Teach

You practice law for a few years and decide mom was right. You should have gone to medical school. You take the test, apply, and find yourself sitting in a classroom on the first day of classes at a prestigious medical school.

The professor strides to the front of the classroom and announces, “Today, we will start learning surgery. Our first lesson will be on how to remove an appendix. We will focus on the attachment site and how to cut and suture that area.”

Your confidence drains on to the floor. You must have missed some steps. How could your first class be on surgery and start deep into a surgical process?

Your raise your hand and ask, “Um, professor, shouldn’t we start a bit earlier in the process? I mean, shouldn’t we cover the location of the appendix in the body, how surgical rooms work, the place to make an incision, and other stuff like that?”

The professor gives you a quizzical look. “This is a medical school. We skip over that type of stuff and go right to something in the middle. We assume you will learn those other things some other place.”

Puzzled, you ask “But, aren’t those, like, essential to making the operation work? Without that other stuff, won’t the operation fail and the patient die?”

The professor is exasperated. Lawyers who become medical school students ask irrelevant questions. “If we wanted every operation to succeed we would send our students to the business school so they could learn operation management. This is a medical school.We focus on the part that interests us: cutting the appendix out and suturing the attachment site.”

Lean Thinking Training—A Checkered History

I am sure you have guessed the topic of this essay. It is how we teach … lawyers in law firms and law departments to use lean thinking. Yes, that’s right. Lawyers have taken the path never chosen to educate those in our profession. But, I digress, so let me go back to the beginning.

From the end of WW II through the mid-1980s, Toyota Motor Company built a car company that excelled. It had other specific goals, but the result was, as James P. Womack titled his first book, “The Machine that Changed the World.” Toyota pulled ideas from many areas and dating back to the 1800s, melded those ideas with some new ones, leading to the Toyota Production System (TPS). Womack and others brought TPS to the United States and re-branded it “lean” thinking to widen its appeal. Companies in every industry adopted it and today it is the most widely used philosophy and group of methodologies for improving business operations. Old story.

As we know, the legal industry was the last to join the lean thinking party. But clients will be clients. With the 21st century came their desire to stop throwing endless piles of money at law firms. A strange notion, perhaps, but what are you going to do?

Lean thinking has worked in all industries and geographies, so if lawyers must pay some attention to improving efficiency, it qualifies as the ideal place to start. How hard can it be? Clients do it so the elite lawyering class can learn it in an hour webinar over lunch. The effort to train practicing lawyers the art, science, and theory of lean lawyering began.

Ignoring oddballs like me who have done lean lawyering for over two decades, the broader effort started in 2005. One could say, if one was generous, that the “industry” has worked on learning lean for a dozen years. The reality is that isolated clients and firms have done some work to learn lean. The majority of the profession has thrown a massive wall of resistance at any form of change. Despite all the talk of change throughout the profession, data tells no tales. Pick any improvement metric and a small percentage of the profession has made the change—fee arrangements, project management, process improvement, metrics themselves, new technology (versus updating Word), design thinking, and so on. Outside law, these have become common ideas. Within law,  lawyers have barely taken the wrapper off the box. But, I digress.

Back to educating lawyers on lean thinking. It is incumbent on those who believe to teach those who don’t know. So it was in the mid-1970s. Toyota decided it was time to spread the word of the Toyota Production System. The first evangelists to teach TPS were engineers and consultants who had worked with Toyota. They had the knowledge and experience needed, but they had to market the idea. Lean thinking was and is counterintuitive in many ways, so one had to be an evangelist.

One consultant started selling TPS to companies in Japan. He put on a two-day workshop giving participants a taste of process improvement. It was enough to show participants the power of lean. That plus Toyota’s reputation convinced companies to try the new way. As the consultant succeeded, he turned his sites to the United States.

He tried his two-day workshop in the United States, but ran into problems. He decided the root cause of his problems was time—two days was insufficient. He expanded his marketing workshops to one week. His one-week kaizen event marketing tool became the way to implement lean thinking.

Toyota did not do one-week kaizen events. Toyota did “continuous improvement.” TPS and its Western cousin lean thinking lack a goal that says “improve over a week and walk away until you are ready to come back (if ever).” Toyota’s goal is continuously improve processes in a cycle, as putting money in the bank starts a cycle of compound interest (at least back when banks paid interest on deposits). As a fundamental component of lean thinking, the one-week kaizen event sucks. But as a marketing ploy, it was a ball hit out of the park.

