Sunday, January 22, 2012

What is The Legal Whiteboard?

[Posted by Bill Henderson]

As I write the inaugural post for The Legal Whiteboard, I am cognizant of the fact that our current readership will likely be single digit and driven largely by errant Google searches.  Hey, that is better than zero.  It doesn't matter if the first snowball is small; it just has to roll.  My sincere thanks to Paul Caron and Joe Hodnicki for taking a chance on one more blog devoted to lawyers and legal education.

For the benefit of our small initial readership, I would like to offer my own rationale for creating The Legal Whiteboard.  So here it goes.

According to a lot of reputable media outlets, the sky is falling for both legal education and legal services.  I understand the basis for this conclusion.  A lot of lawyers, young and old, are unemployed or underemployed.  The debt loads of graduating students are staggering.  The established “brand” law firms are doing something they have never done before --- shrink, or at least not grow.  This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior.  The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine.  So things may get worse before they get better.

Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp.  Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work.  What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper.  Many legal services will become more standardized, productized and commoditized.  I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model.  But clients – including corporations, government and ordinary citizens—will love it.  Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal.  The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living. 

Many people assume that the new paradigm means lawyers working longer hours for lower wages.  That is one future business model.  But I think it utterly lacks imagination.  Lawyers are problem solvers.  To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem.  And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard.  (I am told it is quite a spectacle to behold.)  I am also someone who loves to collaborate.  With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.

Morriss2In addition to outlining the purpose of The Legal Whiteboard, I want to take this opportunity to say how happy and proud I am that Andy Morriss has agreed to be my co-venturer on this new project.  Andy Morriss and I have a long history together.  And it is a history that goes to the very core of what this blog is about – the transformative power of education.  I do not use the word transformative lightly.  I am talking about something that is life altering and deeply existential, helping us answer the most fundamental questions regarding the meaning and purpose of work and life.  Nearly twenty years ago, Andy was my college teacher.  And I got transformed.

Back in 1994, I was a 31 year-old firefighter-paramedic in a Cleveland suburb who decided to return to college at Case Western Reserve University to finish my undergraduate degree.  The goal was to attend law school.  (I had dropped out of college in 1984 after a junior year abroad at the London School of Economics – but that is a topic for a different post.)  I had my sights set on Cleveland-Marshall College of Law.  I was negotiating contracts for the International Association of Firefighters (IAFF), and I wanted better tools to stick-it to the management attorneys we were up against. (A few years later, I learned to separate positions from personality.)

My last year of college was costing me a small fortune.  If I could earn a few A’s during my senior year, maybe I could get a partial scholarship to Cleveland-Marshall.  Suffice to say, I was an engaged student.  At the time, Andy, who has a JD and economics PhD, had a joint appointment with the Case business and law schools.  To minimize my use of “comp time” on days when my classes overlapped with my fire department shifts, I stacked all my classes on Tuesday and Thursdays – and those were the days that Andy taught at the business school.   So I took Law & Economics, Environmental Economics, and Law, Cooperation and Economics in successive semesters.

Taking a class from Andy has an exercise in having your expectations of a lecture class turned on their head.  To simulate a slip-and-fall case, we made puddles of spilt milk in hallways and contemplated who was in the best position– the alleged victim or tort-feasor – to avoid the harm in the first instance.   At the end of a substantive course unit, Andy would ask for feedback.  And in the next course unit, he would change his approach accordingly.  When someone in the class had an interesting life experience, he would get very excited and mine it for information relevant to the lesson plan.

Slowly it began to dawn on me that Andy was turning every classroom into a laboratory.  He was more than happy to convey his massive learning, but he was always trying to pull learning from the students and the classroom.  When a smart person lacks a big ego and is truly openminded, the ideas gush in.  Andy could walk to the grocery store from his condo in Tuscaloosa, Alabama and return home with a research idea worthy of a PhD dissertation.  And, in turn, he would give the idea away.

I have known Andy for almost 20 years and worked on several major projects with him.  Although we have never voted for the same presidential candidate, I can honestly say we have never once had a disagreeable disagreement.  And we have had hundreds of hours of laughter.  I want The Legal White board to perpetuate this ethos.  We are interested in ideas, meaningful trends and problem solving in law and legal education.  The dialogue is intended to be task-focused.  Ideas, facts and analysis are important; egos, ideology and personal agendas are not.  I hope this blog is useful first, but also entertaining, collaborative and humane.  These are the tricks I have learned from friend and mentor, Andy Morriss.

Blog posts worth reading, Fun and Learning in the classroom, New and Noteworthy, Structural change | Permalink


+1 subscriber :)

Posted by: anon | Jan 27, 2012 5:48:00 PM

It don't think the police and prosecutors would abuse their authority so often if more people could afford legal representation. They continue to do so because they know most people will not be willing to fight if the cost of fighting a false allegation(thousands) exceeds the cost of a "deal"(often hundreds). Often, the accusation is based in truth, but exaggerated.

Bad behavior by police has become very widespread. Even when they actually kill the innocent, they usually get away with it or else get a lesser sentence.

Posted by: Ellimist | Jan 28, 2012 3:00:06 PM

Nice intro. I plan on regular visits.

