Wednesday, November 27, 2013
If you have the courage and curiosity to understand the breadth and depth of the changes taking shape in the legal market, then I would encourage you to use some of your Thanksgiving break to read "Recalculate the Future of Law," which is Insight Lab's interview with MSU Law Professor Dan Katz.
It is all-too-easy to believe that innovation occurs in the wake of a great idea, but that is not quite right. Innovation is also about timing and understanding how human institutions are held together and change and evolve. If the innovator has the benefit of timing and understands how human institutions actually work, an effective adoption strategy is possible.
Fortunately, for Dan Katz, all of these factors appear to be in alignment. Katz is acutely aware of his timing and the myriad of factors that enable innovation to take hold. He is also young (35 years old) and has the courage to place very large bets -- the largest bet being that he is not waiting to get tenure before starting his life's work. He is doing it now in his third year of teaching.
But to mind, there is some additional secret sauce. What makes Katz so disruptive is his 100% personal commitment to the growth and potential of his students. He is awaking the sleeping giant -- hope and a sense of purpose for young people. Specificially law students. If you are in his ReInvent Law Labratory, you see a different legal landscape with a whole lot more options. But to tap into that hope, Dan makes you do the work. You have to challenge yourself. And you have to shed the bullshit phobia over basic math. He is building a community of interest that has the potential to morph into a movement driven by young lawyers and law graduates. For more on Katz's unusual bio, see "This is just an education design problem," LWB, Sept 23, 2013.
The interviewer over at Insight Labs got pretty close to the full, uneditted Dan. If you want to learn about the underinvestment problem that is undermining BigLaw, the crucial role of start-ups in the emerging field of legal R&D, how the next generation of law students can do well and do good, or the real hazards of the $1 Million JD debate, give it a full read.
November 27, 2013 in Blog posts worth reading, Current events, Fun and Learning in the classroom, Innovations in law, Innovations in legal education, New and Noteworthy, Structural change | Permalink | Comments (2)
Sunday, November 24, 2013
That is the title of a panel at the Annual Georgetown Advanced E-Discovery Institute conference. In an article in Law Technology News, Monica Bay does a wonderful job summarizing what appears to have been a lively, thought-provoking discussion. I can't do better than Monica, but I so want to highlight some of quotes that really caught my eye:
[DC Federal Magistrate Judge] Facciola served as moderator, and threw the first question at Butterfield [partner at Hausfeld], who dove right into a discussion of the explosion of data creation, citing a laundry list of impressive facts, including that "every minute of every day Google receives two million queries ... 571 websites are created every minute ... and more than 200 million emails are sent every minute. We are communicating in ways that didn't exist 20 years ago," he said. ...
Facciola asked Butterfield if he was troubled by the outsourcing of e-discovery to nonlawyers and/or machines. "I do see the tension because lawyers must certify the work," Butterfield acknowledged. ...
Facciola then turned to [SDNY District Court Judge Shria] Scheindlin, who shifted the focus to the courts. "All cases are now e-discovery cases," she asserted. "Even the littlest cases have e-discovery, everyone has to know how to do it," she said. ...
Scheindlin said we are entering an era of a divide between the "technology haves and technology have-nots," and noted that small firms may not be able to afford the start-up costs that e-discovery requires. She reminded the audience that not every litigant can afford a lawyer. "Twenty-five percent of my cases are pro se," she said. ...
Facciola then posed the question of whether lawyers as a group welcome technology and change.
"I think the reality is that most lawyers are not innovators and are afraid of technology," offered Redgrave. "There is a reality that to have continued value, lawyers need to understand technology. ... "
Asked Facciola: "Is this 'Star Trek'?" Scheindlin jumped in: "Of course trials will change—the question is, will we have trials anymore?" Scheindlin noted that routine technology, such as GPS, cellphones, Facebook and other location tools are changing our daily reality to the point where it's increasingly easy to prove facts. "There are no conversations any more, it's emails and texts. We will know where folks are," she said. ... Technology is making it so we always know where people are; thus no need for alibi witnesses." ...
Finally, lawyers need to abandon the "gladiator" role that is imprinted in law school, the panelists asserted, taking strong pokes at the current status of law schools.
"Do I think legal education is keeping up [with technology and cooperation]? Absolutely not....
Scheindlin warned academia that they need to get with the reality. "I think the notion of a two-year law school is coming, with the third year clerking." But, she qualified, "I wouldn't be surprised if law schools turn around. The younger generation is more tech savvy than we are. Many lawyers are technophobic, but the next generation is growing up with technology."
That was quite a provocative exchange, and not by legal futurists, but judges and practicing lawyers presiding over cases in federal court.
- How Do Law Professors Learn About the Intersection of Law and Technology?, LWB, Dec. 29, 2012.
Sunday, November 10, 2013
I think the answer is yes. For the last several years, I have been an avid watcher of Axiom's growth, but this article in Friday's Houston Business Journal finally convinced me that the top-end of the legal industry is changing and that Axiom is setting the standard for disruption.
On a surface level, many of the facts in the HBJ article are unremarkable. Axiom opened its Houston office back in May 2012. Since then, it has grown to 30 lawyers and expects to add another 15 over the next 12 months. Yet, during this same period, the boom in the energy sector has caused several national and international law firms to also open offices in Houston, including Reed Smith, Dentons, Katten Muchin, and K&L Gates,
Axiom and large law firms are definitely targeting and servicing the same clientele -- Fortune 100 legal departments. The substance of their work is also very similar -- sophisticated, complex legal work related to disputes, transactions, and compliance. But in many cases, the solutions offered by Axiom are radically different.
Okay, now a reasonable expectation of any reader is likely to be, "Now explain that difference." Back in 2010, Axiom's CEO Mark Harris told Law Practice magazine that Axiom was "trying to invent a whole new category of law firm. When you’re doing that there is no vocabulary [to describe your business model]."
In my experience, the opaqueness of Axiom's business model actually works to its advantage. Specifically, it encourages Axiom's primary competitors (large law firms) to put Axiom in a box based on an outdated caricature. That, in turn, gives Axiom more running room to fully implement the "whole new model." Let me start with the caricature; then I will do my best to explain what the company actually does.
The Inaccurate Axiom Caricature
In its early years, Axiom was described by many as a high-end "temp" service for legal departments. See, e.g., Peter Lattman, Axiom: A Different Kind of Legal Practice? WSJ Law Blog, Nov. 27, 2007 (describing Axiom as having developed "a niche as a provider of high-end temp services to blue-chip corporate clients").
The simplified version runs like this. Lawyers working in large law firms trade-in their partner status, or shot at partnership, for more autonomy and a better work-life balance. By brokering relationships between legal departments and skilled but disaffected lawyers, Axiom ditches the "class A" overhead and reduces the allocation of legal fees that would otherwise support record law firm profits.
