Sunday, September 2, 2012
That is the message delivered by Patricia Milligan, president of Mercer's human capital business. Who are the workers she is talking out? Managers, technicians and executives working inside the world's biggest companies.
I realize that many lawyers and law professors are likely to be skeptical of the pronouncements of human capital consultants.
But for a moment, let's take Milligan at face value. So, what are the skills in short supply? Milligan does not answer that question in the above video. But in the video on this webpage she suggests that such skills are a combination of communication, colloboration, and data analytic skills.
Note that Milligan thinks the talent shortage problem is too big for employers to solve on their own. This is leading to collaborations with academic institutions. Are law schools ready for such a step?
[posted by Bill Henderson]
Saturday, September 1, 2012
For the Labor Day weekend, I thought I would post this video of Henry Rollins, an American singer and artist who has continually reinvented himself since he left his job as a manager of a Hagen-Daaz ice cream store in 1981 to become the lead singer in Black Flag.
The point of posting this video is not to glorify Henry Rollins, but to consider, on its own terms, the life narrative of one interesting person. Rollin's formula of "application, discipline, focus, repetition" sounds a lot like deliberate practice. Based on my own research, I have broken this process into two steps:
- Identifying the core elements needed to be become an expert or master in a specific domain -- Jeff Lipshaw was alluding to this in his post on Donald Schon and reflective practice;
- Practicing, through thousands of hours of effort, on elements that one lacks in order to move along the continuum to mastery. Number 2 works best when the person has the benefit of feedback and coaching. Of course, they also have to be willing to do the work.
For an individual, it may not be necessary to formally break down the core elements into specific pieces. Instead, these pieces can be obtained iteratively through trial and error and reflection. I think this is what Rollins has done. It is a formula that works for one highly determined person. But can it be scaled?
As an educator, I am interested in making the components of practice mastery more explicit and transparent--this is step #1 above. To accomplish step #1, we still need to do foundational research that deconstructs the careers of outstanding lawyers into sets of specific skills, abilities, and competencies--i.e., the things to be practiced. (Notice I said "sets" -- outstanding lawyers often master different domains.) At present, the Shultz-Zedeck Effective Lawyering study is the only solid published research that is even adjacent to this topic.
Once these components of effective lawyers are identified--i.e., a law school identifies the skills, abilities and competencies it wants to develop over the course of three years--we move to step #2. This step raises complex questions of order (which competencies first, which come second, etc.) and pedagogy (best and most cost-effective methods) and measurement (how do we know we have made progress?). I think the answers would have to come iteratively, through trial and error.
Any educational institution pursuing this strategy would have to commit itself to studying and continuously improving the educational process. For law schools, this would be new. At the vast majority of law schools, we mostly teach legal knowledge, we don't articulate our intended educational outcomes, we let students pick their courses ala carte with minimal guidance, and we don't engage in serious measurement. But we could. I think this is the next great frontier--an enormous opportunity for any law school willing to think for itself, to experiment and to change. The data needed would come from one's own alumni, ideally supplemented with data sharing within a law school consortium.
[posted by Bill Henderson]
Friday, August 10, 2012
NPR's Planet Money has a story on interplay between higher college and university tuition and changes in financial aid. As shown in the graphic below (from the College Board), the federal government is assuming a larger role in finaning higher education. Every other source of funding is shrinking its a proportionate contribution to financial aid. Despite favorable bankruptcy laws enacted in 2005, the federal takeover of higher ed financing has almost completely muscled out the private lenders.
"At this juncture . . . the impact on the broader economy and financial markets of the problems in the subprime markets seems likely to be contained" - March 28, 2007.
Two days ago, Bernanke said:
"I don’t think student loans are a financial stability issue to the same extent that, say, mortgage debt was in the last crisis because most of it is held not by financial institutions but by the federal government" - August 7, 2012
Now take a look at the federal government's holding of consumer debt (overwhelmingly student debt that has piled up since the 2010 legislation). See Henderson & Zahorsky, The Law School Bubble, ABA Journal (Jan. 2012).
