a lawyer is that what you do and say matters to many people, far beyond those who pay you for your services. It also happens to be a lawyer’s greatest privilege. That’s always been true of the legal profession, but the clarity of that truth will be especially evident in the 2020s, 2030s, 2040s and 2050s — throughout your legal career.

So here’s what I’d very much like you to remember: What you do matters. Who you are matters. When you speak out, it has an impact. When you fall silent, that has an impact too. Do not let yourself get lost in the noise and complexity of the machine; do not lose sight of the primacy and power of true service; do not lose who you are, and who you could be, amid the upheaval and disruption to come. Out of this chaos, you can forge new meaning and greater purpose. Out of the end of one era in the legal profession’s history, you can launch the start of another.

Your time is nearly here. The rise of the machines is almost over. Now it’s time for the rise of the lawyer.

How to make less money

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Posted in: Law Firms, Purpose

I can’t tell you how many times a law firm leader has said to me recently, “Jordan, we’re simply making too much money. We’ve got a profit epidemic on our hands, and frankly, it’s causing some serious damage to the fabric of our firm. Something has to be done about it.”

Just the other day, in fact, there I was in my local fair-trade coffee shop, sipping organically roasted java with the powerful leaders of three immensely profitable BigLaw firms. They clutched their artisanal ceramic mugs tensely, lines of worry creasing their brows.

“I’m really concerned about how much money my firm is making,” confessed the managing partner. “We broke into the AmLaw 50 a couple of years ago, and I just learned to my dismay that we moved a few spots higher this year. Half the partners in my firm — including me! — made more than $1.6 million last year. Can you believe it? I’ve got a B.Comm. and a J.D. from a top-14 law school, yet despite that flimsy track record of intellect and success, I’m going to make insane amounts of money again this year. I can’t offer any excuse — it just happened. But I need to find a way to staunch the fountain of dollars.”

“I know exactly what you mean,” said the chief administrative officer. “Even lower in the AmLaw 200, we’re in the same boat, and it’s having some serious negative effects. The partners have become obsessed with nonsensical metrics like PPP and look jealously at lawyers in higher-ranked firms. I’m reluctant to admit it, but some of them are even putting their own financial interests ahead of their clients’, pushing their juniors to stay late on evenings and weekends, billing every client-related thought. It really saddens me to see it, and there’s no denying that it all flows from these geysers of revenue.”

“It’s worse than you think,” said the AmLaw 100 senior rainmaker. “You should see the caliber of people who are applying to join our firm these days. Rapacious partners from other firms who want to be guaranteed higher profits than they’re making now. Mercenary law school graduates prepared to sacrifice their health and well-being for six-figure starting salaries. And every day, it seems, another lawyer comes skulking around my office wanting me to share my secrets. I have no secrets! My law school roommate became the GC of a pharmaceutical company; that’s why I own three Porsches. I’m an ordinary schmuck who was in the right place at the right time. But can I convince them of that? Not a chance.”

I held up my hands. “Ladies and gentleman, I understand completely,” I said. “And honestly, I have to shoulder some blame. I’ve spent the last ten years advising law firms how to be more innovative, productive, and client-focused. Of course I meant well. But how could I have failed to see that many firms would focus solely on how much more profitable my advice could make them? I’m as guilty as anyone of recklessly encouraging this mania. And it’s high time I made amends.”

But if you ask for a rise, it’s no surprise they’re giving none away.

So that’s why I’m writing this post, offering law firms my best advice on how to make less money and be less profitable. I recognize that it might be too little, too late for the current generation of senior lawyers, clutched inescapably in the claws of six- and seven-figure annual incomes. But maybe this advice will do some good for future lawyers who, against all expectations, somehow form the notion that law firms exist for some purpose other than generating truckloads of cash for their owners. In hopes that such a future might materialize, here are my suggestions.

1. Stop billing your junior associates’ time. For some of you, this will seem redundant: Your biggest corporate clients have already told you not to bother billing anything performed by first-or second-year associates, because they won’t pay for on-the-job training of unskilled workers. But many other clients haven’t written that memo yet, allowing their outside counsel to generate millions of dollars in low-quality revenue from youngsters who don’t know what they’re doing half the time. Those firms could easily reduce their revenue just by turning off those taps.

Some partners will object, of course. But you can point out that giving these lawyers real skills training, supervised non-billable client access, and one-on-one mentoring opportunities (all of which could helpfully reduce revenue from other lawyers) will not only remove brutal billing pressures on these associates, but will also accelerate their development, improve their morale and well-being, and increase their retainability. “Revenue-neutral associates” could pay for themselves, assuming you stopped overpaying for academic high-achievers from famous law schools and instead started recruiting future star lawyers from law schools all over the map.

First- and second-year lawyer billings are the empty calories of law firms: They give you a temporary high, but leave you feeling bloated and regretful afterwards while compromising your long-term health. Start cutting revenue right here.

2. Place limits on your lawyers’ annual billing totals. This goes for all your fee-earners, not just the rookies. Most firms institute minimum expectations for how many hours they expect lawyers to bill, and that’s fair. But they don’t institute maximums: there’s no limit to the number of hours lawyers can churn out, leaving a dangerous outlet through which lawyers’ workaholism and competitiveness can spiral up into an eruption of revenue. (And, for firms concerned about that kind of thing, widespread lawyer burnout.) Before you know it, industry commentators are mocking your firm for employing a lawyer who bills 4,200 hours a year.

A simple solution to this problem would be to effectively cap lawyers’ billable hours. Most firms can’t actually order partners to stop working past a certain number of hours, of course. But you can tell your lawyers that they will not receive any compensation for hours worked past a given number. “Feel free to bill 3,000 hours if you like, but we stop counting your hours at 1,800 when calculating your annual income.” Deprived of financial rewards for non-stop billing, many lawyers will ease off the gas pedal, planting an elegant disincentive at the root of your runaway revenue problem.

Well, really now, who doesn’t?

Revenue caps are difficult to impose from the outside, but with the right planning and execution, you can incentivize performers to install them from the inside. The end result for your firm: Not just less revenue, but also more predictable levels of revenue. Oh, and I guess healthier lawyers, too.

