Friday, January 18, 2013

A Blueprint for Change

Several months ago I wrote a book review of Brian Tamanaha's important book, Failing Law Schools.  In the last paragraph, I wrote:

Brian discusses the bleak employment prospects of law schools, but (through no fault of his own) understates the nature of the structural change that is occurring in the U.S. and global market for legal services.  In Part II, I will write about some logical next steps for law schools looking to get ahead of the coming tsunami.

I tried to write Part II, but a blog post just was not up to the task.  Further, I sensed that my colleagues were in no mood for half-baked solutions. There has been enormous criticism of legal education on the blogs and in the media, but very little in the way of detailed prescriptions to improve the situation.  I felt an obligation to back off on the criticism and focus on solutions.  So, in essence, Part II of my Tamanaha review became an article.

I just posted to SSRN an article entitled "A Blueprint for Change" forthcoming in the Pepperdine Law Review.  It is both a diagnosis and a proposed solution -- a solution I am actively pursuing. Here is the abstract:

This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the “12% solution.” Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs.

I have a large backlog of shorter articles and analyses that I have not posted because I wanted my own detailed solution in the public domain.   I hope to tie all of these ideas together over the coming weeks.

Thank you, Brian Tamanaha, for writing an book that required me to think in terms of solutions.

[posted by Bill Henderson]

January 18, 2013 in Current events, Data on legal education, Data on the profession, Innovations in legal education, Scholarship on legal education, Scholarship on the legal profession, Structural change | Permalink | Comments (2)

Thursday, January 10, 2013

A Great Story About Our Shared Humanity

Rarely do I get a gush of exhilaration and hope from a news story, but it happened today.  NPR has a wonderful story about journalist Paul Salopek embarking on seven-year, 21,000 mile journey on foot.  The route he will take is based on the migration out of Africa by early humans.  But, says Salopek, the journey is less about the past and more about the future.

"It's about how we've changed the world, and how the world is being radically altered in our view by such things as the Internet. I'm starting out this walk with about 35 percent of the world wired. By the time I reach Patagonia in 2020, about 80 to 90 percent will be wired."  

Below is a graphic of Salopek's journey.  

World

I really believe that a journey like this has the potential to create a shared focal point that will remind us what we have in common -- our pasts and our futures as members of the human race -- rather than our differences.

I am sure many many people would love to join Salopek on this journey.  To my mind, it is a pilgrimage -- i.e., a journey of moral and spiritual significance.

[posted by Bill Henderson]

January 10, 2013 in Current events, New and Noteworthy | Permalink | Comments (1)

Saturday, December 29, 2012

How Do Law Professors Learn About the Intersection of Law and Technology?

RfennoHere is my best guess:  We show up at the intersection and we listen to lawyers, judges, regulators and vendors talk about the issues of the day.  Alas, this is not original to me.  It is the "soak and poke" research method pioneered by the renowned political scientist, Richard Fenno (photo to right).  See Fenno, U.S. House Members in Their Constituencies: An Exploration, 71 Am. Polit. Sci. Rev. 883, 884 (1977) (seminal article that describes the "soaking and poking" methodology as one that "befits the earliest stages of exploration and mapping") (HT to my PhD colleague Jay Krishnan, who explained this all to me).

Earlier this month, there was a major conference in Washington, DC on developments in the world of electronic discovery -- the very thing that has added enormous cost and complexity to civil litigation in this country, impacting access to justice, and producing a restructuring of how corporations buy and manage a significant portion of their legal services. If there is a burgeoning legal technology revolution, the frontline is the world of e-discovery.  Lawyers and clients can no longer cope with the rapidly growing volume of electronically stored information (ESI).  Going forward, technology and nonlegal expertise are a permanent part of the legal industry.

This major conference was organized by the Advanced eDiscovery Institute, which is part of Georgetown Law's CLE operations.  According to its website, the conference (now it its ninth year) has "gained a reputation among judges, practitioners, and vendors as the leading eDiscovery conference of its kind in the United States."  Notice that "law professors" and "legal educators" are entirely absence from this description. 

If you leaf through the lengthy roster of speakers and organizers, you'll see:

  • A dozen federal judges, including the busiest and most influential district courts (SDNY, ND Illinois, SD Texas, District of Columbia)
  • Lawyers from the FTC, DOJ, SEC, and US Commodity Futures Trading Commission
  • Several state courts and state agencies
  • Partners from a huge swath of the corporate bar
  • In-house lawyers from Google, Raytheon, Pfizer, Tyco, Motorola, Genentech, Apple, Deloitte Financial Advisory Services, Honda, UBS Financial, United Technologies, and many other Fortune 500 companies
  • The National Institute of Standards and Technology
  • The Sedona Conference
  • Several leading eDiscovery vendors

This is a very serious crowd.  Yet, I located only one full-time law professor in the mix:  John Carroll, who is Dean of the Cumberland School of Law at Samford University.  Yet, even Dean Carroll is not your typical legal academic.  He is a Vietnam veteran, a 1974 graduate of Cumberland Law, a former federal magistrate judge, and a current member of the Sedona Conference. Kudos to Dean Carroll, whom I suspect knows quite a bit about cutting edge issues in eDiscovery. But where is the next generation of legal academics soaking up all this valuable institutional knowledge?