Marketing successes can take on lives of their own and that happened with the kaizen event. Companies decided to go through lean transformations and kaizen events became the way to drive the transformation. Rather than find ways to build the basics of lean thinking into the business, companies started with kaizen events. Small teams gather in conference rooms, plot the activities for the week, go to gemba, find ways to improve, implement, measure, create new standard work charts, report out, and celebrate. In one week, at team could get 50%, 75%, or greater improvement. We got this lean thinking thing! But, I digress.

Toyota built the Toyota Production System over decades, layer by layer, as it gathered, revised, and created elements of the System. Within Toyota manufacturing (curious footnote, TPS has not spread throughout Toyota itself), the System became part of Toyota’s DNA. The lean thinking adopted by other companies was, in most instances, a bolt-on. Employees would run a kaizen event, improve supply purchasing for the marketing department by 50%, party on Friday night and go back to their working lives on Monday. Some might do another event on supplies in six months or a year. The same practice held true throughout the company. The company failed to make the transition from kaizen marketing events to continuous improvement. A few years passed and the company looked for something else to do. Many of those companies no longer exist. All of them left a lot of value on the floor.

If you wander through companies across the United States, you can see remnants of lean thinking efforts in front offices, back offices, and on factory floors. Those companies continue the systems established in kaizen events, because they improved the business. But, the improvements stopped or slowed to a crawl. The businesses failed to complete the jump to continuous improvement.

As in any partial success story, the reasons these companies failed are many. Technology is one reason. Lean thinking overlapped in the United States with the introduction of personal computers and all that has followed. It is easier (not necessarily better, not cheaper) to buy a computer than to fix processes. In some cases,  computers do better than humans. So companies bought computers. In other cases, process improvement would have eliminated waste negating the need for human or computer to do a process. Computers without process improvement introduced a downside. Processes have become incredibly complicated and it is tough to sort them out without process thinking. I’m sure artificial intelligence will solve that problem.

There are other reasons. It requires discipline to stick with a process improvement program. Trying to get employees to work as a team and follow standard work procedures can make coaching a synchronized cat swim team look easy. Organization leaders come and go and the turnover brings changes. Competitive pressures intrude, and for public companies the pressure of the quarter can overwhelm “long-term” (that is, one year) thinking.

Why Re-Training Is Imperative

So this is the crux of the matter in the legal industry. First, learning to understand and improve the world through process thinking is an imperative. From clients, to automation, to artificial intelligence, to everything else, you must understand processes to improve.

Second, starting any process training in the middle with a kaizen marketing event is not the way to learn. One-day, two-day, one-week training events don’t cut it. I’ve taught my fair share, I’ve participated in some, I’ve witnessed a lot. If, as a profession, we want to have a real future instead of a stub existence, we need to change the paradigm that lawyers leave law schools fully-formed. Practicing law is a lifelong learning experience and we need to expand our horizons. Marketing is fine, but for learning we need to do a lot more.

Let me expand on the second point. No one can teach you lean thinking or any of its cousins in a one-hour lunch meeting; half-day, full-day, one-week event; blog post; or a webinar. Remember your reaction the last time a client said, “Stop complaining about what we do with the contracts. Come give us a one-hour lecture on contract law and everything will be fine.” Exasperated you thought, “Good grief, this person wants me to teach them in one hour what it took me three years in law school and 20 years of practicing to learn. How ridiculous.”

Third, waiting for the AI revolution or  automation won’t save you. Those computers work through processes—coding is tough because it demands disciplined ways of thinking and doing things. To have even a glimmer of what the computer does and integrate it with what you do, you need process understanding.

What To Do

We need to move to investing in the future of the legal industry. I don’t mean investing as in spending a lot of money. I mean investing in the true sense: putting our minds and bodies into driving the future of the legal profession. In law schools, but as important in law departments, law firms, legal aid organizations, courts, and all manner of legal service provider offices, we need to re-learn how to practice law. We need to get curious, study, practice skills, practice them again, and collaborate on new ways to solve client problems.

This may sound like I am advocating for re-training the entire profession. I am. If I expect my doctor to use modern techniques to practice medicine and not treat me as he would have done in 1890, why should I expect less from my lawyer?

Bringing this back to lean thinking, we need to start that lean training at the beginning. What is the philosophy of lean (don’t say cost cutting)? What do we hope to achieve through this philosophy? How does the philosophy translate to actions? What are those actions and how do we build them, layer upon layer, into ways of delivering legal services that meet what clients and society need?

