The Legal Whiteboard

The Calculus of University Presidents

This week's National Law Journal has a Special Report section on the challenges facing law schools.  Karen Sloan has several stories on how law schools are finding alternative sources of revenues beyond tuition dollars for JD degrees (masters's degrees for nonlawyers, online LLMs, and lawyer executive education).  

I contributed an essay entitled "The Calculus of University Presidents."  Although the essay is posed as the letter I would write to a university president seeking advice on how to handle a significant, unexpected shortfall in law school revenues, the intended audience is lawyers and legal educators seeking to get a handle on the brutal economics that are now threatening the survival of a large swath of law schools.  

From the perspective of many, it would be nice if things would go back to the way they used to be. But that is not going to happen.  Good lawyers understand that we gain no long-term advantage from hiding from these facts. Instead, we need to confront them honestly and proactively.

[posted by Bill Henderson]

Why to Believe in Others

Below is 1972 video of Viktor Frankel, a renowned psychologist and author best known for his book, Man's Search for Meaning.   Frankel's greatest accomplishment was becoming an unflinching realist and idealist -- a person who simultaneously sees what is and what could be.   To my mind, it would be impossible to get both concepts into proper focus without reading Frankel's book, which I found to be one of the most emotionally jarring and difficult, yet necessary and valuable, experiences of my life. If you are wondering how this could be, read the book.

In the rare footage below, Frankel explains how we harm the world by not hoping for and expecting the very best in others.  

I think the point Frankel makes here has special significance for educators. [posted by Bill Henderson]

Is Law School Reform Going to Come Top Down or Bottom Up?

Earlier this week, I participated in the ABA Taskforce on the Future of Legal Education (see NLJ coverage here). Ordinarily when I am part of a deliberative meeting of a regulatory or accrediting body, I don't write about it, as it would be a breach of decorum and chill a candid exchange of views, at least prospectively.  But this event was different -- it was webcast live and internet archived, and thus a public meeting. See ABA website.

These programs are laudable and, from an institutional perspective, necessary.  But will an ABA taskforce, or AALS, LSAC, or some other industry group taskforce produce substantial change?  History suggests that the answer is no and that, instead, meaningful change will come from the bottom up rather than the top down.  Change will occur at the bottom from either the desire to survive or the opportunity to do something great.  Other similarly situated institutions that feel less urgency or inspiration will eventually perish.  It is just that simple

The accreditation system we have created is an anchronism.  But if we think the ABA Standards are holding back the forces of innovation in legal education, we are kidding ourselves. Any law school or law professor who wants a better way can have one -- we are all like Dorothy and her red slippers in the Wizard of Oz: we have had the power all along.

To illustrate this point, I am going to share some personal history that I rarely discuss among my academic colleagues because, well, it would never come up in the course of ordinary conversation. Before I went to law school at age 35, I was a firefighter-paramedic for nine years.  For the last five, I served as our Local's union president.  To this day, I proudly pay union days so I can stay retired-active.  

When I look at the ABA Accreditation Standards, I am reminded of Ohio Revised Code 4117, which is the state's collective bargaining law for public employees.  For police and fire, unlike teachers, we had binding interest arbitration for collective bargaining.  What does this mean?  Basically, if we were unhappy with the offer made by the city -- and we always were -- we took our case to a state-mandated arbitrator, compared our wages and working conditions to firefighters who were getting a better deal (the city would do the opposite), and we got a decent wage & benefits increase, every time.  It was not if we would get a raise, but how much.  The teachers, in contrast, had to go on strike.  The effect of this law was not lost on me. My sister was a teacher in an adjacent city, and over time I made a lot more than her.  

This law was in place because those who came before me organized themselves into an interest group, lobbied, and got a favorable law put on the books to benefit them.  My fire chief, Joe Sweeney, was one of those elders -- he would point to the union charter posted in the hallway to remind me that he was one of original signatories.  By forming a union and working for over ten years to pass 4117, Joe and others ended the era of "collective begging." The resulting union wages enabled him to raise six kids and enjoy a decent pension.  And in exchange for that, Chief Sweeney, when he was a captain and later as a chief, demanded, absolutely demanded, that we comport ourselves as public servants.   

In truth, the public-private deal struck by 4117 only advanced the public interest when we had guys like Joe Sweeney who lived and breathed a sense of fairness.  Joe, just through how he led this life, kept several dozen firefighters honest and focused.  As the old guard retired, and our pay kept getting ratcheted up, it became harder to educate the new guys about how this great job came to be.  Many believed they "earned" their positions through merit because, after all, they rose to the top of a competitive hiring process.  So, through the way we behaved, the public interest case for 4117 was made marginally weaker.

I see the the same dilemma when I review the ABA Accreditation standards.  For example, take a look a Standard 405, which pertains to "Professional Environment."  

(a) A law school shall establish and maintain conditions adequate to attract and retain a competent faculty.

(b) A law school shall have an established and announced policy with respect to academic freedom and tenure ... 

(c) A law school shall afford to full-time clinical faculty members a form of security of position reasonably similar to tenure ... 

(d) A law school shall afford legal writing teachers such security of position and other rights and privileges of faculty membership ...

These provisions were the result of the same type of collective action that produced 4117.  And their purpose, just like 4117, is to lock-in privilege.  We academics can offer a plausible justification for this privilege -- for example, without 405(b), writing this essay could cost me my job.  But the fact is we need to justify that privilege through our behavior; otherwise, just like now, we become vulnerable.

At the behest of the ABA Task Force, the formal rules governing legal education may or may not change.  But that is largely irrelevant to what the public, including prospective students, perceive as the value of legal education. And that value is, in the aggregate, quite low.

Reform in legal education is not a light switch.  It is mindset that affects how we spend our time and who we spend it with. 

Here is a simple example.  For the past semester, I have meet each week with my fellow instructors who teach Indiana Law's Legal Professions class to (1) review the efficacy of our course materials, (2) design in-class exercises, (3) discuss and coordinate assessments, (4) coordinate our speakers series, and (5) allocate and share work among the team.  This is not class prep; this is weekly course and curricular improvement because collectively the instructors want to move the needle.  I also met weekly with upper level students who facilitate some of the course objectives.  This 1L course is focused on behaviors and competencies needed to be successful (the Fromm Six and others like teamwork).  It is hard but very rewarding to teach.  Over the last five years, we have improved, largely through qualitative and quantitative data plus reflection.  And we continue to make progress on defining and reaching our goals. 

If we want reform, well, let's work on it and actually get something done that will inspire others. Eventually it will take hold and take off, with or without changes to the ABA governing standards.

[posted by Bill Henderson]

Alternative Litigation Funding and the "Ick" Factor

Posted by Michele DeStefano

Last week I was at a conference at DePaul University on Tort Law and Social Policy: A Brave New World: The Changing Face of Litigation and the Law Firm Finance.

The conference was centered on Alternative Litigation Funding [ALF] - also known as Third Party Litigation Funding or Financing, Third Party Funding or Financing.

ALF is when parties, unrelated to a lawsuit, provide funds to a claim holder to help fund the party’s pursuit of a potential or pending lawsuit and there is no recourse if the claim holder loses. Arguably, ALF has been around (in some form or another) for years in the United States - in the form of non-recourse loans, transfer of claims in bankruptcy proceedings, transfer of patent law claims, and contingency fees.

