The Legal Whiteboard

The Connection between Coaching and Mentoring and Great Lawyer Careers -- Sporkin's Kids and other Examples

My previous post excerpted the introduction "How to Solve the Legal Profession's Diversity Problem." The article suggests that our diversity challenges are rooted in a systems problem. First, our systems for selecting and developing lawyers is seldom grounded in science.  Second, the functioning of these systems are seldom viewed as critical to organizational success. Hence, the systems often poorly tooled, and the resulting data are under-analyzed.  These background conditions make it very difficult to understand and solve the diversity problem. 

In response, my article provides a baseline theoretical model for the creation of high performing lawyers (see figure below). This model operates with equal force for diverse and majority lawyers, albeit for reasons explained in the article, systems failures tend to have larger negative effects on women and diverse lawyers.

My favorite part of the article is the discussion on component (5) Coaching & Mentoring, which is excerpted below.  This is the least technical section and also demonstrates that applied research can derives its initial theories from simple historical stories that are associated with extraordinary results.

This portion of the article references, among others, Walter Carter, Paul Cravath, Judge Stanley Sporkin, and some of the heaviest hitters in the SEC and corporate governance bar. Among these lawyers, coaching and mentoring launched tremendous careers.  My primary point is that if we understand the power of these relationships, we can channel it toward the benefit of diverse lawyers.

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 (5) Coaching and Mentoring

The fifth and final component in my model is coaching and mentoring. A strong coach and mentor is often the vehicle through which a young lawyer receives developmentally rich work experience (3) and high-quality training and feedback (4). Yet coaching and mentoring is its own freestanding component because when it is done well it becomes an intense personal connection where talented professionals choose to allocate their valuable time and resources toward the success of others. Conversely, understanding the nature of the investment being made, the person being mentored experiences a mixture of heightened motivation and gratitude that enables him or her to persevere through virtually any professional hardship in order to reach long-term goals.

One of the best examples of the power of mentorship is New York City business lawyer Walter Carter, who served as a mentor to many of the leading corporate lawyers of the early 20th century. Carter’s accomplishments on this front were chronicled in a 1954 book entitled Walter S. Carter: Collector of Young Masters. According to the book author, Otto Koegel, Carter’s gift was spotting promising young talent and bringing them along as corporate lawyers who were capable of counseling executives of large financial and industry enterprises.

An appendix at the back of Koegel’s book is a folded poster with a family tree of Carter’s lawyer progeny. One of the first nodes on the family tree is Paul Cravath, who worked for Carter as a junior lawyer. The subsequent branches document Cravath’s departure and movement to a firm that would later become Cravath, Swaine & Moore, where Cravath designed and implemented the “Cravath system.” According to the firm’s history, the Cravath system is largely credited with the firm’s eventual leadership position among Wall Street firms. The firm history also cites Walter Carter’s training principles as the basis for the system. Other branches on the Carter family tree connect founders or leaders at many familiar powerhouse firms of the 21st century, including Milbank Tweed, Willkie Farr, Cadwalader, Shearman & Sterling, and Hughes Hubbard.

I have also observed something similar to Carter’s impact on future leading lawyers, albeit within the context of a government agency. Colleagues in the securities bar have observed the phenomenon of “Sporkin’s kids,” referring to the many influential lawyers who worked under Stanley Sporkin during his long and distinguished tenure at the Securities and Exchange Commission (SEC). Many of Sporkin’s SEC protégés lacked the pedigree of an elite law school, yet they went on to become some of the most sought after and influential securities litigation lawyers of their generation. They include Edward Herlihy of Wachtell Lipton (George Washington Law), William McLucas of WilmerHale (Temple Law), and Ralph Ferrera of Proskauer (Cincinnati Law).

After two decades at the SEC, Sporkin became general counsel of the CIA and then a prominent federal judge. In preparation for writing this article, I contacted Judge Sporkin to ask him about this track record of mentorship. He commented that his philosophy was to look for intelligent young lawyers who would approach their jobs “with enthusiasm.” In Sporkin’s view, the law school attended was a poor proxy for these intangibles (Sporkin himself attended Yale). Further, according to Sporkin, it was critical that there be values alignment between the young lawyer and the mission of the agency. Otherwise, the lawyer could not keep up with the demands of working in his office. (Compare Sporkin’s observations to the Motivation factor outlined in this article’s five-factor model.) Judge Sporkin expressed gratitude for the lack of bureaucracy in the 1960s, 1970s, and 1980s, which enabled him to hire so much raw talent according to his own criteria. He related the story of meeting a young Ralph Ferrera, who pleaded with Sporkin for an opportunity to work at the agency. Sporkin lacked the budget to hire him, so Ferrera worked for free until a formal staff position became open. The rest, as they say, is history.

In my experience, law firms undervalue the importance of coaching and mentorship. Carter and Sporkin had the power to make these investments on their own. Yet, today’s modern law firm emphasizes the production of revenues. The cost of nonbillable time can be readily calculated; the same cannot be said, however, about the value of nonbillable time. Partners who have given little thought to the power of professional development are most likely to resist large investments. They lack the systems perspective of Paul Cravath. I have studied lawyer development for over a decade. I think these partners are trading dollars for pennies.

Conclusion

The purpose of this article is to create a roadmap for solving the legal profession’s longstanding diversity problem. The solution is to end the moral handwringing and to create a system for selecting and developing lawyers. Yes, it will be expensive in time, money, and political capital, but not nearly as costly as wasting raw human potential. Glory, and possibly organizational riches, will accrue to the law firm leaders and general counsel who are brave enough and wise enough to demand that we go down this road. The time has come to fix this problem once and for all.

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Interested readers can download the full article from SSRN.

Solving the Legal Profession's Diversity Problem

Below is an excerpt from an article I just published in the PD Quarterly.  The topic is diversity, one of the hardest and most intractable problems affecting the legal profession.  What makes this article different is that it is draws heavily upon my applied research with law firms.   

In the coming months, I will be writing more about applied research within the legal field -- in particular, the challenges of this work and why, notwithstanding the challenges, applied research is destined to grow in importance and influence.

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 Here is a familiar fact pattern in large U.S. law firms.

Time 1. Partners come together and agree that diversity is part of their firm’s core values; they review the firm’s bleak statistics, particularly at the partnership level, and agree they can and will do better.

Time 2. Through significant time and expense, they successfully recruit a diverse class of incoming associates.

Time 3. A disproportionately large number of female and diverse associates leave the firm.

Time 4. The remaining associates eligible for partner are primarily white men.

Time 5. Partners come together and agree that diversity is part of their firm’s core values; they review the firm’s bleak statistics, particularly at the partnership level, and agree they can and will do better.

Why does this cycle repeat itself? As a long-time law firm researcher who has seen this cycle play out over several iterations, I can tell you that it is easy for a group of lawyers, especially those new to leadership, to convince themselves that they can solve the profession’s diversity problem through greater moral resolve. Yet, if the root causes are not moral in nature, we won’t make much progress.

In this article, I ask readers to consider the possibility that the profession’s lack of progress on diversity is a systems problem rather than a failure of moral resolve.

What does it mean to have a systems problem? Every firm has a system of recruitment, selection, development, feedback, evaluation, and promotion that enables law graduates to enter as legal novices and, through years of effort, acquire the skills, knowledge, and experience necessary to become partners. At most law firms, however, this system is driven more by tradition and past practice than science. Further, the system seldom places explicit or rigid demands on partner-owners because partner-owners prize their autonomy and are given the greatest rewards for bringing in business. To the extent the system relies on measurement, the quality of the data is uneven and under-analyzed. Stated another way, the “system” for creating successful lawyers and partners is not much of a system at all. And in this ignorance lies the cause of our diversity problem.

For the last several years, I have shifted my focus from academic to applied research. Although academic ideas can be elegant, compelling, and important, their major limitation is that we don’t really know if they will work in actual practice. Applied research attempts to sort this out, usually through social scientists hired by organizations that are hungry for a competitive advantage. The goal of applied research is to find solutions to important problems and then make them cheap and simple to implement. Law has a shortage of applied researchers, partially because the profession has been so prosperous for so long (what’s there to fix?) and partially because lawyers tend to be uncomfortable with data and statistics. Yet, these background factors are starting to change.

In this article, I am going to share what I have learned through my applied research as it bears on the problem of law firm diversity. The bottom line is that the problem is fixable. If we design and implement a better system, out the other side will flow successful diverse attorneys in roughly the same proportion as the number we managed to hire several years earlier. Further, the stakes are hardly academic. Organizations with a reliable system for creating diverse lawyers will have a competitive advantage for attracting clients and the best entry-level talent. Likewise, esteem and accolades await the leaders who finally make a breakthrough on law firm diversity.