Under this caricatured model, all parties are made better off -- the client (who gets the same quality work, but cheaper), the lawyers (who get off the billable hour trend mill and are able take vacations again), and Axiom (which collects a fee). The caricatured model also enables large law firms to dismiss the Axiom model on the belief that only a small tranche of legal work is at risk of being siphoned away. And that work is lower margin and price sensitive -- so-called "commodity" legal work. Finally, the lawyers leaving for Axiom are not the heavy-hitter equity partners who control client relationships. Hence, the analysis is complete: Axiom represents zero threat to the BigLaw model.
Yet, if brokering lawyer services was originally the core of Axiom's business, they have subsequently expanded their offerings. Back in 2007, Axiom was #73 on Inc magazine's list of fastest growing companies, with revenues of $17 million per year and 1000%-plus growth over three years. Since then, its revenues have grown another ten-fold. Earlier this year, Axiom took $28 million in outside investment, which it plans to invest in technology. See Mark Harris of Axiom Answers Hard Questions, Legal Whiteboard, Sept. 25, 2013.
With this kind of growth, and the backing of very serious venture capital funds, perhaps its time to check the assumptions surrounding the Axiom caricature.
The "Managed Services" Business Model
Based on my own discussions with Axiom management and several articles on the topic, see, e.g., Adam Smith, ABA Journal, Strategic Legal Technology Blog, the fastest growing part of Axiom's business is its "Managed Services" practice.
Part of the managed services practice is analyzing and redesigning workflows so that in-house lawyers have the cost and quality information needed to make better sourcing decisions. Because Axiom is helping to redesign the workflows, including the specifications for sourcing decisions, it is well-positioned to do much of the resulting work -- indeed, unless it can manage both the design and execution of the work flow, Axiom can't warranty the results.
What is the goal of the workflow redesigns? To reduce legal risk and legal cost at the same time, primarily through process, measurement, and feedback loops. Virtually the entire law firm and law school universe is stuck in a mental frame that believes that better, faster, and cheaper are in permanent tension with each other. This is because our mental frame of reference is based on artisan-trained lawyers working in a traditional office environment with Word, email, and a searchable bank of forms and briefs.
Yet, when systems engineers, information technologists, and project managers because equal members of the team, "better, faster, cheaper" becomes a straightforward problem that can be solved through a four-part continuous process: design, execute, measure, repeat.
Much of the key design and execution work at Axiom is done by nonlawyers who formerly worked for global consulting businesses. See, e.g., this opening in Axiom (Chicago) for Project Management Director of Managed Contracts.
Indeed, the head of Axiom's Houston office is Brian Bayne, a business development professional with an MBA from the University of Dallas. Before joining Axiom, Bayne worked for IBM. Here is how Bayne described Axiom to the HBJ:
"The heart of what motivates us as a company is to be seen as an agent of change ... . We want to be a leading voice for transition in the industry. It really is a new way of doing business and offers a completely different value proposition that most law firms are not in a position to do."
Is Axiom a Law Firm?
Over at the E-Lawyering Blog back in April, Richard Granat did a very careful job trying to answer this question, and concluded that the answer was "no." In fact, Axiom is a Delaware C-Corp with nonlawyer investors as equity shareholders.
So, how is Axiom getting around the Rule 5.4 ban on fee-splitting with nonlawyers? The answer to this question has a lot to do with the nature of outsourcing and managed services within legal departments. A general counsel for a corporation controls the legal functions of the company. Because he or she can't do all the work themselves, they hire in-house legal staff and outside counsel. In recent years, legal departments have also contracted directly with LPOs, particularly on matters related to e-discovery and M&A due diligence. When it comes to non-law firm options, such as LPOs, the general counsel and his or her staff are "supervising" the work within the meaning of the legal ethics rules.
When a general counsel of a corporation uses a managed service provider, such a Axiom, they are diverting a tranche of work they control. The value of the managed service provider is process expertise plus economies of scale and scope. Axiom, through a contract with the legal department, manages some of that legal workflow that supports in-house lawyers in their counseling and compliance roles. Yet, the buyer of the managed services is himself a lawyer, and that lawyer is ultimately responsible for advising the corporation on legal risk.
On one level, Axiom is a niche business. As Granat notes, "If you don't have an in-house counsel, then you can't use Axiom's services. Not being a law firm, Axiom cannot provide services to the public (individuals or organizations) directly." Yet, this niche accounts for a huge proportion of the entire legal services market. In this American Lawyer article, one of Axiom's venture capital investors, opined "With a worldwide legal market that is a trillion dollars each year, there is plenty of running room to build a successful business."
Ultimately, the value proposition very simple. As an in-house lawyer, you can educate yourself on the Axiom managed services approach and be comfortable that, through process and measurement, you have a solid handle on this tranche of the company's legal work, likely within budget. Or you can have the CYA coverage of a brand name law firm and continue to do battle with your CFO over rising legal fees. If you were an investor, which approach you would bet on?
So Axiom can't help you with your divorce, will, or personal injury case. Don't worry, Jacoby & Meyers, Legal Zoom, Legal Rocket, and others are trying to tap into that market. See Legal Futures, Nov 8, 2013. In the meantime, Axiom may be gunning to be a service provider to your large corporate employer.
The Last Days of a Bloodless Revolution
I am sure that a state bar regulator, taking a very formalistic approach, can take issue with Axiom's construction of Rule 5.4, which prohibits profit-sharing between lawyers and nonlawyers from income generated from the practice of law. But the purpose behind Rule 5.4 is to preserve lawyer independence so that the quality of the underlying legal advice won't be compromised by the nonlawyer's pursuit of profit.
In the case of Axiom, however, the person making the buying decision is a highly sophisticated lawyer who is struggling to manage his or her organization's legal needs within a budget. Stated bluntly, the GC of a multinational corporation does not want the kind of consumer protection that a formalistic construction of Rule 5.4 would provide.
A betting person, such as a nonlawyer Axiom investor, would likely conclude that the bar regulators are not going to pick a fight with the largest corporations headquartered in their jurisdiction. Why would they? The subtext of economic protectionism would set them up for ridicule in the legal and mainstream press--who, exactly, is being harmed besides the law firms who are losing market share? And is there a principled basis to distinguish LPOs from managed services?
Expect to read more about state regulators in the "risk factors" section of Axiom's S-1 registration statement if and when Axiom decides go public. I think these risks will likely remain hypothetical, but as my friend Ed Reeser is known to say, "That is just my opinion. I could be wrong."
Truth be told, the nonlawyer revolution in U.S. legal services is occurring right now. And there is a good possibility that the whole revolution will take place without a single shot ever being fired.