In the past few years, ALF has received more and more popular press and begun to attract the attention of more and more law professors like Anthony Sebok, Vicky Waye, Susan Lord Martin, and Maya Steinitz to name a few. When I first began writing about and consulting on the industry, many law professors did not know it was allowed in more than 50% of U.S. States - let alone that it existed. (This was true as recent as in 2011 when I presented an article that used ALF as an example of the importance of non-lawyer influence on lawyers). The recent attention ALF has received has heightened awareness of the existence of ALF in the U.S. but also the importance of the debate about whether and how it should be allowed and regulated.

At the DePaul conference, experts in the industry, along with experts in tort law reform, approached the debate in different ways.

Instead of evaluating ALF from a traditional, formalist view (cranking through the ethics rules to see if there is a violation), Nora Freeman Engstrom took a functionalist perspective to see how ALF will affect the tort marketplace.

Michael Abramowicz conducted a neoclassical and economic market analysis about how rational parties would or ought to act.

Keith Hylton developed a simple economic model to analyze the welfare implications of third party funding of legal claims.

Charles M. Silver compared ALF to insurance arguing that both serve similar purposes and that many of the objections made against ALF are similar to that made against liability insurance and therefore ALF should not be abandoned.

I took a more operational approach analyzing how litigation funding interacts with our legal system and doctrines of confidentiality like the attorney-client privilege, work product doctrine, and their doctrinal derogations (e.g., the NDA) (Click here to see my slide presentation).

Abraham Wickelgren analyzed whether admitting consumer financing agreements to the court and making it part of the case record would improve the quality of litigation and/or decrease the interest rates by third party lenders to plaintiffs.

W. Bradley Wendel took a different approach altogether. He explored an undercurrent in the opposition to ALF that he described as the “ick” factor.(Many of you might have been introduced to the the “ick” factor in a Friends episode in the 90s).  Here the "ick" factor is "justice for sale."

Essentially, Wendel made the point that historically there is a distaste (and/or distrust) of the commodification of any aspect of litigation and that this distaste of commodification drives some of the opposition to ALF.   Although Wendel points out that ick-factor objections shouldn't be taken seriously, they continue to be made.   See the comments made by representatives of the Chamber of Commerce (here) and the American Tort Reform Association (here) and a recent article in Forbes (here).  Press on cases like the one involving Burford and Chevron contribute as well. (Ironically, this article came out the last day of the conference).

Although most (if not all) of the presenters were proponents of ALF in some form, most acknowledged and attempted to address the legitimate concerns and arguments against third party funding. Some proposed regulation; others proposed doctrinal revisions.

But as to Wendel’s identified “ick” factor, however, a solution to that force is yet to be found.  Perhaps the next group of scholars to meet at a litigation funding conference will tackle that one.

The Fromm Six

Last month, The National Jurist published an article I wrote that was a tribute to Leonard ("Len") Fromm, Dean of Students at Indiana Law from 1982 to 2012.  Len passed away in February. The editors at The National Jurist supplied the official title, which I thought was spot on: "What Every Law Student Needs to Excel as an Attorney: Introducing the Fromm Six." [original PDF]  I am republishing the essay here because I want as many people as possible to know the story and contribution of this truly great man. [posted by Bill Henderson]

Introducing the Fromm Six, National Jurist (March 2013).

One of the greatest people in legal education that you have never heard of is a man named Leonard Fromm.   Fromm served as Dean of Students at Indiana University Maurer School of Law from 1982 to 2012.  On February 2, 2013, Dean Fromm passed away after a relatively short battle with cancer.

I want to discuss an innovation that Dean Fromm contributed to legal education—a contribution that, I predict, will only grow over time.  This innovation is a competency model for law students called the Fromm Six.  But first, let me supply the essential background.

After several years in counseling and adult education, Dean Fromm joined the law school in 1982 to preside over matters of student affairs.  Over the course of three decades he quietly became the heart and soul of the Maurer School of Law.  Dean Fromm was typically the first person that new students met during orientation—the law school administrator who completed character and fitness applications for state bar authorities and the voice that called out their names at commencement (with an amazing, booming tenor).   During the three years in between, Dean Fromm counseled students through virtually every human problem imaginable.  His most difficult work was done in his office with his door closed and all his electronic devices turned off.  It was private work that was not likely to produce much fanfare.

During his tenure at Indiana Law, Dean Fromm’s title was expanded to include Alumni Affairs.   The change did not expand his duties in any significant way—Len was already working 70 hours a week in a job he loved. Rather, the change reflected the fact that Indiana Law alumni associated (and often credited) Dean Fromm with the deepest and most abiding lessons of law school—overcoming self-doubt; confronting self-destructive behavior; recognizing the importance of relationships; finding the courage to try something again after disappointing failure; or discovering the ability to see the world through the eyes of one’s adversary or opponent.

One of the cumulative benefits of Dean Fromm’s job was the ability to track the full arc of lawyers’ careers, from the tentative awkwardness of the 1L year, to involvement in the school’s extracurricular events and social scene, to coping strategies for students not at the top of their class, and the myriad, unexpected turns in our graduates’ professional careers.  During his tenure he interacted with nearly 6,000 students and stayed in contact with a staggering number of them after graduation.  Invariably, he saw the connection between law school and a student’s subsequent success and happiness later in life (noting, in his wise way, that professional success and happiness are not necessarily the same thing).

In 2008, I started collaborating with Len on a project to construct a law school competency model.  Our first iteration was a list of 23 success factors  which we constructed with the help of industrial & organizational (IO) psychologists.  Although valid as a matter of social science, the list was too long and complex to gain traction with students.  In 2010, the faculty who taught Indiana Law’s 1L Legal Professions class got together and reduced the list of competencies to 15.  Once again, we found it was too long and complex to execute in the classroom.  

During the summer of 2011, as we were debriefing the challenges of another year in our competency-based 1L Legal Professions course, Dean Fromm said, “I have an idea.” A short time later, he circulated a list of six competencies that were appropriate to 1Ls and foundational to their future growth as professionals.   Finally (or At last), we now had a working tool!  Moreover, none of the professors teaching the Legal Professions course, including me, wanted to revise a single word—a veritable miracle in legal academia. 

Upon reviewing the list I kidded Len that the new IU competency model should be called “The Fromm Six”, which was a play on the famous “Big Five” personality model that forms the bedrock of scientific personality testing. (Len had a Masters degree in Counseling Psychology as well as a law degree.)  He just laughed.  But the “Fromm Six” had a lot of resonance with the rest of us so the label stuck.

In May 2012, Dean Fromm retired from his position as Dean of Students and Alumni Affairs.  At age 70 he was preparing to join us in teaching the 1L Legal Professions course.  This was to be in addition to his usual Negotiations class, where he was a master.  Instead, within a few weeks of retirement, Len was diagnosed with a virulent cancer that never let go.  

None of us can make sense of Len’s death as it abruptly ended a life of complete, unselfish service to a large community of students, faculty and graduates.  But, as best I can, I am inclined to pay tribute to his life.  And to my mind, there is no greater tribute than to publish and publicize the Fromm Six so that another generation of lawyers can benefit from his wisdom, grace and kindness. 

Here are the Fromm Six:

Self-Awareness – Having a highly developed sense of self. Being self‐aware means knowing your values, goals, likes, dislikes, needs, drives, strengths and weaknesses, and their effect on your behavior.  Possessing this competence means knowing accurately which emotions you are feeling and how to manage them toward effective performance and a healthy balance in your life. If self‐aware, you also will have a sense of perspective about yourself, seeking and learning from feedback and constructive criticism from others.

