Richard Susskind gave palpations to thousands of lawyers back in 2008 when “The End of Lawyers?” was published. The author’s track record as a legal soothsayer, coupled with the convulsions affecting the global economy to which law was far from immune, ruffled many stiff feathers. Of course, the provocative title of his work was no doubt designed to sell books, if not to provoke serious self-examination and adjustment by the legal establishment. In fact, to paraphrase Mark Twain, the reports of lawyers’ death were greatly exaggerated, though there is little doubt that their overall health was deteriorating and in need of rehabilitation. So, when five years later Professor Susskind wrote “The Future of Law” some were relieved to learn that law had a future, albeit one that was very different than the way things were pre-2008. This begs the question: is the legal deck being reshuffled or should most lawyers—especially young ones—throw in their hand and cut their losses?
The Sky is Not Falling—But the Climate is Certainly Changing
Let’s start with the obvious: law is a big business—a HUGE business—and it is not going to go away. Though size estimates vary, let’s take $650B per year as the annual global legal spend. This is good news for lawyers throughout the legal ecosystem. Companies will continue to transact business that requires lawyers; there is clearly a need for retail (non-corporate) lawyers, and the Academy might be pared down considerably—not to mention change its methods of training new lawyers—but it will certainly not disappear altogether. Law—even as Susskind sees it—has a future. But don’t look to the past as precedent for how its future will appear.
The key drivers of legal change are, by now, well-established: (1) technology; (2) globalization; (3) global regulatory changes; (4) the ascent of (unregulated) legal service providers (5) the cost: value divide; (6) disaggregation of “legal” tasks (“unbundling”); (7) the demand for greater collaboration, efficiency, transparency, and price predictability; (8) clients’ unwillingness to pay for lawyers’ post-licensure “on the job training”; (9) law school debt (especially in the U.S.); and (10) the increased presence of non-lawyers in legal delivery.
One would think that with all the pressures on the different key elements of the legal ecosystem– the Academy, providers, and consumers– each would work individually and in concert to find solutions for surviving, if not thriving, in the new climate they are now operating in. Why is this not happening?
There is no question that law schools are feeling the heat. Let’s put the top 14 ranked schools (“T14”; this band of top-rated law schools has not varied since rankings began) aside for a moment just as we will do below with the small number of brand differentiated, “bespoke” Biglaw firms. That leaves about 180 other law schools who are all confronting an unholy Trinity of challenges: (1) declining admissions caused by exorbitant price and an unwelcome market; (2) dismal job placement statistics (even at those schools that prop up their numbers by offering graduates menial “jobs” that do not require licensure, a practice that will soon adversely affect the school’s all-important ranking); and (3) curriculum (ir)relevancy in light of the changing legal marketplace. Why are law schools not effecting material change– if not for their students then for their own survival? A few have been shuttered during the past couple years with more surely to follow.
For one thing, most Deans of law schools are themselves products of the Academy and, so, generally have had little or no practice experience. But even when Deans are focused on responding to the ever-increasing pressures imposed by the marketplace, they are confronted with yet another new demand: to raise funds. Law schools, once cash cows for the University they were aligned with, are now fiscal drains. This means that Deans must work with Development Officers to raise funds from well-healed alums and other prospective donors. This is a tough case to make in today’s climate. Then there is the faculty, most of whom like things just the way they are, thank you very much. And why not? The average law professor works about 7 months a year (at the law school, anyway); has terrific benefits (including undergraduate tuition remission for children as well as an array of other enviable perks); and spends about 8 hours per week in the classroom. The “pressure” to conduct “research” is eased by an abundance of cheap—or free—student labor, and the research topics have scant relevance to most in the legal ecosystem in any event. Law schools also have a ready supply of cheap (sometimes market savvy) labor in adjunct professors. But why the reluctance to hire full-time faculty with market knowledge and practice experience?
There are a number of fixes for law schools but, to paraphrase Jimmy Buffett, they will require both “changes in attitude and changes in latitude” within the Academy. They include: (1) pre-enrollment counseling; (2) curriculum reevaluation including mandatory courses in the current legal landscape as well “practical” courses in new foundational practice skill areas such as project management, data management, legal technology, basic business skills, etc.; (3) hiring faculty with contemporary work experience and contacts; (4) same for Placement Officers; (5) compressing the curriculum to two-years, even if the sessions are year-round rather than 7 months; (6) reducing tuition by paring down bloated administrative staffs, demanding “more for less” from faculty, and making better use of technology; (7) enhanced practicum curriculum component; (8) aligning with other professional and undergraduate programs within the University to enable students to achieve deeper and broader understanding of other key disciplines necessary for today’s lawyers; (9) forging partnerships with the private sector (both legal service providers as well as consumers); and (10) seizing the opportunity to create meaningful legal jobs for graduates while helping to solve the access to justice crisis.
Law schools are looking up at the sky and seeing ominous clouds. They are neither listening to the forecast nor have they even brought an umbrella. Bottom line: it’s time they become more connected—not diffidently detached—from the providers and consumers in the legal ecosystem. Just as lawyers are learning that it’s about clients, not lawyers, so too must law schools realize that it’s about students, not the Academy.
Let’s put aside the “legal one-percent”, that small, elite group of brand differentiated, law firms who will—at least for the foreseeable future—continue to practice under their existing model. For the rest, the recent demise of a number of large firms, the growing instability of others,“merger-mania”, and peripatetic partners are leading indicators of seismic changes. And that does not even take into account the ascent of service providers, increased global competition, new entrants poised to enter the legal market (with brands and reach that is global, not to mention exceedingly deep war chests and strong client relationships), as well as legal product companies. Law firms will survive, albeit in a very different form—and with new models. Lawyers must harness the forces driving change and use them to their advantage. Translation: a business as usual approach is a ticket to extinction, and many firms resemble Titanic passengers more concerned with tomorrow’s menu than the iceberg sinking the ship. Unlike those ill-fated passengers, there are lawyer “lifeboats”; it might be time to use them.
Some lawyers, though not many, still believe that things will “return to normal” (as they were pre-2008). Most now believe this will not happen and that the future of law is uncertain at best. As Peter Drucker said, “The best way to predict the future is to create it.” Admittedly, few have the prescience, courage, audacity, or means to create the future. But lawyers—good lawyers—are effective storytellers and problem solvers, skills that will help them to find their way. The opportunities and tools are there for lawyers to solve the broken elements of their ecosystem; this will require better utilization of technology, more collaboration, greater efficiency, reduced financial expectations, and the willingness to work with professionals from other disciplines. New legal job categories are being created and will continue to come online. Law schools should take their cue from providers and consumers, many of whom are ready to help. Certainly, there are millions of clients (on the retail side) who need legal representation and can pay for it—though not at current rates. This presents a huge opportunity for retail lawyers. Biglaw can collaborate effectively with service providers as well as create their own new models for legal delivery that are more responsive to client needs. And clients, increasingly, have choices. They are becoming more open to exploring and retaining new models and sources. The challenge for lawyers is to provide clients with what they want and the way they want it—and to provide solutions. If lawyers fail to meet that challenge, others surely will.