Saturday, April 14, 2012
I am spending the weekend in Miami at the Law Without Walls (LWOW) ConPosium. What's LWOW? Not an easy question, but here it goes: LWOW is a completely new forum and methodology for teaching, learning, collaborating and -- most importantly -- spurring innovation in legal education and the legal services industry. Twelve U.S. and foreign law schools are involved, with Miami Law taking the lead. LWOW is part law school class, part idea laboratory, part networking venue, and part case competition. I struggle in vain to find an adequate metaphor.
What's a ConPosium? It's LWOW's annual penultimate event. Over the course of the weekend, students present their "Projects of Worth" to a large audience of students, lawyers, law professors, regulators, business executive and entrepenuers. The presentations are evaluated American Idol-style by a panel of experts, including -- yes -- a handful of venture capitalists. Thanks to the efforts of LWOW founders Michele DeStepano and Michael Bossone, the weekend also is an amazing aesthetic experience -- a theater of sofas and overstuffed chairs, inspiring music, multi-media stimuli, and a nonstop train of cleverly presented ideas from students, professors, judges and the audience.
As an educator, the most exciting facet of the LWOW format/methodology is that it pressures law students to be creative and economically viable. (Understatement: these topics are generally not covered in law school, especially the latter). Not all ideas are good; and good ideas by themselves are not enough. As the venture capitalists tell us, nine out of ten good ideas fail due to lack of execution. To survive, hard questions have to be asked, and the answers provided have to be realistic and accurate. And then there is follow-through. That requires passion.
LWOW is a grand experiment. 20 years from now, the DNA of a lot of innovation in legal education and legal services will be traceable to the seemingly impractical ideas that were trial-ballooned here. And one or two may be brand names in a few short years. So cool.
[Posted by Bill Henderson]
Friday, April 13, 2012
Jordan Furlong, Law 21, in a post entitled "Losing the Confidence Game": "Here are six observations about the legal marketplace for you to consider, each supported by a news report filed just in the last few days ... ." Furlong is a Canadian-trained lawyer, journalist, and consultant. He is one of the most networked observers of the legal services industry I know.
Ron Friedmann, Strategic Legal Technology, in a post entitled "Does BigLaw have a Future?" The answer is yes, but in way that is hugely disruptive to our settled views of how things work. Ron, who has worked at the intersection of law and technology for 30 years, writes:
Some firms may fade, some may implode, but others will thrive. Thriving, however, requires thinking and innovating. Some are doing so as these examples and data illustrate:
- I count 10 firms that operate low cost, centralized service centers, some of which provide lawyer support as well as business services. ...
- About a dozen firms, perhaps more, have industrialized their approach to e-discovery and document review.
- Several firms now take project management seriously. ...
- Three firms now offer alternative staffing models, arguably competing with staffing agencies. ...
- About one-half dozen firms have publicly announced partnerships with legal process outsourcing (LPO) companies.
- I understand about a dozen firms now have pricing specialists to deal with alternative fee arrangements.
Patrick Lamb, The New Normal, in a post entitled "A 'Valorem Dozen': The Ingredients of One New Normal Law Firm." Lamb, a talented trial lawyer and former large law firm partner, lays out the how-to kit for alternative fee boutiques. At a minimum, running an alternative fee shop requires slaying inefficiencies, embracing market forces, and developing a broader set of skills. Here are some of Lamb's bullet points:
1) Sell what is valuable to your clients. No client has ever gone to a law firm looking simply to buy time. They go to lawyers to solve business problems that involve some legal issue. ...
3) Embrace the $60-per-hour-lawyer. ... [Y]ou can get great lawyers at a much lower price[ ]. You don't need to have these lawyers as employees, you just need to have access to them when you need them, for as long as you need them. ...
9) Collaboration is key. Most large firms, indeed most firms of any size, are a collection of silos ... We believed that if our senior people brainstormed and collaborated together, great things would happen and we would produce work and results better than any of us would do alone. ... Hindsight shows that we were right on the money on this issue.
Folks, structural change in the legal profession is happening very quickly. We legal educators need to spend a substantial portion of our time talking to people working in the legal services industry. Every conversation should expand the list of who to talk to next. And we need to put our pet theories and ideas on the shelf and just listen to what these lawyers and legal service vendors have to say. Otherwise, in five years, traditional legal education is going to look like General Motors circa 2008.