What I am about to say is harsh, but true. In the past dozen years, the legal industry has progressed in lean thinking the same amount that an average corporation would progress in a month. I spent my formative years learning lean as general manager of a plant with 700 employees. Most had stopped at a high school education. Many had not finished high school. Some read at an elementary school level.

They all went through lean thinking orientation and all could work on lean improvement teams—most did. Within six years of my starting at the plant (a few years after I left), the plant won the most prestigious prize in the lean community, The Shingo Prize.

One of the Jeopardy contestants who lost to IBM’s Watson said, “I for one welcome our new computer overlords.” But here’s the thing. Upon seeing the chaotic world of law, those overlords may not welcome lawyers. The rule of law faces immense challenges today. Lawyers have the knowledge to protect the rule of law and make it available to all. But, if we fail to transform from 19th century practitioners into 21st century problem solvers, the impact will extend outside the borders of the legal industry.

Two years ago, I published an essay titled “The Qualities of Tomorrow’s Top Lawyers.” It has logged the most visits of the SeytLines posts. On this anniversary, I wanted to consider whether anything has changed and publish a freshened version of the essay. I hope you will share your comments. Do these qualities ring true two years later?

I have edited and updated the text of the original essay, but I have done so with a light touch. The essential points and my comments have remained the same. Note that familiarity with technology and artificial intelligence is absent from the mix. The omission is intentional. The article on which this essay is based made, I believe, a significant if unstated assumption. To qualify as “top” in the future, knowledge of technology will fall in a category similar to where knowledge of reading and writing falls today. You must have certain essential skills to be in the game. To get to the top of the game requires going far beyond those skills. As you read this essay, assume a baseline of technological competency. As you read along, keep asking this question, “Do we train practicing lawyers and law students to have the qualities they need to succeed?”

The Qualities of Tomorrow’s Top Lawyers

When I graduated from law school, we knew what it would take to be a “top” lawyer. First, you had to  know the law. You needed the legal-knowledge wherewithal to stand out in a competitive profession.

Second, you needed drive. To be at the top, you had to put in the hours. I remember reading about former Supreme Court Justice William O. Douglas. He worked as a junior lawyer at Cravath, Henderson & de Gersdorff (now Cravath, Swaine & Moore). For those who think that the work-life balance issue in law firms is a modern one, read about life in Cravath back in the 1920s.[1]:

The sixteen-hour workdays at Cravath were well known; [Bruce] Bromley was then putting in over three hundred hours a month of time billable to the firm’s clients. [William O.] Douglas was undaunted. While he was a Cravath associate, he even accepted a part-time job as lecturer in law at Columbia [Law School]. He taught one class each in Bankruptcy, Damages and Partnership, although he had studied only one, Partnership, while he was a law student. Douglas prepared and taught his Columbia classes at 8:00 a.m., then rushed to Cravath for a full day and night of duty, sometimes not returning to his wife—the Douglases now lived in Pelham, New York—before four in the morning. It was an inhuman work schedule by other people’s standards, but not by Douglas’s. At least, not at first. Eventually the pace and substance of the work seriously impaired his health.

Third, you needed sufficient personality to bring in work. It was the rare lawyer who, because of brilliance and area of practice, could get work without having at least passable conversations with clients.

With those three qualities, you could climb the rungs to the top. There were, of course, things that would make the climb go faster or smoother, but it was impossible to get there without those three.

Times Have Changed

Having those three qualities alone won’t get you near the top in the next decade. Knowing the law is essential. But, other qualities are replacing the capacity for hard work. That doesn’t mean lawyers can slack off in the next decade. It means that knowing how to use various resources available to the modern lawyer will influence your career more than putting in 16-hour days. Indeed, as millennials take over the work force 16-hour days spent on drudgework will become a badge of dishonor.

The third quality, what we called “personality,” is critical. During the next decade, the skills that make up personality will drive the lawyer’s work and her interaction with clients.

Top Qualities

In an article published in the World Economic Forum’s Agenda, Andreas von der Heydt, Head of Kindle Content for Amazon Germany, set out what he views as the seven top qualities for tomorrow’s leaders. It is fair to assume that top lawyers, at least those who want to be leaders, will want to share these qualities.

I have set out von der Heydt’s seven qualities and how I think they relate to the future practice of law. In them, you will see pieces of the three qualities I described.