Active Listening – The ability to fully comprehend information presented by others through careful monitoring of words spoken, voice inflections, para‐linguistic statements, and non‐verbal cues. Although that seems obvious , the number of lawyers and law students who are poor listeners suggests the need for better development of this skill.  It requires intense concentration and discipline. Smart technology devices have developed a very quick mode of “listening” to others. Preoccupation with those devices makes it very challenging to give proper weight and attention to face‐to‐face interactions. Exhibiting weak listening skills with your colleagues/classmates/clients might also mean that they will not get to the point of telling you what they really want to say.  Thus, you miss the whole import of what the message was to be.

Questioning – The art and skill of knowing when and how to ask for information. Questions can be of various types, each type having different goals. Inquiries can be broad or narrow, non‐leading to leading. They can follow a direct funnel or an inverted funnel approach.   A questioner can probe to follow up primary questions and to remedy inadequate responses.  Probes can range from encouraging more discussion, to asking for elaboration on a point, to even being silent. Developing this skill also requires controlling one’s own need to talk and control the conversation.

Empathy– Sensing and perceiving what others are feeling, being able to see their perspective, and cultivating a rapport and connection. To do the latter effectively, you must communicate that understanding back to the other person by articulating accurately their feelings. They then will know that you have listened accurately, that you understand, and that you care. Basic trust and respect can then ensue.

Communicating/Presenting –The ability to assertively present compelling arguments respectfully and sell one’s ideas to others.  It also means knowing how to speak clearly and with a style that promotes accurate and complete listening.  As a professional, communicating means persuading and influencing effectively in a situation without damaging the potential relationship.  Being able to express strong feelings and emotions appropriately in a manner that does not derail the communication is also important.

Resilience –The ability to deal with difficult situations calmly and cope effectively with stress; to be capable of bouncing back from or adjusting to challenges and change; to be able to learn from your failures, rejections, feedback and criticism, as well as disappointments beyond your control. Being resilient and stress hardy also implies an optimistic and positive outlook, one that enables you to absorb the impact of the event, recover within a reasonable amount of time, and to incorporate relevant lessons from the event.

Shameless Commerce Division: A Promo for Unincorporated Business Entities, 5th Edition

Posted by Jeff Lipshaw

If you teach unincorporated business entities (LLCs, partnerships, and agency), you may be interested in the LexisNexis promo in which I shamelessly plug the thing.  My overall reaction:  a face made for radio, but what I'm saying is accurate.

 

A Law Video that is Destine to go Viral ...

So we might as well face the music now.  This incredibly powerful video was produced by www.rethinklaw.org.   And who created Rethink Law?  The same folks discussed here.

Rethink Law (US) from Liana Guzman on Vimeo.

The revolution is here.  It is going to happen. For a detailed analysis of the rise of what I call "Susskind's World" and the new legal entrepenuers, see Part II.C of The Blueprint for Change.

"Wireless Medicine" -- Is Law Next?

by William Henderson

A good friend of mine, Ed Reeser, who is a lawyer, sent along this video on the "Wireless Medicine" movement, which is apparently led by Dr. Eric Topol, one of the nation's leading cardiologists, author of the book, The Creative Destruction of Medicine.  Its subtitle is, "How the Digital Revolution Will Create Better Health Care."  

Seeing a connection to the burgeoning intersection of law and technology, Ed wrote:

"I don't send videos like this around, especially to busy people like yourselves. But this is a much better way to make a point on how technology is totally changing the landscape, and why it is so critically important to understand where it is going and why.  .... The prospect for massively improved capabilities for quality service at lower cost are just beginning to emerge, and this is where the early adopters of the right approaches will have advantage. Understanding which will be right......is just the beginning of the game.  If you think law is being impacted by technology.....watch this. Then, go back to your reflections on law and rethink the possibilities of where technology is going to impact law and how to become a positive driver of change with it, rather than roadkill in resisting it. "

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Question Authority: Law students have an important role to play in the future of legal education

I continue to be grateful to the National Jurist for giving me an opportunity to write a column targeted directly to law students.   As an educator, I have found these assignments very useful toward developing a better understanding of my own students at Indiana Law. In the process, I hope I am providing some useful, realistic guidance to the next generation of lawyers

In my 2013 column, I urge law students to ask us law professors tougher questions about the current state of legal education, albeit with respect.  If they ask tough questions, we will all be better off.  It is republished below. [Original PDF]

Question Authority: Law students have an important role to play in the future of legal education, National Jurist (Jan. 2013)

by William D. Henderson

I recently gave a keynote address in which I admonished a large group of law students to “question authority.”  It certainly sounds cliché – after all, it was the rallying cry of countercultural icon Timothy Leary during the 1960s.  A decade later, it was mainstream bumper sticker. But the admonition has a much more distinguished pedigree.  Benjamin Franklin is reported to have said that “the first responsibility of every citizen to question authority.”  

I wish I had known the source of the quote when I gave the speech.  But regardless, it fit the context. Today’s law students are embarking upon an uncertain future.  Although I can understand the impulse to trust your elders, there are times of extreme upheaval when they cannot be counted upon to deliver wise counsel.  

Reluctantly, through the passage of time, I have become an elder.  And for the legal profession and legal education, we are entering one of those periods of great tumult.   To come out the other side, better and stronger, we need two things from the up-and-coming generation of law students. 

 First, we need your skepticism to question our methods and our motives.  The legal marketplace is undergoing significant changes.   We did not adequately anticipate these disruptions.  In addition, we do not fully understand their breadth and depth.    Because we are human, we are reluctant to admit our confusion.   Even worse, we may even deny there is a problem.  After all, the confluence of high student debt and a soft legal market happened on our watch. 

Second, we need your youthful energy to refashion legal education in a way that is much more consistent with our professional ideals.  All lawyers covet prestige, but over the last decades we have confused prestige with money and rankings.  As a historical matter, lasting legal reputations are disproportionately traceable to a lifelong willingness to doggedly and creatively advance the welfare of others.   Even today, the best lawyers find ways to faithfully serve their clients while simultaneously advancing the public good. We need your generation to lay the foundation for a renaissance in which our collective behavior more closely hews to our ideals. This is a goal worthy of your time and talent.

 If you are going to be effective at questioning authority (and unless you are going to be effective, why do it all?), you need to practice.  Well, I am 50-year old tenured law professor.  I create the syllabus, I decide how you will be evaluated, and I assign student grades.  Much to my chagrin, I have accumulated some authority.  So feel free to practice your questioning on me. 

Here is the world as I see it.  I could be wrong.  But even worse, I may be partially right.  

The entry-level job market for law graduates is tough right now.  But if you had not enrolled in law school, your employment prospects would be no less murky.  As noted by the popular author, Daniel Pink (himself a law school graduate), in his book, A Whole New Mind, we are living in time where every young person must compete against three formidable forces:  Asia, Automation, and Abundance. 

The Asian continent is formidable because nations such as India and China are leapfrogging into world economy with enormous quantities of ambitious, technically competent young people. 

Automation is formidable because so much of human activity, including law, is reducible to patterns.  This means solutions can be standardized, thereby displacing a significant amount of mental analysis that lawyers now perform for clients on a matter-by-matter basis.  (See also my September 2012 column, “Why are we Afraid of the Future of Law?”) 