3. Increase your pro bono commitments. I admit, it’s difficult to keep lawyers from working. Like small children, they need something to occupy them; if you don’t watch them like hawks, they’ll wander off somewhere and start making money for you. So give them a way to do lawyer work without getting paid. Sounds like some crazy magical thinking? Not at all. That’s the beauty of pro bono publico work: Lawyers get to practise law and sharpen their skills while working for the public good, but without any of the attendant risks of unwanted revenue.

I’m sure your law firm already encourages its lawyers to perform pro bono legal work; but let’s be honest, we both know that the billable work always takes priority, financially and culturally. So you need to do more than just double your hourly pro bono expectations: you need to develop a culture in which lawyers genuinely feel that paid and unpaid hours are worth the same. That’s a long-term project, absolutely; but the sooner you start, the sooner you’ll see the benefits, and the likelier that you’ll bring about a permanent shift in how lawyers view the value and purpose of their time and efforts.

You might be thinking, “But we already provide legal support to the local opera house and the junior yacht club! What more can we do?” Here’s one suggestion: Have every litigator in your firm spend one day a month in their local family court, representing pro se parties who’ll lose child access or support if they go into court alone. Do good for people who will never be able to pay you back. You’ll make the world a better place, but far more importantly, you’ll make less money.

4. Give all your staff members a 15% raise. Despite your best efforts, the fact remains that it’s hard for law firms not to make money. Even in a highly competitive market and with increasingly cost-conscious clients, large law firms remain cash-printing machines. So in order to really take a bite out of profitability, you’ll also have to find ways to increase your costs. No, not by reverting to rampant inefficiency and the daily reinvention of wheels: Encouraging procedural sloppiness will kneecap your competitive strategy. You need to spend more money usefully.

An easy place to start is with your “non-lawyer” staff. I don’t know how much you’re paying your secretaries, law clerks, librarians, paralegals, marketers, IT people, etc. to labour inside your cash factories while having to deal with your lawyers day in and day out, but it’s almost certainly not enough. Give them all a 15% raise across the board; but don’t stop there. Cover daycare costs for employees with preschool kids. Extend medical, dental, and vision care benefits to their families. Find creative ways to spend money on your staff.

I grant that this will create unintended consequences, including happier employees, rising retention rates, higher-quality performance, and more qualified job applicants. Also, you’ll inadvertently pressure your competitors to match your raises while enjoying a PR bonus from adoring media coverage. But let’s keep our eye on the ball here. The point is to make less money, and this will help your firm move towards that goal.

5. Fund 100 full law school scholarships for underprivileged students every year. I know what you’re thinking: That’s not really going to make much of a dent in our revenue. And you’re right. Even at the highest-ranked law schools in the United States, the total cost of law school attendance is around $80,000 a year, or $240,000 for three years. Underwriting that cost for 100 students would generate an annual bill of $24 million.

That might sound significant to the casual observer. But let’s look at how much money law firms actually make. The entire AmLaw 100 generated $98,748,110,245 in revenue last year. (Yes, that’s $98 billion). I don’t have access to median revenue figures, but if you divide that total by 100, you’ll get an average revenue of $987,481,102 per firm. Subtracting $24 million from that total would lower revenue to $963,481,102 — a decrease of 2.4%. Firms would still retain 97.6% of their earnings, so no, this isn’t going to move the needle that much by itself.

But it’s a good start. And at least you can take solace that 100 deserving young people who’d never otherwise even dream of becoming lawyers will be able to attend law school every year, lifting up their communities and enhancing the legal profession in ways we can’t begin to imagine.

So there you have it: Five simple steps towards corralling your big law firm’s runaway revenue. But these steps can also be followed in proportion by smaller or regional law firms whose leaders are equally concerned that the single-minded pursuit of ever-more money and ever-more profit has transformed their firms from proud bastions of professional service into brutalizing pyramid schemes that enrich a small few at the expense of too many. Not that they’d necessarily put it in those exact terms.

As for my BigLaw friends, they rinsed out their mugs, tipped the barista, and trundled wearily out the door, already thinking of the burdens awaiting them in Accounts Receivable. I only hope their successors can use this advice to pull their firms back from the brink of death-by-revenue and to plot a course towards a future where law firms aren’t focused on profits above everything. We can but dream.

The moral issue here

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Posted in: Ethics, Purpose

“I’m not worried about the moral issue here,” said Gordon Caplan, the co-chair of AmLaw 100 law firm Wilkie Farr, according to transcripts of wiretaps in the college admission scandal that you’re already starting to forget about. Mr. Caplan was concerned that if his daughter “was caught …she’d be finished,” and that her faked ACT score should not be set “too high” and therefore not be credible. Beyond that, all we know from the transcripts about Mr. Caplan’s ethical qualms is that “to be honest, it feels a little weird. But.”

That’s the line that stays with me, right through the “But” at the end. I want to tell you why, and I especially want to tell you if you’re a law student or a new lawyer, because it is extraordinarily important that you understand what’s going on here.

Mr. Caplan, who’s been placed on a leave of absence by his tight-lipped firm, was just one of dozens of rich, high-powered individuals now under indictment for bribery and mail fraud and such. I’m less interested in the two actresses who were arrested, however, than I am in the titans of industry who felt not just pressured to cheat their children’s way into prestigious colleges, but also strangely entitled to do so. Here’s a lengthier excerpt from the conversation between Mr. Caplan and the cooperating witness (the owner of the business running the con) who recorded him: [Emphasis added]

CW-1: What happened is, all the wealthy families that figured out that if I get my kid tested and they get extended time, they can do better on the test. So most of these kids don’t even have issues, but they’re getting time. The playing field is not fair.
CAPLAN: No, it’s not. I mean this is, to be honest, it feels a little weird. But.
CW-1: I know it does. I know it does. But when she gets the score and we have choices, you’re gonna be saying, okay, I’ll take all my kids, we’re gonna do the same thing. (laughing)
CAPLAN: Yeah, I will.