Student loans are viewed as "assets" by the federal government ... until they become uncollectable, in which case the value of the assets eventually has to be adjusted through write-downs, just like mortgages in the mortgage crisis. Extensive use of Income-Based Repayment makes it possible for a student loan to be simultaneously uncollectable but not in default.
Folks, I am an unapologetic New Deal Democrat. But the current "system" of federal higher education financing is near perfect insanity. We set tuition and, no questions asked, the federal government writes us checks in exact proportion to students' willingness to sign loan papers. For young people who have never worked, it is all like Monopoly money.
The only way the math works is if the real earnings go up en masse for virtually all college and professional school graduates. In a rapidly globalizing world in which our students are competing against Chinese and Indian professionals, the assumption of mass rising real incomes is implausible. See, e.g., views of economist Alan Blinder in this NPR article.
Right now we--higher ed and the nation as a whole--are maintaining the illusion of prosperity through debt financing heaped on naive young people. This is immoral in the extreme. Moreover, in the long run, it is economic and political ruination.
The only long term solution is cost containment imposed on higher ed by reforming the terms of federal financing. The financing has to incentivize educational productivity -- i.e., fewer tuition dollars expended to obtain better skills and learning as measured by marketplace earnings and innovation. No more $100,000 checks from the federal government for sorting students by standardized test scores. Our graduates will actually have to think, collaborate, communicate and problem-solve at a very high level. How many of my fellow law professors grasp the depth of our problems? Not enough.
[Posted by Bill Henderson]
Tuesday, July 17, 2012
With the passage of the Legal Services Act 2007, the UK began the process of liberalizing its market for legal services. The UK legal market and all of legal education is now regulated by the Legal Services Board, which is presided over by a nonlawyer civil servant named Chris Kenney.
The LSB's regulatory objectives are set out in Section 1 of the Act. They include: "(a) protecting and promoting the public interest"; "(c) improving access to justice"; "(d) protecting and promoting the interests of consumers"; "(e) promoting competition in the provision of services within subsection (2)"; and "(g) increasing public understanding of the citizen's legal rights and duties[.]"
One of the fruits of the new LSB regime is this just released empirical study on how British citizens evaluate and make decisions about their own legal needs. In a nutshell, they often go in alone without the benefit of a lawyer. Further, only about 20% of this unmet legal need fall in the domain of "reserved legal activities," which require a licensed legal professional.
Although the report does not come out and says this, the implication of the myriad statistics is that the British consumer market is ripe for commodification through technology and mass distribution channels. When confronted with a legal need, face-to-face counseling with a skilled professional may be the ideal, but that is far from the reality for most British citizens.
[posted by Bill Henderson]
Wednesday, June 13, 2012
I just read a short essay at the Big Think, "The Dangers of Being Smart," that reminded me of nearly every faculty workshop I have ever attended. In a nutshell, brilliant people -- and law faculty are filled with them -- can wax eloquent on cognitive bias, yet the deft ability to describe and comprehend does little to enable brilliant people to rein in the bias. In fact, being smart can be disadvantageous because we fall in love with the beauty and nuance of our own rationalizations and justifications.
This really hit home for me because I have witnessed hundreds of examples in which data are never sought out or consulted because the brilliant lawyers were so persuaded by their own reasoning. (And I stipulate that I am sure I have done this many times myself.) Or worse, good but not perfect data are dismissed because a lawyer or law professor could theorize a plausible flaw in the sample or methodology. The glee in finding the flaw then shortcircuits the right response, which is a simple discussion of probability -- that is, what is more or less likely based on all available evidence.
The Big Think essay reminded me of Dan Kahneman's Thinking, Fast and Slow, especially the section titled "Overconfidence." Kahneman, a psychologist, won the Nobel Prize in economics because he, along with co-author Amos Tversky, identified several predictable, recurring cognitive biases in human decisionmaking.
Kahneman later revealed that the basis for their breakthrough research was errors they detected in their own judgments. “People thought we were studying stupidity,” said Kahneman. “But we were not. We were studying ourselves.” For a wonderful primer on Kahneman's unusual worldview, see this Michael Lewis essay.
