Thursday, June 10, 2010

Training & Building Better Lawyers.

There is growing interest within the US in examining how lawyers are educated and trained to better perform in the changing legal practice.  Legal educators themselves have recently stepped up efforts to advance this dialogue and promote the conversation of this topic.  This year has already seen three conferences that specifically address legal education put on by New York Law School, University of Maryland Law School and most recently at the University of Southern California, Gould School of Law.  It can be generalized that each of these conferences were convened in order to bring together legal educators and professional leaders with the goal of examining current practices and methodologies of legal education along with those of the profession itself in order to:
1.                  identify the “gaps” in skills and foundational training.
2.                  learn how to move forward in a way that better prepares lawyers for the life of practice and of serving clients. 
3.                  create a sustained effort devoted to ensuring that legal education adapts and grows as the profession itself changes.
While each conference was productive and brought new ideas to the table, the most recent was held at the University of Southern California – entitled “Building Better Lawyers” and sponsored by the Southern California Innovation Project (SCIP).  It is this effort that is perhaps the most ambitious.
Professor Gillian Hadfield of USC was the architect behind this event held on May13 & 14th.  Prof. Hadfield is a well-published scholar on this topic and on legal transformation in general.  She along with other legal education, client company and law firm representatives convened with the specific purpose of getting beyond debate and to a place where there is true commitment to exploring ways in which legal education can be more effective in developing the core skills that are necessary in today’s legal practice. 
In attendance were partners from leading law firms such as Wilmer Hale, Howrey, Skadden, and Fenwick & West to name some.  Along with these partners there were a number of General Counsel from companies such as Cisco, HP, IBM, Apple and CDW.  Law schools such as Stanford, UC Berkely, Notre Dame, and Columbia were represented.  Finally there were the entrepreneurs and transformationalists such as Paul Lippe of LegalOnRamp, Patrick Lamb of Valorem Law Group, Gerry Riskin of Edge International, and Sasha Mrozoff of Axiom Law to name just sum.  All in all this was a gathering of some of the leading minds and ambitious innovators currently participating in the global legal markets.
There were three main goals or tasks that this event looked to execute on:
1.      Decomposing legal practice to identify the core components of effective practice
2.      Identifying methods of evaluating performance to improve the capacity to select and develop effective lawyers
3.      Identifying methods of teaching/training lawyers to improve performance throughout their career.
Based on the post conference report it is apparent that the participants see that there are changes within corporate legal departments and that this is presenting serious challenges to practitioners and legal educators.  The concept of “new” lawyering was emphasized time and time again as compared to the traditional model of lawyer. 
“New” lawyering consists of:
  1. asking the right questions of the client on a continuous basis
  2. acting in a team mentality with the client and the rest of the legal team
  3. being proactive
  4. looking at the problem as a whole and not just an exercise to deploy a series of legal tactics
  5. converging legal analysis with that of business analysis – allowing for more useful and germane advice to corporate legal departments
  6. making actual judgment calls and providing actual answers not just analysis with a “it’s the client’s choice” mind frame
  7. assessing risk and providing alternative strategies rather than just identifying risks
It was generally accepted that changing the institution of legal education will be an arduous task and one that is fraught with such basic challenges of finding a common language.  Nevertheless this group seems poised to continue pushing ahead.  Where a lot of conferences and events may stop once dialogue and debate have happened this effort is looking to keep moving ahead and provide actual outputs. 
Two initiatives have been outlined for this group to continue building their efforts upon and through.  One is the Building Better Lawyers (BBL) Test Group and the other is an executive education component.
The BBL Test Group will be a group of corporate counsel and law firms that are committed to finding ways to test for higher-value performance of “new” lawyering.  This is human capital endeavor that will look to evaluate candidates for not only employment but also once employed their ability to serve on different teams and within practice groups.  This effort will focus on looking at new ways to evaluate students with something other than grades. 
Specifically this group aims to develop a suite of tests that will be given to new associates to both ascertain their candidacy as well as their on-going developmental/training needs.  Simultaneous to this effort (most likely dues to the participating members) the group will then look to identify and secure commitment of corporate counsel to actual hire lawyers who perform well on these tests.  Finally there will be a satisfaction measurement of those who take the test to learn of their reactions and progress.
The Execute Education initiative will look to create workshops for new, mid-career and senior lawyers deliver in one to two day sessions.  A key component of these workshops  is that they will include participation of in-house counsel as well so there will be both in-house and outside counsel working and learning together.   Some possibly examples of areas of study/learning/training could be:
1.                  Post-case reviews in which clients and their counsel look to gain a deeper understanding of how the matter could have been handled differently.  For example an area of focus may be on how the law firm could have better controlled client spending while providing the same level or service or even better value. 
2.                  Simulations consisting of business challenges so that lawyers are allowed to unburden their perspective of legal constraints and look at a problem as a business executive see it.
3.                  Failure exposure though simulation to allow for greater comfort for failure and how to respond
4.                  Teaching through case-study – employing business school educational methodologies for both legal educator and law firm educators.
Certainly this effort by Prof. Hadfield and the folks at SCIP is ambitious and transformational in its commitment and goals of on-going actions.  But it is not the last word on the topic of legal education and change.  There is one more conference scheduled for October of this year.  It is part of the Future Ed program of New York Law School but will take place at Harvard Law School.  It slated to be a robust program and attended by dynamic leaders and committed educators.  