What the witness is telling Mr. Caplan here is that most of the rich-kid college applicants with various learning challenges who require extra testing time and accommodation — they don’t really have such challenges. It’s all a scam, you know. Political correctness run amok, everybody gets to have a disability of some kind these days, yada yada. And see, Gordon, all the rich people are taking advantage of this. They’re getting their kids bogus certifications that allow them to cut in line in front of you. Everyone’s doing it, Gordon. Everyone else is already cheating the colleges. All you’re really doing is evening the score.

Let’s set aside for a moment that the co-chair of a firm where the average partner earned $2,969,000 in 2018 can consider himself not one of “the wealthy families,” or the sheer irony that one of the richer and more powerful people in the profession really believes that the playing field is tilted against him. What’s really important to appreciate, I think, is that two things are happening here:

  1. Person A is telling Person B a series of lies.
  2. Person B wants to believe they’re not lies.

“It takes two to lie, Marge,” Homer Simpson once told his wife. “One to lie, and one to listen.” It’s a hilarious line, yes, but you know what else? It’s true. The effectiveness of a lie is directly proportional to the credulity of the person who hears it, and most people aren’t credulous because they’re stupid. I guarantee you the co-chair of an AmLaw 100 firm isn’t stupid. They’re credulous because they choose to be.

Most people believe the lies they’re told because they want the lies to be true. They want the world they live in to operate according to a series of principles and practices that make sense to them, confirming their suspicions, fulfilling their deepest wishes, and absolving them of blame for how they feel and what they do.

Lay it out, Leonard.

All the rich and powerful people who allegedly consented to participate in these crimes did so because they wanted to believe the justification that was offered to them. “You’re not really cheating. You’re just fighting back, refusing to be a sucker anymore while everyone else cheats to get ahead of you.” How intoxicating that is. How sweet and reassuring and vindicating. How interesting that it’s invariably people already overstuffed with money and power and privilege who’ll pay anything to buy that lie.

So why does any of this matter to lawyers, especially to young lawyers? Because of that one line I quoted.

“I mean this is, to be honest, it feels a little weird. But.”

Do you recognize that sound? That’s the sound of a person’s conscience, a lawyer’s conscience, struggling to make its voice heard.

This one apparently can’t muster much more than a twinge of doubt, a feeling of discomfort, a nagging sense of this isn’t right and I shouldn’t be doing it. It lasts for only a second, though, because the next word fatally undermines it. But. Yeah, I know, at some fundamental level, this is wrong. But.

It doesn’t matter what rationalization or justification follows the But, because at this point, it’s all over. The battle has been abandoned. If the next word out of his mouth had been So or Therefore, Mr. Caplan’s life would have gone in a very different direction.

You need to be able to recognize the sound of your own conscience. You need to listen to what it’s telling you, and not wave it aside with a But or an Anyway or a Nevertheless. You might be sitting there, fresh out of law school, saying, “No problem, I’m ready for whatever the practice of law wants to throw at me, I’ll stand my ground.” And I’m here to tell you, you have no idea what’s coming. You have no idea of the forces you’re up against. You don’t appreciate just how badly compromised the legal profession and law firm culture already are.

Does the name Ralph Kayser ring a bell with you? Probably not. Back in 2014, Mr. Kayser approached 16 lawyers at the most prestigious law firms in Manhattan as a representative of a government official in a mineral-rich African country who wanted to transfer a large amount of “facilitation money” into the United States without anyone from his country noticing it. You couldn’t have said “money laundering” any more clearly if you’d used a megaphone.

None of the lawyers took Mr. Kayser on as a client, but according to the ABA Journal, 15 of the 16 — including the then-president of the ABA itself — “offered advice on how [Kayser] could buy pricey Manhattan real estate without revealing his identity.” Here are some of their responses:

  • “So we have to scrub it at the beginning, if we can, or scrub it at the intermediary location that I mentioned.”
  • “We could provide you with the list of countries where the banking systems require less detail on ownership or source of funds.”
  • “And you don’t have to declare to bank authorities where the money comes from.”
  • “When I get money from my other clients, it always comes in with some strange name on it. I don’t even ask.”
  • “They don’t send lawyers to jail, because we run the country … We’re still members of a privileged class in this country.”

I want to pause here and remind you that the people saying these things are legal aristocracy. They are some of the finest lawyers at the most famous law firms in the richest legal profession in the world. Breathless articles are written when they change the firms they work at.

Mr. Kayser, as it turned out, was a plant — an operative from global NGO Global Witness who wanted to show just how easily such an obviously dubious offer could be entertained by the aristocracy of the US legal profession. Mission, as they say, accomplished. And even the one lawyer who rejected Kayser’s advances out of hand, Jeffrey Herrmann, was revealing in his dismissal. “This ain’t for me,” he said, “my standards are higher” — but left unspoken in his reply was the acknowledgement, “But it’ll be for someone else, whose standards aren’t.”

In his feature article for The Atlantic, “How Kleptocracy Came to America,” Franklin Foer made the following cutting observations about what the Kayser incident demonstrated:

“Global Witness conducted its experiment to point out BigLaw’s complicity in the spread of kleptocracy. But the footage also provides primary anthropology of an American elite. A profession like law has highly developed ethical codes, yet those codes appear to have receded in recent years. Even the most prestigious firms find themselves fretful about the survival of their high-priced business model, which was profoundly rattled by the 2008 financial crisis and the corporate cost-cutting that followed. Greedy impulses have surely always existed within the white-shoe world, but the sense of Darwinian struggle and the norms of a global elite have eroded boundaries. The same partners who shed underachieving colleagues more ruthlessly than they used to also seem primed to adopt a more permissive attitude toward clients whom they might once have rejected.”

Rip the privilege away from a privileged person and you create a very dangerous individual. Do the same thing to a profession steeped in rankings and prestige and money, where aspiration to elitism is held to be a virtue, and you create an extremely hazardous moral environment.