1. Inspire

“Tomorrow’s top leaders truly think bold and big. They challenge themselves and their teams to live their dreams. They trust in their skills and capabilities, search for the big picture, and enjoy looking beyond it. They think, feel, behave, and act positively. They surround themselves with like-minded believers, positive shapers, and creative makers.”

What I see and hear from many lawyers today strikes me as the opposite of this quality. Rather than think bold and big, they think small and mundane. They don’t challenge anyone to live their dreams, they challenge everyone to stay far inside the guardrails. It is as if everyone must walk on the centerline. Lawyers must pay attention to details, but they must also think of the big picture, clients’ goals and clients’ needs. Lawyers must align themselves with their clients’ interests, and then perform those functions lawyers do best, such as help clients manage risk. If the breadth of our vision is restricted to billing another six minutes or catching another misplaced comma, we will have defined ourselves as not worthy of leadership.

2. Lead & Execute

“Tomorrow’s top leaders avoid what quite often causes today’s experienced and successful business leaders to arrive at utterly wrong conclusions, since the latter lack comprehension of how to live by two of today’s most relevant business and leadership principles. First, they are not VUCA [volatility, uncertainty, complexity, ambiguity] leaders. Second, they have not been able to grasp the concept of DyBoPe [dynamic, bold, people-focused] leadership. These are two crucial concepts for future leaders.”

Let’s start with the obvious: I’ll bet not 1 out of 100 lawyers know what VUCA or DyBoPe stand for. That lawyers, and here I’m focusing on lawyers who represent corporate clients, don’t keep up with the latest thinking in the business world reflects their focus on themselves rather than their clients. How can you be a leader if you don’t know what concerns those you want to lead? Put in the vernacular of lawyers, how can you be a trusted adviser when you know little about those you want to advise? The legal industry itself is filled with VUCA. Lawyers prefer unchanging, reticent, and document-focused leadership (UnReDo, for those who like acronyms). I am not suggesting lawyers become podium-pounding screamers, but I am suggesting they need to change their leadership style if they want to remain relevant to those they want to lead. (And, I’m certainly not endorsing the latest fad acronyms. But, if your clients know them, so should you.)

4. Explore

“Tomorrow’s top leaders have a strong passion to learn, to question, to dive deep, and to be misunderstood. Relentlessly.”

“Don’t challenge the status quo.” Many lawyers live by this mantra. Stable is good, because stable things raise less risk. Stable leads to knowing what tomorrow will bring. But, when clients are using new business models each year, changing technology to keep up, going global, and moving fast to avoid obsolescence, stable is the end. Lawyers must be inquisitive. Lawyers must know their clients better than clients know themselves. They must question and dive deep learning where those clients will be in the future, what concerns them, and what the lawyers can do to solve problems clients haven’t imagined. One thing that turned me off as a general counsel was law firm lawyers tuning out because we were discussing my company’s business and industry. It happened all the time (and no, it wasn’t because I was less than entertaining). Those lawyers got short-listed for “no more assignments.” Lawyers must want to understand all aspects of their clients to make the A Team.

5. Grow

“Tomorrow’s top leaders believe that you will [be] what you want and that there are no limits to personal growth. They are what I call ‘Realistic Optimists,’ i.e. being both optimistic and realistic. As such, they combine the two into one behavioral style that creates a unique sense of open-mindedness, attention, and focus. This high level of awareness and focus allows them to see things many of us do not notice while we’re too busy with problems and ourselves.”

Characterizing lawyers today, I would say they have an obsessive fascination with their professional problems and themselves. Or, as I hear it expressed, “what’s in it for me?” This inward focus, among many other things, is unattractive when viewed from the client perspective. As professional skeptics, lawyers exclude optimism from their vocabularies.

Look at the qualities “open-mindedness, attention, and focus.” Clients want leaders who say we can get there. Realism helps us articulate to clients how and what it will take to get there. As one of my colleagues was fond of saying, “be a warrior for the business.” Corporate clients are sophisticated and know that not every path is permissible or will lead to success. They want lawyers who don’t dwell on the impermissible, but focus on what can be done and how to achieve it. Those lawyers are the leaders clients want to follow.

6. Develop!

“Tomorrow’s top leaders enjoy developing and coaching others. They invest a lot of energy and time in building and maintaining personal relationships founded on trust. Trust is a core belief and value of these leaders which they work hard to earn and keep, e.g. by walking their talk, by communicating frequently and openly, by taking a stand (even if it’s not a popular one), by empowering others, and by following high ethical standards.”