Back to Houston
The HBJ reporter asked a local Houston legal recruiter about the future prospects for Axiom. The recruiter commented that he was "[n]ot sure how well they will do in Texas, given the conservative nature of the legal business here."
In my own experience, general counsel in Texas are among the most innovative and entrepreneurial in the country. The General Counsel Forum was originally founded in Texas as a state-level organization, and it is now rivalling the Association of Corporate Counsel (ACC) in terms of eduational programming for in-house lawyers and sharing best practices and benchmarking.
Lawyers as a group may be conservative, but within that distribution there is a small cadre of innovators and early adopters. Although most people don't change their behavior in response to abstract ideas, innovators and early adopters are at least drawn to the possibility. Not every idea will be successful -- indeed, the trial and error of the innovators is often a basis for dismssing them as fringe players. Yet, when an innovation produces a significant leap forward, the resulting success eventually sets off a widespread diffusion among the broader population.
There is a rich sociological literature on this topic, which was pioneered by Everett Rogers in his 1962 book, Diffusion of Innovation. It turns out that self-interest is often inadequate to overcome inertia and prejudice, at least in the short- to medium-term. The classic example is hybrid seeds, which have a host of advantages for producing more bountiful, disease-free crops. Yet, that innovation took decades to take hold among farmers.
Looking for another example? In the early 1980s, Bill James was publicizing the benefits of his stats-driven approach to baseball. The advertised benefits were clear -- "you can win more baseball games." Isn't that what every baseball team wants? But what's the cost? "Well, you'll have to change the way your evaluate talent." For nearly twenty years, the implicit answer of the baseball establishment was "no, that price is too high." Within the last decade, however, the stats-driven appoach has become commonplace in baseball and in other sports as well. The innovation has become diffuse.
I suspect that Axiom's senior management fully understands these dyanmics. Looking at the distribution model from Everett Roger's book, if you are trying to sell your unproven innovation, you are literally wasting your time trying to sell to your wares to 85% of the market. Indeed, if you are in the very early stages of innovation, 98% of the potential buyers are likely to be resistant to your pitch.
The problem here is not economics -- its human nature. This may be hard for many lawyers to believe, but lawyers, including general counsel, are human beings. And human beings are prone to a series of predictable reactions when presented with various stimuli, such as new ways to perform their work. Rather than process the merits of the idea, many human beings, including lawyers, will instead gauge the reactions of the market leaders. If the market leaders react with approbation, the early and late majority become willing to actually engage with the idea.
What this means is that the merits of a good idea are not enough to ensure its success, at least immediately. This is a key practical insight that the reformer/innovator class seldom grasps. Without understanding Roger's Diffusion of Innovation curve, an innovator's success becomes a function of timing and luck -- that is the story of Bill James.
But if you understand the diffusion process, it is possible to construct a filter that locates the innovator/early adopter class. And if you study their beliefs and problems, you can more effectively tailor your pitch. This approach saves time and money and holds the team together in the belief that they will ultimately be successful.
So, where is Axiom on the Rogers Diffusion Curve?
My best guess is the "early adopters" stage, as Axiom has relationships with roughly half of the Fortune 100 and is working hard to widen those relationships with more ambitious projects. Their goal, as best as I can tell, is to generate a clear proof-of-concept that they have solutions to the risk/cost conundrum that plagues so many legal departments and causes them to blow their budgets. With sufficient market testimonials, and as in-house lawyers with exposure to Axiom migrate to other legal departments, the broader legal market will begin to tip.
I find the Axiom story refreshing, primarily because the legal market has fallen under the spell of the fast follower strategy. In my travels, I often encounter the attitude "Let someone else prove that it can be done differently and better and then we will follow." When virtually the entire market adopts this worldview, incumbent institutions begin to relish the false starts of others and a general sense of complacency begins to set in. Frankly, I find this whole dynamic unprofessional is the classical sense of that word -- i.e., at variance with professional standards and conduct.
Axiom, in contrast, is on the brink of demonstrating the benefits of the first mover advantage in law. This is bound to have the beneficial, balancing effect on the rest of us.
- "LPOs Stealing Deal Work from Law Firms", Feb 6, 2013.
- Mark Harris of Axiom Answers Hard Questions, Sept 25, 2013.
November 10, 2013 in Blog posts worth reading, Current events, Data on the profession, Innovations in law, Law Firms, Legal Departments, New and Noteworthy, Structural change | Permalink | Comments (0)
Friday, November 8, 2013
Clayton Christensen is the Harvard Business School professor who wrote The Innovator's Dilemma, the seminal book on why successful businesses so rarely stay on top over the long term. Although focused on the tech industry -- where product cycles are very short -- Christensen's framework has a much wider application, including legacy industrial enterprises and countries. In 2011, Christensen published a book called The Innovative University, which applied the Innovator's Dilemma framework to higher education.
Below is a YouTube video of Christensen explaining his thesis to a conference in Dallas organized around the future of public universities. His talk is very long by online video standards (80 minutes) but worth the time of anyone who wants to understand the Christensen framework and its application to higher ed. At approximately minute 45, Christensen specifically mentions law schools. Below the video is some additional context on Christensen.
Remember that near presidential coup at University of Virginia, which was reported in the New York Times Magazine last fall (link)? Well, Christensen's ideas had begun to propagate within the university trustee community, thanks in part to a letter than Christensen and Henry Eyring had recently written to the American Council of Trustees and Alumni (ACTA).
As discussed in the New York Times article, the coalition that was animated by Christensen's ideas was ultimately defeated by the palace guards. But that was the first attempted coup at a major research university, not the last. As Christensen points out in the video, universities are feeling pressure from innovative models that "compete against nonconsumption." In other words, lots of people would like the knowledge taught in the great universities, but that demand goes unsatisfied because of selective admissions requirements, tuition, and geography.
MOACs are the first volley in figuring out this untapped market. Those that dismiss MOACs as irrelevant are missing the bigger picture of what early stage disruption looks like.
Specifically, according to Christensen, here is the recurring dynamic: the new entrants siphon off work from the bottom-end -- work that the high-end says it does not want anyway. The cycle repeats itself a few times until, much to the incumbents' surprise, the bottom-end becomes more economically relevant and powerful. Why does top-end let this happen? Because the incumbents have come to view success as elite status and high margins, which is an unrealistically high long-term bar unless you are continuously innovating. Eventually, the so-called high-margin niche becomes insufficient to sustain the enterprise, and giants fall -- see the automotive industry, steel, computer hardware, televisions, consumer electronics, etc.
That said, does the university model of education have a life cycle, or is it above these coarse market considerations? I think it probably does.
