Thursday, April 29, 2010

Legal Innovation: Outside In

This past week there was a conference held in the UK that looked at the Future of Legal Services.  While much of the conference certainly focused on innovations and developments coming from law firms there was a growing dialogue around innovation from outside the traditional legal circles.  As I have worked with clients in the UK – both firms and corporations – my envy has grown over their more open competitive landscape as compared to ours in the US.  The UK does not have the “unauthorized practice of law (UPL)” claim/defense/challenge that the US has.  Further, the UK tends not to hold the legal profession as some sort of sacred cow, as the US Bars do. 
In today’s Legalweek, Claire Ruckin (see article here) reports on the statements and sentiments at the conference in regards to innovation, at least within the UK market.  Given the looming changes to UK’s legal markets thanks to the Legal Services Act (LSA), investors will soon be able to invest directly in law firms – something that may not be so appealing to many, at least according to some.  Simon Beswick of Osborne Clark stated it plainly “Venture capitalists see more opportunities in setting up new businesses to compete with law firms, as opposed to direct investment into existing firms (as quoted by Ruckin)."   This goes against both of the widely held assumptions that investors would want direct investment in firms and that innovation can only come from law firms themselves. 
Yesterday I attended the Univeristy Of Maryland School of Law conference “Addressing Major Changes in Law Practice.”  Gillian Hadfield of USC Law often asks the question and raised it yesterday as well “where are the garage guys of legal?”  It is by no coincidence that she uses that term as she is currently at USC – close to the birthplace of so much innovation and where departing from the mainstream to go invent and create in a one’s proverbial garage has led to some amazing products as services – see Apple, Google, Microsoft.  But as Gillian and others have pointed out, here in the US too often any innovation in the US is squelched by UPL claims when they come from outside the law – or even from within it.  It is instructive to review the claims against LegaZoom and TotalAttorneys for evidence of this - - or just talk to anyone who disagrees with the use of off-shore LPOs. 
So while the UK moves forward and loosens the constraints and barriers to entry to their legal market, the US holds fast to arguably antiquated and weak claims of self-regulation and professional protectionism.  For the record I am not against law firms nor am I out to seek their Ribstein-ian death.  Rather I am confident that the US market is in dire need of serious innovation in creating more options for consumers and clients -  the old way can stay, just make room for some new way as well.  Why is this change necessary for the US?  Because every other legal market is either developing or changing as we speak – that is besides Mexico who is looking to replicate ours.  My guess with Mexico though is they will embrace our distinctive advancements (Constitutionality, rights, judicial system) and disregard our ignorance and/or arrogance in not recognizing and not pursuing significant change.  Then again, as I stated yesterday in Baltimore – perhaps the US is truly brilliant and we will lead by NOT changing.  Call me patriotic but that does not seem to reflect the famous American spirit. 
In the meantime though I tend to believe consultant Stephen Mayson (a recent Georgetown Law: Law Firm Revolution panelist) when he argues that the next five years would expose the shortcomings of the profession's business model and capital structure, arguing that law firms "don't understand value."  He was speaking in the UK but his remarks apply here as well – perhaps even more so.

Wednesday, April 28, 2010

Addressing Major Change in Legal Profession (UMD Law Conference)

This is a ”live” blog transcript for the “Addressing Major Changes in Law Practice” presented on April 28, 2010 by the University of Maryland School of Law.  For more information on agenda and participants please click HERE.
This conference follows on the tails of the other recent legal conferences that have examined both the changing legal profession as well as the growing interest in changing legal education.  See the Georgetown Law conference “Law Firm Evolution: Brave New World of Business as Usual.”  Also the recent NY Law School “Future Ed: Business Models for U.S. and Global Legal Education.
Readers of this may also be interested to learn of the upcoming conference at the University of Southern California in conjunction with that school’s “The Southern California Innovation Project (SCIP).”  This event has been organized by one of today’s panelists and active thinker/writer in this area, Gillian Hadfield of USC School of Law.  The name and focus of this event is “Building Better Lawyers.”

Tuesday, April 20, 2010

Four Quadrants of Legal Education: And Educating Thy Self

Recently I have been in many conversations relating to the US legal education system. The debate is generally centered on who has the responsibility to train new lawyers – law schools or law firms? Many believe that both carry a responsibility and both are failing at it. While it is easy to pick apart the dogmatic approach taken at most law schools and it is just as easy to criticize law firms for their lack of training seldom do I hear someone examine the young lawyers themselves.

In preparing lawyers for the “real world” of practice, the education and training debates tend to focus on law schools, professors, law firms, and practitioners. I ask where does the responsibility of the actual young lawyer/student come into play? Do they not have an obligation to pursue their own personal and professional growth? Are they not the ones who ultimately carry the burden of performing?

Bear with me as I touch upon some personal history briefly.