You Have to Start with a Theory

An intelligent system is invariably built upon a theory drawn from multiple sources. One high quality source is published empirical research. A second is one’s own professional work experience: “When I have tried X, Y usually happens” — so we rely on X. Finally, a subset of our theories will be based on pure reason: “Based on our collective knowledge and experience, this is the best approach for this problem.” Figure 1 is a summary of my own theory for creating high performing partners.

Figure 1. Elements Need to Create a High Performing Partner

In narrative form, I am saying that the creation of high-performing partners is influenced by five factors: (1) aptitude, also known as cognitive ability; (2) motivation, which is primarily a function of values alignment between the lawyer and the substance of his or her work; (3) the type and quality of work experience that a lawyer receives during his or her early career; (4) the quality, quantity, and timeliness of training and feedback; and (5) the presence and quality of a mentoring or coaching relationship.

The model can also be broken down into selection and development components. A law firm optimizes elements (1) and (2) through a process of accurate selection at the point of hiring. The less accurate the selection, the higher the lawyer attrition due to poor fit for aptitude and motivation. A firm can optimize (3), (4), and (5) by designing and implementing systems for professional development. The better the design and execution of the interconnected systems, the faster and higher the lawyer’s growth trajectory.

What is the relative importance of these factors? This is a good question that no one can answer with any degree of precision, primarily because we are in the early days of applied research within the legal profession and the required data has not yet been collected and analyzed. The best we can do is to start with a theory that is consistent with the data we do have and continuously improve our knowledge through measurement.

It has been my experience, however, that lawyers often have strong opinions on what does and doesn’t matter. These views on lawyer selection and development essentially create a series of default settings based on conventional wisdom and past practice. I have enough knowledge of the social science literature and enough experience doing sophisticated applied research in law firms to conclude that many of these default settings are wrong.

Below is a summary of what I know about each of the five components in my five-factor model. One by one, and cumulatively, these model components provide me with optimism that law firm diversity can be dramatically improved, particularly at the partnership level.

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Interested readers can download the full article from SSRN.  

Part II: Alumni Surveys, Pre-Law Characteristics and Motivations

Building on the introduction (Part I) of this blog series, our alumni survey of Northeastern University School of Law yielded cross-sectional data that span graduates from 1971 to 2012.  Because of the large time span, some of the most interesting responses to questions tend to fall into two buckets:

1. What is staying the same?  Here we are looking for response patterns that are relatively stable and constant across age cohorts.
2. What is changing?  Likewise, we are also interested in responses that appear to be changing as a function of time of graduation.

In the portion of our analysis that looked at pre-law characteristics and motivations, our most striking findings tended to fall into bucket #1. 

For example, below is a graphic summarizing responses to the question, “How important were the following goals in your decision to attend law school?” Responses are organized by decade of graduation.  They are ordered by most important to least important for respondents who graduated in 2000 or later.

                              Goals for Attending Law School, by Decade of Graduation

One of the most striking features is that the top three responses are essentially identical for all four age cohorts.  For each group, the desire to have a satisfying career, help individuals, and improve society were all, on average, very important in the decision to attend law school. 

Although there are differences across age cohorts, there remains relatively clear clustering by decade of graduation. (Query: would this same pattern hold true at other law schools?  One of the advantages of pooling data across schools is the ability to isolate a self-selection effect that operates at the school level.)

Yet, some factors appear to be changing over time, such as the importance of transferable skills and eventual financial security.  With each decade cohort, respondents are rating these factors progressively more important to their decision to attend law schools. Likewise, “other goals” appear to be progressively less important. 

These patterns (and others survey results I will report in Parts III and IV) suggest gradual changes in the knowledge worker ecosystem that require students to be more deliberate and focused in their decision to attend law school.  For example, costs of all of higher education are going up at the same time that the financial payoffs of traditional graduate and professional education are becoming less certain.  This is an ecological effect that is bound to have an influence on students and student decision making.  Although legal education would be part of this shift, the shift itself would not be unique to law.

This interpretation is consistent with our focus group discussions with Northeastern alumni.  This group queried whether the term “transferable skills” was even part of the lexicon when they were graduating from college.  Likewise, the group commented that the decision to attend law school during the 1970s and 1980s was not difficult because tuition was relatively low and jobs, including paid co-op jobs, were relatively plentiful. Although the legal market may be tighter and more complex than in earlier decades, the Northeastern alumni commented that the tradeoffs were changing for all knowledge workers.  

For other “Before Law School” findings, see the full Alumni/ae Survey Report at the OAP website. 

Links:

Part I:  What Can We Learn by Studying Law School Alumni? A Case Study of One Law School

Part III: Alumni Surveys, During Law School

Part IV: Alumni Surveys, The Varied Career Paths of Law School Graduates

Part I: What Can We Learn by Studying Law School Alumni? A Case Study of One Law School

Several years ago, as the legal academy was beginning to work its way through the implications of the landmark “After the JD” Project (AJD), one of the principal investigators, Bryant Garth, commented to a group of fellow law professors that “within a few years it will be educational malpractice for law schools to not study their own alumni.”

Garth had special standing to make this claim, as he had launched the AJD during his long tenure at the American Bar Foundation and then went on to serve as Dean of Southwestern Law School in Los Angeles. While at Southwestern, Garth taught a short 1L course about legal careers that combined AJD findings with live interviews with Southwestern alumni. Despite decades of research studying lawyers, Garth gushed at how much he personally learned from these interviews and how the narratives were often surprising and inspiring, particularly for Southwestern students filled with apprehension at what the future might hold.

I had occasion to remember Garth’s observations in early 2011 when Emily Spieler, then the Dean of Northeastern University School of Law (NUSL), suggested that I study her alumni.

Northeastern Law

Northeastern is an interesting case study because for nearly 50 years the school has required four 11-week cooperative placements (or “co-ops”) as a condition of graduation. To facilitate completion within three years, the 1L year at Northeastern is taught in semesters while the 2L and 3L years are taught over eight alternating quarters. Summer-winter co-op students take classes during the fall and spring quarters, while fall-spring co-op students attend classes in the summer and winter quarters. Because co-ops are not for academic credit – they fulfill Northeastern University rather than ABA-accreditation requirements – students can be paid for the full 11 weeks. (More on that in Part III of this series.)

Dean Spieler wanted a third party to study Northeastern because, in her experience as dean, her many encounters with Northeastern alumni suggested to her that the School’s unusual education model was accelerating the professional development of its students and enabling them to make better, more informed career choices.

Acceleration of profession development is a very difficult effect to measure, but it is certainly plausible. In fact, the entire experiential law movement is largely premised on this claim. So I signed onto a multi-year initiative that we called the Outcomes Assessment Project (OAP).

The premise of the OAP was very unusual. Through a generous but anonymous benefactor, the research tools and templates developed for the OAP would be made available to other law schools interested in studying graduates. The intent is for law schools to accumulate data using similar methods and instruments, driving up the value of the data (because it is comparable across schools) while driving down the cost of collection and analysis.

There are many phases to the OAP, including those focused on admissions, the student experience, and co-op employers. Here, however, I wanted to write about what we learned from a survey of Northeastern’s alumni.

Last fall, we sent a survey instrument to Northeastern alumni who graduated from the law school between 1971 and 2012 (~4,000 law grads for which NUSL had a current email address). The survey instrument was substantially based on the AJD Wave III survey instrument, which was sent to a representative sample of law graduates from all ABA-accredited law schools who took the bar in the year 2000.

In contrast to the AJD, which has produced remarkable knowledge about law school grads from the year 2000, the OAP Alumni/ae Survey included four decades of law graduates from a single law school. Although this is not a true longitudinal sample, which samples the same people over time, this methodology enables cross-sectional comparisons between different cohorts of graduates (e.g., by decade of graduate or pre/post AJD).

The response rate of the Northeastern alumni survey was 21% (833 total completed questionnaires), which is relatively high for a long online survey. Because the resulting sample substantially mirrored the baseline data we had for Northeastern alumni practice areas and years of graduation, we were confident that the resulting sample was both representative and reliable.

Applied Research

Similar to the AJD, the OAP Alumni/ae Survey produced enough data to keep researchers busy for several years. Hopefully, these data will eventually be archived and aggregated at the American Bar Foundation or a similar institution in order to facilitate a broader and deeper understanding of legal careers.

However, the OAP was largely set up to be applied research. What does this mean? Here, the goal is, at least in part, to obtain data that is operational in nature, thus enabling a law school to examine and test fundamental assumptions and generate insights related to its stated goals and mission. In a word, to improve.

Further, when skillfully boiled down using data visualization, the findings themselves tend to be of great interest to all law school stakeholders, including alumni, faculty, administrative staff, current students, and prospective students. Interest is particularly piqued during times of transition and uncertainty, such as now, when law schools and the practicing bar are looking to each other to provide potential answers and support.