If you’re about to enter that environment, or if you’ve recently entered it, then I’m also here to tell you: Hold on to yourself. The ground is sticky and the slopes are slippery. You will be told various lies, and you need to know that they’re lies and not wish they were true. Here are some of them:

  1. “Everybody’s doing it.” No, they are not. I say to my teenage daughter, “There’s nothing in this world that everyone does. People can’t even agree on what kind of shampoo to use. If somebody tells you that ‘everyone’s doing it,’ that’s because they need the comfort and support of your co-conspiracy in questionable behaviour.” And she rolls her eyes and says, “I know, Dad.” But not everyone does. Not even in the AmLaw 100.
  2. “That’s how it’s done around here.” You can overestimate your daily billables count, you can order the secretary to work after you leave, you can gossip about a client in the coffeeshop, because that’s what the senior lawyers do all the time. While that last part might be true (frequently it is), the inference — local custom or firm culture supersedes ethical rules or moral dictates — is a lie. But you will find it an unbelievably hard one to resist.
  3. “The big clients deserve what they get.” I had lawyer friends at the start of our careers tell me sincerely that it was alright to file a false insurance claim because insurers were massive and rich and would never miss the money and probably cheated their policyholders anyway. The same logic fuels rampant overbilling on big corporate files every day. It’s a lie. Cheating a cheater doesn’t make you Robin Hood. It makes you a crook.
  4. “You work hard and you’ve earned a little something.” You know who works hard? The person who vacuums up the dinner you spilled at your desk, then goes on to work an overnight shift to support her kids while you go home to bed. And if she was ever so much as caught taking office supplies home with her, she’d be fired on the spot. And rightly so. And so should you be, for whatever quiet “perk” you talk yourself into “earning.”
  5. “It’ll look bad if you don’t go along.” If you don’t go along to the strip joint with the client. Don’t go along with the jokes about the new temp. Don’t go along with the senior partner’s temper tantrums. Don’t go along with the pressure to “review” that client memo for a few extra hours. You’re making the rest of them look bad when you don’t go along. But maybe, just maybe, that’s their problem, not yours.

Nobody is going to push you to soft-pedal potential money-laundering on your first day. That’s not how it works. It works by wearing down your defences on the smallest things, the littlest corners cut, the slightest concessions made. “Indeed, the safest road to Hell is the gradual one,” wrote Screwtape, “the gentle slope, soft underfoot, without sudden turnings, without milestones, without signposts.”

Wisdom from the other Mr. Keyzer.

You’ll be told to be practical, be realistic, to grow up already. If you listen, if you decide you want the lies to be true, then eventually you won’t need to be pressured to have a polite, informative conversation with a scoundrel about money laundering. You’ll do it yourself, naturally, without a second thought. And one day you’ll find yourself on the phone, saying that a certain proposition makes you, to be honest, feel a little weird, but.

This is not just for people in BigLaw. This is for everyone in every size law firm or law department, anywhere in the world. Your time will come. Your standards will be tested. Your loyalty or pragmatism or intelligence will be questioned. And you will feel such reluctance, such disinclination, to be the glaring exception. You will want to believe all the rationalizations offered to you. You will want the lies to be true because it’s easier that way. You will even find words like I’m not worried about the moral issue here on the tip of your tongue.

When (not if) that day comes, pause and listen for that voice. It’s the one that’s whispering, This isn’t right and I shouldn’t be doing it. Listen to it, consider what it has to say, take it seriously. And if you find, as is usually the case, that the voice has a point, then do not allow the next word out of your mouth to be But. Do not undercut your conscience when it’s come through for you at crunch time. Make the next thing you say be So or Therefore or It’s not for me, my standards are higher.

You’re a lawyer. Even if nobody else around you seems ready to live up to that privilege, make sure you do. Your conscience deserves it. Your profession needs it. And your career might hang on it.

Should you go to law school?

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Posted in: Books, Law School, Purpose

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What leadership really means

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Posted in: Leadership, Purpose

I recently had the opportunity to speak with John Kain, managing partner of Kain C + C Lawyers in Adelaide, Australia. John’s company (it’s an incorporated legal practice, not a firm), which specializes in high-end corporate, commercial and M&A work, is one of the more progressive and innovative legal service providers that I’ve come across in a while.

Among the interesting features of Kain C + C Lawyers is a short-form advisory memo that lawyers are sometimes asked to give clients. This memo, which can run no longer than two pages, must contain one of four recommendations concerning the client’s proposed course of action: “Very Good,” “Good,” “Poor,” and “Very Poor.” When John relayed these measures to me, I immediately identified what was obviously missing among the choices, and I’m sure you have as well. And then I realized why it was missing.

John does not offer a middle choice, a “Fair” or an “It Depends” between “Poor” and “Good.” He does not permit his lawyers to be ambivalent in their advice to clients. Either recommend something or recommend against it, strongly if you so choose; but you must take a stand with your advice and you must sign your name to it. Invariably, every new lawyer in the company, when first confronted with this memo, comes to John asking for the middle-way option, and he always refuses. The client, he tells them, is paying us to advise them. So: advise — and be ready to live with the results.

I found this a really interesting practice, because it forces the lawyer to shift from the easier role of “analyst” into the more perilous role of “advisor.” We’re quite comfortable, as lawyers, with analysis: it’s an intellectual exercise that allows us to occupy a safe, low-stakes position. The “reasonable person” that we fetishize in the law is an analytical construct, an imaginary neutral against whom we measure actual human behaviour for fun and profit.

Advice is a different beast. Clients act on advice, making decisions that carry consequences for which we bear at least partial responsibility. It’s the difference between “What does the law say?” and “What should I do now?” There’s a good argument that advanced technology (e.g., expert applications, IBM’s Watson) could provide sound legal analysis; but nobody seriously argues that technology can render trusted counsel, or that any client would act on such counsel even were it offered. To my mind, a lawyer “grows up” the first time she gives actionable advice to a paying client. You’re not just writing a memo anymore; this time, it counts.

Every practicing lawyer can probably recall the thrill of her first real “advisory” moment — and the deep anxiety that accompanied it. Because the flip side of advice is responsibility: the possibility of error, the risk of failure, and the finger of blame pointed at our heart if it all goes wrong.