Monday, June 7, 2010

The Thin Line Between Legal & Business Advice

Reading the most recent Inc magazine (June 2010 edition) I glanced over the Street Smarts section.  For those of you not familiar with this section it is where veteran entrepreneur, Norm Brodsky, answers questions submitted by various businesses and entrepreneurs.  Most of the time it focuses on such primal entrepreneurial issues as how to compete better in a local market or the best strategy for running operations.  In the latest version however, there was a question submitted by a lawyer (hopefully this lawyer and I are not the only two lawyers who read this magazine).  The gentleman asked how entrepreneurs can get the most benefit and the best value from their [lawyers]. 

Before I read Norm’s answer I reread the question again and focused on “benefit” and “value.”  In most businesses and professions the definitions of these two words are well established and known.  In the law however it appears we are in a time where these two concepts are being debated and fleshed out.  Certainly the traditional services of a lawyer are well understood and arguably therefore so are the accompanying benefits and values.  We know the benefit of having a will drawn up and its value both in terms of cost in the immediate term and in the long term by having clarity over disposition of property.  In the corporate sense we know the benefit of having our lawyers review potential transactions for liabilities or outline a proactive sexual harassment training/avoidance program.  The value represents both the cost of the legal services and the prospective avoidance of future legal liability. 

What happens though when a business faces an issue that touches both upon a legal issue as well as a business issue?  After reaching this point in thinking I returned to the article to read Norm’s answer.  In short Norm states quite clearly and emphatically that lawyers should stick to giving legal advice and not business advice.  He goes on further to state that business advice when given by a lawyer is almost always bad advice.  The point – there is no benefit or value to seeking business advice from a lawyer.  This is fairly damning language about the legal profession by a well-regarded businessperson so I took Norm’s point seriously and not as a cynical pot shot at lawyers (considering he is one himself). 

So can lawyers ever give sound and useful business advice?  Or better yet, where is the line drawn between legal advice and business advice?  Is it not foreseeable, if not unavoidable, to have a scenario where a legal question directly informs a business decision or strategy?  Or vice versa?

To use a medical analogy; when a person goes to their doctor should they only listen to “medical” advice?  How can one determine what is medical advice versus other types of advice, such as lifestyle advice?   When a doctor says to a patient “you should exercise more often” – is that medical or lifestyle advice?  Thus in the business context when a lawyer says to the entrepreneur that they should be protecting their assets, is this legal advice or business advice or is it both? 

A lawyer is in many ways like a doctor – they have seen many different patients/clients with similar problems and therefore have a perspective that the individual may not possess.   There is value in this experience - though it may not directly apply to every situation.  How one evaluates and considers advice is the key.  Just because advice is given does not mean that it should be followed.  It is worth remembering that lawyers dispensing legal advice may not always be 100% correct but that should not make their advice of no benefit or value.  In fact getting a lawyer to proclaim that their legal advice is 100% accurate may be a Herculean task.  Nevertheless their advice is considered valuable. 

I do agree with Mr. Brodsky when he states that most lawyers, by training and habit, think differently than business people.  I do not agree however that therefore their business advice should be avoided.  As always it comes down to the individual lawyer – some may be great with business while many if not most may not be (despite what they think).  Certainly the profession can and should move towards a more business capable mindset.  But I leave that issue to debate for another day . . .

So while Mr. Brodsky’s advice should be respected it is somewhat shallow in that it does not recognize that the two types of advice are not so neatly decoupled and isolated from one another.  In fact, as many businesses come to recognize, the challenges that are most perplexing and worrisome are the ones in which business and legal concerns collide.  In these situations I would argue it unwise to forgo any type of advice – that said it should all be weighed and evaluated.  In the end though most businesses, especially entrepreneurs have to rely on something even more innate yet powerful – they own street smarts.

One final thought:  In the wake of the BP oil spill the convergence of legal and business issues and advice can be seen vividly.  I would invite Mr. Brodsky to watch the commercial where BP CEO Tony Hayward states that BP takes full responsibility for the tragedy and that BP will “honor all legitimate claims.”  Was Mr. Hayward following business or legal advice using the language he did?