To makes results as accessible as possible, we decided to present the preliminary Alumni Survey results in a simple three-part framework:

• Before Law School: pre-law characteristics and motivations
• During Law School: the law school experience
• After Law School: job mobility and satisfaction

This week, I am going to give a sampling of findings from all three sections – findings that will likely be of interest to a non-Northeastern audience of law faculty, practicing lawyers, and students. If you are interested in reading the entire preliminary report, it can be found online at the Northeastern OAP website.

Links:

Part II, Before-Law School

Part III: Alumni Surveys, During Law School

Part IV: Alumni Surveys, The Varied Career Paths of Law School Graduates

Does Cooperative Placement Accelerate Law Student Professional Development?

The title of an earlier essay posed a threshold question for legal ed reform: "If We Make Legal Education More Experiential, Would it Really Matter?" (Legal Whiteboard, Feb 2014) (PDF). I answered "yes" but admitted it was only my best guess.  Thus, to be more rigorous, I outlined the conditions necessary to prove the concept.

The essay below is a companion to the first essay.  It is a case study on how one type and brand of experiential education -- cooperative placements at Northeastern Law -- appears to accelerate the professional development of its law students. The outcome criteria are comprised of the three apprenticeships of Educating Lawyers (2007) (aka The Carnegie Report) --cognitive skills, practice skills, and professional identity.

The better outcomes flow from Northeastern's immersive, iterative, and integrative approach. First, students are immersed in full-time coops that last a standard 11 weeks. Second, students move through four iterations of coops interspersed with four quarters of upper-level classes. Third, this experiential approach is integrated into the Law School's value system -- i.e., the experiential component is perceived as central rather than marginal to the School's educational mission.

Northeastern's coop model asks more of faculty and students, thus it may be hard to replicate. Yet, there is evidence that such an approach does in fact accelerate professional development in ways that ought to please law school critics and reformers. The benefits may be well worth the costs. 

[PDF version at JD Supra]

[The text below was original published as the Northeastern Law Outcomes Assessment Project (OAP) Research Bulletin No. 3]

Immersive, Iterative and Integrative:
Does Cooperative Placement Accelerate Law Student  Professional Development?

A steep decline in the job prospects for entry-level lawyers has been followed by a sharp drop in law school applications. Media stories criticize traditional legal education for being too expensive while producing graduates unprepared for practice. Throughout the country, legal educators and administrators at law schools are trying to formulate an effective response.

A common thread running through many new law school initiatives is greater emphasis on experiential education. Fundamentally, experiential education is learning by doing, typically by assuming the role of the lawyer in an in-class simulation, law school clinic, externship or cooperative placement. As law schools seek to add hands-on opportunities to their curricular offerings, empirical evidence on experiential education’s impact on law student professional development becomes invaluable.

Northeastern University School of Law’s Outcomes Assessment Project (OAP) is an evidenced-based approach to understanding experiential learning in the law school curriculum. A focal point of the OAP is Northeastern’s Cooperative Legal Education Program, an integral part of the school’s curriculum since the late 1960s. After completing a mostly traditional first year of law school,Northeastern students enter a quarter system in which 11-week cooperative placements alternate with 11-week upper-level courses. Through the four co-op placements during the 2L and 3L years, every Northeastern student gains the functional equivalent of nearly one year of full-time legal experience, typically across a diverse array of practice areas.

The Learning Theory of Cooperative Placement

Northeastern’s Cooperative Legal Education Program is based on a learning theory with three interconnected elements: immersion, iteration and integration.

• Immersion: Immersion in active legal work in a real-world setting enables students to feel the weight and responsibility of representing real-world clients and exercising professional judgment.
• Iteration: Iterative movement between the classroom and co-op placements provides students with concrete opportunities to connect theory with practice and understand the role of reflection and adjustment in order to improve one’s skill and judgment as a lawyer.
• Integration: Integrating experiential learning into the law school curriculum signals its high value to the law school mission — when 50 percent of the upper-level activities involve learning by doing, practice skills are on par with doctrinal learning.

The purpose of the OAP Research Bulletin No. 3 is to use preliminary project data to explore whether the immersion-iteration-integration approach to legal education has the effect of accelerating the professional development of law students.

Three Effects of Co-op Placements

The findings in Research Bulletin No. 3 are based on surveys and focus groups conducted with 2L and 3L Northeastern law students and a small number of Northeastern law graduates, who served as facilitators. In our conversations with these students and alumni, we identified three ways that co-op is impacting the professional development of students.

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NewLaw, Innovation, and the Importance of Failure

Jordan Furlong is one of the first-rate commentators on the legal industry. He is an excellent observer, a deep thinker, and skilled and stylish communicator.  

Over at Law 21, Jordan has written a set of companion essays that explain the ferment that is now taking hold in the legal industry.  Check them out if you need or want the seemingly complex made simple.

The first essay is a highly useful reference guide to NewLaw (#NewLaw), a category coined by the Australian consultant George Beaton.   Jordan modestly titled the essay "An Incomplete Inventory of NewLaw," but its alleged incompleteness does not distract from its usefulness.  Complicated things like new business models need to be organized and simplified before we can get our heads around them.  Here, Jordan creates a elegant typology and fills it out with example after example.  Before Jordan's essay, few of us could be sure we were discussing the same ideas or concepts.

One of Jordan's most noteworthy observation is that the talent side of NewLaw is appears to be growing faster in the UK (new models of organizing and delivering legal services and content) while the US seems to be getting the most traction in legal tech.  The former is likely due to liberalization of regulations that flow from the UK's Legal Services Act of 2007 and the latter from the proximity to venture funding.  To have similar legal ecosystems developing in different ways is bound to trigger consequences and interactions that we cannot fully anticipate. 

Jordan's second post is on the failure of legal innovation, which he points out is nothing more than the precursor long-term success.  See  "The Failure of Legal Innovation," Law 21, May 29, 2014.  I definitely agree.  When I look at the legal innovation space in 2014 -- and my frame for reference is LegalTech, LexRedux, ReInvent Law, some of the ABA Legal Rebels, and a lot of shoe-leather research on my part -- I think of Detroit in 1905.  There were roughly 125 car manufacturers and hundreds more in other parts of the country, as Detroit was not yet car capital of the world.  All of those business owners were right about one thing:  The car is the future.  But they wistful optimists about something else -- their car company is the future. 

A start-up is like a sapling in the woods -- the odds are against it ever growing to the treeline. Fortunately, in the start-up ecosystem good ideas and talented entrepreneurs never really lose.  Instead, they are rolled up into competitors to form the types of companies that can truly shape an entire new industry.  Along these lines, if I were working in investment banking these days, I would be trying to specialize in the legal sector, as the roll-ups in this space are going to be fast and furious in the years to come.  

Let's fasten our seatbelts.  The next several years are going to be time of great tranformation.

Review of The Lawyer Bubble and Tomorrow's Lawyers

Readers might enjoy my forthcoming essay, Letting Go of Old Ideas, 112 Mich L Rev _ (2014), which reviews two important new books on the legal profession, Steven Harper's The Lawyer Bubble and Richard Susskind's Tomorrow's Lawyers. If you want to know why the legal profession circa 2014 is such a rich topic for study, here is a useful clue: Harper and Susskind both critically examine this topic yet come to dramatically different conclusions that neither overlap nor conflict with one another. The complexities run that deep.

Thanks to his prolific commentary in the legal press, Harper's critique is familar to many readers. He is angry with the elite legal establishment -- large law firms and the legal professoriate -- for succumbing to "a culture of short-termism" that focuses obsessively on the AmLaw and US News league tables.  As someone in the target group, I confess that I don't remember making a conscious decision to sell out.   Yet, here is the problem.  When all the facts in the public domain are arrayed by a skilled trial lawyer, the question can be asked, "why didn't you stand up to this nonsense?"  This is a classic example of diffusion of responsibility. When we are all equally responsible for upholding good behavior, no one is responsible.  Collective denial sets it, and the profession gets a black eye.  

Yet, to my mind, there is an avenue for at least partial redemption -- reading Richard Susskind's slender 165 page book.  In my Counterpoint essay, I lay out the mounting evidence that the legal industry is in the early stages of a sea change.  The best theoretical treatment of this sea change is Susskind's Tomorrow's Lawyers.  Yet, I am amazed at how many lawyers and law professors know essentially nothing about Susskind's work.  Tomorrow's Lawyers was written for law students.  It is a short, accessible book.  After reading the first two paragraphs, I doubt anyone with a long-term time horizon in the legal industry will put it down without finishing it:

This book is a short introduction to the future for young and aspiring lawyers.

