Legal Education in the 21st Century

By Dean Andrew Perlman, Chair, ABA Center for Innovation

I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark.  In that post, I left open the question of how law schools should respond to this emerging new reality.  I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.

How many lawyers?

The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting?

There is a robust debate elsewhere about the appropriate size of the lawyer pipeline, and I am not going to resolve it here.  I will simply note that, if the Susskinds are right, we may need fewer lawyers per capita in the future than we needed (say) ten years ago.  Of course, U.S. law schools are already on pace to graduate far fewer students than in the recent past – nearly 30% fewer students – because of both planned and forced enrollment reductions over the last few years.  Whether further reductions will be necessary to ensure that law students have professional and financial outcomes equivalent to the past is still an open question.

Of course, the same could be said about nearly every other form of professional education.  As the Susskinds’ book makes clear, many professions are seeing (and will continue to see) marked transformations in the coming decades.  The point is that it is very difficult to predict with any precision what the size of the legal market will be in 10 or 20 years or determine whether the recent 30% decline in the new-lawyer pipeline is too much, too little, or just right.

What should law students learn?

What is clear is that tomorrow’s lawyers will need additional skills that law schools traditionally have not taught.  This means that, in addition to asking how big the future market for new lawyers will be, we also need to ask a different question: for those who do enroll in law school, are they getting the education that they need?

My answer is yes and no.  There are many features of the traditional law school curriculum that serve law students quite well in a rapidly changing world.  Legal analysis, a close reading of texts, clear writing and thinking, and an ability to discern good arguments from bad are all valuable skills and will continue to be so. Law schools (particularly through experiential education) also help students to develop essential law practice skills in the areas of fact investigation, negotiation, oral and written advocacy, problem solving, document drafting, and client counseling.

These skills are important and necessary, but they are no longer sufficient.  If you think the Susskinds’ predictions are accurate, students should also be able to identify how technology and other innovative methods can be used to deliver legal services better, faster, and cheaper.  Put simply, students will still need to “think like a lawyer,” but they will need to “think like 21st century lawyers.”

What does this mean specifically?  The answer varies depending on the school, but at my own school (Suffolk), it means exposing students to concepts like legal project management and process improvementlegal design (accompanying story here), automated legal document assembly, expert system toolselectronic discovery, and other areas as well.  We’re also teaching students how to innovate the operations of a law practice to make legal services more affordable for currently underserved clients, and we are giving students paid opportunities to learn about new delivery options.

We’re certainly not the only ones pushing the envelope.  A growing number of law schools (and universities) have developed an expertise in this area and have emphasized a range of related skills, such as legal analytics.  Here’s a partial list of such schools.  (Please feel free to email me I have overlooked a relevant program.)

BYU LawX — Legal Design Lab

Columbia Law School – Lawyering in the Digital Age Clinic

Duke University School of Law – Law Tech Lab

Georgetown University Law School – The Program in Legal Technologies

Harvard – Center on the Legal Profession and LawLab (housed at Harvard’s Berkman Center for Internet & Society, but with many collaborators)

Hofstra University School of Law – Law, Logic, and Technology Research Laboratory

IIT Chicago Kent College of Law – Center for Access to Justice & Technology and The Law Lab

University of Miami School of Law – Law Without Walls

MIT – Computational Law Research and Development

Michigan State University College of Law – LegalRnD

Northeastern University School of Law  – NuLawLab

Northern Kentucky University Chase College of Law – Lunsford Academy for Law, Business, and Technology

Northwestern Pritzker School of Law – Technology, Innovation, and Entrepreneurship Concentration

University of Pittsburgh School of Law – Innovation Practice Institute

Stanford – CodeX The Stanford Center for Legal Informatics and the Legal Design Lab

Suffolk University Law School – Institute on Law Practice Technology & Innovation and Concentration

Vanderbilt University Law School – Program on Law & Innovation

Vermont Law School – Center for Legal Innovation

These innovations are paying off.  Students are getting jobs that did not even exist a few years ago, such as in legal project management, knowledge engineering, and legal solutions architecting.  For example, when my law school graduated its first group of students with some coursework in these new areas, employers specifically reached out to recruit them. (See, e.g., here.)  Granted, this is hardly an empirical study (the sample size is still small), but the available evidence suggests that legal employers are increasingly looking for students who have learned the skills taught at the schools referenced above.