Nearly 10 years ago I showed up at the Indiana Solo & Small Firm Conference.  I was there to gain some basic insight for a course I was putting together called "The Law Firm as a Business Organization."  As the organizers will tell you, a law professor had never before ventured into their conference. What was their reaction?  A very kind, "It's about time!"  I was immediately drafted onto the organizing committee and in subsequent years conducted two major surveys for the ISBA Solo & Small Firm Section.  To this day, the lawyers I met at that first Solo & Small Firm Conference remain an important part of my professional network.  Ironically, several years ago the small firm crowd was issuing a clarion call on the importance of law and technology -- for them, it was all about survival.

Now law and technology is on nearly everyone's radar.   New tools and work processes are opening the door to better, faster, and cheaper legal solutions -- solutions that bear little resemblance to the artisan method of lawyering taught in US law schools.  Unfortunately, there are no classes to turn any of us into experts--the practicing bar itself is struggling to comprehend the implications of the new world we are entering. During a paradigm shift, the job of academics is going to messy and chaotic.  At this juncture, we have to educate ourselves by showing up, talking to people, and observing. Cf. Susan Helper, Economists and Field Research: "You Can Learn A Lot Just by Watching", 90 Am. Econ. Rev. 228 (2000).  It is time to get to work.

Interested in a primer on law and technology?  Consider the NYC LegalTech, which runs from Jan 29-31.  Early bird registration ends Dec 31, 2012.  I will definitely be at ReInvent Law Silicon Valley 2013, which is March 8 at the Computer History Museum.  Other high quality options -- I am told by people more knowledgable than me-- are the ABA Techshow, which runs from April 4-6 in Chicago this year, and the International Legal Technology Association annual conference, which runs August 18-22 in Las Vegas this year.  I would love to get together with other law professors who will be attending these important industry meetings.

Related posts:

Useful resources:

  • DennisKennedy.com, a blog writen by Dennis Kennedy, a lawyer and legal technology expert. Dennis has a strong following among individual lawyers to want to leverage technology to improve their practice.
  • Strategic Legal Technology, a blog written by consultant Ron Friedmann, a brilliant and generous person with 30 years of experience and perspective.  Ron was there at the genesis of law and technology.  At some point, I hope his career is written up.  Ron is a guru on knowledge management and enterprise-level technology.
  • Law Technology News, a great electronic resource edited by Monica Bay.  LTN is part of American Lawyer Media.  I predict that LTN is going to go mainstream rather than niche in the very near future.
  • Computational Legal Studies, which is a blog founded by Professor Dan Katz at Michigan State.  Dan is preparing for a whole new way of conceptualizing legal problems and legal practice.
  • Law21, a blog written by lawyer, journalist, and consultant Jordan Furlong.  Tech is a common theme for Jordan.  He is a great translator who puts things into a broader perspective.

[posted by Bill Henderson]

December 29, 2012 in Current events, Data on the profession, Innovations in law, New and Noteworthy, Structural change | Permalink | Comments (6)

Wednesday, December 26, 2012

Shoveling Snow and Grading Exams

Early this morning Bloomington, Indiana got the upper estimate of snow predicted by the National Weather Service -- roughtly a foot of very wet, heavy snow.  So I did the prudent thing: I started shoveling before my driveway froze into something akin to glacial ice when the temperature drops later today.  (My youth in Cleveland prepared me well for snow storms.)

Dec_2012_snow
(photo credit: Mary Henderson)

Of course, my motives were not pure.  I was anxious for a legitimate excuse not to grade exams.

Dec_2012_grading
(Henderson dining room, Dec 26, 2012; photo credit: Bill Henderson)

I hope to find other more pleasant ways to procrastigrade before Jan 1, which is my scheduled completion date.

[posted by Bill Henderson]

December 26, 2012 in Current events | Permalink | Comments (3)

Sunday, December 2, 2012

More on Big Data

Below is an interview of David Cowen by Monica Bay, editor-in-chief of ALM's Law Technology News.  The topic is Big Data.  The interview provides a useful glimpse on how this trend is corporate America is taking hold.  It should be of great interest to lawyers because (a) it has enormous economic value, and (b) it raises novel privacy issues.  Which will predominate? [posted by Bill Henderson]

December 2, 2012 in Blog posts worth reading, Cross industry comparisons, Current events, New and Noteworthy, Video interviews | Permalink | Comments (0)

Saturday, November 24, 2012

What is the Significance of Major Combinations between Canadian and U.S. Law Firms?