[posted by Bill Henderson]
Sunday, May 20, 2012
Entrepreneur Peter Thiel (Stanford Law '92) is financing twenty $100,000 scholarships for young people who agree to "stop" their formal education for two years to pursue or join a real world project broadly related to some aspect of business, innovation or technology. See Thiel Foundation's "The 20 Under 20 Fellowships."
Thiel is a former federal judicial clerk turned securities trader turned entrepreneur (founded PayPal) turned hedge fund manager/venture capitalist (he bet big on Facebook and won). Thiel believes that the key skills for innovation are not taught very well in universities. Further, because Thiel believes we are in the midst of a serious higher education bubble, he argues that the debt incurred by students only hobbles their ability to pursue activities that would redound to the benefit of the U.S. economy. Thus, as a nation, we are stuck in a very unhealthy spot.
Saturday, May 19, 2012
That's the headline of a story in the Sunday edition of The Age, one of Australia's leading daily newspapers. Here is the nut:
ALMOST two-thirds of Australia's law graduates are not working as lawyers four months after they have completed their degrees, according to a study.
The Graduate Careers Australia survey of 1313 recent graduates from all over the country found that 64 per cent were not practising law between 2010 and 2011.
There was ''no way'' law firms could accommodate all the graduates from Australia's 31 law schools, La Trobe University's director of undergraduate studies, Heather King, said. ''It's a well-acknowledged fact that 40-50 per cent will not end up in a traditional law practice.''
These statistics may seem even bleaker than those that describe the U.S. legal market. Yet, for two key reasons, these Australian students are far better off. First, the Australias follow the LLB model, which has some substantial advantages. According to my Australian colleagues, a law undergraduate degree is often combined with a major in another field or discipline, such as business, accounting, sociology, or literature. So a student's commitment to law as career is often tentative and, in many cases, hedged by another career interest. Second, higher education in Australia enjoys a large national subsidy. So law graduates typically graduate with little or no debt.
Ironically, as the story reports, some Australian universities are moving toward the J.D. model, essentially concluding the law is best taught to more mature students as a graduate discipline.
I agree that students ought to have a cost-effective way to opt out of law. I also agree that law is best taught as a graduate discipline to students with some substantial life experience. I don't, however, see an easy way to cost-effectively achieve both. The fact that the solution is not easy will, conversely, make the solution quite valuable.
[posted by Bill Henderson]
Saturday, April 28, 2012
A just released study by the Yale Law Women documents that class participation at Yale Law tends to be disproportionately male (H/T to Jeff and Lior Strahilevitz at Prawfblawg). Although the report offers prescriptive advice for Yale faculty and students on how to close the gap, it does not offer an empirically grounded explanation for why the gap exists in the first place. Coincidentally, I recently read another empirical study that appears to offer an answer.
In an article in the 2012 volume of Adminstrative Science Quarterly, Yale School of Management professor Victoria Brescoll provides compelling evidence that different power rules apply to women than men. Brescoll's article, "Who Takes the Floor and Why: Gender, Power, and Volubility in Organizations," found that when women possess the same objective measures of power as men, they are reluctant to use that power to speak up (i.e., be voluble) in organizational settings.
Why are powerful women less likely to speak up? Because of fear of backlash. Further, the fear is justified. Specifically, holding the objective measures of power constant, Brescoll found that when women were more voluble in meetings, they tended to be viewed as less likeable and deserving--and here is the kicker, less likeable and deserving at roughly the same levels by both male and female peers. In contrast, when powerful men were more voluble, their peers--both males and females--viewed them as more likeable and more deserving.
Wow. This is quite a problem. Brescoll observes that "the presciptions for powerful men's and women's behavior may be much more comprehensive than originally hypothesized (i.e., power men should display their power, while powerful women should not)." This differential in power rules is not something amenable to a quick, simple fix. Its root cause appears to be buried deep in both the male and female subconscious. It's hard to fix what we don't understand.
