As a scholar of the interaction between innovation and law I find the debates about the future of Law School unfolding in the United States fascinating. There are lots of reasons why its fascinating. One of the reasons is the rather ironic lack of analytical clarity in one of the most persistent tropes in the debate; the claim by some lawyers and other law school graduates including some legal academics that there is too much emphasis on teaching analysis and not enough emphasis on teaching something practical. As I’ll show you this claim, whether true or not, has very little to do with the changes affecting legal services and thus law schools and so does not provide an appropriate response to those changes. It would be unfair to blame the law schools from which they graduated but what is missing from these claims accounts is analytical clarity rather than practical skills.
In February (2013) The American Bar Association Task Force on the Future of Legal Education discussed the idea of reducing Law School from three years to two. The profile of the idea was raised by former law school professor and current President of the United States, Barack Obama’s off the cuff remarks: “law schools would probably be wise to think about being two years instead of three years … The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much.” Wonkblog at the The Washington Post goes on to set out the pros and cons of the idea.
Professor Mary Lynch of Albany Law School points to two fallacies in this claim: low level unstructured work experience is not the same as structured training, and contemporary US law firms are not able to offer appropriate training.
However different law firms may have operated historically the incentives of experienced lawyers are to maximise their or other lawyers billable hours. This is one reason that some practising lawyers complain that law schools should teach more practical skills, it would be more profitable if their staff bear the costs of training rather than themselves. But is the purpose of law schools primarily to prepare lawyers for their first year of work or for a lifetime career in which they may become arbitrators, attorney generals, judges and yes seniour partners of global law firms? The problem with the idea of what is practical is that it the versions of practical skills most confidently advanced by practitioners looking to maximise their revenue from new hires is that it is virtually synonymous with redundant. Six years ago what many entry level lawyers did was so called ‘process work’. Process work is was famously described by Mark MacCormac in What they didn’t teach me at Yale Law School, The Terrible Truth About Lawyers. He spent months living in a motel, eating take out to go through documents in a warehouse to see if any were relevant to a court case that he would never get to litigate himself. McCormack’s complaint was not that Yale had not trained him how to do this but that he had been trained to do something else that he didn’t get to do. The way that the profession was structured was that large numbers of fresh entrants to law firms were required to do this kind of work, and not only for litigation, due diligence for many transactions required similar process work. Associates would work long and hard. Eventually some would be given an opportunity to do more interesting work. The pressure would be on to bill as many hours as possible, for the benefit of the equity partners in the firm. Eventually when one was completely burned out one either made partner track and so could benefit from the work of a new generation or perhaps gently but nonetheless inexorably forced out. McCormack concluded that law school had been good preparation for something else and became an agent for sports stars.
If six years ago US law schools had heeded a call to teach practical skills they would have taught students how to do process work. But while they would have been putting those courses in place and marketing themselves to students as providing practical skills something else was happening, technology provided a different way, a cheaper way. Now potentially relevant documents mainly exist as computer files, a keyword search brings up leads and a lawyer must go through a few documents to determined their relevance. If records are on paper they are scanned, OCR’d and the same process applied. One obvious consequence is that fewer entry level lawyers are needed. But if fewer entry level lawyers are needed by US law firms then why try so hard to find ways to lower the barriers to qualification so that more lawyers are produced? If the problem is diminished demand then how can increasing supply make a difference?
Not only is there less demand for entry level lawyers their career prospects have changed. Professor Lynch reports that law partners firm partners claim that clients no longer want to pay for the in house training of lawyers. This apparently translates to a refusal to have entry level lawyers billed on their filed. Others have attributed this new parsimony to the need for companies to cut expenses to compensate for losses experienced as a result of the economic crisis.
To whatever extent this is true it seems on some accounts in Big Law changes have as much to do with the incentives of partners as the demands of clients; partnership prospects are slim, instead experienced lawyers subsist on reduced salaries, while existing equity partners engage in ceaseless office politics for a lion’s share of the profits. But according to research by Prof Bernie Burke of UNC these changes affect Big Law much more than they do smaller firms.