Abundance is formidable because the flipside of the consumer society that has given us so many cheap, high quality choices is a producer economy in which expensive university educations provide us with skills that becoming more and more fungible.  

To my mind, today’s university educators are not responsible for the challenges created by Asia, Automation, and Abundance.  These are massive structural and economic forces that are hard to forecast and impossible to control.  Yet, as university educators who benefit from your tuition dollars, we are responsible for formulating effective responses.  Although we might prefer to focus on a different set of challenges, this one should take top priority because its weight falls disproportionately not on us, but on you.

 So you need to ask us, “How well is this education helping us adapt to the challenges of Asia, Automation and Abundance?”  Some of us might reply that the threat is overstated.  Well, are you convinced?  What evidence supports this assessment?   

Alternatively, others of us might reply that the challenges are very real, but fortunately, the core elements of traditional legal education are an excellent preparation.  Well, are you convinced?  Further, is it possible that our inability or reluctance to retool may cloud our judgment and influence our reply?  The iconoclastic author and economist John Kenneth Galbraith once observed, “Faced with the choice between changing one's mind and proving that there is no need to do so, almost everyone gets busy on the proof.” 

A third response may be, “I don’t know.  These are a hard set of issues.  And they need to be solved.”  When a professor responses in this way, it is hard to question their motives.  Further, you may have found someone with authority who is willing to take up your cause. 

At the beginning of this essay, I failed to mention one key proviso to my “question authority” admonition.  I told the law students that when they question authority, they should do it respectfully.  Indeed, all of my life experience has shown me that effectiveness in human relations requires a foundation of mutual respect.  Your elders did not create the challenges that lie ahead.  We are not your enemy.  Our limitation is that we are human, and therefore imperfect; and so are you. 

 Yet, if you question authority persistently but respectfully, you will be doing yourself, legal education, and the legal profession an enormous service.

 If you think my ideas and analysis are wrong, you are free to question my authority.

Losing the Law Business

The legal industry is changing in ways that very few lawyers understand.  I recently tried to explain these changes to a savvy nonlawyer, non-American audience through an essay I published in the Cayman Financial Review, entitled, "Losing the Law Business"  (original PDF).  I wanted to share this analysis first with an audience that was, frankly, not emotionally or financially wedded to the outcome--hence, they could be objective. Now I want to gauge the U.S. lawyer reaction, so  I am republishing the essay here on The Legal Whiteboard.  

Losing the Law Business, Cayman Financial Review (Jan. 2013)

by William D. Henderson

If you are not a lawyer, you may find this next sentence very good news.  We are entering a period in human history in which we are going to need fewer lawyers, at least the traditionally trained variety.  The world is becoming more interconnected, regulated and complex.  Although regulation and complexity have historically been very good for the lawyer business, something very fundamental is changing.  Clients are increasingly struggling to pay the bills of artisan lawyers who prefer to craft individual, customized solutions for each transaction and each dispute.

In essence, law is facing a productivity imperative.  To cope with globalization, the world needs better, faster, and cheaper legal output.  The artisan trained lawyer just can’t keep up.  To address the productivity imperative – or, more accurately, to turn a profit from this business opportunity—a new generation of legal entrepreneurs has emerged.

Lawyers continue to have a lock on advocacy work and client counseling on legal matters.  But an enormous amount of work that leads up to the courthouse door, or the client counseling moment, is increasingly being “disaggregated” into a series of tasks that does not need to be performed by lawyers.  Indeed, it may be best performed by computer algorithms.  Further, the entire process is amenable to continuous improvement, driving up quality and driving down costs.  This is a job that is likely more suitable for a systems engineer, albeit one with legal expertise, than a traditionally trained lawyer.

Although this change may sound radical, it is actually the logical next step in an evolutionary progression that began in the early 20^th century as the practicing bar transitioned from generalist solo practitioners to specialized lawyers working together within law firms.  Now, as clients search out ways to stretch their legal budgets, specialization is losing market share to process-driven solutions, akin to how Henry Ford’s assembly line methods supplanted craft production.

To illustrate this progression, consider the U.S. legal market at the beginning of the post-War period.  At that time, 61% of all lawyers worked as solo practitioners. Not surprisingly, incomes were low.  In 1948, the average lawyer in private practice made $5,200 per year, which was several hundred dollars less than his government lawyer counterpart.   There were private practice lawyers, however, who defied this trend.  Less than 2% of U.S. lawyers worked as partners in law firms of nine partners or more, but these “large” firm lawyers made, on average, five times more than their solo practitioner peers.

Why so much more?  Because the world was becoming more regulated and complex.  And sophisticated, specialized lawyers with deep technical expertise were in short supply.  By combining into a firm, lawyers could specialize in new or existing areas of law, handle bigger and more complex matters, and otherwise coordinate their efforts to better serve clients.  Indeed, the most successful large law firms, such as the New York City firm of Cravath Swaine & Moore, organized themselves so as to optimize the training of junior lawyers in both substantive law and the ability to supervise and delegate (the “Cravath system”).  Fittingly, during the 1930s, the press dubbed these firms “law factories.”  The best junior lawyers eventually became partner; the rest obtained the benefit of excellent experience and training, thus obtaining jobs with clients or partnerships with other law firms.

For the next several decades, firms with significant business clients and a partner-associate training model tended to prosper.  As a measure of longevity of the specialist model, among the largest 100 law firms in the U.S. as measured by gross revenues (the AmLaw 100), the average name partner was born in 1895 and died in 1964 – yet the growth has marched on for another half century.  The period of greatest financial success has occurred during the last three decades.  Between 1978 and 2003, total U.S. legal expenses as a percentage of GDP increased from .4% to 1.8%.  From this growing pie, large firm lawyers where getting the biggest slice.  By the mid-2000s, the profit share of the average partner in an Am Law 100 firm was over $1 million per year.

One obvious drag on the legal industry’s reluctance to embrace innovation is the financial success enjoyed under the old model.  It is hard to convince a group of millionaires that their business model is broken.  A second drag is insularity.  The U.S./U.K system of lawyering is premised on the idea of independence.  In the U.S., ethics rules prohibit lawyers from splitting fees with nonlawyers.  Thus, only lawyers have an equity interest in law firms.  In the U.K. and Australia, in contrast, the ban on fee-splitting has been significantly relaxed, enabling the public listing of law firms and the entry of name-brand companies, such as Tesco (a supermarket retailer), into the consumer legal business.

Ironically, the insularity of the U.S. legal market may have created a more attractive target for capitalists. Among corporate clients, the combination of high law firm profits and low innovation has created discontent among C-suite executives.  They ask their general counsel, “why are legal expenses going up faster than other departments?  What value are we getting for these higher fees?”  The general counsel has no persuasive reply.

Perhaps the best example of new entrepreneurs serving corporate clients is the large number of vendors working in eDiscovery and document review. The explosion in digital data over the last 10 to 15 years has made it untenable to continue using expensive law firm associates for an exhaustive manual review. 

Initially the work went to registry services, which assembled large crews of temporary low-wage “contract” lawyers for large document review projects.  After building a sufficient data infrastructure and security controls, the work flow has gradually expanded to legal process outsourcers (LPOs) in places like India, where a fraction of the wages paid to U.S. contract attorneys could attract highly motivated and able Indian lawyers.  Having achieved sufficient success and scale, the best LPOs are now turning to process engineering, combining this highly motivated and able labor with superior technology and workflow design. 