In the year 2013, lots of knowledge is free or incredibly cheap. Next year, even more, and so on for the foreseeable future. As a result, many people are able to become astonishingly knowledgable and skilled because of the sheer joy of learning and becoming more competent. It turns out that university credentials are a pretty noisy signal for knowledge and competence -- a small positive correlation, yes, but not much more. This is an information gap problem.
In terms of sheer productitivity, most employers would prefer the folks who are driven to learn and continuously improve. Google has already figured this out, as a substantial portion of their high-end workforce has never completed college. Google employs them for their abilities, not their degrees.
When opportunity is unbundled from university credentials -- i.e., the information gap problem described above becomes cost-effective to solve -- the demand for university education as it currently exists (expensive and in limited supply) will go down. From a social perspective, this is a good thing. But it means that universities will have to innovate in the years to come in order to justify our tuition and fees.
Sunday, October 27, 2013
There is an interesting article in The Times of India business section that says, essentially, large Indian corporations are realizing that legal strategy and compliance are too important to not elevate these functions to the C-Suite. As a result, the pay, influence, and prestige of in-house positions in India are now very much on the rise.
This is the same evolution that has occured in the U.S. over the last two to three decades, albeit the evolution appears to be occuring in India at a much faster pace. So any temporal gap in structure is unlikely to be permanent.
This dynamic reminds me of my visit to India in 2009, when Marc Galanter and I spend time with several law firm leaders. One of the most striking features we noticed is that all the name partners were alive and very much in their prime. (In the U.S., the equivalant year would have been roughly 1940.) These lawyers very much enjoyed being engaged on the future of India. And unlike the U.S. or U.K., where the market is now defined by league tables, the topic of money never came up -- granted these Indian lawyers were all making plenty of it.
One of the things most on the minds of the Indian law firm leaders was how they could create a vital, useful organization that would survive them. So, much to our surprise, the India law firm leaders discussed things like Kaplan Balanced Scorecard for determining partner compensation (based on the work HBS Professor Robert Kaplan). Another leading law firm, Nishith Desai, constructed its entire firm based on the best practices of professional services firms worldwide. This was the result of a 20-year reflection on this topic by the firm's founder, who is also still in his prime. See Nishith Desai, Management by Trust in a Democratic Enterprise: A Law Firm Shapes Organizational Behavior to Create Competitive Advantage, Wiley Journal of Global Business and Organizational Excellence, Sept/Oct 2009.
It was almost as if the Indian bar was skipping 100 years of evolution and instead decided to converge immediately on the state of the art. Well, the same may be happening in India legal departments.
Wondering what a Kaplan Balanced Scorecard looks like? Here is a good sample.
Tuesday, October 22, 2013
My colleague and collaborator, Chris Zorn, is teaching a course at Penn State called "Big Data & the the Law." It draws upon several disciplines, including the law. See BDSS. He has been telling me about the crazy creative projects that are taking root in this class, which includes aspiring statisticians, geographers, political scientists, sociologists, public health professionals, and information science folks (alas, no law students, though the course was open to them).
Data visualization is one of the lynchpins of big data interpretation. Below is a very good example. It was generated by Josh Stevens, a grad student at Penn State who is enrolled in the class. I am told this specific work flowed out of the GDELT hackathon hosted by BDSS a few weeks ago. Kind of useful for allocating scarce resources to reduce violent conflict. Uses both time and space. For the full context, see this post.
Sunday, October 13, 2013
General counsel from large legal departments are becoming increasingly skeptical of the value provided by leading brand-name law firms, such as the AmLaw 20 or the Magic Circle. That is the conclusion of some compelling research just posted on the HBR Blog Network, the online idea forum run by Harvard Business Review.
The research was conducted by AdvanceLaw, which is a company that vets law firms and lawyers on an as-requested basis on behalf of legal departments. Some of AdvanceLaw's clients include Google, Nike, Sherwin-Williams, Lenovo, Towers Watson, Mastercard, Panasonic, eBay, Mastercard, Deutsche Bank, McDonald's, Molson Coors, Nestle, Heinz, Clorox, Unilever, CSS, Starwood Hotels, etc.
AdvanceLaw is a good example of what Richard Susskind calls a "closed legal community." See Tomorrow's Lawyers, chapter 5. Some essential background on AdvanceLaw is discussed below. But I am sure readers want to see the data first. The reported research was based on responses from 88 general counsel, who answered two questions:
- How does law firm pedigree affect their buy decision for a high-stakes matter?
- Is law firm pedigree associated with more or less client responsiveness?
Below are the results posted on the HBR Blog Network:
Readers are probably wondering, "Who is AdvanceLaw and why are they asking these types of questions?" I have some intel on this topic.
AdvanceLaw was formed four years ago by Firoz Dattu, a Harvard-trained lawyer who spent time in BigLaw (Paul Weiss). Firoz eventually found his way to the Corporate Executive Board, which a publicly traded company (NYSE: CEB) that specializes in subscription-based research organized by industry and function. CEB uses the aggregated research for value-add services such as benchmarking and best practices.
Because they specialize in factgathering for strategy and management, CEB has a long history of employees leaving to start niche businesses. That is what happened here. Firoz helped launch, and ultimately ran, the General Counsel Roundtable (GCR), which is a CEB functional group that cuts across industries. I have been to a GCR meeting (it is invitation-only for outsiders). Suffice to say that a persistent theme of conversation was controlling legal costs without compromising quality. A seemingly tall order, right?
Firoz started AdvanceLaw because of perceptions by general counsel that they were being overcharged and underserved by large firms in the major markets. Any GC who has reviewed data from TyMetrix would quickly draw the same conclusion, as a large firm lawyer with 20-years experience in, say, Minneapolis often has a lower billing rate than a second-year at a mega-firm in NYC. AdvanceLaw has positioned itself as a trusted advisor that can provide reliable guidance in shopping for value outside the big brand-name firms.
So how does this service work? As noted earlier, AdvanceLaw is an example of a closed legal community. To get into the AdvanceLaw network, prospective law firms are run through a rigorous RFP process that evaluates things like expertise, innovation, quality, compensation systems, and track record on diversity.
If a firm makes the AdvanceLaw cut, they start getting assignments from participating legal departments. But here is the enormous differientator. Feedback is collected by AdvanceLaw and shared with the law firm and other AdvanceLaw legal departments. What is the effect?
- For law firms, changing their behavior to (a) protect their reputations, and (b) get more work.
- For legal departments, to the extent they are getting value, migration of their legal work out of pedigreed law firms in the major markets to lower cost yet high quality regional and super-regional firms. The savings are roughly 30-40% with no loss in quality and better responsiveness. Some of the winners in the AdvanceLaw tournament are listed here.