Tomorrow’s legal world, as predicted and described here, bears little resemblance to that of the past. Legal Institutions and lawyers are at a crossroads, I claim, and are poised to change more radically over the next two decades than they have over the last two centuries. If you are a young lawyer, this revolution will happen on your watch. (p. xiii).

If you have not read Tomorrow's Lawyers, you may be setting yourself for a Kodak moment. 

If We Make Legal Education More Experiential, Would it Really Matter?

I think the answer is yes.  But, unfortunately, in virtually all of the debate surrounding legal education, there is a tremendous lack of clarity and precision about how we assess improvements in quality.  And equally relevant, if a gain is real, was it worth the cost?

The purpose of this essay is to chip away at this serious conceptual gap.  Until this gap is filled, experiential education will fall significantly short of its potential. 

Is Experiential Legal Education Better?  And if so, at What Cost?

Many legal educators believe that if we had more clinics, externships, and skills courses in law school, legal education would be better.  Why?  Because this more diversified curriculum would become more "experiential."  

Inside the legal education echo chamber, we often accept this claim as self-evident. The logic runs something like this.  A competent lawyer needs domain knowledge + practical skills + a fiduciary disposition (i.e., the lawyer’s needs are subservient to the needs of clients and the rule of law).  Since practical skills—and some would argue, a fiduciary disposition—cannot be effectively acquired through traditional Socratic or lecture teaching methods, the ostensible logic is that schools become better by embracing the "learning-by-doing" experiential approach.

That may be true.  I would bet on it. But the per-unit cost of legal education is also probably going up as well.  So, have we really created a viable and sustainable long-term improvement to legal education?  

In my mind, the questions we should be asking instead are the following:  (1) Among experiential teaching methods, which ones are the most effective at accelerating professional development?  And (2) among these options, how much does each cost to operate?  Quality and cost must be assessed simultaneously.  After they are evaluated, then we will be able to make choices and tradeoffs. 

Let's start with quality, which I define as moving lawyers toward their peak effectiveness potential as rapidly and cost-effectively as possible. This is an education design problem, as we are trying to find the right combination of education (building domain knowledge) and experience (acquiring and honing skills through practice).  There is also likely to be an optimal way to sequence the various educational and experiential steps. 

Creating Compelling Evidence of Educational Quality

We legal educators have many ideas on how to improve educational quality, but we make no real progress if employers and students remain unconvinced.  Can it be shown that because of a specific type of experiential curriculum at School X, its graduates are, during the first few years of practice, more capable lawyers than graduates of School Y?  

[Side bar:  If you are skeptical of this market test, it is worth noting that it was the preferences of law firm employers who gave rise to the existing national law school hierarchy.  It happened about 100 years ago when a handful of law schools adopted the case method, required undergraduate education as a prerequisite to admission, and hired scholars as teachers.  As a general matter, this was a far better education than a practitioner reading lecture notes at the local YMCA.  See William Henderson, "Successful Lawyer Skills and Behaviors," in Essential Qualities of the Professional Lawyer ch 5 (P. Haskins ed., 2013).]

If a law school can produce, on balance, a better caliber of graduates than its competitors, then we are getting somewhere.  As this information diffuses,  employers (who want lawyers who make their lives easier) will preference law schools with the better graduates, and law students (who want more and better career options) will follow suit. Until we have this level of conceptual and empirical clarity, we might as well be debating art or literature.

If students and employers are responding to particular curricula, it is reasonable to assume they are responding to perceived value (i.e., quality as a function of price).   I believe there are three steps needed to create a legal education curriculum that truly moves the market.

1. Clarity on Goals.  We need to understand the knowledge, skills, and behaviors that are highly prized by legal and non-legal employers.  Truth be told, this is tacit knowledge in most workplaces. It is hard intellectual work to translate tacit knowledge into something explicit that can be communicated and taught. But we are educators -- that is our job!  If we think employers are missing something essential, we can add in additional factors. That's our job, too.

2. Designing and Building the Program. Working backwards from our goals, let's design and build curricula that will, overall, accelerate development toward those goals.  This is harder and more rigorous than lesson planning from a casebook.

3. Communicating Value to the Market.  If our program is indeed better, employers and students need to know it.  This also requires a crisp, accurate message and a receptive audience.  This requires planning and effort.  That said, if our program truly is producing more effective lawyers, it logically follows that our graduates (i.e., the more effective lawyers) will be the most  effective way to communicate that message. 

Regarding point #3, in simple, practical terms, how would this work?  

During the 1L year, we show our law students the roadmap we have developed (step #2) and spend the next two years filling in the knowledge, skills, and behaviors needed to achieve their career goals.  This professional development process would be documented through a portfolio of work.  This would enable students to communicate specific examples of initiative, collaborative learning, problem-solving, or a fiduciary disposition, etc., developed during law school.  Students would also know their weaknesses, and have a clear plan for their future professional development. In a word, they'd stand out from other law graduates because, as a group, they would be much more intentional and self-directed (i.e., they'd know where they are going and how to get there). 

With such a curriculum in place, our law school would collaborate with employers assess the performance of our graduates.  By implication, the reference point for assessing quality would be graduates from other law schools.  When our graduates fare better, future graduates will be more heavily recruited.  Why?  Because when an employer hires from our school, they would be more likely to get a lawyer who helps peers and clients while adding immediate enterprise value.    

I suspect that many of my legal academic colleagues would argue the best law schools are not trade schools -- I 100% agree.  But I am not talking about a trade school model.  Rather, a world-class law school creates skilled problem-solvers who combine theory with practice and a fiduciary disposition. Graduates of a world-class law school would be reliably smart, competent, and trustworthy.  This is a very difficult endeavor. It takes time, planning, collaboration, creativity and hard work.  But the benefits are personal, organizational, and societal.  

At a practical level, I think few law schools have targeted this goal with a full, unbridled institutional commitment.  But the opportunity exists.

Applied Research 

When I got tenure in 2009, I decided that I was going to spend the next several years doing applied research. I am a fact guy.  Rather than argue that something is, or is not, better, I prefer to spend my time and effort gathering evidence and following the data.  I am also a practical guy.  The world is headed in this direction, thanks to the ubiquity of data in the digital age.  And, on balance, that is a good thing because it has the potential to reduce conflict. 

I have pursued applied work in two ways:  (1) building stuff (curricula, selection systems, lawyer development tools, datasets for making strategic decisions, etc.) and assessing how well it works, and (2) observing and measuring the work of others.

A Law School Curriculum Worth Measuring

A couple of years ago, a really unique applied research opportunity fell onto my lap.  I had a series of lengthy discussions on the future of legal education with Emily Spieler, who was then serving as dean of Northeastern University School of Law in Boston, a position she held for over a decade.  One of the raps on legal education is that it is more alike than it is different.  In fact, this very point was just made by the ABA Taskforce on Legal Education.  See ABA Task Force On The Future Of Legal Education, Report And Recommendations (Jan. 2014) at 2.

Emily, in contrast, said her school was unique -- that the curriculum better prepared students for practice and enabled them to make better career planning decisions.  Also, Emily stated that Northeastern students were more sensitized to the needs of clients and the privilege and burden of being a lawyer--specifically, that Northeastern grads become aware, before graduation, that their own lack of competency and diligence has real-world consequences for real-world people. And that reality weighed on students' minds.  

Tall claims.   But if Northeastern coulddeliver those outcomes more effectively than the traditional unstructured law school curriculum, I wanted to know about it.  

On a purely structural level, Northeastern Law is definitely unique.  Most law schools are organized on either quarters (University of Chicago, my alma mater) or semesters (Indiana University, where I teach). Northeastern, however, has both.  The 1L year curriculum at Northeastern is the traditional two semester model.  But after that, the school flips to quarters -- one quarter in law school, and one quarter in a cooperative placement with a legal employer, such as a judge, prosecutor’s office, a law firm, a corporate legal department, or a public interest organization.  

This classroom/coop sequence occurs four times over eight quarters.  Because the cooperative placement is not viewed as part of Northeastern's ABA-required course work -- all the contact hours are packed into two 1L semesters and four 2L/3L quarters -- students can be paid during cooperative placements.  And in any given semester, roughly 30 to 40% are getting paid. 

This system has been up and running for 45 years--over 5,000 students have become lawyers through this program.  What an amazing research opportunity! 

Now imagine the faculty meeting where the law professors get together to discuss and deliberate over whether to adopt the Northeastern model.  At Northeastern, "summer" means summer quarter, not summer vacation.  