More recently, new vendors have emerged who specialize in “predictive coding.”  In a case that considered acceptable methods of conducting electronic discovery, a federal judge in New York City reviewed studies comparing the cost and accuracy of computer-based machine algorithms (predictive coding) with manual human review.  Finding that the predictive coding was at least as accurate as manual methods and reduced the number of documents for human review by a factor of 50, the judge ruled that predictive coding was judicially reasonable in many cases involving large numbers of documents.

Although many large U.S. law firms may perceive document review as “commodity” legal work not worthy of their efforts, the new legal vendors getting into this space are remarkably well capitalized.  For example, one of the larger suppliers of contract attorneys is Robert Half, which has 26 locations through the U.S. and Canada.  Its corporate parent, Robert Half International, is publicly traded on the New York Stock Exchange (RHI).  Another company in the contract attorney space is Special Counsel, which has 36 U.S. offices.  Special Counsel is a subsidiary of Adecco Group, which is listed on the SIX Swiss Stock Exchange (ADEN).

In the LPO space, Pangea3, which opened in 2004 with $1.5 million in venture capital, was sold in 2010 to Thomson Reuters (NYSE symbol TRI) for an amount reported to be in the $35M to $40M range. [ed: I later learned from a highly reliable source that the true price was just under $100M.]  The original management team was kept intact, as the company has been growing between 40% and 60% every year since its founding.  The company now employs over 850 lawyers, mostly in India.  Because of its emphasis on process improvement, Pangea3 and other high-end LPOs are obtaining a competitive advantage beyond mere wages.  Thus, LPOs have become a much more attractive option for Indian law graduates.  Another competitor is Huron Consulting Group (NASDAQ symbol HURN), which recently announced a new document review facility in Gurgeon (a booming suburb of Delhi), bringing its total global document review workforce to 1,500 in 17 offices worldwide.  Since 2007, Huron Consulting Group’s annual revenues have nearly doubled, growing from $315 million to $606 million.

The major players in the predictive coding space are also well capitalized.  One of the leaders is Recommind, a privately held company with $15 million in revenues in 2011 and approximately 100 employees in facilities in California, London, Germany and Australia.  Similarly, Kroll Ontrack, which started in the hard disk recovery business nearly 30 years ago, has information management services that include predictive coding as part of its broader eDiscovery services.  Kroll Ontrack is owned by Kroll, Inc., which was recently acquired by Altegrity, an information conglomerate owned by Providence Equity Partners.  Providence Equity is a global private equity firm with over $27 billion under management.

Since 2008, revenues in large U.S.-based law firms have been relatively flat.  A recent article in Managing Partner magazine acknowledged that law firms are losing market share to the LPOs –which broadly includes all the companies mentioned above—as general counsel are increasingly contracting with LPOs directly.  The savings are perceived to be in the 50% range with no diminution in quality.  According to the article, the LPO business is estimated to be a $1 billion per year industry that will double in size over the next two to three years.

Unlike traditional lawyers, the competitive advantage enjoyed by these new entrants is that they have learned how to learn.  If law is like other industries, these companies will move up the value chain and find new ways to satisfy the needs of large corporate legal departments.  Law is not just for lawyers anymore.  This genie is permanently out of its bottle.

Thank you to an Anonymous Alum

Each year, the instructors in Indiana Law's 1L Legal Professions class coordinate with Indiana Law's Office on Career and Professional Development (OCPD) to run the Career Choices Speakers Series -- 16 lunchtime forums on Thursdays and Fridays throughout the second semester.  It has been an enormous hit with students.  Although our 1Ls are required to attend at least three, a huge proportion of the 1Ls attend over ten.

Below is a photo of this Thursday's pizza run for the session on Direct Service Public Interest Lawyers -- 22 pizzas and the laptop/scanner used for attendance.  Over the course of semester, we will purchase well over 300 pizzas.  Who pays for all of this food and equipment (plus about a dozen dinners for students and alums that occur before and after these events)?  An Indiana Law alumni who profoundly believes in the role of ethics and integrity to achieve personal and professional success in life.  And he has done so quietly, behind the scenes, every year for the last five.

I thought our alum would enjoy seeing the pizza gurney.  Thank you!  You are opening students' eyes and helping them make better decisions, all through relationships with other lawyers.

[photo credit, 1L Dakota Scheu, via iPhone].  For additional information on this highly effective program, see my prior post, A New Tool for Lawyer Professional Development.

[posted by Bill Henderson]

ReInvent Law is a Really Big Deal

I was at the ReInvent Law Silicon Valley event last week.  Following up on Jerry's thorough remarks, I can honestly say it was unlike any legal education and lawyer conference I have ever attended (the only thing close is Law Without Walls).  There is a new guard in the legal academy taking shape, and it is led -- truly led -- by Dan Katz and Renee Knake at Michigan State. 

Admittedly, Dan and Renee lean heavily toward my bias.  Most of us law professors talk.  Dan and Renee, in contrast, are doers.  Shortly after becoming assistant professors, they each moved quickly from ideas to action to actually having the audacity to attempt to build new and relevant institutions. Moreover, they both did it untenured--Dan is only in his second year of teaching and Renee just cleared the tenure hurdle earlier this year.  They did all of this without a net. To my mind, they are winning the "Game of Life."  If other junior faculty follow their example, the legal academy is going to truly change.  And right now, that is what we need.

One of my favorite Paul Lippe quotes is this, "In hindsight, the new solutions are all going to look obvious."  ReInvent Law was 40 speakers tied together by a common interest in experimentation. Were all the ideas good?  If history is any guide, and the criteria is moving from concept to implementation to financial and institutional sustainability, the answer is surely no. But it was invigorating to be in a room of doers who are all willing to risk failure.  That is the courage and leadership we need right now.  To me, it looked obvious that we need a place like ReInvent Law where insurgent ideas can be expressed with enthusiasm, even if only a handful or fewer will transform the legal landscape.

I was fortunate to be one of the presenters.  Dan Katz was kind enough to take my picture when I gave my Ted-style talk (all the talks were Ted-style or "Ignite").  If you zoom-in on me, I look ridiculous.  I am no showman.  But you have to admit that the lighting is pretty spectacular.  The green screen, by the way, is the running twitter feed, an idea that I can assure you was not stolen from the ABA or the AALS.

 

Amidst all these "revolutionary" ideas, I think my presentation was probably the most conservative.  My central claim is that 100 years ago, as the nation struggled to find enough specialized lawyers to deal with the rise of the industrial and administrative state, some brilliant lawyers in cities throughout the U.S. created a "clockworks" approach to lawyer development.  These clockworks filled the enormous skills and knowledge gap.  Firms like Cravath, Swaine & Moore, through their "Cravath System," finished what legal educators started.  (I use the Cravath System as my exemplar because its elegant business logic was written out so meticulously in the firm's 3-volume history.)  

The whole purpose of the clockworks was to create a "better lawyer faster."  This is a quote from volume II.  The company I co-founded, Lawyer Metrics, incorporated it into our trademark -- the value promise is that compelling.  See the slides below.