Law firm consolidations are in the air.  Over the last couple of weeks, two major Canadian law firms have entered into combination agreements with U.S./UK counterparts. 

  1. Norton Rose (a British firm with a major Canadian presence) is merging with Fulbright & Jaworski, creating a firm with 55 offices and 3,800 lawyers.  Details here.
  2. Fraser Milner Casgrain is combining with SNR Denton (US-UK firm that swallowed up the legacy Sonnenschein law firm in 2010) and Salans, which is a European law firm original formed in France. The resulting firm will have 2500 lawyers in 79 offices and 52 countries worldwide.   Details here

In the video interview below, Jordan Furlong, a Canadian lawyer, journalist and consultant (Law21), views these developments as the beginning of a major sea change.

To my mind, the consolidations we are witnessing have a lot to do with flat worldwide revenues. Law firms become uncomfortable places when they are not growing. Yet, really big law firms seldom fail because failure requires that a large number of partners vote their feet. A 30-partner defection can be a lethal blow to a 500-lawyer firm, but not so much for a 2,500-lawyer firm. The larger number of lawyers provides managers with more time and latitude to figure out a longer term strategy. Big feels safer.  Further, once the consolidation is complete, the firm managers can thin the ranks of weaker partners, producing a stronger overall firm.  (That is the theory, anyway.)

[Posted by Bill Henderson]

November 24, 2012 in Current events, Data on the profession, Law Firms, New and Noteworthy, Video interviews | Permalink | Comments (2)

Wednesday, November 7, 2012

"2012 was the First Moneyball Election"

So concludes John Sides (GW Political Science) at The Monkey Cage.  John writes:

Barack Obama’s victory tonight is also a victory for the Moneyball approach to politics.  It shows us that we can use systematic data—economic data, polling data—to separate momentum from no-mentum, to dispense with the gaseous emanations of pundits’ “guts,” and ultimately to forecast the winner.  The means and methods of political science, social science, and statistics, including polls, are not perfect, and Nate Silver is not our “algorithmic overlord” (a point I don’t think he would disagree with).

But 2012 has showed how useful and necessary these tools are for understanding how politics and elections work. ...

And a fitting comic courtesy of xkcd:

Electionmath

[posted by Bill Henderson]

November 7, 2012 in Blog posts worth reading, Current events, New and Noteworthy | Permalink | Comments (3)

Thursday, November 1, 2012

What Would Happen If Nonlawyers Invested in Law Firms? Soon We Will Have Data

As U.S. lawyers successfully derail the most modest changes to the Rule 5.4 prohibition on nonlawyer investment in law firms, see e.g., this Wisconsin Bar commentary, the Brits are going in an entirely different direction.  The Legal Services Act of 2007 lifted the fee-splitting prohibition in the U.K., but it has taken five years to set up the necessary regulatory infrastructure to facilitate the opening of the legal market to nonlawyer investors. 

The UK experience is bound to have a big influence on the U.S. debate because so much of the rhetoric on both sides is based on the alleged impact of the nonlawyers.  Proponents argue that it will drive down costs, accelerate innovation, and improve access to justice.  The critics, who so far have the upper hand, assert that investor profit motives will compromise lawyer independence, leading to the ruination of the profession. 

Thanks to developments in the UK, we are moving from abstract arguments to concrete experience.  Coverage in the British legal press suggests that a new legal order is indeed beginning to take shape.

JamesCaan Gazette One novel development, reported by the Law Society Gazette, is an equity stake in the Knights Solicitors law firm by Hamilton Bradshaw, a British private equity fund run by entrepreneur and investor James Caan.  Knights is a 23-solicitor Midlands regional firm founded in 1759 (yes, 1759) whose business profile at the time Caan invested was being a competent, responsive law firm at a price point considerably below the London-based firms.  See, e.g, this Legalweek article describing Knights' collaborations with US/UK powerhouse Hogans Lovells.  

The plot here is pretty thick.  In both the UK and Austrailia, which also liberalized its legal market a few years ago, the early investors have been on the personal injury side.  In contrast, Knights is full-service commercial law firm.  With the aid of outside capital, the firm's ambition is to catapult itself into the top 100 UK law firm within three to five years. Further, Caan is not just any investor.  He is famous in England because he served as as judge on the popular Dragon's Den television program.  The show's concept is simple:  entrepenuers pitch their ideas to some colorful, high roller celebrity investors.  Contestants potentially get funding plus a priceless primetime branding opportunity.  Dragon's Den was the basis for ABC's Shark Tank, where serial entreprenuer and Dallas Mavericks owner Mark Cuban serves as a judge.