Everyone suffers from a fear of consequences for a wrong decision, but I sometimes think lawyers are unusually prone to it. We talk about our “risk aversion,” our overabundance of caution and hesitancy. I’ve written before that lawyers are more properly described as “embarrassment-averse” — we hate looking bad in front of clients and colleagues, and nothing looks and feels worse to us than failure.  The nadir of this phenomenon is what you might call “responsibility aversion”: the desire to avoid any action with more than a nominal amount of uncertainty and a corresponding probability of failure.

The antidote to all these aversions is the same: it’s courage. Courage is not simply one of the virtues, as C.S. Lewis has written: it’s “the form of every virtue at the testing point.” I would argue that no characteristic is more important to a good lawyer than courage: it’s what allows us to stand up for our opinions and to stand by our clients as they implement those opinions and change the course of their lives. The best lawyers aren’t just the smartest or hardest-working or the most caring: they’re also the bravest. The worst lawyers, by contrast, are the most timid and the most easily led away from their instincts and standards.

That’s all well and good. As I see it, though, our profession has something of an issue with courage these days. Specifically, I think we need to start showing more of it. Here are four examples of what I mean.

Our advisory role. I’ve only been part of this profession for 20 years, so I can’t give first-hand accounts of the “old days.” But I have the distinct impression that lawyers used to be firmer and more direct when giving advice than we are now. Conditions and reservations seem to be a more common feature of legal advice these days. Clients complain that we frequently default to “No” (if there’s a chance something will go wrong, don’t try it) or hedge our bets (do this, unless any of these seven things are present, in which case don’t). Clients seeking our counsel about what to do often receive advice about what not to do instead.

Our procedural habits. The apocryphal story of the in-house counsel, who asked his law firm for a chair and got a dining room set instead, illustrates our tendency to employ diligence far beyond what’s often necessary. Lawyers are infamous for turning over every stone and tracking down every possibility, which prolongs legal matters and increases costs. We like to say this is because we’re thorough and perfectionist, and we are. But it’s also because we fear the remotest possibility of a bad outcome and seek to eliminate all uncertainty, which is just not practical. There’s a cost-benefit line at which reducing uncertainty any further ceases to pay dividends, but we often lack the courage to stop at that line and say, “Enough. We’ve got what we need.”

Our business practices. We price our services by the hour because we want clients to bear 100% of the risk that something unexpected will happen (as if often does) during the course of a retainer, rather than having the gumption to calculate that risk as best we can and explicitly share it with our clients. We resist changes in our firms’ practices and procedures because we fear the consequences of failed innovations, and so we timidly wait for a dozen other firms to go first and thereby miss our chance. We dwell more on the personal and professional risks of adopting new methodologies and technologies than on the rewards they could provide to our firms and our clients.

Our regulatory approach. Lawyers do not permit competition in legal services from anyone outside our profession, even in the face of the clear failure of our present system to provide affordable legal services to more than a handful of potential clients. You can call that many things — protectionist, paternalistic, callous — but it also comes across as a lack of conviction that we could hold our own against “non-lawyer” providers. If lawyers are so convinced of their superiority, these entities argue, why are they afraid to compete against us in an open market? Where is the courage to take on new comers, or to take a measured risk of liberalization that could improve access to the law?  [do_widget id=”text-7″ title=false]

Please understand: this is not an attack on the moral backbone or personal courage of individual lawyers. This is an expression of growing concern that our professional habits have driven us into a culture of doubt and apprehension, a general meekness and conservatism in how we view our world and act within it. That world is undoubtedly riskier and more perilous than it’s ever been: the mind-boggling complexity of the law, the challenges of sustaining a viable practice, the savagery of competition between lawyers, and the spectre of client retaliation in court for mistaken advice all play a part. How much easier to reduce our exposure, stay the familiar course, adopt defensive postures, and reinforce our strongholds.

But when we bend to these challenges, rather than rising to meet them — when we spend too much time thinking about the worst-case scenario and how to avoid it — we miss out on so many opportunities and we accomplish so much less than we could.

Our ultimate value, to both clients and society generally, lies in our willingness to speak the truth and recommend the right course, regardless of the discomfort or pain that will entail, especially to ourselves. Our professional calling is to assess, manage, and recommend courses of action (and their attendant risks) that serve both our clients’ interests and the greater good, and to gladly accept responsibility for doing so. That’s courage, as manifested in the legal profession — and in all its manifestations, it takes one familiar form: leadership.

This is the time for leadership in the law, and I’m here to tell you that no one is exempt. Every lawyer has both the opportunity and the responsibility to visibly exercise leadership, in our firms and with our clients and in our profession, by acting courageously. Assess risks, accept them, and act accordingly; stand tall for what you believe is correct; look failure in the eye until it blinks; put yourself on the line for what’s right and necessary. We’ve become too passive, reactive, and defensive for anyone’s good, too reliant on what we’ve always done before. We can’t afford any more “it depends” or “wait and see.” It’s time to stiffen our collective professional resolve and show the world what a powerful, confident legal profession can do.

So: advise, and live with the results. Innovate, and stand by your efforts. Speak out, and welcome everyone’s eyes turning to you. Lead, and watch everyone else get out of your way.

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

Don’t think like a lawyer

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Posted in: Careers, New Lawyers, Purpose

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

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

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

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

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

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

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

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

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

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

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

You say you want a revolution?

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Posted in: Innovation, Purpose

If you’ve been reading my blog for a while, you’ll know that I’m convinced of a couple of things: (1) Fundamental shifts in the legal services environment will spawn a  diverse population of new providers that will expand access to those services while destroying lawyers’ market exclusivity; and, (2) This is, on balance, a good thing. I’ve never been more certain than I am today, at the close of 2013, about the first — but I’ve never been less certain about the second.

I’ve contributed a few thoughts recently about the state of the legal market to Lexis-Nexis, JD Supra, and the CBA’s National magazine, among others. My basic message is the same throughout: we’re no longer predicting a new legal future, we’re living in a new legal present.