If one lived in the US and wanted to go to Law School in order to work in Big Law and make a lot of money then one might be less inclined to apply to Law School because the prospects of that career path are diminished. By contrast although the behaviour of the banks was a major factor in the global economic crisis the opportunities to make a great deal of money do not seem to have been diminished. There are of course other motives to go to Law School, one of which is a desire to help others. And there is demand; there are many unrepresented people who need legal services. Quite a few commentators have pointed this out, going on to add that the current pricing of US Law Schools induces students to take on a great deal of debt, to discharge that debt they must find profitable work. The fallacious conclusion they draw is that Law School must become cheaper. They fail to recognise that even when Law School was cheaper there were never enough lawyers to represent the poor. Its as if faced with a diminishing number of people wanting to become tailors because the demand for tailored clothes had fallen due to a recession some opinion leaders want to reduce the number of years a tailor is apprentice. This they say would result in tailors making more clothes for poor people.
The issue is with the structure of legal work itself. The current model of legal work is a bespoke model, the lawyer tailors the work to the particulars of the client. And that isn’t always economically efficient because too often what the client could afford to pay and what the lawyer can afford to charge don’t intersect. Make no mistake there is plenty of mindless re-use of using of standard contracts and the like, however the production possibility is always bounded by the time of the individual working on the individual issue.
Clothing became cheaper when it became mass produced. It didn’t always fit as well as tailored clothes but it is far more affordable and available. What is missing then is a business model that enables lawyers to serve far more people simultaneously. Increased computation power may be the key. But law is not clothing, individual distinctions (pace the fashionistas) matter a great deal more when it comes to legal consequences than the fit of a T-shirt. But information and communications technologies are changing how clothing is made too, enabling ‘mass customisation’. Consider the marvellously innovative Indochino; which enables you to order a customised suit online. The customer measures himself, selects the features he wants and then makes an order. The suit is cut according to his specifications and shipped to him. The model benefits from just-in-time logistics which reduce inventory cost and wastage and computer operated machines that can cut each garment to specifications without requiring recalibration or re-tooling. The result is not the cheapest suit you can buy but its far cheaper than suit tailored the old fashioned way. How can lawyers create businesses that resemble Indochino?
I don’t really know. But what I do know is that someone will meet those needs and if it is not lawyers then it will be banks or insurance companies or supermarkets or Google. Lawyers will still be involved but as the employees of the businesses rather than the leaders. So what Law Schools or at least leading Law Schools should be doing is figuring out how to train the entrepreneurs who will come up with the new business models. And that seems to me to require a very practical set of skills including business process re-engineering, some command of ICT especially UI, the ability to work in multi-disciplinary teams and a mindset rather different from a corporate law mindset. I admit that this requires a very different definition of practical. It is open ended and one cannot say for sure which knowledge and skills will prove most helpful. But then neither can those who define practical as the quotidian tasks of current practitioners when they have proven unable to predict how the way that practitioners do those those tasks will change over the next five years. It may be that not every law school will prepare the people who will transform how legal services are delivered. There may well be a need for split between a two year degree and an even longer four year degree required to prepare students to innovate law, or perhaps the two year degree could be coupled with specialist masters degrees that enable lawyers to innovate.
As an aside the the WaPost even makes the claim that in the UK law school is only one year. That is inaccurate, different rules apply in Scotland to England and Wales. In England one may either take a three year undergraduate law degree or if one has studied another degree then one must take the Graduate Diploma in Law (one year). That completes the ‘academic’ stage and then an aspirant lawyer must take the Legal Practise course (one year). An aspirant solicitor must also work for a law firm for two years under a training contract and complete the Professional Skills course and exams. Qualifying in England is at least as complex as in the United States. It has the added disadvantage that it encourages although it does not compel people to make a decision about their life career at 18. Very few people who are 18 years old have sufficient experience of life to know whether the law would suit them. It is one of the best features of the US higher education system that people are able to change careers, business administration, therapy, social work and law all professions where judgement and life experience matter a great deal benefit from practitioners who have had working experiences outside their chosen fields. The US legal system, whatever its faults, is a far more sophisticated and dynamic system than the English system. It would be a mistake to make changes to the US system based on an erroneous understanding of the English system.