Well, Caan got the regulatory okay a few months ago and is settling in with his new investment.  His early rhetoric suggests that he has little interest in fitting into the dominant culture of the British legal profession.  According to a story titled "Profit a 'Dirty Word' in Law," Caan regaled the NetLaw Strategic Leadership Forum in London with his experience of interviewing 20 firms in his bid to enter the legal market.  What he observed was "a profession dogged by the partner structure, failing to build a lasting relationship with clients and with too little focus on making money." 

Although he and others would be keen on investing in more law firms, the culture within firms, including excessive deliberations in making basic management decisions, is a major hinderance.  Caan remarked:

A lot of people said this is not how this industry works: we’re about service, and profitability was a dirty word.  ... The minute a business forgets the reality of why it is there it will never grow. Every day you walk into the office you’re looking to make a profit. Being ashamed or embarrassed is not how you grow – every business I invest in, I’m not ashamed that is the strategy.

For a U.S. audience, this quote is likely to stoke the fire of both critics and proponents of fee-splitting.  On the one hand, here is a nonlawyer wanting to clean house in pursue of profits -- that seems to go the heart of lawyer independence.  On the other hand, wringing out more profit could well be possible if lawyers had a laser-like focus on the needs of their clients.  Caan only makes money if the clients (including sophisticated commercial clients) are drawn to his model, essentially rejecting the bundle of services offered by traditional law firms.

ImagesThe late Larry Ribstein was a sincere believer in the latter view.  According to Larry, the pervasiveness of lateral movement -- which, under state legal ethics rules, cannot be curtailed by noncompete agreements -- had caused law firms to become hopelessly focused on the short-term.  This includes the most prestigious firms, which were (and, in my estimation, are) burning down decades of accumulated reputational capital.

Yet, the short-termism of coporate law firms is curable with money plus a coherent business strategy.  With an injection of patient capital, some extremely talented lawyers could be persuaded to stick around and focus on innovative legal products and services.  The idea is that patient capital could guarantee a partner's income for a period of years (essentially a partner's opportunity cost on the lateral market) in exchange for splitting the upside on innovations with the nonlawyer capitalists. 

In a few years, Larry's ideas will be fully roadtested in the U.K.  If he was a right (and I think he was), this could eventually become a consumer rights issue that captures the attention of state legislatures. And who will be advocating for those consumers?  Lawyers who want to take outside investments so they can replicate the financial success enjoyed by their UK counterparts.  Time will tell.

[posted by Bill Henderson]

November 1, 2012 in Current events, Data on the profession, Innovations in law, Law Firms, New and Noteworthy, Structural change | Permalink | Comments (3)

Tuesday, October 23, 2012

The Rise of Legal Analytics, or the First Signs of Big Data in Big Law

Have your heard of "Big Data"?  Basically, it is the mining of large existing datasets to make better business decisions.  There is a lot of discussion on this topic in the business world.  See, e.g., Big Data: The Management Revolution, Harvard Business Review (Oct 2012); The Age of Big Data, New York Times (Feb 11, 2012).  

The first signs of Big Data in the law firm world are the companies that provide electronic billing platforms for large corporations.  These companies have all the data needed to discern the relative efficiency of various service  providers -- name of firm, title of lawyer, practice area, billing rate, office, and a large portofolio of matters uniformly coded by subject matter and discrete technical tasks.  Clients, of course, know the outcomes of matters, which provides the last piece of missing information to not only calcuate cost and efficiency, but also value delivered to the client.

In the video below, reporters from the Boston Business Journal explain the services provided by these new data analytic companies (TyMetrix and Sky Analytics are briefly featured). 

What I love about this video is that the reporters are outsiders to the law world.  They note that the "transparency" and "information" these companies provide  are wonderful developments for clients -- and, of course, they are 100% right.  Nobody wants to overpay, so tools to eliminate this problem are going to be widely embraced.

The obviousness of this point is why the legal services industry is at the beginning, rather than the middle or end, of a massive structural shift that will be wonderful for legal consumers but profoundly disruptive to law firms and law schools.  In the years to come, we will have fewer lawyers and generally flat or declining incomes within the profession. 

The real money will be made at the intersection of law and technology, which has the potential to scale legal work so it can be better, cheaper and faster.  This is the road to commodification of law.  It is good for society, but bad for those of us wedded to a traditional model where lawyers enjoyed more market power.  Those days are fading into the horizon.