And yet I still see people in this industry asking, “Where’s the revolution? When is the change going to come?” Folks, the change is here. We’re living it. Cast your mind back five years, when Richard Susskind had just published The End Of Lawyers?, and ask if you thought this much upheaval and advancement and innovation was possible in such a short period. Cast it back 10 years, when the blawgosphere barely existed, and ask the same. The legal market is becoming more diverse and more accessible every year; legal services are more affordable and more predictably priced every year.

Most importantly, the pace of that change is accelerating. More new things happened in this market in 2013 than in 2012. More happened in 2012 than in 2011, in 2011 than in 2010, and so on. Alternatives to the traditional — in terms of service providers, business models, workflow systems, delivery vehicles, pricing strategies, and so on — are becoming normalized; that is, they’re spoken of less frequently as “alternative” and more frequently as simply another option. We don’t even talk about the “new normal” as much — it’s all becoming normal. These are not the signs of change in retreat; these are the signs of change becoming mainstream — ceasing to be “change” and starting to become “the way things are.”

The normalization of alternatives comes at a steep price to the incumbents, and I’m aware of that. Lawyers have it tough right now, tougher than most of us have ever experienced, and I’m sorry to say it’s going to get worse before it gets better. I don’t take that lightly. But clients have it better already — better than they’ve had it before, in terms of knowledge and access and choice and affordability, with the prospect of much better yet to come. And at the end of the day, as much as I care about lawyers, I care about clients more, because they’re the reason we’re here: to help them use the law to reach their goals, enhance their dignity, and better their lives.

So what’s the problem? Why am I suddenly also concerned about whether all this change will, in fact, be a good thing? Because while I hope and trust that the traditional legal market will fall away and that a better one will replace it,  I’m increasingly alive to another possibility — that the traditional legal market may fall away, and nothing will replace it.

One of my very few hobbies is geopolitics (yes, I know I need to get out more often). I’m a dabbler in this field at best, but I’ve had an interest for many years, and I still remember what I was thinking on the day the Berlin Wall came down. Certainly those were extraordinary images and wonderful times, a lifetime marker for the generations that helped bring it about or watched it happen. But what was going through my mind, watching the Wall come down and totalitarian governments all over eastern Europe collapse with it, was: This is happening too fast. Corrupt, decrepit regimes were falling over like dead trees in a windstorm, but in many cases, there was nothing — no replacement regime, no legitimate constitution, no rule of law — to step into the breach. Some of these countries, to their great credit, grew reasonably healthy liberal democracies out of the rubble. Many did not.[do_widget id=”text-7″ title=false]

George Friedman has observed, accurately, that the people who start revolutions are often not the people who finish them, and that revolutions do not always end up where their instigators hoped they would. I think it’s fair to say that we’re at the start of a revolution in the legal services market. That should be, and is, exhilarating. But it should also summon us to the barricades to make sure that, if the incumbent regime falls, looting and chaos are not the immediate outcome and the lasting legacy.

If you want an example, take a look at law schools. You’re probably aware that applications to US law schools have been dropping like a stone and that enrolment is now down to its lowest level since 1977. As Bruce MacEwen notes (and as I’ve been saying for some time now), this story has only one ending: many American law schools will close or will become so small as to turn into veritable cottage businesses. There’s no question that there are too many law schools providing too little value to their students and to the clients they’ll someday struggle to serve, and that a major correction is overdue here. There’s also a lot of schadenfreude throughout the profession right now as these schools wriggle on the hook.

We can hope for and work towards a renaissance and reinvention of law school. But what if that fails? What if 80% of US law schools close and are not replaced? Will the profession and the public be well served by a legal education system that features Harvard, Yale, Stanford and a few other clones, and nobody else? Or what if the failed law schools are followed by profiteering private law degree factories that replace the passive academic lecture with cookie-cutter “practical training” packages bereft of jurisprudence and professionalism? I think this is an unlikely outcome. But it is a possible outcome — a possibility that didn’t exist 10 years ago, but does today.

Or take a much bigger and broader example: the legal profession itself. This blog contains six years’ worth of mounting criticism of lawyers and warnings of dire consequences should opportunities for reform be ignored too long. But it also contains staunch defences of the inherent value of lawyers as expert counsellors to troubled clients and defenders of the rule of law. Lawyers are both desirable and necessary. But we’ve exploited our protected and prestigious position in this market for so long that an over-correction is now possible — not lawyer reform, but outright lawyer rejection. Alternatives to lawyers, as I’ve detailed above, are here and are flourishing, and we’ve encouraged them to develop by our failure to fully serve the market. These alternatives should complement us, not replace us. But it might not work out that way.

Let me be clear: I’m not backtracking, not one inch, on my belief that this market needs serious, structural reform, that access to legal services must be expanded and improved, and that lawyers should be playing different (but still important) roles in this market than we do today. Don’t mistake the foregoing for the kind of fear-mongering employed by protectionists and lawyer exceptionalists to beat back change in their own interest. Instead, this is a call for the legal profession to recognize that change is really happening — and that we now need to throw our efforts into trying to manage, to the extent possible, the enormously strong forces coming into play.

How can we avoid the worse- and even worst-case scenarios? How do we manage the effects of revolutionary forces? This has to be a collective effort — everyone in the legal profession and its associated institutions has to play a part. Here are my recommendations.

1. Regulators must lead the way by recognizing these trends and staying well ahead of them. Every regulatory activity and initiative must clearly enhance either access to legal services or lawyers’ professional standards. Every barrier to “non-lawyer” entry to the marketplace must be immediately examined and, unless objectively justifiable in the public interest, set aside. The self-governance of lawyers in the public interest must be protected and prioritized. Regulators that spend their time on trivia, such as declaring lawyer blogs to be improper advertising, are running enormous risks in a market environment this volatile.

2. Bar Associations must promote the value and professionalism of lawyers in a crowded market. Forget about any efforts to keep “non-lawyers” off our turf; that battle is over, and we lost. Now is the time to create “image campaigns” that tell clients, not why we want to law school, but why a lawyer’s ethics, professionalism, expertise, reliability and integrity are worth the premium that we inevitably will cost. These are marketing campaigns that communicate the extraordinary value that a lawyer brings — while recognizing and readily conceding that not every situation requires a lawyer’s services.