How did this unique curricular structure come into being?  That is quite an interesting story. During the 1950s, the law school at Northeastern was shuttered.  Yet, reflecting the zeitgeist of the times, a group of Northeastern law alumni and young lawyers who were skeptical of their own legal education (at elite national law schools) petitioned Northeastern to reopen the law school and feature a more progressive, forward-looking curriculum.  The university administration agreed to reopen the law school on the condition that the school adopt the signature cooperative education model.  So this crucial decision was essentially made at the birth of the law school over four decades ago.  Once up and running, Northeastern Law implemented other innovations, such as the narrative grading policy--i.e., no letter grades and no GPA.  This was done in order to mitigate competition and encourage a focus on collaboration and skills development. 

The Outcomes Assessment Project

Back in 2011, my conversations with Emily Spieler eventually led me to make a two-day pilgrimage to Boston to talk with Northeastern Law faculty, students, administrators, and coop employers.  Suffice it to say, I was surprised by what I witnessed --a truly differentiated legal education with a substantial alumni/ae base spanning 45 years.  

That pilgrimage eventually led to my involvement in Northeastern Law's Outcomes Assessment Project (OAP), which is something akin to The After the JD Project, but limited in scope to Northeastern -- although Northeastern will provide all of the project tools and templates to other law schools interested in studying their own alumni.  From the outset, the OAP has been set up to scale to other law schools. 

There are lots of tricky methodological issues with Northeastern.  For example,

• It has a longstanding public interest tradition; Northeastern Law is overrepresented in government service, public interest, and non-profit sectors (including a sizeable contingent of law professors and legal clinicians). See Research Bulletin No 1.
• Its student body was over 50% female almost from the outset, nearly 20 years before legal education as a whole. 
• Because of its progressive roots, GLBT law students have long been drawn to Northeastern Law -- again, nearly two decades before it was deemed safe to be out.

Because of this distinctive profile, we have to worry that any differences in graduates are primarily due to a selection effect (who applied and enrolled) versus a treatment effect (they got a different type of education).  That said, the admissions data show that Northeastern Law students are, like other law students, strongly influenced by the US News rankings.   If a student gets admitted to Northeastern Law and BC, BU, or Harvard Law, Northeastern seldom wins.  

Over the coming months, I am going to use OAP data to attempt to develop some analytical and empirical clarity to some of the questions surrounding experiential education.   Preliminary data from our Research Bulletin No 3 suggest that the coop program does remarkably well in developing the three apprenticeships identified by the Carnegie Report.  More on that later. 

Print version of this essay at JD Supra.

Did the Market for Law Firm Associates Peak 25 Years Ago?

Based on the chart below, which reflects 35 years of large law firm data, the answer appears to be yes.  The chart enables us to compare two very simple trendlines: the percentage of lawyers in NLJ 250 law firms who have the title of Associates versus the percentage with the title of Partner. 

The chart above was generated by my colleague, Evan Parker-Stephen, who is Director of Analytics at Lawyer Metrics.  I asked Evan to crunch these data after some of research I was working on revealed a 50% decline in Summer Associate hiring between 2002 and 2012 at the ~600 law firms listed in the NALP Directory (11,302 to 5,584). In other words, 2008 is the wrong reference point. See Sea Change, NALP Bulletin (Aug 2013).  Something more substantial was (is) happening.

Indeed, the 35-year graphic above provides a true wide-angle view, which in turn reveals an absolutely remarkable story.  Associates were most integral to the large law firm model over 25 years ago.  Although large law firms went on a hirng spree at various points during the 1990s and 2000s, the firms themselves were simultaneously adding a new layer of human capital that was neither associate or partner/owner.  And in the process, associates were gradually being marginalized. The graph below (also NLJ 250 data) reveals the growing middle section of the so-called Diamond Model:

So what does all this mean?  

My best analysis is set forth in a short research monograph I wrote with Evan, entitled "The Diamond Law Firm: A New Model or the Pyramid Unraveling?"  The punchline is that large law firms appear to be chasing short-term profits at the expense of longer-term sustainability.  It would not be the first industry sector to lose its competitive advantage through myopic strategy -- as the saying goes, nothing fails like success.  See Henderson, Three Generations of U.S. Lawyers: Generalist, Specialist, Project Manager.  Large firms are not going extinct.  But as a matter of demographics, they are greying.  If BigLaw were trading on the Nasdaq, the analysts would be very critical of this trend.  

From Big Law to Lean Law

In 2012, Bruce Kobayashi and the George Mason Law & Economics Center organized an ambitious conference series entitled, "Unlocking the Law: Building on the Work of Professor Larry Ribstein."  The collective work product has recently been published in the International Review of Law & Economics.  

My contribution was an essay entitled "From Big Law to Lean Law."  It is a  review of Larry's seminal "The Death of Big Law" article, with the benefit of three years of data and the gradual realization that the entire legal profession is on the brink of a major structural transformation.

The "Death of Big Law"  first appeared on SSRN in the fall of 2009.  The following spring, I attended the annual Georgetown Center on the Legal Profession conference, where Larry's analysis and conclusions were presented to a large audience of Big Law partners, including managing partner commentators.  Suffice to say, the reaction was one of polite bafflement.

"From Big Law to Lean Law" was my best attempt to serve as a translator, albeit with the benefit of three years of market data and hindsight.  Here is the abstract

In a provocative 2009 essay entitled The Death of Big Law, the late Larry Ribstein predicted the shrinkage, devolution, and ultimate demise of the traditional large law firm. At the time virtually no practicing lawyer took Larry seriously. The nation’s large firms were only one year removed from record revenues and profits. Several decades of relentless growth had conditioned all of us to expect the inevitable rebound. Similarly, few law professors (including me) grasped the full reach of Larry’s analysis. His essay was not just another academic analysis. Rather, he was describing a seismic paradigm shift that would profoundly disrupt the economics of legal education and cast into doubt nearly a century of academic conventions. Suffice to say, the events of the last three years have made us humbler and wiser.

This essay revisits Larry’s seminal essay. Its primary goal is to make Larry’s original thesis much more tractable and concrete. It consists of three main pillars: (1) the organizational mindset and incentive structures that blinds large law partners to the gravity of their long-term business problems; (2) a specific rather than abstract description of the technologies and entrepreneurs that are gradually eating away at the work that has traditionally belonged to Big Law; and (3) the economics of the coming “Lean Law” era. With these data in hand, we can begin the difficult process of letting go of old ideas and architecting new institutions that better fit the needs of a 21st century economy.

(SSRN link.)  In the service of explaining these complex market dynamics to lawyers, legal educators, and law students, I am posting the figures used in the paper, which can be downloaded from Slideshare.

From Big Law to Lean Law from William Henderson

Bringing the Disruption of the Legal Services Market into the Law School Classroom

Is it important to help law students understand the disruptions that are now occurring in the legal industry?  Well, let me ask a more fundamental question.  How can a law professor efficiently obtain better information on these complex and diffuse changes? None of us legal academics are experts in this area, and that's a problem in and of itself.

In the process of struggling with these questions, I decided to carve out 15% of the grade in my Corporations class for team-based profiles of NewLaw companies.  Here is how I described the conundrum in my syllabus:

The legal industry is changing in dramatic ways, including the creation of new legal businesses that rely upon technology and process design to solve legal problems that have traditionally been handled by lawyers. These businesses are often financed and managed by nonlawyers, which some of you may find surprising. ...

Remarkably, very few practicing lawyers grasp the type of industry context described above ...  Yet, the influx of financiers and technologists is likely going to have a dramatic effect on your future legal careers.  These changes are extremely foreign to the substance of traditional legal education – we (the legal professoriate) just don’t understand the breadth and depth of the changes that are now occurring.  Rather than sweep this uncomfortable fact under the rug, let’s do what great lawyers do with their clients.  Let’s learn about the business and the industry so that we understand the context.  Armed with this information, we can make better decisions with regard to our own careers.

Two months ago, I circulated the full assignment to the class, divided the class into teams, and gave students two weeks to select a company.  The only restrictions were no duplicates, so first-come first-serve, and the company had to be a non-law firm business operating, partially or entirely, in the legal industry.  (BTW, JB Ruhl's Law Practice 2050 course at Vanderbilt Law tackles this topic head-on.)

Students made their presentations this past Monday evening (Nov. 18) in Indiana Law's Moot Courtroom.  It was a marathon session that ran nearly four hours.  Because of the novel content, several practicing lawyers showed up to see the presentations. The following companies where profiled:

• AdvanceLaw.  Privately held company that operates a closed community of legal departments who share information on law firms and individual lawyers in order obtain better quality at a lower cost.  Discussed on the LWB here.

• Axiom Law.  Venture and private equity-based company that helps legal departments more efficiently manage and source their legal needs. Discussed on the LWB here.

• Black Hills IP.  Privately held onshoring company that does highly specialized IP-related paralegal work -- their internal motto is "innovate and automate."  Founders were involved in an earlier LPO that sold to CPA Global a few year ago. Discussed on the LWB here.