A Clockworks Approach to Lawyer Development from William Henderson

Here is the Slideshare description:

The original Cravath System circa 1920 demonstrated the power of a "clockworks" approach to lawyer development. The system was a meticulously designed and mechanized way to create specialized lawyers who could service the needs of America's rapidly growing industrial and financial enterprises -- lawyers who were in perennial short supply because the requisite skill set could only be learned by doing. The System endured for a century because it solved the specialized lawyer shortage by making every stakeholder better off -- junior lawyers (received training), partner-owners (large, stable profits), and clients (world class service and value). 

Today's legal employers and legal educators would benefit by revisiting this system's powerful business logic. The clockworks approach to lawyer development still works. The only difference is that the specifications for a great lawyer have changed. Like the original Cravath System, a new clockworks would create a "better lawyer faster." 

[posted by Bill Henderson]

Suffolk Law Presents Susskind on "Tomorrow's Lawyers"

Legal futurist Richard Susskind, author of The End of Lawyers? and Tomorrow's Lawyers will headline the launch of Suffolk University Law School's Institute on Law Practice Technology and Innovation on April 18 in Boston, MA.

According to the school's announcement, "Professor Susskind will discuss some of the key concepts from his new book, offering a close look at where the profession is heading and what we'll find there -- a challenging new world for some, and a vibrant future for others."

The program will include a panel discussion on the implications of Susskind's remarks, moderated by Andrew Perlman, Suffolk Law Professor and Chief Reporter for the ABA Commission on Ethics 20/20.  The panelists are Jordan Furlong, Partner at Edge International and Senior Consultant with Stem Legal, Krish Gupta JD '96, Senior VP & Deputy General Counsel at EMC Corp., and Regina Pisa, Chairman of Goodwin Procter LLP.

A reception will follow.  The cost is $75 ($35 for academics and Suffolk alums).  Registration is available online.

[Jeff Lipshaw]

Thoughts on the Future of Law from ReInvent Law - Silicon Valley

I had the privilege of attending ReInvent Law—Silicon Valley – on Friday, March 8.  Special kudos go to Professors Renee Knake and Daniel Martin Katz from the Michigan State University College of Law and to the Ewing Marion Kauffman Foundation for sponsoring the event and bringing together a significant number of thought leaders who are engaged in thinking about how to use technology to improve the access to and the provision of legal services in the United States and globally.

There were too many presentations to try to summarize everything that was shared during the day. Nonetheless, there were a few themes that showed up throughout the course of the day that merit attention as we think about where the market for legal services might be headed.

First, several people made presentations focused on the increasing importance of data analytics, knowledge management and process management.  These included Josh Becker of Lex Machina (discussing generating economic value from analyzing large volumes of patent litigation data), Kingsley Martin, of KMStandards and Sol Irvine of Yuson & Irvine (both discussing knowledge management relating to contract language to develop more efficient processes for drafting contracts), Karnig Kerkorian and Rudy Minasian of Velawsity (discussing process management tools to help solo practitioners by more efficient), and Sean McGrath of Propylon (discussing temporal data management tools that allow searchers to identity the effective language of regulations or statutes at a specific time) to name just a few.

Second, several people emphasized the need for broader access to legal services at affordable prices and discussed the use of process management and alternative structures to better meet the need for legal services for middle class people and small business owners.  These included Stephanie Kimbro of Burton Law (encouraging unbundling of legal services and greater participation in branded networks), Chas Rampenthal of LegalZoom (imagining what legal services might look like if a major retailer decided to offer legal services), Raj Abhyanker of LegalForce (discussing process management and data management as key to growth of Trademarkia (predecessor to LegalForce)) and Charley Moore of RocketLawyer (discussing the needs of small business owners to have more affordable guidance regarding how to deal with regulatory structures and legal problems). 

Third, related to the access question, there was significant discussion of the constraints of Rule 5.4 and the revolution taking place in the United Kingdom following the authorization of Alternative Business Structures for providing legal services.  Presenters discussing the evolving legal services market in the United Kingdom included Ajaz Ahmed of Legal365.com (discussing a legal services market ripe for disruption from businesses focused on client service) and Andy Dawes of Riverview Law (discussing the growth of its fixed fee model of providing services to corporate clients).

In addition, our own Bill Henderson made a presentation on the training model that might be necessary to better prepare lawyers to be effective in the new normal, with greater emphasis on data analytics, knowledge management and process management in addition to traditional legal knowledge and relationship skills.

One of the most thought provoking presentations for me was the presentation by Colin Rule of Modria regarding the growth of Online Dispute Revolution.  Modria is an outgrowth of the dispute resolution components of EBay and PayPal where 60 million disputes have been resolved in an “extrajudicial” context, with many being resolved only through use of software (without the intervention of other humans).  This prompted me to realize that if one reconceptualizes the access to legal services issue as an access to justice issue, there may be a variety of more efficient ways to offer people access to justice that might completely bypass the current legal system. 

There was much to think about regarding a legal services market that is facing the reality of disruptive innovation.  What the conference highlighted for me is that change is happening and that there are a number of very bright, very thoughtful people who are trying to invent the future by taking advantage of data and technology to find better, more efficient, more affordable ways to provide legal services to a broader array of clients.  Not all of the innovators in attendance at the conference are going to have an economically viable model, but some of them will, and that will mean some of them will be winners, and some of those who continue to do things the traditional way are going to be losers.

[posted by Jerry Organ]

The Law of Too Many Words

Ron Friedmann sees something that a lot of us law professors are failing to see, here.

[posted by Bill Henderson]

A Poor Man's Newcomb Problem, aka The Game of Life

I have a running philosophical and existential debate with my good friend Jeff Lipshaw.  If I did not love Jeff, I would not blog with him. Anyway, Jeff has a tendency -- in my opinion -- to get bogged down in high theory. See, for example, his post on the Newcomb Problem.  Here is a poor man's version of the Newcomb Problem.  It has been described to me as "The Game of Life": 

Imagine that the game of life is played in an arena with a small rectangular field in the center.  Only 25% go onto the field.  75% stay in their seats waiting for more information.  Of the 25% who go onto the field, 4 out of 5 come back to their seats when they realize that they may not win the game.  They don't want to be embarrassed, so they quit.  In the end, only 5% are really living – doing their best with no guarantees but knowing what it is like to be fully alive.

So applying this insight to Jeff's Newcomb problem, the moral of the story is very simple:  Pick Box B, and only Box B.  Everything else is just mental obfuscation.

[posted by Bill Henderson]

The Newcomb Problem of Going to Law School, Vet School, or Becoming a VAP

Posted by Jeff Lipshaw

When I teach contracts, one of my catch phrases is "you pays your money and you takes your chances."  It's consistent with my view, expressed ad nauseam in this article and elsewhere that thinking of any kind (whether or not "like a lawyer") only gets you so far.   To tap into my inner existentialist for a moment, life is about choices.  Making a choice is a mental process, but it's not quite the same thing as sorting things out rationally.  Making a choice (particularly one on which you then act) is more akin to the action than the thought.  (One might even say that making a choice but not acting on it isn't really making a choice because there's no consequence to it.)

An ancillary catch phrase to "you pays your money..." might be "hope springs eternal."  My heart goes out to all of those who have made rational life decisions that have not panned out.  I'm an old guy who made a career in a different time, and I have no idea if I'm good or lucky, but I'm closer to the end than the beginning than most of my current professional peers, with a completely different set of life burdens.  So I observe the battle from the standpoint of one who has fought in it but has since been evacuated to safety.