Over at Work Matters (H/T), Bob Sutton posted the perfect cartoon to summarize the Brescoll study:
It is worth noting the Yale Law Women describe social norms at Yale that essentially mirror Brescoll's results. On page 24 of the report, a YLS professor is quoted, "I think there’s an in-group dynamic where when women are gunners, they get punished more than men for doing it. Their classmates’ reactions are harsher.” The report continues, "This observation finds widespread support in the student survey among both men and women. Multiple students mentioned that there are norms about participation and women are either more likely to abide by the norms or are more likely to receive criticism for breaking them." The Brescoll study lends substantial support to this explanation. Again, not an easy problem to solve.
Some readers might be interested in a more in-depth description of Brescoll's research design. So here it goes. Brescoll results are based on the findings of three interconnected empirical studies. She starts with the established empirical fact that powerful people tend to assert their power through commanding more time--i.e., being voluble--in organizational settings. As a historical matter, most power has been held by men. Now that women have obtained some measure of social/organizational power, we want to know whether women, holding objective measures of power constant, are equally voluble.
- Study 1. Is volubility a function of power alone, with equal volubility among males and females with comparable power? According to Study 1, which studied patterns of floor time among male and female U.S. Senators (2005 session, controlled by Repulicans and 2007 session, controlled by Democrats), the answer is no. The connection between more power and more volubility was observed only among male Senators. In contrast, more power was not associated with more floor tiime taken by female Senators.
- Study 2. Following up on Study 1, Study 2 essentially asks, "why are equally powerful females more reticent than their male counterparts?" Using a controlled experiment format with male and female participants with workplace experience (average age 38, most with at least "some college" education), participants were asked to simulate an organizational meetings in which important decisions needed to be made. Holding levels of power constant, female participants were much less likely to speak-up. The primary explanatory variable was fear of social backlash.
- Study 3. The question that flows from Study 2 is essentially, "Is the female fear of backlash justfied?" Study 3 used a similar controlled experiment design to ascertain how male and females reacted to powerful CEOs. The only two variables were volubility in meetings and gender of the CEO. Remarkably, for both male and female study participants, male CEOs who dominated a meetings were viewed as competent and deserving. In contrast, for female CEOs, the opposite was true--more volubility led study participants to view powerful female CEOs as less competent and less deserving.
Very important research.
[posted by Bill Henderson]
Friday, April 20, 2012
That is the title of an essay posted on blog of the The Atlantic magazine. Jordan Weissman, a journalist who formerly worked in the business operations side of a major law firm, reviews the profitability of the most elite law firms pre-crash (2001-2007) and post-crash (2007-2010). [See charts below] The slide into lower profitability is what is causing the run-on-the-bank at Dewey LeBoeuf, a storied firm on the brink of collapse.
Dewey LeBoeuf, like the Howrey firm which failed slightly over a year ago, are almost certainly on the lefthand side of the 2007 to 2010 profitability chart. Weissman's conclusion is pretty simple: the industry is running out of gas. More failures are likely. Unfortunately, I agreed.
For the record, legal education's problems are no less severe. There are not enough qualified students to fill the number of 1L seats, so as an industry, our revenues (akin to law firm profits) are going to go down. The entire legal services and legal education industry is undergoing a major disruption. All of this talk of structural change is going to move from the abstract, where we contest it the premise, to the concrete, which induces panic among the unprepared. It is going to be very tough. Our character is going to be tested.
Paradoxically, making decisions based on our professional values rather than self-interest will be the key to survivial. More on that later. I have to prepare for the Lawyer of the Future Conference at Pepperdine University School of Law.
[posted by Bill Henderson]
Tuesday, April 10, 2012
I recently posted an essay that explains structural change in the legal profession uses a historical narrative and simple supply-demand framework. Unlike my other academic work, this essay is short and accessible (not a single table or chart). Many thanks to the many faculty workshops that helped shorten and sharpen the message. The abstract:
A simple framework for understanding the U.S. legal profession is gradual progression through three generations of lawyers: the generalist, the specialist, and the project manager. The transition from one generation to the next is driven by the familiar story of supply and demand. The generalist era (colonial period to the end of World War II) gave way to the specialist era (post-War to early 2000s) because of a shortage of sophisticated business lawyers capable of serving the needs of large, growing, and increasingly regulated industrial and financial clients. Over a period of several decades, leading local practitioners with business expertise transformed their small local practices into regional and national powerhouses. The common feature of all these transformations was an associate-partner training model, which enabled firms to build sufficient human capital to keep pace with -- and thus profit from -- the legal needs of their clients.