[posted by Bill Henderson]

October 23, 2012 in Current events, Data on the profession, Innovations in law, Law Firms, Legal Departments, New and Noteworthy, Structural change, Video interviews | Permalink | Comments (2)

Sunday, October 14, 2012

Straight Talk on the Woes of BigLaw, by Bruce MacEwen

By Bruce MacEwen, of Adam Smith, Esq., a well known blog on law firm economics.  What Bruce is talking about is going to have major fallout for legal education.

[posted by Bill Henderson]

October 14, 2012 in Current events, Data on the profession, Law Firms, Structural change, Video interviews | Permalink | Comments (0)

Saturday, September 22, 2012

Hilarious Video on the Billable Hour

From our UK colleagues, specifically the lawyers at Riverview Law, which is a new-breed British law firm that does things exclusively on the flat fee model.  Check it out:

Riverview's advantage may be more than its ability to produce funny videos that ricochet into the inboxes of inhouse lawyers. (I was alerted to this video via Twitter from Patrick Lamb, one of the ABA New Normal guys and a principal at Valorem Law, a Chicago-based flat-fee shop.  Pat recieved his link from a client.)

Lawyers from Riverview Law were at the Legal Tech Camp that I have discussed in prior posts (here and here).  To my mind, Riverview's greatest advantage is focus -- they want to do the same work as other corporate law firms at the same quality level or higher, but also at a signficantly lower, fixed fee price.  The firm appears to work backwards from the price to make process-design and sourcing decisions.  The result, plain and simple, is innovation. Long term, that is the only way they can make money. 

Here is how they explain just one of their services, called Legal Advisory Outsourcing -- again, in a well produced video.

If you think Riverview Law is no big deal, this may get your attention.  The flat-fee shop is partially owned by the mega law firm DLA Piper.   Earlier this year, they opend an office in New York City.

[posted by Bill Henderson]

September 22, 2012 in Current events, Data on the profession, Innovations in law, Law Firms, New and Noteworthy, Structural change, Video interviews | Permalink | Comments (8)

Thursday, September 20, 2012

Drop in the Big Law Median Salary is only Half the Story

NALP just announced that the median salary for first year associates in Big Law has dropped from $160K to $145K.  I think that is very significant.  We are now back to to the entry level price point of 2007.

But to my mind, there is much bigger story here.  In 2011, firms of 500+ attorneys hired 2,856 entry level lawyers.  In 2007, that figure was 4,745.  So, after five years, Big Law is paying the same wage but hiring 40% fewer lawyers.  Compare 2007 NALP Nat'l Summary with 2011 NALP Nat'l Summary

Here is another important piece of NALP data, generated from the print versions of the July 2012 NALP Bulletin.  It shows the percentage of entry level law jobs that are private practice.

PrivatePractice

Two takeaways here: (1) there is a longterm trendline showing a declining number of private practice jobs--and that is the economic engine that enables law schools to exist at current tuition levels, and (2) the cliff-like dropoff in 2010 and 2011 is likely Big Law, and that hurts.

[posted by Bill Henderson]

September 20, 2012 in Current events, Data on legal education, Data on the profession, New and Noteworthy, Structural change | Permalink | Comments (5)

The Eds and Meds Sector

There is a fascinating story at newgeography which looks at trends in the education ("Eds") and medical ("Meds") sectors. 

Newgeography focuses on trends in urban affairs and economic geography.  Eds and Meds are of interest to this group because these two sectors have been such a critical part of maintaining or restoring many regions' economic vitality.  Why?  Universities and hospitals generally pay high wages, don't lay people off, and are perceived as long term drivers of growth because more degrees and longer life spans are two trends that will probably continue. 

But the author, Aaron Renn, presents compelling trend data suggesting that America can no longer to afford extra large helpings of Eds and Meds.  As shown in the chart below, these sectors have been growing faster than virtually all other sectors for a long, long time.

Renn-eds-meds-1

Renn points out the healthcare is on its way to consuming 20% of our GDP by the year 2021.  And the growth in the higher education sector has been substantially fueled by student loans.  Unfortunately, even college grads are subject to the pressures of outsourcing and competition with very able professionals from around the globe.  So the ability to repay all that debt can't be taken for granted.  What can't go on forever, won't.

Here is another chart presented by Renn, this one presenting the rates of inflation occuring in Eds and Meds sectors as compared to the overall CPI:

Renn-eds-meds-2
KaplanThere is an opportunity here.  I would be extremely bullish on innovations that produce productivity gains in the Eds and Meds sectors.  I recently listened to this HBR Ideocast discussion with Robert Kaplan, the Harvard Business School professor best know for developing the Balanced Scorecard.  Kaplan is now turning his considerable intellect toward the problem of cost-containment in healthcare. 

What the key insight?  Measuring how much patient treatment actually costs--to date, there has been almost no sophisticated cost accounting in healthcare.  Most of the brainpower has gone to dealing with (and maximizing) third party reimbursements.  Under Kaplan's system, fortunately, we can actually identify the points in the system that cost way too much and thus begin the reengineering process.