To get  a sense of the turmoil, one need only have read the dozens of almost uniformly anonymous posts of law students whose debt obligations presently exceed their income expectations.   Then, in this morning's New York Times, David Segal, the author of a similar series on young lawyers, writes about debt-laden and unemployable young veterinarians.   And, over at The Faculty Lounge, it's hard not to be moved by the story of someone who committed to be a VAP and has similarly been caught in the backwash of the bursting of the law school and legal profession bubble.

I know that every one of my current students applied to and matriculated in law school (i.e., committed to the battle) after it was clear that the bubble had burst.  Why are they here?  Why apply to vet school after reading today's Times?  Why be a VAP?

There's a thought problem in decision theory called the "Newcomb Paradox."  The graphic above lays it out.   In the problem, assume an all-knowing and all-powerful "Predictor" and a "Chooser."  The Chooser has in front of her two boxes.  Box A is transparent and she can see it holds a $1,000 bill.   Box B is opaque.   It either contains nothing or $1,000,000.  Her choices are limited to the following:  (i) choose only Box B, or (ii) choose both Box A and Box B.  Here's the rub.  The Predictor (being all-knowing and all-powerful) has already predicted how she is going to choose.  And Chooser knows this as well.  So, if she goes with choice (ii) (both boxes), the Predictor will have predicted that and Box B will contain nothing.  If she goes with choice (i) (only Box B, thus giving up the sure $1,000), then the Predictor will have predicted that, and Box B will contain the $1,000,000.

Here's the paradox.  A causal decision theorist says choose both boxes because what is done is done.  Chooser's choice can't change the past, so there ought to be $1,000,000 in the box, and Chooser will get both the $1,000,000 and the $1,000.  The evidential decision theorist says, no, the best present evidence of what the Predictor has put in place is Chooser's present choice, and so Chooser ought to choose only Box B, even though it means giving up a sure $1,000.  Each side, the causalist and the evidentialist, thinks the other is irrational.  As Robert Nozick observed, there is no "knockdown" argument for either side.

Elsewhere, I've suggested this is a helpful way of looking at the illusion (or delusion) that we can beat the market.  It's a causal world, but one in which real causes are so complex and remote that they might as well have been put in place by the Predictor (or God).  So, like the evidentialist Chooser, we rely on evidence, part of which is our own assessment of our own abilities to make probabilistic judgments about the future of the causal world.  And hope springs eternal.  If we don't believe in our assessment of our own ability to go for broke, then unlike the sad VAP, we never leave the safe confines of our Big Law job (the $1,000 bill in the transparent box) for the big reward - a tenure track position in an accredited law school (which may or may not be in the opaque box).

Daniel Kahneman refers to this as the "illusion of skill."  My critique of Kahneman is that, while his is an undoubtedly accurate empirical assessment of the behavioral heuristics and biases of what I would more plainly call "self-deception," merely applying more thought to the problem leaves you with the very same problem you started with:  is my own assessment of my own self-deception itself an illusion of skill (the skill here being self-knowledge)?  No wonder I conclude:  at some point, you pays your money and takes your chances.

I know that's no comfort to those disappointed by the outcomes in the real, causal world.  But it's the only way I can understand the inner process of making the commitment decision - whether it's going to law school, becoming a vet, or trying to be a law professor - in a world we inhabit, don't control, and in which can only make educated guesses about the future.

ReInventLaw Silicon Valley 2013 @ The Computer History Museum

Posted by Dan Katz, Assistant Professor of Law, Michigan State University and Co-Director, ReInvent Law Laboratory @ MSU Law.

On March 8, 2013 - The ReInventLaw Laboratory - Founded by Daniel Katz and Renee Knake from Michigan State will host ReInventLaw Silicon Valley 2013 @ The Computer History Museum in Mountain View, CA.

Topics to be covered include: 
LegalTechStartUp, Lawyer Regulation, Quantitative Legal Prediction, Legal Supply Chain, Project Management, Technology Aided Access to Justice, Design, 3D-Printing, Driverless Cars, Business of Law, Legal Education, Legal Information Engineering, New Business Models for Law, Lean Lawyering, Augmented Reality, Legal Process Outsourcing, Big Data, New Markets for Law, Virtual Law Practice, E-Discovery, Information Visualization, E-Discovery, Legal Entrepreneurship, Legal Automation … and much more.

What do I need to know?

1. At all price points, the legal services market is rapidly changing and this disruption represents peril & possibility.  This meeting is about the possibility ... about some of the game changers who are already building the future of this industry.
2. This is a 1 day event featuring 40 speakers in a high energy format with specific emphasis on technology, innovation and entrepreneurship.
3. It will highlight the new and growing portion of the legal services industry. It will not be boring.  
4. For more on our lab and related events please see: http://reinventlaw.com/ 

How Much Does it Cost?
This event is generously sponsored in part by the Ewing M. Kauffman Foundation, Michigan State University College of Law and the ReInvent Law Laboratory. 
Thus, tickets are FREE but limited.

There will only be 400 tickets for this free event.  Many of them are already taken and when they are gone, they are gone. Thus, if you or your friends/colleagues/students would be interested in attending -please sign up today. 
http://guestlistapp.com/events/129990

Final Thoughts …
As I mentioned to Bill Henderson the other day … the old internet adage applies with equal vigor in the legal services industry "the future is here … it is just not evenly distributed."  

Come join the future already in progress at #ReInventLaw Silicon Valley March 8th, 2013  (and at our other free public events in London and New York later in 2013). 

Jim Moliterno Answers Questions on W&L's 3L Program; Supplies Additional Data on W&L

My previous post on Washington & Lee's 3L Program stirred a lot of interest and commentary, including some disbeleiving critics.  Fortunately, Professor Jim Moliterno agreed to write a reply essay, below, that completes the cycle. [Bill Henderson]

  Jim Moliterno Replies  [This is a long reply, so a PDF version online here]

A number of comments to Bill’s January 28 post and posts regarding it on other blogs cause me to enter this conversation.

Are students really coming to W&L because of the new curriculum?  Yes, to a significant extent. How do we know?  Because the entering students say so. As do many law schools, we administer a questionnaire to our enrolling students. Among the questions asked is the obvious one: why are you here?  

In the most recent such survey the students were asked to rank the strengths of the law school. Here are the top ten, in order, according to the entering students:

1. Third Year Curriculum
2. Ranking / Prestige
3. Quality of Life
4. National Reputation
5. Job Placement
6. General Cirriculum
7. Clinical Program
8. Faculty
9. Financial Aid Award
10. Size of Lexington

The curriculum reform was first.  Financial aid awards were 9^th, just ahead of the “size of Lexington.” The data does not support the unsubstantiated claims of some bloggers that students are choosing W&L because of the generosity of financial aid awards. 

The curriculum reform has steadily moved higher on the “strength” rankings given by enrolled students since 2009. The 2011 and 2012 surveys are nearly identical, and the written comments of students about their reasons for coming to W&L (none reprinted here), are more striking than the numbers themselves.

I don’t know of any better data on this proposition but the statements of those whose reasons are under study. If that data is unsatisfying to some, then they will continue to be unsatisfied.