3. Law Schools must preserve and promote the importance of professional values in legal education. Those schools that survive the coming purge will be under enormous pressure to provide “practical,” “real world” training and clinical opportunities, and so they should. But they must also recognize and embrace their role as the incubator of ethics and professionalism, because the competitors that will emerge in the education and training space likely will not care about these facets of the future market as much as law schools do or ought. Law schools will provide lawyer training simply to survive in this market; they must also provide the primary foundations of ethical lawyer behaviour.

4. Courts must recognize that their traditional role as the arbiter of private legal disputes is in mortal danger. Ninety-eight percent of disputes never see the inside of a courtroom, and 90% of all disputes never even enter the process. Courts are utterly agonizing to many of the people who use them and utterly irrelevant to all those who cannot; this is a short road to disaster. Train staff to help self-represented litigants, because they will shortly and permanently outnumber lawyers; deputize senior lawyers to resolve conflicts locally; institute ODR services affiliated with courts’ enforcement powers. Above all, rip off the blinders and recognize how close you are to the edge of the chasm.

5. Lawyers must accept and act upon a single new reality: we cannot continue to make a living in the law the way we used to. Full stop. We must create sustainable cost advantages through adoption of technologies and processes. We must cede to new competitors work that we cannot do as efficiently, effectively and profitably as they can, forming partnerships where appropriate to integrate services in a complementary fashion. We must learn to price rationally, fairly, and predictably. We must remember and pursue the true purpose of law. Above all, we must resist every temptation, no matter how small or how great, to compromise our ethics and professional stature for any business reason. These will soon be our sole competitive advantages.

Revolutions are powerful, frightening, and unpredictable things. Once they’re really underway, they can’t be controlled or directed. Market revolutions are less violent and bloody than political ones, but they can be just as destructive. In times of revolution, you figure out very quickly just what it is you need to really safeguard. I believe we need to safeguard the rule of law, the independence of the profession, and the fundamental values to which lawyers have always sworn oaths. Everything else is replaceable or negotiable; these are not.

In 2014, the revolution in the legal market will continue to foment, to bubble away, to push in from the edges and from underneath. One of these days, it will break out in full, and it will be a wonder and a terror to behold. I truly don’t know when that’s going to happen. But I do know that if we want there to be a viable legal profession afterwards, we need to act now — to lock down and preserve the critical few things that we really, truly can’t afford to lose.

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

Ready for the future? Your survival kit survey results

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Posted in: Careers, Purpose

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

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

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

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

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

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

1. EQ.  Survey: 11.89. Me: 10

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

2. Connections.  Survey: 11.49. Me: 0

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

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

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

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

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

5.  Innovation.  Survey: 8.63. Me: 0

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

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

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

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

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

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

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

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

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

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

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

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

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

12. Nice Niche.  Survey: 5.12. Me: 0

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

13. War Chest.  Survey: 5.1. Me: 0

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

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

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

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

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

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

20: Moral Fibre

20: Pricing Strategies

20: Solutions R Us

10: Emotional Intelligence

10: Financial Facility

10: Process Mastery

10: Risk Acceptance

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

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

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

Death to “Profit Per Partner”

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Posted in: Big Firms, Finance, Management, Purpose

It’s time for law firms to junk “average Profit Per Partner” (PPP) as a measure of profitability and success. Past time, actually: our continued adherence to this shallow and self-centred metric is a prime contributor to the BigLaw existential crisis we’ve been reading so much about lately. By using PPP as the primary (if not the only) criterion by which to assess our law firms’ health, we perpetuate a host of self-destructive habits and impair our ability to operate our law firms in a truly profitable and professional manner.

There are two broad categories of reasons why PPP is a disastrous success metric for law firms. The first category has to do with the narrow and simplistic nature of this measure and its inherent definitions of value. The second is related to PPP’s increasingly outdated devotion to individual shareholder profits.

Let’s start by understanding exactly how primitive average profit per partner really is. First of all, it’s “average” —  adding up total firm profits, dividing by number of partners, and ending up with an amount that might well reflect no single partner’s profit at all. (Recall Bill Henderson’s dismantling of the concept of a $90,000 “average starting salary” for new law graduates, when he demonstrated the bimodal distribution of such salaries and that virtually no new lawyers actually earned $90,000 in their first year.) With the ratio between highest-earning and lowest-earning partners now more than 9 to 1 throughout the AmLaw 100, an “average” profit is almost meaningless, too easily skewed by outliers at either end.

We might improve slightly on PPP if we adjusted it to measure “median profit per partner” — at least then we’d have some confidence that a few partners are actually making that amount, and outliers wouldn’t distort the data. But even here, we run into another fundamental problem: the definition of “partner.” Law firms have tended in recent years to extend this title to lawyers, and retract it from them, based largely on their present accounting needs: we’re currently in the depths of a “de-equitization” trend, evidently based on a desire to reduce the number of seats at the table and the number of denominators in the PPP equation. This is worse than the tail simply wagging the dog — this is the tail deciding whether there’s even a dog back there or not. If a metric is going to determine your growth strategy, it had better be a damn good metric. [do_widget id=”text-7″ title=false]

But PPP is not a good metric: it drives selfish, irrational, destructive behaviour. If a firm’s PPP dips precipitously or its position in the AmLaw rankings falls more than a few slots, a veritable death watch is created for the firm, both inside its walls and in the wider market. Influential partners and rainmakers, most of whom know very little about actual firm profitability, feel compelled to jump to firms higher in the rankings — with no regard given to whether the “higher” firm will be better for them or for their clients. Morale falls within the firm, recruiting become harder, CVs start circulating — all because one simplistic metric says the firm is in trouble. Entrepreneurs would be shocked by the credulity and financial ignorance of lawyers revealed by PPP contests.