AdvanceLaw also has a globalization overlay, which has been created with GC assistance. For instance, in Argentina and India, AdvanceLaw works with quite prominent firms who also exhibit efficiency. In the UK and Canada, the firms are substantial players, but are slightly less pedigreed than the Magic Circle and Seven Sisters, respectively.
So let's boil down AdvanceLaw's business model into its simplest terms: It gathers information so they legal departments don't pay excessive prices for the CYA (cover-your-ass) benefits of hiring high-prestige Big Law.
CYA still matters, of course. But through AdvanceLaw, pedigree is being given a more accurate valuation. A likely large second-order effect of AdvanceLaw is the acceleration of AFAs through AdvanceLaw firms, as feedback (on quality) and publicity (to drive volume) is what is needed to make that transition.
Susskind is right. Closed legal communities are going to be major disruptors in the legal marketplace.
Monday, September 23, 2013
A few years ago I had the good fortune of teaming up with Rachel Zahorsky for a series of feature stories in the ABA Journal, including "Paradigm Shift" (July 2011), "The Law School Bubble" (Jan 2012), and "The Pedigree Problem" (July 2012). The fourth article, "Who's Eating Law Firms Lunch," is now online; and without a doubt it is my favorite.
Why? Because of the final vignette in the story, which features Dan Katz of ReInvent Law fame. We were sitting at the bar at the January 2013 AALS Conference in New Orleans when Dan told me this story. My jaw just dropped. Dan has faith in his students, just like Bellotti had faith in him. Dan believes, so Dan just does. No fear. No bullshit. It was, suffice to say, quite refreshing.
I am reposting the whole vignette in the hope that a few more academics, lawyers, and law students will read it. The title of the post is the last line in the story. To my mind, that Dan Katz line sums up the next ten years of innovation in legal education. Please keep reading until you get to that final line. The insight is worth the effort.
For the past two years, MSU’s Katz was the only full-time law professor who spoke at the LegalTech conference. Katz and Knake are creating a curriculum relevant to the emerging law and technology sector, albeit primarily for companies like Novus Law and Recommind, whose competitive advantage is rooted in process and technology.
Within the legal academy, Katz is an anomaly. Aside from his JD, he has a PhD in political science and public policy from the University of Michigan. However, he focused almost all of his graduate study on complex systems. It’s a relatively new scientific field that uses mathematical modeling to understand how a multitude of human and nonhuman factors interact and influence one another. Human society and the human brain are two examples of complex systems. Neither can be effectively modeled by conventional math or statistics.
The late Larry Ribstein at the University of Illinois was one of Katz’s early mentors. When he went into teaching a few years ago, Katz says, Ribstein told him: “I bet you must feel like an alien. I greatly admire your work. You are definitely on the right track. But the rest of the legal academy is just not ready for you.”
In June 2011, Katz joined the faculty at MSU Law. Michigan State partnered with the Detroit College of Law in 1995 and moved the law college into a building in East Lansing two years later. Though the school’s rebranding efforts did raise its profile, to most of the profession, MSU Law remains a nonprestigious regional law school located in the heart of the Rust Belt.
None of this dissuades Katz from his sincere belief that it is possible to turn any institution into the preferred recruiting grounds for the nation’s emerging law-and-tech industry.
“When I was 18 years old,” explains Katz, “I had the privilege of joining a transformative organization”— as a kicker for the University of Oregon football team, the Ducks. “We were in the Pac-10, but it’s in Eugene, Ore., where it is often cloudy and raining. We had no shot at all with the top recruits from Southern California. So coach Mike Bellotti had to figure out ways to stretch and optimize what some might call second-tier talent.
“Oregon is now a national powerhouse, but the seeds of that success were sown much earlier. It was difficult to be bigger or faster than USC or UCLA. So Coach Bellotti decided we would be better on the details of the game. We would be better conditioned and we would pay significant attention to special teams. Our emphasis on special teams got us better field position. And by the third or fourth quarters, our opponents would have their hands on their burning legs. But because of our conditioning regimen, we had more stamina. Our success became contagious. Over time, we were able to get prized recruits. It was a culture of innovation.”
During Bellotti’s tenure at Oregon, from 1995 to 2008, the Ducks had only one losing season, blotting out decades of mediocre performance. The year that Katz graduated, the Ducks were co-champions of the Pac-10, a feat that makes him beam with pride.
Katz’s “secret sauce” for ReInvent Law is arguably much more important than a degree in complex systems. He looks at the 25 students entering the ReInvent Law Laboratory as raw human potential. Katz also actively recruits potential law school applicants to his program, though he declines to discuss his strategy.
Katz understands that the most attractive candidates for the law and technology sector are those with special skills that are often obtained through prelaw work experience. “But there is no reason why some of those key skills and experiences cannot be learned and obtained right here,” Katz says of the MSU program.
He notes that virtually all law students have high cognitive ability. He feels the key to their future success is mastery of domain-specific knowledge—often in areas that are complementary to law—and the ability to collaborate across disciplines. This requires engagement and an immense amount of time spent on the task. So how does one develop the educational program that will prepare the law student for legal-tech jobs—some that may not yet exist?
“This,” Katz says, “is just an education design problem."
Tuesday, September 17, 2013
Sunday, June 30, 2013
As noted in Part I of this post, the competitive dynamics among law schools are about to change due to a combination of two factors: (1) the ABA's collection and publication more granular data on school-level employment outcomes, and (2) the decision by U.S. News to make JD Bar Passage Required and JD Advantaged the primary measures for the employed-at-9-months input to its rankngs formula.
The histogram below reveals a near perfect bell curve for this revamped US News
input [click on to enlarge]. This is a huge change from prior years
when schools were all bunched at the 95% level because employment of any
kind was all that mattered. Under the old methodology, any law school that
limited itself to full-time, professional law-related jobs would have
plummeted in the rankings 10 to 50 spots.
Because spring 2013 was the first year with the new methodology, the impact of the change is not well understood. The most stark fact of the new environment is that the full-time, professional law-related jobs are in short supply. Among the class of 2011 (the stats used for the 2013 rankings), this desirable outcome was achieved by only 63.0% of graduates. When we subtract out full-time, long-term law-related professional jobs funded by law schools -- a luxury that only a small number of mostly first-tier law schools can afford -- the total drops to 61.9%.
Digging deeper, some other significant patterns emerge.
The vast majority of law schools feed into the regional labor markets where they are located. In places like California, those markets are saturated.
Among the ABA-accredited law schools in California, 46.5% of the class of 2011 obtained full-time JD Bar Passage Required jobs. The comparable figure for the remaining ABA-accredited law schools was 56.0%. Likewise, there is also a disparity for JD Advantage jobs: 6.2% in California versus 8.3% for schools in all other states. In fact, among the 19 ranked California law schools, only four -- Stanford, UC Berkeley, USC, UCLA -- are above the 63.0% average for full-time, professional law-related jobs.