• Datacert.  An e-billing platform for legal departments that has added on a large overlay of data analytics so legal departments can more aggressively benchmark and monitor their expenses to outside counsel.

• Ernst & Young.  Big Four accounting firm that hires an enormous number of law grads each year for its tax and consulting practices.  Very much set up for the tastes and preferences of Millenial professionals including training, work space, and work-life balance.

• Exemplify.  Start-up company founded by Professor Robert Anderson at Pepperdine Law and his student.  Used super computer technology and inductive computational linguistics to identify the market standard language in a myriad of forms found in the SEC Edgar database. Will speed up negotiations on what is "market"; setting stage for eventual market convergence on standards.

• Huron Consulting.  Publicly held consulting firm that formed out of the ashes of Arthur Anderson's post-Enron collapse.  Although a business consulting organization, a surprisingly large part of their business is e-discovery through attorneys in U.S. and India.  This group trudged through the company's 10Ks, which was a great educational experiemce for them. Discussed on the LWB here.

• Integreon.  Venture- and private equity-based LPO that has tried to distinguish itself with its global platform and language capabilities.  The company recently cut a deal with Microsoft to handle a large tranche of their patent portfolio work.

• KM Standards.  Privately held legal knowledge management company that is trying to deconstruct the logic of contracts into standardized terms to enable autonmation and reduce ambiguity (and thus litigation).  Potentially very disruptive.

• LegalForce.  Privately held company hoping to recapture the lost consumer and start-up market through a novel storefront strategy.  Financed at least initially through LegalForce's  enormously successful online trademark practice run by the company's founder, Raj Abhjanker.  More trademarks granted by PTO than any other law firm.

• Manzama.  Privately held company in Bend, Oregon that scrapes the Internet with machine learning technology to filter business intelligence for law firms and other professional service firms track.  Enormously scalable. Daily results presented through a dashboard technology. 

• Modria.  Online dispute resolution system that enables businesses and governments (mostly municipalities) to avoid costly, in-person legal proceedings to resolve a steady stream of similar disputes that are part of running a business or government. Discussed on the LWB here.

• Neota Logic.  Privately held company founded by former Davis Polk partner and CIO Michael Mills.  The company specializes in the creation of expert systems that can improve the quality and efficiency of many transactional and compliance related activities.  

• Pangea3.  LPO with substantial operations in India.  Initially back by venture capital in 2004 but subsequently sold to Thomas Reuters in 2010.  Employs roughly 1,000 lawyers in the US and India.  Discussed on the LWB here.

• Recommind.  Privately held company that specialized in predictive coding for use in document review and e-discovery.  Founders were graduate students in Artificial Intelligence programs at Stanford and UC Berkeley in early 1990s.  Discussed on the LWB here. 

• Stewart Richardson.  A privately held Indianapolis-based deposition services company that has gradually and successfully expanded into a broader array of law firm support services.  Very focused on technology to make the job of clients easier.  

The assignment was an experiment, albeit one that worked very well.  Both students and the visiting lawyers reported surprise at the depth and breadth of the innovations taking holding the legal market.  

Although some of the innovations where clearly eroding the need for traditional legal service jobs, the profiles also revealed the tremendous opportunities for those willing to stretch into the law and technology space.  Many students commented that the evening drove home the point that they need to proactively obtain new skills and knowledge.  Why? Because the emerging market has no secure place for the complacent or mediocre.  Better for them to discover it in the course of an assignment than for me to say and have it fall on deaf ears.

Many thanks to the profiled company, who exhibited enormous generosity in helping my students complete this assignment.   Remarkably, most groups had the benefit of a lengthy conference call with senior leadership.  My only regret is that more practicing lawyers did not attend.  My students, who have have 1L team and presentation experience, brought their "A" game.  I will fix that in the next class, as there is no shortage of NewLaw companies to be profiled. 

Clayton Christensen Explains How Disruption Will Occur in Higher Education

Clayton Christensen is the Harvard Business School professor who wrote The Innovator's Dilemma, the seminal book on why successful businesses so rarely stay on top over the long term. Although focused on the tech industry -- where product cycles are very short -- Christensen's framework has a much wider application, including legacy industrial enterprises and countries.  In 2011, Christensen published a book called The Innovative University, which applied the Innovator's Dilemma framework to higher education.  

Below is a YouTube video of Christensen explaining his thesis to a conference in Dallas organized around the future of public universities.  His talk is very long by online video standards (80 minutes) but worth the time of anyone who wants to understand the Christensen framework and its application to higher ed.  At approximately minute 45, Christensen specifically mentions law schools.  Below the video is some additional context on Christensen.

Remember that near presidential coup at University of Virginia, which was reported in the New York Times Magazine last fall (link)?   Well, Christensen's ideas had begun to propagate within the university trustee community, thanks in part to a letter than Christensen and Henry Eyring had recently written to the American Council of Trustees and Alumni (ACTA).

As discussed in the New York Times article, the coalition that was animated by Christensen's ideas was ultimately defeated by the palace guards.  But that was the first attempted coup at a major research university, not the last.  As Christensen points out in the video, universities are feeling pressure from innovative models that "compete against nonconsumption."  In other words, lots of people would like the knowledge taught in the great universities, but that demand goes unsatisfied because of selective admissions requirements, tuition, and geography.  

MOACs are the first volley in figuring out this untapped market.  Those that dismiss MOACs as irrelevant are missing the bigger picture of what early stage disruption looks like.

Specifically, according to Christensen, here is the recurring dynamic: the new entrants siphon off work from the bottom-end -- work that the high-end says it does not want anyway.  The cycle repeats itself a few times until, much to the incumbents' surprise, the bottom-end becomes more economically relevant and powerful.  Why does top-end let this happen?  Because the incumbents have come to view success as elite status and high margins, which is an unrealistically high long-term bar unless you are continuously innovating.  Eventually, the so-called high-margin niche becomes insufficient to sustain the enterprise, and giants fall -- see the automotive industry, steel, computer hardware, televisions, consumer electronics, etc.

That said, does the university model of education have a life cycle, or is it above these coarse market considerations?  I think it probably does.

In the year 2013, lots of knowledge is free or incredibly cheap. Next year, even more, and so on for the foreseeable future. As a result, many people are able to become astonishingly  knowledgable and skilled because of the sheer joy of learning and becoming more competent.  It turns out that university credentials are a pretty noisy signal for knowledge and competence -- a small positive correlation, yes, but not much more.  This is an information gap problem.

In terms of sheer productitivity, most employers would prefer the folks who are driven to learn and continuously improve.  Google has already figured this out, as a substantial portion of their high-end workforce has never completed college.  Google employs them for their abilities, not their degrees. 

When opportunity is unbundled from university credentials -- i.e., the  information gap problem described above becomes cost-effective to solve -- the demand for university education as it currently exists (expensive and in limited supply) will go down.  From a social perspective, this is a good thing.  But it means that universities will have to innovate in the years to come in order to justify our tuition and fees.

Some early fruits from the "Big Data Social Science" Initiatve at Penn State

My colleague and collaborator, Chris Zorn, is teaching a course at Penn State called "Big Data & the the Law."  It draws upon several disciplines, including the law.  See BDSS.  He has been telling me about the crazy creative projects that are taking root in this class, which includes aspiring statisticians, geographers, political scientists, sociologists, public health professionals, and information science folks (alas, no law students, though the course was open to them).

Data visualization is one of the lynchpins of big data interpretation.  Below is a very good example.  It was generated by Josh Stevens, a grad student at Penn State who is enrolled in the class.  I am told this specific work flowed out of the GDELT hackathon hosted by BDSS a few weeks ago. Kind of useful for allocating scarce resources to reduce violent conflict.  Uses both time and space.  For the full context, see this post.

Would you bet on the future of Online Dispute Resolution (ODR)?

I would.  The best example of ODR I have come across is Modria, who's tagline is "Any issue, resolved."

Before dismissing Modria as a trivial Internet parlor game, consider this:  The technology and process at work here got its start at Paypal and Ebay.  Why did Paypal and Ebay become so good at dispute resolution?  Because their goal of becoming mega-volume businesses depended on it.  If you have millions of transactions daily, a huge volume of low-stakes complaints is inevitable.  If dissatisfied customers stay dissatisfied, they don't come back.  Worse, they'll talk to their friends.  

Now watch is video. Note that the target audience is businesses who (a) feel disputes are a drain on their time and energy, and (b) want happy, loyal customers who vouch for them to friends and family.  A prompt, fair resolution to a dispute actually deepens the trust relationship.  That's not speculation.  That's science.  And Modria, and it investors, know that.