ChristiansenThe same thing may soon be happening in higher ed.  Another Harvard Business School professor, Clayton Christiansen, who authored the renowed business book, The Innovator's Dilemma, recently co-authored a letter that called for colleges and universities to quit chasing prestige and start focusing on innovations that improve educational quality without increasing price.  Remarkably, the letter was included in a mass mailing by the American Council of Trustees and Alumni -- going to 13,000 trustees!  See Inside Higher Ed, Distruption's Strange Bedfellow, July 12, 2102.  Another Insider Higher Ed story suggests that this may be the true faultline driving the University of Virginia controversy.  See Disruptive Innovation: Rhetoric or Reality?, June 26, 2012.

The world appears to be changing, even in Eds and Meds sector.

[posted by Bill Henderson]

September 20, 2012 in Blog posts worth reading, Cross industry comparisons, Current events, Important research, New and Noteworthy, Structural change | Permalink | Comments (1)

Thursday, September 6, 2012

Why Are We Afraid of the Future of Law?

Below is my most recent column in the National Jurist [PDF version].  Although 100% targeted at law students, I think lawyers and law professors might find this topic interesting. [Bill Henderson]

200px-SusskindhighresRichard Susskind is a famous British lawyer and technology consultant who travels the world giving speeches on how the legal industry is on the brink of a fundamental transformation.  Because his topic is change, Susskind’s ideas are quite controversial among lawyers.  But as a futurist, he has a pretty good track record. 

Back in 1996, in his book The Future of Law, Susskind predicted that e-mail would someday become the dominant method for lawyers and clients communicate with each other.  Because the Web was still a novelty limited to universities and computer aficionados, Susskind’s comments were viewed as reckless and unprofessional—lawyers would never rely on such an insecure method to communicate with clients.  Yet, 16 years later, lawyers are daily lives are comprised of an endless stream of emails coming over their desktops, laptops and smart phones. 

Continue reading

September 6, 2012 in Current events, Innovations in legal education, Law Firms, Structural change | Permalink | Comments (3)

Friday, August 10, 2012

Federal Funding of Higher Education--A Bubble that is Going to Burst

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.

Gr-pm-studentfinances3column-462

Coincidentally, a colleague forwarded to me a pointed commentary from zerohedge.com, which suggests that recent comments by Ben Bernanke portend serious financial instability.  In 2007, Bernanke said:

"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).

Collegedebt

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]

August 10, 2012 in Blog posts worth reading, Cross industry comparisons, Current events, Structural change | Permalink | Comments (9)

Friday, August 3, 2012

Connecting the Dots on the Structural Shift in the Legal Market

Over a 3 Geeks, Toby Brown asks, "Is the legal market flat?"  Toby's analysis is especially interesting because of his day job -- he is a strategy professional at an AmLaw 50 firm who focuses on pricing and market analytics.  In that capacity, he has access to the various proprietary databases that track legal spending.  Toby writes, "Although there have been minor ups and downs on this stat (most recently a slight up-tick), the overall demand has been and continues to be predicted as … flat."

But then Toby wonders if the stats are potentially misleading because the databases define the market as BigLaw. If work is leaking out of this market and going to new entrants, flat revenues may mask a reconfiguration of the legal marketplace--one where BigLaw is less dominant.

Pangea3As evidence for this possible trend, Toby links to an article on Pangea3, which is a legal process outsourcing (LPO) owned by Thomson-Reuters (a publicly traded company).  Since its inception in 2003, Pangea3 has grown at "40% to 60%" per year and is "growing even faster" in 2012.  Pangea3 now employs 850 lawyers, mostly in India.

Now think about that: 850 lawyers growing at 50% per year for five years is 6,455 lawyers--by 2017.  And that is just one LPO.  

HuronHuron Consulting Group (NASDAQ: HURN) recently issued a press release announcing a new document review and data operations facility in Gurgeon, India (functionally a booming suburb of India--I've been there).  The press release reads, "The Company offers around-the-clock global discovery support with 1,500 seats at nine locations across the U.S., U.K., and India to address clients’ complex business needs."  MindcrestAs I noted in an earlier post, Mindcrest, with HQ offices in Chicago but facilities in India, is also growing at a breakneck pace.

Toby draws a conclusion: "The simple math of 50% market growth suggests LPOs are taking market share from firms." 

In my estimation, very few lawyers or law professors grasp what is taking place here.  We look at flat revenues in BigLaw and draw the inference that we are in a prolonged recession.  Meanwhile, the legal business is absolutely booming in India, thanks in substantial measure to its integration into the U.S. and U.K. legal supply chain.  Play these trends forward for five more years, and the prolonged recession storyline will no longer be credible. 