[Posted by Bill Henderson]
Wednesday, April 11, 2012
Our friend Nancy Rapoport (UNLV, below), former dean of the law schools at Houston and Nebraska (and Ohio State Buckeye fan, but we won't hold that against her), when she's not winning dance competitions, has some ideas about changing the template in most law schools: Changing the Modal Law School: Rethinking U.S. Legal Education in (Most) Schools. Here's the abstract:
This essay argues that discussions of educational reform in U.S. law schools have suffered from a fundamental misconception: that the education provided in all of the American Bar Association-accredited schools is roughly the same. A better description of the educational opportunities provided by ABA-accredited law schools would group theschools into three rough clusters: the “elite” law schools, the modal (most frequently occurring) law schools, and the precarious law schools. Because the elite law schools do not need much “reforming,” the better focus of reform would concentrate on the modal and precarious schools; however, both elite and modal law schools could benefit from some changes to help law students move from understanding the theoretical underpinnings of law to understanding how to translate those underpinnings into practice. “Practice” itself is a complex concept, requiring both an understanding of the law and an understanding of how to relate well to others. Because law students may not understand how to relate well to those with different backgrounds from their own, law schools should do more to explain how one’s perspective is both limiting and mutable. Too many law schools suggest that students can “see” different perspectives by, essentially, merely thinking harder. The essay concludes with some suggestions regarding possible reforms of U.S. legal education, focusing primarily on the modal law schools.
Interestingly, one theme in Nancy's piece is that students don't get those contextual and non-legal skills from their undergraduate liberal arts education. Scott Greenfield at Simple Justice either disagrees or doesn't think it matters to a lawyer, judging by an interesting reaction to my post on the increasingly interdisciplinary nature of law practice. And coming from the standpoint of doing "New York criminal defense," he may well be right. I'd agree that there is a segment of the law - mainly litigation, and particularly criminal litigation - that doesn't need to see a whole lot of change in the doctrinal approach, and would benefit from students' intense and relatively narrow exposure toclinics or other intern-like experiences. But that's looking at the legal profession and its place in the rest of the - sorry, Scott - increasingly interdisciplinary world through the wrong end of the telescope. I don't expect anybody to buy it merely on my authority (a wobbly stool to be sure), but I spent 26 years out there in the real world as a real lawyer. It's that experience, not academic theorizing, that's the basis for the conclusion that Nancy's assessment is likely correct, and that more and more of what the vast majority of lawyers is going to be doing sits in the overlap of that Venn diagram.
I'm reposting here Alan Childress's note from Legal Profession Blog on several books, re-issued and new, about the profession.
Cynthia Fuchs Epstein (CUNY, Sociology) has republished her classic and foundational study Women in Law as part of the Quid Pro book project. It adds a new Foreword by Stanford's Deborah Rhode. Excerpt on the demise of 'Ladies' Day' in law schools, and other info, found at MsJD blog. And the book itself is at Amazon in paperback or Kindle, plus B&N for Nook and Apple iBooks. Although the book certainly covers women as law students and in law teaching, most chapters are about professional practice as such, in firms, solo practice, public interest work, government, and the judiciary.
Also out in paperback is a book I edited, written by Tulane students: Hot Topics in the Legal Profession 2012. Those two are the newest ones on topic with the U.S. legal profession. Upcoming is a reissue in paperback of Llewellyn's The Bramble Bush, though already in Kindle and other ebook formats.
Today's morning reading provides a vivid example of how the Law & Society research, if deployed in the right way, can help the legal profession cope with large scale structural change. An article from the Triangle Business Journal [Research Triangle in NC] highlights some recent stories documenting the movement away from the billable hour. The reporter then canvases Research Triangle companies and comes up with this trend-line from GlaxoSmithKline, a Fortune 500 pharmaceutical company:
GlaxoSmithKline, the pharmaceutical giant whose U.S. headquarters are in Research Triangle Park, is one of the large corporate clients driving the move toward flat fees. GSK (NYSE: GSK) spent 63 percent of its outside legal budget under alternative fee arrangements last year, up from less than 3 percent in 2007, the year before the recession fully hit and the last full year before Dan Troy took over as GSK’s general counsel.
From 3% in 2007 to 63% in 2012? This is BigPharma, one of the most heavily regulated industries in the world; products liability lawsuits are as certain as the sun rising in the East; international trade and government contracts are essential to its survival. This is roughly $300 to $500 million in outside counsel legal spend shifted from billable hours to some alternative fee structure. This is money law firms need to survive -- although law firms might not want to dump the billable hour [translate: assume some of their clients' risk, which is not what businesses want to do without a price premium], they'll gladly do it if the alternative is extinction. The article also quotes IBM GC Don Lui, “For us, it’s no longer a necessity just because of the recession. It’s now part of the normal process.”