In this book, Tommorrow's Lawyers, Richard Susskind talks about ODR as a highly disruptive innovation that will fundamentally alter the legal landscape.  It is hard to fully appreciate that claim without seeing concrete example, like the Modria business model, up and running.  Many businesses could be drawn to Modria, but so could/would many smaller governmental units.  Indeed, several (progressive) county governments have become clients (e.g., on property assessment appeals).

Modria is disruptive because so many forums for resolving disputes, such as courts, repeat-player arbitrations, and various government boards, are not perceived as prompt, fair, and/or just, often times because costs of dispute resolution are so high.  So even if the dispute is resolved correctly on the merits--for the subset who can pay the cost--there remains a large residue of dissatisfaction.

This is fundamentally a problem of institutional design. (The ReInvent Law folks understanding this.)   The goal, or ought to be, a speedy, low-cost, resolution that is maximizes on the uumber of user who perceived the outcome as fair.  Does any state or federal court think this way?   In Tomorrow's Lawyers, Susskind asks whether "court is a service or a place" (p. 99).  Alas, this is a staggeringly very large market. 

Check out the management team of Modia.  These folks come primarily from the dispute resolution programs in business and public policy schools.  It is worth noting, however, that Modria's Board and its big-time investors include several lawyers, including Jason Mendelsohn, a former lawyer at Cooley who now works as a venture capitalist.  Jason has invested in other businesses in the emerging legal vendor space.

Times are changing.  And the pace of that change is picking up. 

Lawyers can use emotion to be more effective

That is the message of Larry Richards, a JD-PhD consultant who runs a company called Lawyer Brain. At the 18th Annual Law Firm Leaders Group Conference here in NYC, Larry made this point with the video below.  Very effective.

Five years ago, Larry told me to read Daniel Pink's book, A Whole New Mind. (Daniel Pink, by the way, is a lawyer by training.) The message of that book is developing the right side of brain (emotive, aesthetic, storytelling) with our left side (analytical, quantitative). That was very good advice.  Thanks, Larry!

Measuring the Value of Law Firm Pedigree

General counsel from large legal departments are becoming increasingly skeptical of the value provided by leading brand-name law firms, such as the AmLaw 20 or the Magic Circle.  That is the conclusion of some compelling research just posted on the HBR Blog Network, the online idea forum run by Harvard Business Review.

The research was conducted by AdvanceLaw, which is a company that vets law firms and lawyers on an as-requested basis on behalf of legal departments.  Some of AdvanceLaw's clients include Google, Nike, Sherwin-Williams, Lenovo, Towers Watson, Mastercard, Panasonic, eBay, Mastercard, Deutsche Bank, McDonald's, Molson Coors, Nestle, Heinz, Clorox, Unilever, CSS, Starwood Hotels, etc.  

AdvanceLaw is a good example of what Richard Susskind calls a "closed legal community."  See Tomorrow's Lawyers, chapter 5.  Some essential background on AdvanceLaw is discussed below. But I am sure readers want to see the data first. The reported research was based on responses from 88 general counsel, who answered two questions:

1. How does law firm pedigree affect their buy decision for a high-stakes matter? 
2. Is law firm pedigree associated with more or less client responsiveness?

Below are the results posted on the HBR Blog Network:

Readers are probably wondering, "Who is AdvanceLaw and why are they asking these types of questions?"  I have some intel on this topic.

AdvanceLaw was formed four years ago by Firoz Dattu, a Harvard-trained lawyer who spent time in BigLaw (Paul Weiss).  Firoz eventually found his way to the Corporate Executive Board, which a publicly traded company (NYSE: CEB) that specializes in subscription-based research organized by industry and function.  CEB uses the aggregated research for value-add services such as benchmarking and best practices.  

Because they specialize in factgathering for strategy and management,  CEB has a long history of employees leaving to start niche businesses.  That is what happened here.  Firoz helped launch, and ultimately ran, the General Counsel Roundtable (GCR), which is a CEB functional group that cuts across industries.  I have been to a GCR meeting (it is invitation-only for outsiders).  Suffice to say that a persistent theme of conversation was controlling legal costs without compromising quality.  A seemingly tall order, right?

Firoz started AdvanceLaw because of perceptions by general counsel that they were being overcharged and underserved by large firms in the major markets.  Any GC who has reviewed data from TyMetrix would quickly draw the same conclusion, as a large firm lawyer with 20-years experience in, say, Minneapolis often has a lower billing rate than a second-year at a mega-firm in NYC.  AdvanceLaw has positioned itself as a trusted advisor that can provide reliable guidance in shopping for value outside the big brand-name firms. 

So how does this service work?  As noted earlier, AdvanceLaw is an example of a closed legal community.   To get into the AdvanceLaw network, prospective law firms are run through a rigorous RFP process that evaluates things like expertise, innovation, quality, compensation systems, and track record on diversity.

If a firm makes the AdvanceLaw cut, they start getting assignments from participating legal departments.  But here is the enormous differientator.  Feedback is collected by AdvanceLaw and shared with the law firm and other AdvanceLaw legal departments.  What is the effect?  

• For law firms, changing their behavior to (a) protect their reputations, and (b) get more work. 
• For legal departments, to the extent they are getting value, migration of their legal work out of pedigreed law firms in the major markets to lower cost yet high quality regional and super-regional firms.  The savings are roughly 30-40% with no loss in quality and better responsiveness. Some of the winners in the AdvanceLaw tournament are listed here. 

AdvanceLaw also has a globalization overlay, which has been created with GC assistance.    For instance, in Argentina and India, AdvanceLaw works with quite prominent firms who also exhibit efficiency. In the UK and Canada, the firms are substantial players, but are slightly less pedigreed than the Magic Circle and Seven Sisters, respectively.  

So let's boil down AdvanceLaw's business model into its simplest terms: It gathers information so they legal departments don't pay excessive prices for the CYA (cover-your-ass) benefits of hiring high-prestige Big Law.  

CYA still matters, of course.  But through AdvanceLaw, pedigree is being given a more accurate valuation.  A likely large second-order effect of AdvanceLaw is the acceleration of AFAs through AdvanceLaw firms, as feedback (on quality) and publicity (to drive volume) is what is needed to make that transition.  

Susskind is right.  Closed legal communities are going to be major disruptors in the legal marketplace. 

Empirical Evidence of Competencies Necessary for Advancement in Law Firms

For those trying to better understand how legal education can better prepare law students for the world that awaits them, I would encourage you to take a look at the draft article my colleague, Neil Hamilton, Director of the Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law, recently posted on SSRN. The article is entitled Law-Firm Competency Models and Student Professional Success: Building on a Foundation of Professional Formation/Professionalism. Here is some of the description from the abstract:

A law student who understands legal employer competency models can differentiate him or herself from other graduates by using the three years of law school to develop (and to create supporting evidence to demonstrate) specific competencies beyond just knowledge of doctrinal law, legal analysis, and some written and oral communication skills. . . .

In Part I below, this essay analyzes all available empirical research on the values, virtues, capacities and skills in law firm competency models that define the competencies of the most effective and successful lawyers. Part II examines empirical evidence on the competencies that clients evaluate. Part III evaluates the competencies that make the most difference in fast-track associate and partnership promotions. These data and analyses lead to several bold propositions developed in Part IV:

1. Law students and legal educators should identify and understand the values, virtues, capacities and skills (the competencies) of highly effective and successful lawyers in different types of practice (one major example is law firm competency models analyzed below in Part I);

2. Each student should use all three years of experiences both inside and outside of law school (including the required and elective curriculum, extracurricular activities, and paid or pro bono work experiences) to develop and be able to demonstrate evidence of the competencies that legal employers and clients want in the student’s area of employment interest;

3. Law schools should develop a competency-based curriculum that helps each student develop and be able to demonstrate the competencies that legal employers and clients want; and

4. Both law students and law schools should understand that the values, virtues, capacities and skills of professional formation (professionalism) are the foundation for excellence at all of the competencies of an effective and successful lawyer.

The article presents far more useful information than can be summarized here, and different readers may be struck by different things discussed in the article. One of the most significant takeaways for me, however, is the convergence around an array of competencies frequently not taught in law school. The article analyzes competency models used to assess associate development at 14 medium to large law firms in the Twin Cities and compares that with some other literature on competencies clients look for in attorneys. The analysis demonstrates that in addition to traditionally understood technical skills – legal analysis, oral and written communication, and knowledge of the law – there is significant convergence around several competencies frequently not taught in law school – 1) Ability to initiate and maintain strong work and team relationships; 2) Good judgment/common sense/problem-solving; 3) Business development/marketing/client retention; 4) Project management including high quality, efficiency, and timeliness; 5) Dedication to client service/responsive to client; and 6) Initiative/ambition/drive/strong work ethic.