Based on these data, it should come as no suprise that no law school located in California went up in the 2013 U.S. News rankings. Stanford, USC, and Santa Clara hung onto their ranking, but 11 California law schools dropped, with an average decline of 11 spots. Five other Calfornia schools remained in the unranked fourth-tier category.
In contrast, some of the biggest winners in the methodology change were flagship public law schools that are relatively big fish in smaller regional markets. Students at these schools tend to stay in-state and get JD Bar Passage Required jobs at rates far higher than the 54.9% average for the class of 2011 average.
Below are the top 15 non-national public law schools based on the proportion of FT Bar Passage Required jobs.
Between 2012 and 2013, the average rankings gain for the above schools was +9 spots. Among this group, the only school to go down in the rankings was ASU Law (-3). And that decline was largely due to the fact that ASU reported a 98% employed-at-nine-months figure for the class of 2010--a figure that drew suggestions of aggressive gaming. See Brian Tamanaha, When True Numbers Mislead, Balkanization, April 2, 2012.
The heavier weighting for JD Bar Passage Required jobs also benefits a handful of lower-ranked private law schools that are practice-oriented and tend to feed smaller firms within their regional areas.
- Campbell (71.4% FT bar passage jobs) went from unranked to #126.
- South Texas (64.4% FT bar passage jobs) went from unranked to #144
- St. Mary's (78.3% FT bar passage jobs) went from unranked to #140.
Part-Time Law Schools Dominate JD Advantaged Jobs
JD Advantaged Jobs count the same as JD Bar Passage Required Jobs. But what, exactly, is included in this category? According to the ABA,
A position in this category is one for which the employer sought an individual with a J.D., and perhaps even required a J.D., or for which the J.D. provided a demonstrable advantage in obtaining or performing the job, but which does not itself require bar passage or an active law license or involve practicing law.
See ABA Class of 2012 (definitions). Many professionals enroll in law school on a part-time basis to improve their career prospects. It should be no surprise, then, that schools with part-time programs tend to be the largest producers of graduates with full-time JD Advantage jobs. In many cases, it is the full-time job that the student held during law school -- and presumably retains upon graduation -- that confers the advantage.
Of the top 10 schools based on the percentage of JD Advantage law school jobs, eight had part-time programs and the other two were located in a state capital, which tends to increase the number of opportunities related to government and public policy.
The schools listed above gained an average of 3.5 spots in the rankings, albeit the average is pulled down by the inclusion of Southwestern, which had to weather the brutal California legal market.
It is worth noting that the percentage of JD Advantage jobs is negatively correlated with the percentage of JD Bar Passage Required Jobs (-.33) .The table below summarizes the differences between schools with Part-time versus Full-Time only programs.
The higher percentage of JD Advantage jobs (10.1% versus 6.9%) for schools with part-time programs is unlikely the results of chance, as the differences in means are statistically signficant at p < .001. But what does this inverse relationship mean?
programs tend to be affiliated with lower ranked law schools, which in turn would produce a lower average percentage of JD Bar
Passage Required jobs. Yet, part-time programs are also in larger,
urban locations. Thus, in addition to the continued employment of
part-time students with their current employers, the sheer proximity to
large, specialized regional economies probably increases the proportion
of JD Advantage jobs. Indeed, any school in an large metro area would
be foolish to ignore the human capital needs of non-legal employers, as
knowledge of the law is very helpful in navigating through an ever more
complex, regulated, and interconnected world.
What is the Best Strategy for Maximizing Full-Time, Professional Law-Related Jobs?
Largely through happenstance, the ABA and U.S. News have created an environment where law schools have to ask this basic but very important question. Part-time jobs will no longer cut it. And few law schools have the cash to hire their own grads full-time for a year past graduation -- and if they do, there are probably better uses for the millions of dollars needed annually to prop up a school's ranking.
The new gold standard employment outcome is full-time, long-term professional law-related jobs. The issue of how to maximize this outcome is so pressing and intricate that it may warrant trade-offs in the admissions process, favoring students will lower credentials but more rock-solid employment prospects on the backend at graduation. This is the topic I will take up in Part III.
[posted by Bill Henderson]
Friday, May 31, 2013
That's right, law students now have an opportunity to add hands-on e-discovery training to their skill set. Surely, a first-of-its-kind program is being offered by one of the 200 ABA-accredited law schools struggling to adapt to a changing legal market, right?
Well, actually, no. It is being offered by Bryan University, which began life in 1940 in Los Angeles as a stenography school for court reporters. It subsequently evolved into Bryan College, which offered associates degrees in various vocational tracks. More recently, it has received accreditation as a university, with a masters degree in applied medical informatics and a cetificate program in e-discovery. Both are offered exclusively online.
The e-discovey certificate program has some interesting features (press release here).
- It's an actual graduate program. Enrollment is limited to law students who have completed a course in civil procedure (so, functionally, 2Ls and 3Ls) or, at most, completed their JD studies in 2013.
- It's real-world relevant. The program is organized around the Electronic Discovery Reference Model (EDRM), which is a detailed yet evolving set of industry standards that flow from nearly a decade of meetings involving literally hundreds of major and minor players in the litigation industry -- law firms, tech start-ups, Fortune 500 companies, consultants, etc. I have been at an EDRM meeting. Just learning the arcane, technology language of this massive subfield could itself a big value-add for students.
- Students learn how to use tools. The program is an immersion experience in which students will learn how to use high-end software related to predictive coding and machine learning; after that, they move to human review using another industry software suite. This event is supported by several legal vendors, mostly software providers, because they want their tools to become industry standards. Lexis and Westlaw used this same playbook 30 years ago.
- It's compact and efficient. The program meets online in real-time two hours a day, four days per week, for four weeks.
The faculty is comprised of practitioners and technicians in the e-discovery business, not full-time law professors. The tuition is $1,495 (very cheap if measured by contact hours), which can be paid online via credit card. Alas, May 30th was the last day of registration!
Signficance of the Bryan University program
Is the Bryan University e-discovery certificate program evidence of law's slide into vocationalism, or are 200+ ABA-accredited law schools missing the boat on the future of law? This may frame a provocative debate among academics, but it gets us quickly onto the wrong track.
Let's separate changes in the legal economy from debates over academic identity, which tend to arouse our emotions. In other words, let's respond to these circumstances like level-headed lawyers and acknowledge the substantial evidence that the world of lawyering is changing in dramatic ways. If this is true, by extension significant changes to legal education are likely on their way.
