Monday, July 2, 2012

Seduced by Legal Brands

[by Bill Henderson, originally published in The National Jurist, September 2011 (PDF)]

Every year as the on-campus interview process gears up, another class of high performing law students fret over their chances of getting an offer from a cadre of firms that, a year earlier, they had never heard of.  The thought process goes something like this.  “Oh, these types of firms pay a lot of money.  And among these firms, some are harder to get hired at than others – they are more prestigious.  If I can land a job at one of these firms, the entire legal world will know that I am smart.  That would feel great.  And I can quickly pay off my student loans and keep my options open.” 

Money and peer pressure are a potent mix.  They make it virtually impossible to remember the original reason for applying to law school.

During the dot.com bubble of the late 1990s, I was a student at the University of Chicago Law School.  In the classroom, I was deeply intimidated by my classmates.  But as we ploughed through the OCI process, I was astonished to see my fellow students anguishing over Skadden versus Latham.  Or gnashing their teeth that they might have missed the Chicago grade cutoff for Gibson Dunn.  Weren’t these firms more alike than they were different?  And what made them so great beside the relative difficulty of securing a callback? 

The prevailing analysis during OCI seemed shallow and bereft of reliable facts. We were taking our cues from each other.  Yet, I could sense my own irrational desire to compete and win.  I wish I could say that I was smarter than my classmates.  But that’s not true.  I was just older, and life had already thrown water on my face.

I was 35 years old when I started law school.  I had taken a long detour.  After dropping out of college after my junior year (at age 21), I ran a business for awhile and eventually landed a job as a firefighter-paramedic.  By virtue of the fact that I showed up for union meetings, I eventually got elected president.

For me, anyway, strategizing over a collective bargaining was much more fun than house fires or ambulance calls.  And because I loved it, I invested a huge amount of time in the negotiation process and developed some skill and expertise.  I liked outsmarting--or trying to outsmart--the management lawyers.  I liked the reliance on facts.  And I liked finding ways to make a bigger pie so we could argue less over how to slice it.  So I figured that it was time to finish my college degree and apply to law school.

When I returned to college, one of my professors was impressed by my engagement and work ethic and encouraged me to switch careers. So in the fall of 1998, I was deliberating over Cleveland-Marshall night school or the University of Chicago.  I ultimately resigned my job because I was a far better union negotiator than a firefighter-paramedic.  Although I was qualified for my fire department job, the job itself did not strongly align with my interests and passions.  Some new guys on the job were running circles around me –they had passion.  So I figured it was time to move on.  Literally, lives would be saved.

As I moved on to my new career, it did not take me long to find the smoke and mirrors.  The legal economy was booming, so students from the national law schools were invited to Holiday mixers at all the big Cleveland law firms.  With only 10 weeks of legal education under my belt, I got five or six offers of summer employment at weekly rates that nearly doubled my (high) union wages.  So it was pretty obvious what was happening. “He’s at Chicago; he owns a house in Cleveland; his wife and daughter still live here.  Make him an offer.”  There is no way I would have gotten this treatment if I had attended Cleveland-Marshall.  The firms weren’t recruiting Bill Henderson; they were recruiting a brand – a law school brand that would buttress their own law firm brand.

I have long been fascinated with lawyers’ fixation with elite branding.  In his book, Predictably Irrational, the economist Dan Ariely observed that “thinking is difficult and sometimes unpleasant.”  This core insight is why marketers work so hard to build a strong brand that can be used as a substitute for rational thought.  Spun in the best possible light, a brand is a short cut to a good decision.  And because many others take the short cut, the people who follow the brand are never alone, nor are they asked to explain themselves.  This feels good.  More precisely, this feels easy and safe.

Because lawyers get paid big money to think, it stands to reason that lawyers would less likely to be seduced by brand names.  But that’s not so.  A large number of very prestigious law firms rely on law school brands in a very mechanical way, rarely inquiring on the actual rigor or breadth of the education received.  Similarly, law schools are fixated on law school brand in hiring their entry level professors.  Yet, when you start poking around for facts or evidence to assess whether the brand decision is in fact the right decision—for example, to build this law firm, or educate this group of students—the facts are in short supply.  Why? Because lawyer egos are tied up in the perceived superiority of the brand names.

As someone who studies law firms and law schools, I think the old order is breaking down.  One hundred years ago, the national law schools separated themselves from other law schools by requiring undergraduate education as a condition of admission.  These schools also hired full-time faculty who worked on the first generation of Restatements of Law, legal treatises, the uniform state law movement, and eventually the New Deal legislation and the creation of the modern administrative state.   Although most lawyers during this period began their careers as solo practitioners, the small proportion of paid law firm jobs (less than 5% of all lawyers in private practice) went to national law schools graduates.  Why?  Because these graduates received an objectively better education.

By the mid-1950s, the American Bar Association (ABA) and the American Association of Law Schools joined forces to institutionalize the national law school model and make it the standard for entry into the profession.  This is the origin of the undergraduate requirement, the three-year JD degree (replacing the LLB), and full-time law faculty committed to legal scholarship.  With the rise of the great public law schools, which lowered the economic barriers to full-time legal education, and the advent of the LSAT, which reduced the number of admittees who would flunk the 1L year, the United States enjoyed an enormous surge in the number of highly capable, well prepared lawyers.  These lawyers, in turn, were integral to the development of the highly dynamic, regulated U.S. economy that emerged during the second half of the 20th century.

Today, however, we have a new set of problems that requires a new kind of lawyer.  Our global economy is interconnected and complex that we need law more than ever, yet clients and governments will go broke trying to buy or supply legal services under the traditional time and materials model.  We need methods for facilitating transactions and resolving disputes that are better, faster, and cheaper.  This requires a broader range of skills (team work, emotional intelligence, leadership, followership, peer and client communication) and knowledge (statistics, information science, systems engineering, marketing, finance) than are currently taught in the biggest brand name law schools or offered to clients through the most prestigious law firms. 

As lawyers, are we providers of an established set of legal services, or are we, more broadly, problem solvers? The former is mere subset of the latter.  Further, the latter is more valuable.  All around me I see lawyers, especially young lawyers, figuring this out.  In the years to come, they will be the people who solve some of the most significant challenges of the 21st century and, in the process, create the next generation of powerful legal brands.  Will one of those lawyers be you?

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