Anticipating Objections

One objection to updating the curriculum in the way that I have outlined here is that law schools should not try to teach all of the knowledge and skills that students need for professional success.  Legal education is premised on the idea that considerable learning takes place on the job, so one could argue that the new areas of study, even though important, should be learned later.

I agree that considerable learning needs to take place on the job, but we should want our students to have learned enough in law school so that, when they see a particular problem or issue in practice, they have a reference point for how to deal with it.  They need to be able to “issue spot.”  The new skills and knowledge described above are simply giving students the ability to engage in a new kind of issue spotting.  That is, students should know these new concepts sufficiently well to identify when they can be deployed to deliver services more effectively and efficiently.

A more important reason to offer this kind of education in law school is that students will not necessarily develop the skills in practice.  Although the industry is rapidly evolving, many law school graduates will join practices where few people have these new skills.  Put another way, the knowledge that I have described is less likely to be learned on the job than traditional practice skills and doctrinal subjects, because the knowledge is so new and most lawyers are not expert in these areas.  In this sense, junior lawyers will not be learning these new concepts on the job; rather, they may be educating their superiors.

The flipping of the traditional information flow has another benefit: it increases the relevance of junior lawyers.  At a time when the value of a young associate is increasingly questioned, law schools have an opportunity to give their graduates a knowledge base and skillset that clients increasingly demand and that most legal employers lack.  In short, teaching these new skills will position law schools and their graduates as leaders of a profession at the cusp of significant change.

A second possible objection to this new curriculum is that the skills will be quickly outdated.  This argument, however, proves too much.  In law school, we regularly teach students about doctrines that have changed or are likely to change.  When we teach an area of law (say an older, but now discarded, doctrine), we do so to convey both a conceptual point and a way to think about an issue.  In much the same way, teaching law practice technology and innovation is designed to help students think in new ways about legal services.  The technology will change, but the mindset will serve graduates well throughout their careers by giving them the conceptual tools they need to improve how legal services are delivered and accessed.  This will make them more competitive and better able to serve their clients and the public.  It is hard to think of a better reason to update the law school curriculum than that.

Want to innovate? Break the law firm business model

by Jordan Furlong

 

“Innovation destroys hours.”

 

Those three words, written by Neota Logic founder Michael Mills in a 2014 blog post, summarize the fundamental challenge that every law firm faces today. They reflect two market realities that are inherently incompatible with each other.

 

  1. Virtually every recent innovation in the legal services market — from automation to process improvement to multi-sourcing — has operated to reduce the amount of time and effort required to produce and deliver legal services.

 

  1. Virtually every law firm in the legal market prices its work, bills its clients, compensates its lawyers, and rewards its shareholders on the basis of the amount of time and effort required to produce and deliver legal services.

 

This fact has to constitute the starting point for all our inquiries into “why law firms don’t innovate.” When a law firm engages in any of the most common types of innovation, it reduces its inventory and lowers its lawyers’ revenue.  It’s no wonder innovation is anathema within most law firms: it’s antithetical to the law firm’s foundational business premise. You might as well ask a ship to innovate by drilling holes in its hull.

 

Don’t make the mistake, therefore, of blaming lawyers for the lack of law firm innovation. Sure, lawyers are change-resistant and conservative and all the rest — but so are most people, to a greater or lesser extent. Since almost any worthwhile innovation in a law firm will destroy hours and therefore reduce lawyers’ stock in trade, lawyers will understandably fight those innovations. It’s an entirely rational response, and we shouldn’t demonize lawyers for it.

 

The true barrier to law firm innovation is the firm’s ironclad insistence on measuring value — both external to the client and internal within the firm — on the basis of lawyers’ time and effort.

 

Law firms maintain a direct, causal connection between the time and effort lawyers expend to deliver a service and:

 

(a) the money clients pay to receive that service, and

(b) the money lawyers receive as compensation for their services.

 

But there is no fundamental economic reason why either of these should be the case. These aspects of your business can and should be largely independent of each other.