Are there other reasons students come to W&L? Of course. W&L has a highly productive, highly visible  faculty engaged in scholarship and projects at the highest levels. Some students undoubtedly value W&L’s faculty prowess.  W&L is highly ranked. Some students undoubtedly are affected by a top 25 ranking. It has an excellent reputation as a small, closely-knit academic community.  Some students select for the sense of community and size. No reason will ever be the only reason for prospective students to choose a law school.  Changes made by law schools will affect student choices for or against a particular law school. The W&L curriculum reform is positively affecting a significant number of students’ calculus about choosing W&L.   

And some do come because of the financial aid package they were offered.  But the financial aid reason is unlikely to explain the increase in applications since 2008. Some students, the recipients of aid, undoubtedly come in part because of the aid.  That is no different than the students who choose [insert name of any school] because of the financial aid they were awarded.   In 2012, about the same number of offers of admission were made as in previous years, but instead of the usual 130 or 135 admittees choosing to attend, more than 260 made deposits. Some were asked to defer their attendance until 2013 and once the dust settled we had a class of 187 instead of the usual 130 to 135. This same class entering in 2012 listed the curriculum reform first and financial aid ninth as strengths of the law school.

What else was happening in 2008 and 09 when the applications increased by nearly 33% per year? 

In 2009 and 10, while W&L applications were on the rise, the US News ranking fell from 25-34 (while its reputation rank among academics stayed steady).   It has now recovered to 24.  If anything, that should have led to a drop in applications during 2008-2011 rather than the sharp increases that actually occurred.

Can we exclude all other possible explanations than those previously mentioned?  Of course not.  It could be that being in a small, beautiful mountain town is all the rage among young adults and 33% more students want that now than wanted it in 2007. I know of no data to prove or disprove that proposition, so it remains one that could be true. The reality is that the students who have come in recent years rate the curriculum reform among the top reasons (often the most important reason) for their attendance at W&L. That matters.

There is empirical evidence that the W&L curriculum reform is engaging students more than in the traditional “no plan” third year curriculum. Is it perfect evidence? Of course not.  Is it definitive evidence that has no flaw? Of course not. Is anything ever supported by perfect, definite evidence that has no flaw? Not to my knowledge.  We make all of our most important decisions in life based on the best available evidence. As long as the evidence is empirically sound and statistically significant, it is worthy of respect. The evidence of W&L 3L engagement increases is sound and statistically significant and marks a path toward further research and verification.

One commenter suggested that the data is suspect because the peer schools have not been identified. Their data belongs to them, not W&L.  LSSSE does not make specific school data available to other schools.  So W&L has only a composite score for those peer schools. And it would be unseemly for W&L to reveal the specific schools.  I will not do so here. But to be sure, W&L asked LSSSE to calculate the data from a list of schools because they are the schools with whom W&L competes for students and competes in the rankings. It would not have served W&L’s research interests to learn how it compares with a list of schools that it does not compete with in the marketplace. No one at W&L has the data for any specific school. 

Nonetheless, do not be mistaken, the schools with whom W&L is compared in LSSSE data are the schools anyone would expect them to be: schools that by their geography, rank and quality compete with W&L in the relevant markets for students and placement.

One observation: in the legal profession and legal education in particular, the status quo never seems to need empirical justification.  Only change is suspect and wrong until proven definitively to be otherwise. Is there any empirical evidence that the status quo third year is the best possible third year except that it has been done that way for a long time? None that I know of. The old adage, “if it ain’t broke don’t fix it” does not apply here.  The third year of legal education is “broke”.

Amid calls for its abandonment by some, dating back at least to the early 1970s report by Paul Carrington, the third year is widely acknowledged to be of the least value among the three years. (See below on W&L’s largely unchanged  approach to years 1 and 2.) The Roman Legions (and more than a few other military powers) have found out that the mere fact that something has been successfully done before is not sufficient evidence that it will prevail in the present or future. Arguing in favor of the status quo based on no empirical evidence, . . . based only on instinct and the argument that it is the way things are currently done, is an approach doomed to failure.  Just ask Kodak. (And see my forthcoming book: “The American Legal Profession In Crisis,” Oxford, March 2013.)

How about the claim that “[W&L’s LSAT has] gone down every year since [the new curriculum was announced], while its GPA rank has, after a plunge, more or less returned to where it was.” The blogger made that claim, once again without any data, let alone empirically credible data.  Actually the W&L median LSAT was steady at 166 from 2005-2010, dropped 2 points to 164 in 2011 and stayed at 164 for 2012. It has not “gone down every year since [the new curriculum was announced in 2008].” Meanwhile, the GPA of entering classes, which was in the 3.5 and 3.4 range in 2008-2010, has gone up to the 3.6 range (3.65 and 3.62) in 2011 and 2012. The two modest changes in LSAT and GPA have essentially off-set one another in US News points. Hardly the reason for pause suggested by the blogger.

It seems that as long as someone is arguing against change, no rules apply to the arguments’ underpinnings.

Here is what the empirical evidence from the LSSSE surveys shows and what it does not show: students are more engaged in their work and their work includes more writing, more collaboration and more problem solving. Here are a few charts even more striking than those Bill used in his post. Together they say that significantly more than their peers or their predecessors at W&L, current third year students are working more, writing more, collaborating more, applying law to real world problems more, and preparing for class more often. Overall, they describe a harder-working, more engaged student body. And they are working harder at acquire the skills that matter to success as a lawyer.

Continue reading "Jim Moliterno Answers Questions on W&L's 3L Program; Supplies Additional Data on W&L"

Deciding Whether the Best Lawyers Have the Most Excellent "Slow Brains" Takes Something Other than a Slow Brain

Posted by Jeff Lipshaw

Bill and I have been having this friendly debate for a number of years now.   I believe the insights of Tversky and Kahneman are fully deserving of every accolade they receive, but they don't answer all the questions.  Personally, I think describing a lawyer as a having an excellent Kahnemanian "Slow Brain" is like describing a baseball pitcher as having a 102 mph fastball - it's a necessary but not sufficient ingredient of excellence (you need control as well as velocity).  

As I've argued at length, it's because pure analytical ability (the "slow brain" quality) fails to capture the subjective and bottomless experience of judgment - in short, as Kahneman acknowledges, sometimes your fast brain answer is the right one, so if you use your slow brain to decide whether the fast brain or slow brain is giving you the correct judgment, are you making a mistake?

"Metacognition" - thinking about your own process of thinking - is all the pedagogical rage right now.  To the extent it encourages what I call "epistemic humility," I'm all for it.  But it's no silver bullet.   To quote myself:

I have a reasoned skepticism about our ability to navigate through life on a wholly reasoned and rational basis, concluding instead that sometimes being wise means understanding we just have to conclude, to decide, to act, to pay our money and take our chances. I recognize fully the abstraction of much of what I have said here. But I have wanted to counter the underlying rational, objective, and scientific underpinnings of much of the professional mindset: we can figure it all out and control it if we just think hard enough. More practically, as some have suggested, there is a real question whether any of this state of mind can be taught in school. I think we can rigorously and ethically help young lawyers develop one- handedness, but that must be the subject of another article.

For more where that came from, see Dissecting the Two-Handed Lawyer:  Thinking Versus Action in Business Lawyering, coming soon to a prestigious law review near you.  (The conversation I describe at pp. 49-50 of the SSRN draft was with Bill!)  The abstract follows the break.

Continue reading "Deciding Whether the Best Lawyers Have the Most Excellent "Slow Brains" Takes Something Other than a Slow Brain"