PPP is further susceptible to the widely recognized (but rarely acknowledged) fact that every set of PPP figures published for large law firms is entirely self-reported: law firms tell the market what their revenues, profits and partner counts are, and invite us to do the math. But hardly anyone steps up and questions whether the base figures themselves are accurate. Consider the brouhaha created in 2011, when some of the law firm profit numbers listed high in the AmLaw rankings varied from those in a report by the firms’ lender of choice, Citi Private Bank — and not surprisingly, the self-reported firm numbers were noticeably more robust than the bank’s figures.

Now, you might still be willing to overlook all these legitimate objections to PPP if you were convinced of one thing: that the annual profit earned by partners is a proper measure of the success of a firm, and that we should simply improve our analytics until we can measure that profit accurately. That belief rests on another basic assumption: that the ultimate and best purpose of a law firm is to generate and maximize profits for its partners. That brings me to the second, and I think even more incisive set of objections: this belief is false.

Law firm partners are the equity shareholders in their firm (and outside of England, Wales and Australia, only lawyers may be such shareholders). “Shareholder value,” in turn, has been the fundamental strategic goal of the corporate world for the last few decades: merge, diversify, fire, close, acquire, rebrand, lay off — do whatever it takes to maximize shareholder profits. This is a corporate philosophy whose time has passed. Justin Fox writes in the most recent issue of The Atlantic, in an article titled “How Shareholders Are Ruining American Business”:

This notion that shareholder interests should reign supreme did not always so deeply infuse American business. It became widely accepted only in the 1990s, and since 2000 it has come under increasing fire from business and legal scholars, and from a few others who ought to know (former General Electric CEO Jack Welch declared in 2009, “Shareholder value is the dumbest idea in the world”). But in practice … we seem utterly stuck on the idea that serving shareholders better will make companies work better. It’s so simple and intuitive. Simple, intuitive, and most probably wrong—not just for banks but for all corporations. …

[The] heyday [of shareholder value] ended with the stock-market collapse that began in 2000. The popping of the tech-stock bubble demolished the notion that stock prices are reliable gauges of corporate value. And as the economy languished, the shareholder-driven U.S. corporate model ceased to look so obviously superior to its Asian and continental-European rivals. The intellectual assault on shareholder value began, and has been gaining strength ever since. …

Multiple studies of corporations that stay successful over time—most famously the meticulously researched books of the Stanford-professor-turned-freelance-business-guru Jim Collins, such as Good to Great—have found that they tend to be driven by goals and principles other than shareholder returns. … In a complex world, you can’t know which actions will maximize returns to shareholders 15 or 20 years hence. What’s more, most shareholders don’t hold on to any stock for long, so focusing on their concerns fosters a counterproductive preoccupation with short-term stock-price swings. And it can be awfully hard to motivate employees or entice customers with the motto “We maximize shareholder value.”

You can see the many parallels between American corporations and law firms in this regard:

  • PPP as an overriding goal also rose to prominence in the late 1980s and 1990s (a period often associated with the start of a decline in professionalism);
  • Shareholder profit does not predict the health of an enterprise (Dewey & LeBoeuf was profitable until the day it crashed);
  • Rampant partner mobility and lateral hiring frenzies parallel shareholders’ increasingly short-term possession of company stock;
  • “Annual partner draws” parallel “annual shareholder earnings” and drive short-range, revenue-now behaviours;
  • Staff members and associates don’t share in the profits, so how they can be expected to support a strategy in which they have no personal claim?
  • Truly great firms are driven by goals and principles (how often have we said to ourselves, “Law used to be a respected calling, firms used to be places with a higher sense of purpose,” etc.?).

I don’t think it’s a huge stretch to say that when PPP became law firms’ fundamental measure of success, lawyers at these firms began to lose their compass, and the firms themselves began to lose their way. [do_widget id=”text-8″ title=false]

So it’s not just that PPP measures only one simplistic thing — it measures the wrong thing. There is no correlation, let alone causation, to be found between profits earned by equity partners on average and a host of other positive features that could equally reflect firm success:

  • Firm-wide profitability
  • Lawyer and staff retention rates
  • Lawyer and staff morale
  • Client loyalty
  • Client satisfaction
  • Community impact
  • Pro bono commitment
  • Prestige

That last one really goes to the heart of the issue: more lawyers now reflexively accord more prestige to a firm depending on its AmLaw ranking. But do you really think clients believe that a firm’s profitability — its ability to maximize revenue from these same clients — helps determine its prestige and desirability? And do you think clients applaud lawyers’ desire to make the maintenance and growth of that profitability their primary measure of success?

Law firms are, or should be, far more than profit machines for their equity partners, just as companies should be more than just profit machines for their shareholders. But even if you don’t believe the latter — if you think that capitalism is so base that corporations really should be nothing more than money engines — aren’t lawyers and law firms supposed to be different, and better? Isn’t this the argument we always hear against non-lawyer ownership of law firms: that “law is a profession,” that the greedy desires of businesspeople and shareholders would drive us to ruin if they were admitted to the ownership circle? If we’re so superior to mere corporate types, let’s prove it — by adopting a measure of law firm success that has more in common with today’s globalized economy than with Dickensian England.

I admire The American Lawyer and I have friends who work there (hopefully after today, too). But it’s time we called on AmLaw to abandon PPP as a measure of law firm success. The AmLaw rankings are incredibly influential within the US legal profession and have spawned imitators worldwide, and it makes sense that an independent assessment of law firms exists to guide both clients and lawyers in identifying “the best” firms. But we are in desperate need of improved criteria for determining “the best.” PPP is shallow, simplistic, and misleading; it encourages antisocial and unprofessional behaviour; and it’s out of step with modern enterprise philosophy. We can do better; we need to do better.

I have no doubt that constructing a more complex, sophisticated measurement of success among large law firms would be a difficult task — but that’s no reason not to try. If The American Lawyer again takes the lead, as it did years ago when it first developed the AmLaw 100, it could have a wide and (I believe) massively positive impact on how lawyers view themselves and how they run their law firms. If it chooses not to do so, it will only be a matter of time before someone else comes up with a rival ranking with different and better criteria that will capture the profession’s imagination.

Whether we like it or not, PPP is in its dying days. The sooner we put it out of its misery, the sooner we can start to bring new life to our law firms.

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