 

(a) Clients need not be charged on the basis of lawyers’ time and effort. They can be charged on the basis of successfully accomplishing a task within previously agreed parameters for a previously agreed price (with both parameters and price established according to competitive market realities). Indeed, clients have been telling firms this for the last ten years: they don’t care how much time and effort was required to generate their legal services. All they care about is the result they received and the experience they enjoyed (or endured) to receive it.

 

(b) Lawyers need not be compensated on the basis of the time and effort they expended to deliver a service. They can (also) be compensated according to clients landed, business generated, relationships maintained, solutions identified, teams managed, projects led, juniors mentored, and a host of other criteria. Should we really be surprised that law firms that incentivize maximum lawyer time and effort are filled with overworked male lawyers disproportionately prone to depression and substance abuse?

 

Law firms don’t seem to understand that their costs of production and their revenue from clients are not supposed to be causally connected.

 

If you want to successfully introduce innovations into your law firm, therefore, you first need to recognize that these innovations pose an existential threat to the way the law firm does business. So your real challenge — the challenge every law firm faces, whether it wants to innovate or not — is to change the way the law firm does business. Break the causal relationship between the amount of time and effort required to render a client service and (a) the price clients are charged for those services, and (b) the rewards provided to lawyers who helped deliver those services.

 

That’s not going to be easy, obviously. In fact, it might seem like I’m just substituting one insurmountable challenge for another. But here’s the difference: You have zero chance of stopping innovation from destroying lawyer hours. But you have a non-zero chance of changing the way law firms charge their clients and compensate their lawyers.

 

There are two paths out of this mess for law firms. One path is impossible to follow. The other is merely extremely difficult. You’re going to choose one of them eventually.  Eventually might as well start today.

 

Jordan Furlong is a consultant, author, and legal market analyst who forecasts the impact of changing market conditions on lawyers and law firms. He has given dozens of presentations to legal audiences in the US, Canada, Europe and Australia over the past several years. A member of the Advisory Board of the ABA’s Center for Innovation, Jordan is the author of Law Is A Buyer’s Market: Building a Client-First Law Firm, and writes regularly about the changing legal market at law21.ca.

Predicting the Future of Legal Services

By Dean Andrew Perlman, Chair, ABA Center for Innovation

To get this blog started, I’m delighted to share some of my reflections on the future of legal services.  These posts were originally part of an online symposium on Prawfsblawg focused on two books: Richard Susskind & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts and Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent it for a Complex Global Economy.

The reflections contain three parts.  The first part (below) describes the Susskinds’ prediction that technology will drive dramatic changes to the delivery of legal services.  I conclude that, although the Susskinds’ predictions are probably close to the mark, the changes may be more uneven than the Susskinds acknowledge.  The second part discusses how law schools should respond to the rapidly evolving legal marketplace and suggests curricular changes that will put law school graduates in a better position to thrive in the 21st century.  The final part discusses how the regulatory framework for legal services will need to evolve in light of the rapidly changing legal marketplace.

A Disclosure 

My views on the future of legal services have been informed by Richard Susskind’s earlier books and my own work on projects where “futures” discussions have been front and center.  For example, I served as the vice chair of the ABA Commission on the Future of Legal Services, which produced a report describing many “legal futures” issues in great detail. And I have been serving as the chair of the governing council of the ABA Center for Innovation.  Before becoming a law school dean, I was fortunate to serve as Suffolk Law’s inaugural director of our Institute on Legal Innovation and Technology and the related concentration in the area.

These experiences lead me to believe that we are going to see more significant changes over the next couple of decades than we have seen over the last twenty years (and those recent changes already have been considerable).  That’s a long way of disclosing that I read the Susskinds’ book expecting to find myself largely in agreement with their predictions, and I wasn’t disappointed.

The Essence of the Susskinds’ Forecast

The Susskinds’ predictions turn in no small part on an important narrative about how people have developed and shared their expertise during different periods of human history.  Namely, we have seen an evolution from strictly oral communications, to written work, to modern printing, and (most recently) to a digital age where knowledge is acquired and shared with great ease (pp. 147-53).