So here is the opportunity for Law & Society [aka "law in action"] scholarship: This massive shift needs to be studied, described, theorized, and simplified so it can be understood, not only by students, but also by other industry actors. BigPharma, manufacturers, and insurance companies will come first because the inefficiencies and lack of innovation spawned by the billable hour represent a significant sum that could potentially fall to a company's bottomline. But eventually, like water running downhill, the innovations spawned by their legal department will become mainstream. It is hard to overstate the important of understanding the process of adaption--i.e., separating what works from what doesn't and explaning it with a sound, empirically based theory. Our graduates have to be able to deal with change, and advise clients on how to cope with legal/business implications of change.
So here are some of the pieces of the agenda:
- Step 1 is going out and talking to people. Law schools have huge advantage because we have people called "alumni" who, like everyone, enjoy talking about themselves and their problems. A good L&S researcher likes to listen.
- After building a pipeline for this type of research, we [law schools] use it for a "needs analysis" for legal employers. A needs analysis is just answering a question with facts, not opinions: What knowledge, skills and experience do these lawyers need to cope with the heighten complexity documented by the L&S research?
- The needs analysis for employers provides the basis for a needs analysis for any law school, though the nut of it is not hard to foresee: lawyers of the future, or knowledge workers with legal expertise, will need tools to help them do more with less. This is about innovation and designing/building/managing solutions to legal/business problems.
The stretch here for L&S researchers, or legal academics generally, is to do fact-based research with an eye toward making real world decisions on how to allocate time and resources. And the first decision on that front is how to allocate our own time and resources for the good for our own institutions.
[Posted by Bill Henderson]
Tuesday, April 10, 2012
I recently posted an essay that explains structural change in the legal profession uses a historical narrative and simple supply-demand framework. Unlike my other academic work, this essay is short and accessible (not a single table or chart). Many thanks to the many faculty workshops that helped shorten and sharpen the message. The abstract:
A simple framework for understanding the U.S. legal profession is gradual progression through three generations of lawyers: the generalist, the specialist, and the project manager. The transition from one generation to the next is driven by the familiar story of supply and demand. The generalist era (colonial period to the end of World War II) gave way to the specialist era (post-War to early 2000s) because of a shortage of sophisticated business lawyers capable of serving the needs of large, growing, and increasingly regulated industrial and financial clients. Over a period of several decades, leading local practitioners with business expertise transformed their small local practices into regional and national powerhouses. The common feature of all these transformations was an associate-partner training model, which enabled firms to build sufficient human capital to keep pace with -- and thus profit from -- the legal needs of their clients.
In contrast, the U.S. legal profession is now in transition from the specialist to the project manager era. This era is driven by the need for clients to obtain more and better legal work at a lower and more predictable cost. To keep pace with these new client needs (i.e., demands), lawyers working for large corporate clients will increasingly layer their specialized legal knowledge with the skills of the project manager. To the extent that outside lawyers and law firms resist this gravitational pull -- perhaps because they are too wedded to the success and prosperity of the specialist era -- they will lose their seat at the economic table. Thus, as the project manager era unfolds, old hierarchies in the U.S. legal profession will fall and new hierarchies will be created.
[Posted by Bill Henderson]
Monday, April 9, 2012
I provide this as a public service.
I just got an e-mail that looked just like the usual notice from Amazon that an item has shipped. The shipping address was not to my house, however.
My first thought was that somebody had hacked my Amazon account. When I clicked on "track my orders," it redirected me to some bogus site and then quickly to my Amazon log in page. I then looked back at the return email address and it was from somebody at a yahoo.com email address. No doubt this is designed to get your Amazon user name and password.
I've since changed my Amazon password and confirmed that indeed there are no open orders.
Posted by Jeff Lipshaw
With apologies to the Car Talk guys (particularly Ray who starts each show this way), this is from the "I wish I had thought of that first" department here at The Legal Whiteboard.
Mark Herrmann (left)*, chief litigation counsel at Aon, a former Jones Day partner (he did products liability litigation for us when I was at AlliedSignal going nigh on twenty years ago), author of The Curmudgeon's Guide to Practicing Law, and now "firstname.lastname@example.org," has posted an open letter to the University of Chicago Law School requesting that it finally remove him from the wait list for the entering class of 1979.
I could send that same letter to Yale.
* Apropos of almost nothing except the parenthetical reference to the location of Mark's picture, the Boston Globe this morning ran a story on Planned Parenthood's endorsement of Elizabeth Warren over Scott Brown in the Senate race here in Massachusetts. I don't know if the editor meant to be making a statement with the following caption (which also appears on the web site, where if it were a directional reference it should have been "above"): "'We’re excited to be endorsing Elizabeth Warren (left),’ said Dianne Luby of the Planned Parenthood Advocacy Fund."