And remarkably, the drivers of this change are publicly traded companies or companies funded by venture capital and private equity.

Beyond Toby's observations, I would add the following to the big picture. The ABA Commission on Ethics 20/20 was recently pressured to drop its recommendation for even a very most modest change to the Rule 5.4 prohibition on fee splitting with nonlawyers.  (see here.)  This effort was lead by the Illinois State Bar Association, which wanted to shut down debate on this topic during the August ABA Annual Meeting in Chicago. 

I fear that the U.S. legal profession is looking through the wrong end of the telescope.  In a practical sense, fee spliting only applies to counseling and advocacy.  But the full legal supply chain includes a host of legal products and inputs that Wall Street and Sand Hill Road capitalists are anxious to supply.  This supply chain analysis is especially true when the client is a Fortune 500 corporation.  The policy that drives fee-splitting is consumer protection and a belief that the nonlawyer profit motive will compromise lawyer independence and injure the client.   Yet, organizational clients want innovation and more for less.  And they are finding non-law firm vendors who are filling that need.   The organized bar is powerless to stop these changes. 

[posted by Bill Henderson]

August 3, 2012 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 (4)

Tuesday, July 17, 2012

UK's Legal Services Board Releases Study on Individual Legal Consumer Market

LsblogoWith 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]

July 17, 2012 in Cross industry comparisons, Current events, Data on the profession, Innovations in law, Scholarship on the legal profession, Structural change | Permalink | Comments (1)

Monday, July 16, 2012

"The Toppling of Top-Tier Lawyer Jobs"

That is the title of a just-posted essay by Catherine Rampell at the NY Times Economix Blog.  She studies several years of the bi-modal distribution.  It is refreshing to have a capable journalist review the data and marvel at the strange ways of our industry.  

[posted by Bill Henderson]

July 16, 2012 in Blog posts worth reading, Current events, Data on legal education, Data on the profession | Permalink | Comments (0)

Sunday, July 15, 2012

A Picture of the Melting Right Mode

I created the graphic below to depict the shrinking right mode of the bi-modal distribution since its 2007 high water mark (measured in February 2008). 

Nalp07_11comparisons

[Note: The difference between the mean and adjusted mean in the 2011 distribution is due to the fact that law grads who fail to report their salaries tend to have have less lucrative employment; so NALP makes a prudent statistical correction --basically a weighted average based on practice settings.]

From a labor market perspective, the class of 2007 entry level salary distribution was extraordinary and anomalous.  Why?  Because we can safely assume that legal ability, however it might be defined, is normally distributed, not bi-modal.  So when such a distribution appears in a real labor market, something is significantly out of kilter. 

Why did the entry level market become bi-modal? As the legal economy boomed from the mid-90s through the mid-00s, many large law firms (NLJ 250, AmLaw 200) were trying to make the jump from regional dominant brands to national law firms.  For decades, going back to the early to mid-20th century, these firms followed a simple formula: hire the best and brightest from the nation's elite law schools. As they continued to enjoy growth, they reflexively followed that same formula.  Yet, by 2000s, the demand for elite law graduates finally outstripped supply. 

This micro-level logic ("let's not tinker with our business model") produced a macro-level bidding war.  This is how the right mode came to be.  Yet, because it was a macro-level phenomenon, clients, led by industry groups such as the Association of Corporate Counsel (ACC), reacted by saying, "Don't put any junior level lawyers on my matters --they are overpriced."  Outsourcing and e-discovery vendors have also eaten into the work that used to go to entry level lawyers.  So the volume of BigLaw hiring has collapsed, hence the melting of the right mode. For a more detailed overview, see NALP, Salary Distribution Curve.

Long Term Structural Change in Big Law

That said, it is not just the entry level market that is under stress -- the fundamental economics of Big Law are also changing.  Consider the chart below (from Henderson, Rise and Fall, Am Law June 2012), which shows that revenues per lawyer at AmLaw 100 firms has gone flat and moved sideways since 2007, breaking a pattern of steady growth that dates back to the pre-Am Law 100 days.

Amlaw25 years

Stagnant revenue is a source of enormous worry for law firm managers.  Without higher profits to distribute--and growing the top line is the usual profitability fomula--their biggest producers might leave, causing a run on the bank ala Dewey, Howrey, Wolf Block, etc.  So the dominant strategy now has nothing to do with entry level hiring.  Rather, the goal is to keep and acquire lateral partners with portable books of business.  After all, clients aren't protesting the value of most senior level lawyers. And seniors lawyers are plentiful, thanks to the excellent health of baby boom lawyers and the poor health of their retirement accounts. 