The Susskinds observe that, before the current digital age, information was difficult to obtain, giving professionals an important role and advantage.  People could not easily find the information they needed about a topic, such as medicine, law, or accounting, so the public had little choice but to consult experts (e.g., doctors, lawyers, accountants, etc.) to answer even routine questions.

The Internet is now leveling that playing field, making the dissemination of expert knowledge considerably easier.  (This online symposium is an example.)  When combined with technological advances that have facilitated the automated delivery of that knowledge and related services – think the Mayo Clinic or WebMD (for medicine), LegalZoom (for legal services), TurboTax (for accounting), and Khan Academy (for education) – the Susskinds argue that we are beginning to see Clayton Christenson-like changes to the professions (though the Susskinds prefer to avoid the language of “disruption”).  (pp. 109-10).  The Internet is not only making it easier for non-experts to gain access to the information they need; it is driving a gradual expansion of automation from low-cost, routine professional services to more bespoke services, especially as artificial intelligence (AI) becomes more sophisticated (e.g., IBM Watson’s applications to the healthcare and legal industries).

The Susskinds do not argue that human-based bespoke services will necessarily disappear (pp. 192, 199), but they contend that we will see a continued transformation of how professional services are delivered and related changes to the basic skillset that future professionals will need.  In a nutshell, they conclude that professionals will have to partner with the “machines” rather than try to beat them.

This is a greatly simplified account of a nuanced and well-researched book, but for those of you who have not read it, this is the gist of it.

My experience has been that some lawyers either do not agree with this forecast or have not given the subject a great deal of thought, so in the remainder of this post, I’m going to explain why I believe that we need to take the Susskinds’ forecasts seriously.

Is the Prediction Right?

The quotable baseball manager Yogi Berra once said that “[i]t’s tough to make predictions, especially about the future.”  Tough, indeed, but not impossible. Richard Susskind’s predictions about the future of legal services have been prescient for decades. Although Richard hasn’t always been on the mark, he’s been right often enough that his ideas deserve careful attention.

One of the primary reasons that I’m convinced that the Susskinds’ forecasts are reasonably accurate is that the predicted future is already taking shape.  As with just about any prediction, the odds of getting it right improve considerably with additional data.  Take, for example, a prediction that autonomous cars are going to transform transportation within our lifetimes.  Twenty years ago, that prediction would have been quite speculative because the technology needed for such a development was not yet available.  But given the technology that now exists, we can predict with a much higher degree of confidence that driverless cars will become ubiquitous and transformative within a couple of decades or so, perhaps considerably sooner.

The analogy between self-driving cars and legal services innovation is not perfect, but it is instructive.  Like predictions about the coming ubiquity of self-driving cars, predictions about the likely transformation of professional services are drawn from existing data and technology, not a speculative forecast about future capabilities.

Consider some recent developments in the legal industry.  In the context of dispute resolution, online platforms (online dispute resolution, or ODR), led by Modria, now resolve approximately as many disputes as the entire U.S. court system combined.  The technology is now moving into courthouses.  Court-annexed ODR platforms are emerging, and more are likely to appear in the near future.  Even when disputes are resolved in courts using traditional procedures, technology is changing the landscape.  When I started practicing 20 years ago, discovery required associates (and paralegals) to engage in page-by-page reviews of paper documents; today, technology-driven ediscovery is performed by outside vendors.  And technology is informing how lawyers do their work.  For example, companies like Lex Machina (now owned by LexisNexis) and Premonition are using data analytics to give lawyers valuable insights about opposing counsel, courts, etc. to craft better arguments and assess the value of cases.  One company offers to scan your opponent’s briefs and suggest possible cases to cite in response.

In the context of transactions, LegalZoom now automates the creation of a wide range of basic legal documents and has served millions of consumers.  Numerous other companies and organizations offer similar services, either directly to the public or for law firms, legal departmentscourts, and legal services organizations.  Due diligence and contract management are often outsourced to legal process outsourcers (LPOs), as are a range of other services.