Posted by: Jonsso | Jan 28, 2012 3:04:07 PM

Structurally, it involves the replacement of labor with capital and individualized provision of legal services with computerized provision of legal services.

The need for lawyers for most purposes in the private sector will decline.

Posted by: PragmaticLibertarian | Jan 28, 2012 3:44:20 PM

Better, faster, cheaper. Pick two

Posted by: Eli Rabett | Jan 28, 2012 3:44:50 PM

Make that +2 subscribers :)

Posted by: anon2 | Jan 28, 2012 4:44:32 PM

Perhaps it is time for lawyers to reflect on their sins and work for reform of the legal system, which is certainly not serving justice very well today. See for a taste of what I mean.

Posted by: Jon Roland | Jan 28, 2012 5:00:41 PM

I'm skeptical about the purported paradigm shift here. Legal services, like all professional services, have always been offered on an expertise/experience/efficiency spectrum, from Wachtell doing bet-the company litigation (expertise) to (say) Schiff Hardin doing $50 million construction loans (experience) to the local closing mill that does home mortgage closings for Citigroup Home Mortgage at $300 a pop (efficiency). And particular areas of law, such as REIT bond offerings or hedge fund formations generally move from the expertise portion of the spectrum to the experience portion of the spectrum, and sometimes (say with conduit loans) all the way to the efficiency portion.

Posted by: wm13 | Jan 28, 2012 5:18:56 PM

You were a full-time law student and a full time firefighter at the same time? Please clarify if you will. Otherwise, just another example of how public employee unions are taking advantage of taxpayers

Posted by: Greg | Jan 29, 2012 8:42:32 AM

A pleasant and informative introduction. As a lawyer and part-time professor of political science, public affairs, I am interested in your thoughts, and look forwards to your postings.

Posted by: Jonathan | Jan 29, 2012 9:24:51 AM

To Greg, I went back to school and took three courses per semester. The usual load was five. My wife barely saw me, but the City got its money's worth. Bill H.

Posted by: Bill Henderson | Jan 29, 2012 10:01:10 AM

Finally, a blog for people who are tired of only hearing from the chicken littles!

Posted by: Matthew Wilcut | Jan 29, 2012 10:27:30 AM

A fundamental problem with legal education is that most law school faculty members have little to no meaningful, significant, serious experience as practicing lawyers. Law school faculty members are invariably hired less than 10 years out of law school, some with only 2-3 years of real world experience after completing a clerkship or two. These law school faculty hires are lucky if they got to "second-chair" a deposition or "third-chair" a trial (I am not making these up).

Imagine a medical school where surgery was taught solely by those who had only operated on cadavers (the med school equivalent of moot courts), but had gotten no closer to operating on a real patient than handing the knife to the senior surgeon. That aptly describes all too many law school faculty members.

Posted by: Jack Schwartz | Jan 29, 2012 10:29:37 AM

A good introduction, and a topic that is definitely of interest. There are lots of paradigm shifts facing the legal profession these days. Alternative fee arrangements, collaborative law, advertising shifting from yellow pages directories to digital resources. You've taken on a challenge, but as the saying goes, the journey is the reward. I'm glad to be along for the trip.

Posted by: Bill Wilson | Jan 29, 2012 10:38:36 AM

I'd ask what we can expect to see here, but I think it might be more interesting to just wait and see. Looking forward to reading the next installment.

Posted by: Nick N. | Jan 29, 2012 11:53:31 AM

Welcome and thank you for starting this journey to share your thoughts with the world!

I'm a student who's passionate about improving the state of law and the way contracts are drafted, so I'm excited to hear about your thoughts on the future of law. The project I'm working on is called Ridacto (, and it uses artificial intelligence technology to help attorneys and business professionals create better legal contracts by catching potential errors and inconsistencies. I hope that Ridacto represents one of the possible futures of law that allows attornesy to be more effective and work smarter (and more efficiently) with technology. I'd love to hear your thoughts and feedback!

Thanks again for writing and sharing, and I look forward to reading your future posts!

Posted by: Max Mednik | Jan 29, 2012 12:00:12 PM

Bill should also clarify that he did his firefighting while in undergrad, not law school. (This is implied by his answer -- the normal load at Chicago is four classes a quarter, not five a semester, so I don't think he was referring to his time in the HP.)

Hi Bill!

Posted by: Bill's law school classmate | Jan 30, 2012 2:44:31 PM

Really looking forward to reading this blog. Can you set it up for RSS? My apologies if it is and I'm just doing something wrong.

Posted by: bcw | Jan 30, 2012 8:05:33 PM

The RRS feed is:

Most newer browsers give an option of subscribing to a page using an RSS feed. I hope this is helpful. Bill H.

Posted by: Bill Henderson | Jan 31, 2012 7:23:01 AM

I look forward to future posts. The response of the middle- and lower tier of BigLaw firms to the economic drivers of the paradigm shift will be interesting to watch. Will they be able to shift to a different business model, or will they fall victim to creative destruction?

Posted by: tldugan | Jan 31, 2012 7:57:40 AM

Bill and Andrew,

Just saw this over in Volokh. This is a great development.

I've run into Bill's work in preparation for a conference on General Counsel at U of Wisconsin Law School last November, and since have run into his name and work.

Thanks for doing this.



Posted by: Joel Webber | Jan 31, 2012 10:29:06 AM

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