This strategy may work fine for this fiscal year, but over the middle to long term, BigLaw is going to get older and dumber.  Further, this dynamic produces substantial ripple effects on legal education -- albeit ripple effects that feel like tremors.

Endgame

The long term solution -- for both law firms and law schools -- is for the price of entry level talent to come down to the point where young lawyers are more cost-effective to train.  And that price point is not $160,000.  This inflated pay scale (which has supported ever higher tuitions at law schools) only persists because large firms are deathly afraid of adjusting their salary scales and being labeled second rate.  So the solution is keep the entry pay high but hire very few law school graduates.  This is not a farsighted or innovative business strategy.

It's been 100 years since law firms engaged in sophisticated business thinking. And that last great idea was the Cravath System, which was method of workplace organization that performed expert client work while simultaneously developing more and better human capital.  See Henderson, Three Generations of Lawyers: Generalista, Specialists, Project Managers.   According to the Cravath Swaine & Moore firm history, published in 1948, the whole point of the Cravath System was to make "a better lawyer faster." 

I think the next great model for a legal service organization (law firm may not be the right term) likewise will be based on the idea that there is a large return to be had by investing in young lawyers. As my friend Paul Lippe likes to say, "When it appears, it will look obvious."

[posted by Bill Henderson]

July 15, 2012 in Current events, Data on legal education, Data on the profession, Innovations in law, Law Firms, New and Noteworthy, Structural change | Permalink | Comments (2)

Friday, July 13, 2012

Yale's Ph.D. in Law - The Copernican View

Posted by Jeff Lipshaw

6a00d8341c4eab53ef0177433fdb6c970d-200wiThe Yale Law School's announcement that it will award a Ph.D. in Law has agitated electrons around the blogosphere, provoking approval, disdain, speculation, and derision.  My view is closest to Dan Filler's "meh."

The following, as rationale for the program, strikes me as a view of the legal academy that assumes Yale and its equivalents are at the center and everything revolves around them:

“It’s becoming increasingly hard to transition directly from law practice to teaching,” [Dean Bob Post] said. He explained that to secure entry-level appointments at law schools, candidates are now expected to present a relatively mature scholarly profile; they need a defined research agenda and a substantial portfolio of writing.

It's probably fair to expect that Yale won't be the only school offering a Ph.D. in law, but my guess is Tamanahab that it's not going to change the landscape or the contours of the "Failing Law Schools" debate (of which Brian Tamanaha's book is the most thorough catalog) too much.  

This is hardly a scientific study, but I just scrolled down part of the first column of the Stanford Law School faculty directory, and the law degrees (J.D. and otherwise) read something like:  Berkeley, Yale, Yale, Harvard, Yale, Stanford, Northwestern, Chicago, Yale, Harvard, Yale, Yale, Northwestern, Harvard, Stanford, Berkeley.  Somehow I don't see the Yale Ph.D. in Law causing a seismic shift at Stanford or its peers.

Nor do I see a big trend toward Yale Ph.D.s in Law doing a lot of teaching of civ pro at fourth tier schools.

Nor do I see enough volume, given the time commitment, to having a significant impact on the supply of entry-level law professors at mid-range schools.  There are 800-1,000 FAR entries a year, and 100-150 new hires a year.  How many of those 100-150 are going to be taken by candidates who wouldn't otherwise be in the pool?  Indeed, my guess is that, if anything, the program[s] will cannibalize other Ph.D. programs, and perhaps a few of the existing VAP programs or other paths to the legal professoriat.  (That's a supply-side analysis.  On the demand side, were I the dean of a non-elite school, I'd be wary of having a faculty dominated by Ph.D.s in Law in terms of intellectual diversity and for its effect on my relationships with other constituencies, like the alumni base.)

The real question, it seems to me, is whether this portends the Great Schism, the differentiated legal education system - "research-oriented law schools [co-existing] alongside law schools that focus on training good lawyers at a reasonable cost" - that Brian Tamanaha advocates.  (Failing Law Schools, pp. 172-76.)

Again, call me a skeptic.  Apart from issues of pure contraction (i.e., schools get smaller, by hook, crook, implosion, or design), the vast majority of non-elite but solid schools won't have the luxury either of being the Department of Legal Studies populated by Yale Ph.D.s or bare bones practitioner training centers.  

As I have argued in the past, those middle-range schools are going to have to find a way to accommodate the scholarly career path of the faculty with the desire of the overwhelming majority of students and alums for practical professional training.  Which means that faculty members (as I believe most do now) will have to be committed to both scholarly thinking and first-rate teaching, even if they do not always overlap.  And academic leadership will have to be committed to articulating to non-academic constituencies both the nature of a legal academic career and why it can live in harmony (even if not complete overlap) with the obligations of a professional school instructor.

July 13, 2012 in Current events | Permalink | Comments (1)