If we focus on facts, Exhibit #1 has to be access to justice. Resolution of disputes through state and federal courts --the paradigmatic work of lawyers -- has become prohibitively expensive for the vast majority of U.S. citizens. Further, it is now getting a too rich even for major corporations. Part of the problem is proliferation of electronically stored information (ESI). Finding and analyzing the law, it turns out, is the easy part. We teach that in law school. But in this permanently digital world, facts never get lost. Rather, they accumulate. This creates large problems for litigants.
Instead of redesigning our judical system to deal with this challenge -- something a conservative legal profession is loath to do without a decade or two of deliberation -- we are now witnessing the rise of a massive industry of legal vendors trying to make electronic discovery more efficient.
Exhibit #2 in our factfinding journey is that a huge proportion of these new legal vendors are owned and controlled by nonlawyers. See Henderson, Losing the Law Business. It turns out that the MR 5.4 ban on fee-splitting is, to a large extent, not much of a barrier at all. Virtually everything up until the courthouse door or the client-counseling moment can be disaggregated and turned into a process or product delivered by a nonlawyer vendor adept at technology and systems engineering. Because there is so much money to be made by the application of technology and process to legal problems, the nonlawyer genie is not going back into the bottle. It is time to accept that fact.
Below is a chart I use in a lot of presentations to law schools and bar associations.
The point of this chart is very simple. A legal services industry has arisen around the traditional legal profession. Now, increasingly, the word "service" is falling out because products and mechanized processes are taking their place, driving up quality, and driving down cost and cycle time. Society wins. Lawyers adapt.
So, at a practical level, what does all of this mean?
Let's start with the good news. Law is not going away. In a highly interconnected, complex globalized world, law is actually becoming more important.
But here is the realistic inner lining. Law is also suffering from a productivity imperative. The average citizen -- including the typical lawyer -- can't afford to engage the services of an artisan lawyer. And large firms filled with high-priced artisan lawyers are becoming a less attractive option for even large corporations. They want better, faster, and cheaper legal solutions.
So, for law professors anyway, here is the bad news: Training artisan lawyers -- what U.S. law schools do -- is indeed a mature industry. The U.S. economy can't fully absorp 45,000 law graduates per year, at least not doing traditional artisan-type legal work. So, if we want reliable employer demand for our graduates, some retooling needs to take place. Is the retooling process hard and complicated? Absolutely. Does this type of change occur in other industries? Yes, as reliably as the sun rising in the east. Now is our turn.
How do we retool?
The most difficult hurdle is just accepting the need to change. It's purely an emotional obstacle. The cheese has been moved. It's gone. It will not reappear. We need to find new cheese. Not familar with the reference? See Who Moved my Cheese.
The next step is just showing up to industry events and accepting the fact that we are not the smartest person in the room, at least when it comes to intersection of technology, process design, project management, knowledge management, big data analytics, machine learning, and modern law practice, etc. Instead, it is time to just soak and poke. Practically speaking, this means listening to others and trying to decipher patterns that simplify and unify what we are observing.
Third, with the help of some adjuncts we deputize along the way (both lawyers and nonlawyers), we design and offer some new courses that capture these new realities. Fumbling through a very crude version of this methodology, I taught project management back in 2010. Not only was it a lot of fun, I learned new skills, both as a problem solver and as a teacher, made dozens of industry connections that opened doors for my students, and obtained a more realistic view of the legal profession. In short, it changed my life -- for the better.
Fourth, a subset of the legal academy needs to really dive into the topic of institutional design. The rise of the e-discovery business is entirely a artifact of how our legal system is structured. Perhaps it is time to think about better ways to resolve disputes and facilitate transactions. See, e.g., Disputes in the credit care industry. To me, law schools are the exact right places to think about, and wrestle with, these critically important issues. These are mountains just waiting to be climbed by the next iteration of law schools and law professors.
Fifth, with some smaller victories under our belts, we need to collaborate with colleagues to begin the messy process of organizing our new insights into a coherent curriculum that produces graduates with the most valuable skills sets in the shortest supply. With a world ramping up in complexity, I doubt these will be vocational skills. That said, we are probably a decade or two away from a more settled law school curriculum. But we will get there, and when we do, we will be incredibly proud of what we have accomplished.
[posted by Bill Henderson]
Monday, May 20, 2013
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]
Wednesday, April 17, 2013
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
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.
Monday, April 1, 2013
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.
Thursday, February 28, 2013
Sunday, February 24, 2013
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]
Wednesday, February 13, 2013
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:
- Third Year Curriculum
- Ranking / Prestige
- Quality of Life
- National Reputation
- Job Placement
- General Cirriculum
- Clinical Program
- Financial Aid Award
- Size of Lexington
The curriculum reform was first. Financial aid awards were 9th, 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.
February 13, 2013 in Blog posts worth reading, Current events, Data on legal education, Innovations in law, Innovations in legal education, New and Noteworthy, Scholarship on legal education, Structural change | Permalink | Comments (6)
Saturday, February 9, 2013
That is the title of this video interview of law firm consultant Kent Zimmermann of the Zeughauser Group. In the interview, Zimmermann relates a story from a recent large law firm retreat in which one of the partners raised her hand and said that one of her major clients in the healthcare industry recently used Axiom in an M&A deal. Not for due diligence. They used Axiom for the whole deal.
For what it is worth, I think we have a language / perceptions gap at work here. At least in the winter of 2013, the phrase "Legal Process Outsourcers" tends to connote masses of low-level attorneys toiling away doing low-level work in India, the Philippines, South Africa or in small or middle market cities in the U.S. -- i.e., a simple labor arbitrage play.
But Axiom's competitive advantage is in understanding the clients' needs and working backwards to a solution. The value here is in (a) listening carefully to the client (e.g., "we want the same or better quality but lower and more predictable pricing"), and (b) in designing and building a system that delivers that outcome.
For background on Axiom, read this eyeopening article, "Disruptive Innovation", from The American Lawyer. Axiom has backing from Sandhill Road venture capital and Wall Steet private equity. One of their investors is quoted, “Axiom has an opportunity to disrupt an industry that hasn’t materially changed in a century. ... With a worldwide legal market that is a trillion dollars each year, there is plenty of running room to build a successful business."
Water runs downhill. There is a lot of money to be made by making law more efficient and affordable. Lawyers need to facilitate this outcome, not obstruct it, as society needs and wants better, more affordable access to legal solutions. Process-driven legal services and legal products are the future. Indeed, as the cyberpunk science fiction writer, William Gibson, once quipped, "the future is already here — it's just not very evenly distributed."
For my own views on the incipient revolution that threatens 100 years of established hierarchy, see "Losing the Law Business," Cayman Financial Review (Jan 2013); for the implications for legal education, see Section II.C of A Blueprint for Change.