In contrast, the U.S. legal profession is now in transition from the specialist to the project manager era. This era is driven by the need for clients to obtain more and better legal work at a lower and more predictable cost. To keep pace with these new client needs (i.e., demands), lawyers working for large corporate clients will increasingly layer their specialized legal knowledge with the skills of the project manager. To the extent that outside lawyers and law firms resist this gravitational pull -- perhaps because they are too wedded to the success and prosperity of the specialist era -- they will lose their seat at the economic table. Thus, as the project manager era unfolds, old hierarchies in the U.S. legal profession will fall and new hierarchies will be created.
[Posted by Bill Henderson]
Monday, March 26, 2012
IDEO is the world's leading design and innovation company. Diego Rodriguez, one of the partners at IDEO, has made a point of sharing the video below with a number of his colleagues. Why? Because he wanted to show them "what leadership should look like at IDEO." It will surprise you. (Hat-tip to Bob Sutton at Work Matters.)
Maurice Cheeks, then the head coach of the Portland Trail Blazers, sets a high bar for courage, confidence, decisiveness, humanity, kindness, unselfishness and world class poise. If that is leadership, I am ready to follow.
[Posted by Bill Henderson.]
Monday, March 12, 2012
Posted by Jeff Lipshaw
Bill is as usual too kind, but indeed we have been friends since that fateful lunch in Bloomington six years ago this month. I'm immensely flattered that Bill and Andy have seen fit to hand me the dry erase marker, and the first thing I did with it was draw a far more accurate self-portrait than the picture Bill managed to dig out of some P.R. file somewhere.
I flew out to San Francisco from Boston yesterday. About an hour into the flight, the flight attendant asked over the PA whether there was a medical professional on board, and I saw somebody up near the front of the plane hit the call button. I had been discussing this very situation with my third-year medical student son a couple weeks ago, reacting to a post from my friend Howard Wasserman at PrawfsBlawg. Howard told the story of a newly-graduated doctor flying in fear of being called on in such a situation, believing that she didn't have the practice skills to intervene. Howard's point, if I can restate it, was that pointing to medical education as the model for "practice-ready" lawyers was a mistake, and that newly-minted doctors were just as "unpractice-ready" as newly-minted lawyers.
I wouldn't want a newly-minted doctor to perform neurosurgery on anybody I liked, but I thought Howard had overplayed the meaning of the anecdote. My son advises me that invariably what you need on an airplane is an EMT, not a doctor. (He tells me all med students are CPR-trained, but he'd be far more competent to diagnose a cough or a rash than to apply the CPR.) If the only person on the plane to step up was a third year med student, I'd still think that person was more qualified to act as a GP doctor, relatively speaking, than the typical doctrinally-trained law grad would be to act as a GP lawyer. Others may feel differently.
Having said that, and having observed my own education, my son's, and the education I'm now employed to help provide, I am still convinced that medical education, apart from internship and residency, effectively creates "doctors" by the time med students are in their third year. The great bulk of medical education takes place in three years - the first two in the classroom (culminating in the USMLE Step 1 exam), and the fourth being largely devoted to rotations in specialties and the residency placement process. The third year is the one that is brutally intense. On a outpatient service, the students spend something 10.5 hours a day, five days a week in the clinic, then go home and study for 2-3 hours more. On inpatient rotations, they go from 6:30 am to 5:00 pm in the hospital, and again go home to study for 2-3 hours. They have an exam at the end of each rotation.
There is an important institutional difference in medical education. There's no doubt that med students get the benefit of public and private funding of the health care systems, but they are also care providers - they do things that if they didn't others would have to do. Finding legal institutions capable of replicating this kind of intensity for law students is a problem (particularly for non-litigating lawyers), but the point is that no law student is going to approach the kind of practice readiness I perceive in a med student of equivalent tenure by doing fifteen credit hours (three hours a day of class time) a semester of even the most pragmatic skills oriented course work. Are students, faculties, administrators, law firms, courts, corporations prepared to create the kind of full-time (I mean thirteen hours a day) experience for the final two years of law school that might well leave one thinking "that's somebody who's a lawyer"? Because to do both the theory and the practice (as the med students do) would take that kind of commitment from all concerned.