Law firms and in-house legal departments are responding to these changes in various ways.  In addition to making greater use of document automation, they are using expert system tools, creating legal project management departments, hiring legal solutions architects to design new ways of delivering legal services, and establishing research and development departments (e.g., Dentons’ NextLaw LabsDavis Wright Tremaine’s De NovoSeyfarth Shaw’sSeyfarth Lean, and Littler Mendelson’s Service Solutions).  Law firms are also diversifying their revenue sources by creating ancillary businesses, such as e-discovery services or data analytics.  In-house counsel are placing a greater emphasis on legal operations (e.g., the Corporate Legal Operations Consortium (CLOC)), and they are making greater use of LPOs and unconventional lawyer-staffing solutions that include new technology solutions as well.

Bar associations are responding too.  The ABA recently issued a report on these developments and has established a Center for Innovation (which is hosting this blog).  State bar associations are examining futures issues, and other associations around the world are engaging in similar efforts (e.g., the U.K.’s Law Society and the Canadian Bar Association).

This is all just a sampling.  New legal tech and innovation startups are appearing everywhere and delivering a growing range of services.  Venture capitalists are taking notice as well and increasing their investments into innovative solutions for the legal industry.

At the same time, the available tools are getting more sophisticated, especially as AI itself becomes more capable.  There are increasing efforts to apply AI to law (e.g., ROSS), a development that fits nicely into the Susskinds’ predictions that the changes already underway will continue to transform legal services, even at the most sophisticated levels of the industry.

A Caveat: “The future is already here — it’s just not very evenly distributed.”

This quote is often attributed to author William Gibson, and it offers a pretty good summary of what is happening with professional services.  Innovations are transforming those services, but the changes are (and likely will continue to be) uneven.

To be sure, the Susskinds concede this point.  They believe that there will not be a “big-bang revolution.”  Rather they predict “incremental transformation,” or a “staggered series of steps and bounds.”  Nevertheless, the Susskinds conclude that “the eventual impact will be radical and pervasive.” (p. 231)

Here is where I may part ways just a bit from the Susskinds.  I agree that technology-driven changes to the delivery of professional services will take the form of “incremental transformation,” but I think that the extent and especially the timing of the changes are likely to vary much more than the Susskinds imply.  The transformational changes that they predict will vary from one profession to the next (and vary among professional practice areas) by considerable periods of time, perhaps decades.  Some practice areas within some professions, including the legal profession, are sufficiently bespoke that the AI necessary to replicate the services or substantially transform how they are delivered is still entirely speculative (much like self-driving cars were twenty years ago).  That’s not to say that transformational changes will not eventually emerge in these resistant fields; it is just that the technology necessary to bring about those changes does not yet exist and may not for quite a bit more time.

This is a variant of the objection that the Susskinds confront in their book: “this may be true of everyone else’s practice area, but not mine.” (p. 232) My objection is a little bit different.  I’m not suggesting that any particular profession (or practice area within a profession) is immune from these changes.  I’m arguing that the changes are likely to be more uneven and difficult to predict in terms of scope and timing than the Susskinds suggest.  In other words, nobody is immune from the changes, but some are likely to be more resistant than others.

Consider a recent McKinsey report (related New York Times story here), which concludes that automation of industries (including the professions) will vary depending on technical feasibility, the cost of developing and deploying the solutions, labor market dynamics, economic benefits, and regulatory and social acceptance.  Assuming these factors are the right ones (and they seem right to me), the pace of change is likely to vary depending on the industry and the specialty.  Indeed, the report suggests that the “professions” themselves have among the lowest automation potential of the types of employment surveyed.  (See Exhibit E4.)  Although I think that claim may underestimate the automation potential in many parts of the legal profession, the point is that the extent and timing of the transformation of professional services is not easy to predict.  The report explains that “[o]ur scenarios suggest that half of today’s work activities could be automated by 2055, but this could happen up to 20 years earlier or later depending on the various factors, in addition to other wider economic conditions.”  That’s quite a broad window, and it reflects the uncertainties that necessarily exist when venturing predictions across industries, professions, and specialties.

To be clear, I’m not suggesting that the Susskinds’ forecast is wrong.  I’m just a bit less confident in the general applicability of their forecast than I am about (say) predicting the coming ubiquity of self-driving cars.

Assuming you’re convinced (as I am) that the Susskinds’ vision of the future is roughly close to the mark, what should we do about it?  In my next two posts, I’ll explore what this all means for legal education and legal services regulation.