[posted by Bill Henderson]
February 9, 2013 in Blog posts worth reading, Current events, Data on the profession, Innovations in law, Law Firms, Legal Departments, New and Noteworthy, Structural change, Video interviews | Permalink | Comments (3)
Monday, February 4, 2013
Via the Big Think, [though I added in the references to law students]
The 21st century requires a new kind of learner—not someone who can simply churn out answers by rote, as has been done in the past, but a student who can think expansively and solve problems resourcefully. The traditional academic skills of reading, ’riting, and ’rithmetic must be replaced with creativity, curiosity, critical thinking and problem solving, and collaborative and communication skills in order to solve the complex problems of tomorrow. ...
[I]magine that knowledge is a multisided box. When we teach [law students] to simply memorize material so they can pass tests, we give [law students] access to the knowledge on only one side of the box. So when life tosses this box up (as it certainly will), it may not land on a side that is visible and accessible. In this case, the [law students] don’t have access to the knowledge. ...
[Students] need to learn to navigate the course of acquiring knowledge—essentially, to get to the answers by being curious and coming up with a lot of questions, a lot of whys. They need to get accustomed to learning from different directions, playing with concepts, and figuring out how to ask the whys in order to gain access to knowledge. This process is more important than having the knowledge itself
The author is Ainissa Ramirez. She is an author and science evalengist who recently wrote the ebook Save our Science: How to Inspire a New Generation of Scientists. I think the identical issues apply to law students. Education needs to be cheaper, yes. But to hold our society together, it also needs to be better.
[posted by Bill Henderson]
Sunday, December 16, 2012
A colleague passed along a link to a thought-provoking blog post by Dr. Andrew Clark, a veterinary doctor who runs a consulting practice on the business of veterinary medicine. His business gives him a bird's eye view of the forces roiling the industry.
Suffice to say, what is happening in the veterinary education, and the broader vet industry, is eerily close to the problems in legal education and the legal profession.
Here is an excerpt of Dr. Clark's in-the-trenches view. The post is titled, "Student Debt ... Our Best Thinking Got Us Here":
If you follow my blog or have worked with me, you already know that one of my favorite sayings is “our best thinking got us here.” That is certainly the case with the Veterinary Student Debt situation. We need some new thinking regarding what generates student debt and what hampers the ability of students to pay back the debt.
In the course of my management consulting business, I am fortunate to work at the interaction intersection between Veterinarians, Veterinary practices, Veterinary Colleges, Veterinary Students and Businesses that provide services and products to the veterinary profession. One of the most common and sincere concerns expressed by people in all of the groups is concern over the impact of student debt on the profession. The student debt situation is a circular process involving Veterinary students, Veterinary colleges, the AVMA, lenders and Veterinary Practices (employers).
I don’t have a solution to the problem but I have some observations and ideas that could be woven into the fabric of a different strategy for financing veterinary education. Although it may happen, my intent is not to offend everyone in the entire veterinary profession with one blog but rather to stimulate creativity and innovation.
Because the most common theme in discussions involving student debt is “Veterinary jobs should pay more,” I will enter the circle at the Veterinary Practice (employers) point. The assumption seems to be that every Veterinary business is profitable enough to pay whatever is necessary to cover student loans. When graduate Veterinarians enter the workforce a huge majority become employed by small businesses. No amount of marketing, posturing, denial or wishful thinking will change the fact that small businesses success or failure is driven by supply and demand.
From my position in the industry, in the economy in which we all work, the demand for veterinary services appears smaller than the supply of veterinarians. I routinely look at the financial statements of over 50 veterinary practices; equine, mixed and companion animal. Those financial statements demonstrate that practices do not generate enough profit to pay Veterinarians sufficiently to repay student loans under the repayment terms commonly available. That is a remarkably bad situation since the successful transfer of the Veterinary Profession from one generation to another is dependent upon the next generation being solvent and content.
Many practices are changing management practices to become profitable. That will help when practices generate enough earnings to add higher veterinary compensation to the cost structure of the business and remain solvent. Clearly compensation is not a realistic short term ‘fix’ until supply and demand for veterinary services shifts back to favor the Veterinarian.
Lenders are rightfully concerned about security when they loan anyone money including students. Bankruptcy on student loans used to be a big loss for lenders. However, under the new regulations, student loans cannot be discharged by bankruptcy so there is significantly less risk now. [I wonder if the veterinary industry has its own Matt Leichter.]
When the dust all settles, Veterinary Colleges are in the business of selling Veterinary Medical Degrees to students who buy a degree with the intention of using it to make a living. In the age of austerity, Veterinary colleges have faced massive budget cuts. One response has been to increase class size, generating tuition revenue for the school. In effect, the colleges are generating more customers for their product and increasing the supply of veterinarians.
From my perspective and experience, the veterinary profession is upside down as far as supply and demand goes. We have inadequate demand for Veterinary services to support the number of veterinarians in practice. Increasing class size diminishes the earning potential and therefore the value of a Veterinary Medical degree yet the cost of the degree continues to escalate. That strategy only works for schools because student loans are easy to acquire and young consumers following their life’s dream are still willing to borrow the money to purchase the degree at an ever higher price with challenging terms. ...
It is difficult for me, a person working in ‘the business trenches’ of veterinary medicine, to understand the timing of the AVMA’s decision to accredit more schools. This clearly increases supply of veterinarians in the face of decreasing demand for veterinary services thereby reducing the value of a veterinary degree and the earning power of a veterinarian, both of which contribute to student debt management challenges.
Another component of accreditation that is an integral part of the challenge of rising student debt is the requirement to have a research program in order for a school to be accredited by the AVMA. The paradigm that effective teaching of veterinary students requires faculty involved in a research programs has never been assessed to be of measurable benefit to student success in general or even specialty practice.
In general, Assistant, Associate and Full Professor ranked positions are allotted 50% FTE (Full Time Equivalent) in non-teaching functions which include research. Who is paying for that 50% of their time? Many veterinary schools have chosen to hire instructor level individuals that are nearly 100% FTE in teaching to release higher ranked faculty to do research. Why are these instructors that do no or very little research acceptable as educators, when the need for research to enhance education is the paradigm?
The world is changing around us and we need to have a fresh look at research program requirements for accrediting schools. It is impossible to understand how the cost of faculty in 50% FTE positions is not passed along to the student in the form of tuition fees, etc. That component of tuition is financed by student debt. ...
This blog is aggregations of realities that I observe in the course of helping veterinarians manage their businesses and new graduates manage their debt. Although I am not in a position to resolve these challenges, I am in a position to share my observations and invite people in policy making capacities to use some new thinking. After all, our best thinking got us here. ....
[posted by Bill Henderson]