Being a middle-of-the-pack graduate of a 2nd Tier school (now known as the Top 100 - as there is no 1st or 2nd Tier) I knew my legal career would be on a much different trajectory than those in the elite schools. I would not have the Summer Associate offers or the First year offers that follow. For me and the majority of other graduates (as most do not graduate from top schools in the top of their class - see Bell Curve) the heavenly gates of the AmLaw 200 were not open to us – if we wanted in we had to pick the lock or find a side-door – some did. Me, I chose a different path, as many do who do not necessarily even want to practice Big Law.

Recognizing early on as a full-time 1L that my path would need to be non-traditional I quickly found a job working in one of the most elite DC firms – Williams & Connolly. My job – cite checker. To this day I cannot state with any certainty where I learned more that year – in my classes or at the firm. At class I was learning Contracts and Civil Procedure (with such useful topics as the Court of Exchequer). At my job I was proofreading, editing and cite-checking Supreme Court briefs and other pleadings. At class I was called on to recite the findings of a 100 year old case. At work I had to explain to a prominent partner why his cite was wrong both in terms of style (Bluebook) as well as prevailing authority. At school I struggled to make sense of the wide disparity of law I was being taught – from Tax to Criminal Law to Property (with the rule against perpetuities). While at work I learned the dynamics of firm politics, economics, and practice as I was participating in each in some small way.

This experience provided me key insights that have informed my path and choices since. I understood there was a much deeper well of knowledge and experience I needed to draw from than just my classes. This is not to say I disregarded my schoolwork in any way but I did strike a balance between work and school that at the time appeared to be career suicide to my classmates but I argued it better prepared me in the long run. My classmates would not see the inside of a firm until their summer of second year and that would be through the notorious “Summer Associate” programs that do little to teach and a lot to woo and court.

I end my personal story here but want to highlight that beginning my 1L year and ever since I have worked to refine what I observed to be the four quadrants of a legal education.

The challenge is determining where to gain each of these. That debate will carry on for some time, as it needs to. Just now we are witnessing the awakening that the right half of the above are necessary in today’s legal industry and that a majority of new graduates as well as many of the current lawyers ranks are clueless about.

To return to my story quickly – many of my fellow classmates who graduated near the top and wrote for law review are now partners in big firms. They make decent money. But two characteristics abound: First, they are not all that happy or fulfilled. Second, they only know quadrants the left side of the graph above. As the pressure builds to gain more client work and clients apply pressure to bring more value these lawyers are dumbfounded and paralyzed in many ways - a sorry state to be in especially given today’s legal market. Who is to blame? I argue the lawyers themselves. The more important question however is who’s issue is this? I say it is every one of ours in the profession. We need to come to terms with this and address it soon – especially all those senior associates and partner who have no true sense of “business.”

Wednesday, April 7, 2010

Moving from Debate to Dialogue

In response to a thread started on LegalOnRamp by USC’s Gillian Hadfield discussing how to “build better lawyers” I provided the following. I thought it was useful to share here as the application of dialogue over debate is certainly crucial to the ongoing transformation of the legal profession.

A useful case study for this is The Sedona Conference. It is a legal think tank of lawyer, judges, and other experts that work to produce defining principles that guide certain areas of the legal practice. Several times a year professionals from varied backgrounds and practices come together to work through complex issues and ill-defined problems. With all these lawyers in one room it could easily be a haven for uncontrolled debate and typical “lawyering.” However it is anything but. Rather the tone is one of collaboration and teamwork. Sure there are many different takes on the same issue but in the end the work product reflects a thorough analysis and thoughtful approach. So much so that Sedona is often cited in case law and statutes. The reason: Sedona is guided by dialogue NOT debate.

The key is to understand the difference between dialogue and debate. Lawyers learn to debate – arguing a point, anticipating the opposing viewpoint, countering and so on. From Day 1 in law school we are taught this technique and to “think like a lawyer.” Perhaps even before we get to law school many of us are already predisposed to argue and fight verbal battles based on logic and wit. However this type of communication is not conducive to collaboration or teamwork. In a lawyer’s mind someone will win and someone will lose. Also lawyers tend to focus on problems NOT people. On the other hand dialogue is a communication tool used to foster openness and acceptance while allowing for an ultimate conclusion to be reached. Acceptance of opposing ideas is crucial but in the spirit of furthering the conversation not to stop it or the speaker of it. Dialogue focuses on the problems as well as the people recognizing both as well as addressing them.

To return to the initial issue on this thread: Training our lawyers at any stage of their education and/or career to dialogue rather than debate will foster the change spoken of here and create a more “open” and collaborative environment. Being a co-author and active contributor to Sedona has allowed me to gain a stronger sense on how to effectively communicate and work in a team of lawyers. This exposure and experience has been invaluable to me personally and professionally. And I have heard the same from many other members.