(Cross-posted at Legal Profession Blog)
Saturday, March 10, 2012
One of the very best books I read in 2011 was Daniel Pink's Drive: The Surprising Truth About What Motivates Us. In a nutshell, Pink (who was trained as a lawyer but never practiced law) marshals a huge amount of social science and brain science research to demonstrate that we human beings--actually primates as a group-- have a deep, abiding desire to perform work that has its own intrinsic value.
Pink argues that this fact has special salience to a world that rapidly transitioning to a knowledge-based economy. Pink cites to literature showing that economic incentives work well for low-complexity repetitive task (e.g., piece work in a factory, selling cars, waiting tables, etc.). He then presents compelling evidence that performance and creativity in a variety of higher complexity domains--the domains rising in importance in our economy--can often be stifled by management practices that place undue weight on monetary rewards. At several points in the book, Pink singles out lawyers as a profession that is making itself miserable and creatively brainblocked by clinging to the billable hour.
If you want to get the Cliff Notes version of Drive, just watch this wonderfully produced video, which cleverly summarizes the book's central argument along with supporting evidence.
[posted by Bill Henderson]
Monday, February 13, 2012
What type of blogger would write a post titled, "Lawyer-Client Communication is Just Another Process to Improve"? To my mind, a very forward-thinking one. His name is Ron Friedmann, and he is an expert on technology and law. His post just appeared on this blog, Strategic Legal Technology. In my Google Reader, Ron's blog is in a Top 10 spot because, frankly, everything he writes is worth reading.
In his post, Ron makes the point that you can't improve something that you don't understand. So step #1 is taking the time to deconstruct and analyze. Drawing an example from a recent article in the Association of Corporate Counsel (ACC) Docket, Ron writes:
[J]ust saying “you have a 60% percent change of winning” raises three problems. First, unless a client faces multiple similar cases, it’s hard to understand what that single probability measures. Second, this probability - whether or not accompanied by another common measure, expected value - does not communicate the range of possible outcomes. An 80% chance of winning may be irrelevant if there is a 5% chance of a company-killing outcome. And third, our word choice influences how we think and how we decide.
On this third factor, Ron cites an example from the recent book by Nobel Laureate Dan Kahneman, Thinking, Fast and Slow, where numerous studies have shown that medical patients respond in very different way to "90% chance of success" versus "10% chance of mortality." A host of "fast-thinking" processes are at work that keep the mind from treating these two statements the same -- fast thinking being a blend of emotions and mental short-cuts that don't bother to check for logical consistency.
Kahneman demonstrates that these errors are a recurring part of the human condition -- indeed, he and his long-time co-author, Amos Tversky, agreed that they would not study a cognitive bias unless it first passed a single test: the bias had to be observable in Kahneman's and Tversky's own thinking. As Kahneman admits in the book, "We were studying ourselves." So good luck to lawyers who think they are too smart to make mistakes.
The host of cognitive biases gumming up lawyer-client communications reminded me of this wonderful cartoon that was included in my Legal Project Management and Process Improvement Seminar I took back in 2010 [click to enlarge -- it's worth it].
I think Ron is 100% right. It is possible to turn lawyer-client communication into a process, or more precisely, a set of interdependent processes. It requires a whole lot of thinking up front -- to many law firms, this is a quandary because the time cannot be billed. But hey, it is a multi-million dollar problem.
Further, when the processes are complete and deployed (note: processes are never really complete, so let's call this the 2.0 version), it won't feel mechanical. Instead, it will feel efficient, effective and respectful. The client who feels understood and responded to is the client who returns with more work and tells his or her friends about the experience.
[Posted by Bill Henderson]
Tuesday, February 7, 2012
Very few people will answer this question correctly. To find the correct answer, and get a good laugh, watch this video. Here is the good news -- collaboration is teachable. In fact, you used to be very good at it.
The homepage of the speaker, Tom Wujec, is www.tomwujec.com.
[Posted by Bill Henderson]