Whether law schools are going to be able to find efficient ways to offer students opportunities to develop these competencies, it is imperative that we make our students aware that they need to be developing these competencies to give themselves the greatest likelihood of professional success.

[posted by Jerry Organ]

ReInventLaw Silicon Valley 2013 @ The Computer History Museum

Posted by Dan Katz, Assistant Professor of Law, Michigan State University and Co-Director, ReInvent Law Laboratory @ MSU Law.

On March 8, 2013 - The ReInventLaw Laboratory - Founded by Daniel Katz and Renee Knake from Michigan State will host ReInventLaw Silicon Valley 2013 @ The Computer History Museum in Mountain View, CA.

Topics to be covered include: 
LegalTechStartUp, Lawyer Regulation, Quantitative Legal Prediction, Legal Supply Chain, Project Management, Technology Aided Access to Justice, Design, 3D-Printing, Driverless Cars, Business of Law, Legal Education, Legal Information Engineering, New Business Models for Law, Lean Lawyering, Augmented Reality, Legal Process Outsourcing, Big Data, New Markets for Law, Virtual Law Practice, E-Discovery, Information Visualization, E-Discovery, Legal Entrepreneurship, Legal Automation … and much more.

What do I need to know?

1. At all price points, the legal services market is rapidly changing and this disruption represents peril & possibility.  This meeting is about the possibility ... about some of the game changers who are already building the future of this industry.
2. This is a 1 day event featuring 40 speakers in a high energy format with specific emphasis on technology, innovation and entrepreneurship.
3. It will highlight the new and growing portion of the legal services industry. It will not be boring.  
4. For more on our lab and related events please see: http://reinventlaw.com/ 

How Much Does it Cost?
This event is generously sponsored in part by the Ewing M. Kauffman Foundation, Michigan State University College of Law and the ReInvent Law Laboratory. 
Thus, tickets are FREE but limited.

There will only be 400 tickets for this free event.  Many of them are already taken and when they are gone, they are gone. Thus, if you or your friends/colleagues/students would be interested in attending -please sign up today. 
http://guestlistapp.com/events/129990

Final Thoughts …
As I mentioned to Bill Henderson the other day … the old internet adage applies with equal vigor in the legal services industry "the future is here … it is just not evenly distributed."  

Come join the future already in progress at #ReInventLaw Silicon Valley March 8th, 2013  (and at our other free public events in London and New York later in 2013). 

Do the Best Lawyers have Excellent "Slow" Brains?

We were born with a fast brain, but we need a slow one to advance civilization, among other things. I am talking about insights of behavioral economics being applied to lawyer decisonmaking and judgment, and I think the answer to my question is "yes".  Indeed, I think the insights of behavior econonomics put a whole new and important gloss on the tired adage, "Thinking like a lawyer."   

We cover the basics of this topic in my 1L Legal Professions class.   Apparently, it resonated with one of my many attentive students, as he/she  sent me this amazing science video.  It boils down all of Dan Kahneman's brilliant Thinking, Fast and Slow treatise into four very engaging minutes.  This is a vegetable that tastes like chocolate.  (H/T to a wise anonymous 1L at Indiana Law.)

[posted by Bill Henderson]

Washington & Lee is Biggest Legal Education Story of 2013

Here it is in a nutshell. There is empirical evidence that Washington & Lee’s experiential 3L curriculum is delivering a significantly better education to 3L students—significantly better than prior graduating classes at W&L, and significantly better than W&L’s primary competitors. Moreover, at a time when total law school applicants are on the decline, W&L’s getting more than its historical share of applicants and getting a much higher yield. When many schools are worried about revenues to survive next year and the year after, W&L is worried about creating the bandwidth needed to educate the surplus of students who enrolled in the fall of 2012, and the backlog of applicants that the school deferred to the fall of 2013.

[This is a long essay.  If you want it in PDF format, click here.]

Alas, now we know:  There is a market for high quality legal education. It consists of college graduates who don’t want to cast their lot with law schools who cannot guarantee students entree to meaningful practical training.  Some might argue that W&L is not objectively better-- that the 3L curriculum is a marketing ploy where the reality falls well short of promotional materials and that, regardless, prospective students can't judge quality. 

Well, in fact there is substantial evidence that the W&L 3L program delivers comparative value.   The evidence is based on several years' worth of data from the Law School Survey of Student Engagement (LSSSE). I received permission from Professor James Moliterno, someone who took a leadership role in building W&L’s third year program, to share some of the key results (each school controls access to its LSSSE data.) They are below.

But before getting into empirical evidence, I want to put squarely on the table the most sobering finding that likely applies to virtually all of legal education. It is this: On several key LSSSE metrics, W&L has made impressive gains vis-à-vis its own historical benchmarks and its primary rival schools. But even for this leader, there remains enormous room for improvement. More on that below.

Here is the bottom line:  Traditional legal education, when it is measured, does not fare very well. Yet, as W&L shows, substantial improvement is clearly possible. We law professors can respond to this information in one of two ways:

1. Don’t measure, as it may disconfirm our belief that we are delivering a great education.
2. Measure—even when it hurts—and improve. 

I am in the second camp. Indeed, I don’t know if improvement is possible without measurement.  Are we judging art work or the acquisition of key professional skills needed for the benefit of clients and the advancement of the public good? 

Moving the Market

I doubt I will ever forget Jim Moliterno’s September 2012 presentation at the Educating Tomorrow’s Lawyers (ETL) conference at the University of Denver. He presented a single graph (chart below) showing W&L actual applicant volumes since 2008 versus what would have happened at W&L if its applicant volume had followed national trends.

While law school applicants crested a few years ago, W&L enjoyed a large run-up in volume of applicants, presumably due to the launching of their new 3L program.  This larger applicant pool effectively served as a buffer when applicant declines began in 2011 and 2012.  Since 2008, overall law school applicants are down -19%, yet W&L is up overall +33%.   

But much more significantly, after their experiential 3L year was up and running and the overall legal job market continued to stagnate, W&L yields spiked. Ordinarily they would enroll 135 students. But for the fall of 2012, they received enrollment commitments from well over 260 students. Indeed, at the ETL conference Jim Moliterno said the school had to offer financially attractive deferments to get the class to approximately 185 incoming students -- a 50 student bulge.

When Jim Moliterno showed the above graph and explained the corresponding changes in yield, my good friend Gillian Hadfield, a skeptical, toughminded, evidence-demanding economist who teaches at USC Law, leaned over and said to me, “that is the single most important takeaway from this entire conference.” I agreed.  The market for a legal education with practical training is, apparently, much more inelastic than the market for traditional JD programs.

Yet, what is perhaps most remarkable is that a large proportion of incoming students at W&L were enrolling based on little more than faith.  Nobody knew for sure if W&L  had the ability to pull off their ambitious 3L curriculum. The program relies on a large cadre of adjunct professors, after all, and W&L is located in remote Lexington, Virginia.  Many law faculty outside of W&L, and perhaps some inside, thought (or perhaps think) that the program could not live up to the hype.  Well, as shown below, the program appears to have produced meaningful gains.

The only data-driven critique anyone can muster is that the gains remain significantly short of perfection. But that critique bites harder on the rest of us.  To use a simple metaphor, W&L is tooling around in a Model-T while the rest of us rely on horse and buggy. What ought to be plain to all of us, however, is that, just like automobile industry circa 1910, we are entering a period of staggering transformation that will last decades. And transformation will be roughly equal parts creation and destruction. See Schumpeter.

W&L Data, Internal Historical Benchmark

LSSSE is a phenomenally rich dataset – nearly 100 questions per year on a wide variety of topics related to student classroom experience, faculty interaction, type and quantity of assessments, time allocation, and perceived gains on a variety of dimensions related to personal and professional development. The survey instrument is online here.  

Aside from a host of questions related to demographics, career goals, and debt, major sections in the LSSSE include:

• Section 1, Intellectual Experience (20 questions)
• Section 2, Examinations (1 question)
• Section 3, Mental Activities (5 questions)
• Section 4, Writing (3 questions)
• Section 5, Enriching Educational Experiences (9 questions)
• Section 6, Student Satisfaction (7 questions)
• Section 7, Time Usage (11 questions)
• Section 8, Law School Environment (10 questions)
• Section 9, Quality of Relationships (3 questions)
• Section 10, Educational and Personal Growth (16 questions)

W&L deserves to be a detailed case study. But frankly, legal education can’t wait. So I will do the best I can to cover the landscape in a blog post. I hope every law faculty member who reads this post makes a strong plea to their dean to enroll in LSSSE. Why? So your school can benchmark itself against the detailed LSSSE case studies that are bound to flow out of W&L and other innovative law schools.  Though they don’t get much press, there are, in fact, other innovative law schools.

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