Trust. It is something missing in the relationship today between in-house and outside counsel. Clients trust in-house lawyers because they feel their interests are aligned. In-house lawyers work hard to earn and keep that trust. They earn the trust of their business colleagues by coaching them rather than lecturing them. When lawyers work with business clients who have not had much exposure to lawyers, or when they are working in areas unfamiliar to clients, coaching goes a long way. Business clients don’t want to do the wrong thing. If a lawyer helps by coaching his clients past obstacles so they succeed, clients want to work with that lawyer more often. This is sometimes a hard, but valuable, lesson for lawyers to learn when they move from outside counsel to in-house counsel.

Clients want to work for companies and with individuals who have high ethical standards. Even so, some business people want to go past the edge. If money is on the line, competition gets intense. Pushing back against senior executives who wanted me to bless conduct that wasn’t ethical gave me difficult moments in my career. However, I found that others in the organization trusted my judgment when I spoke “truth to power.”

7. Improve & Innovate

“Tomorrow’s top leaders are data-driven, process-focused, and permanently in a disruptive mindset. First and foremost, they are paranoid about the fact that speed matters more than ever in a quickly changing world. … Secondly, they apply new business metrics. … Thirdly, they know that in hyper-competitive times, competition is not just on brand and technological innovation, but also—and foremost—on the business model.”

I love the opening line—top leaders are “data-driven, process focused.” It has become a cliché to talk about data and process. But it is true that both are mandatory for the next decade. Lawyers don’t seem to recognize that their clients have been on the process improvement and productivity road for a long time. Process has become embedded in companies to the point where it is just assumed. By being so indifferent to process improvement, lawyers are opening the door wide for other vendors to come in and snatch work away. In-house lawyers take note: you are not immune. Just like knowledge workers in other departments have been replaced by computers, you too can suffer that fate.

Lawyers’ ignorance of data also creates a weakness. It is hard to be seen as arguing from a position of strength when your position depends on “because I said so” or “in my experience.” Data drives decisions for clients and vendors who provide that data will become the authoritative voices on which clients rely.

8. Care

“Tomorrow’s top leaders want to support others, to give, to make an impact, and to do good. They care about the well-being of their employees and about broader environmental and social topics. They are aware of the fact that you have to give before you receive. They have integrated values like gratitude and appreciation into their lives and linked them with positive and people-focused thinking and acting to achieve a fulfilled life.”

Finally, we find a quality lawyers have claimed over the years. Because many of us have viewed ourselves as part of a profession, we have tried to act like professionals. We think about our communities, about the broader issues of the day, and perhaps do pro bono work. While it typically isn’t the personality type of lawyers to integrate “gratitude and appreciation” into their lives, the sense that there is something beyond the immediate business outcome still exists in some nooks and crannies of the legal industry. Assuming education and early training in the law doesn’t squeeze it out of them, up-and-coming lawyers also may share these qualities.

Not all lawyers will want to be top lawyers. And, of course, we aren’t really sure what that means anyway. For most lawyers, being a good lawyer and helping others solve their problems will suffice. We need those lawyers and, given the appalling statistics about access to civil justice in the United States, we need them now more than ever. But, as we look at what training to be a lawyer should involve now and over the next decade, understanding what our clients and communities will want to find in leaders is a worthwhile exercise. Unless times change, many lawyers will become our leaders of tomorrow.

[1]  James F. Simon, Independent Journey: The Life of William O. Douglas, Harper & Row, 1980, pp.79-82.

CollaborationEver consider Elon Musk’s goal of having people travel to Mars in ten years? No? Let’s dig in to the topic for a few moments. I was a child who heard President Kennedy’s challenge to land a human on the moon. We did it and it was a big deal. My family named our new purebred Irish Setter O’Grady’s Rusty Moon because he joined our family on the day of the moon landing. Musk’s challenge, as was President Kennedy’s challenge, is audacious and exciting.

To meet his goal, Musk needs money and a collaborative team. You may think I am redundant by including “collaborative.” If so, think back on teams you joined. Were they all collaborative? My guess is no, many were teams on paper and groups of individuals in real life. I was on many of those teams in the corporate world. The CEO would announce a team and charge it with a goal. We would assemble and find that each team member focused on his or her department’s goals instead of the CEO’s goal. That is, his or her compensation targets. Team members were reluctant to devote time to something that lacked a direct connection between action and reward. Turning those teams into performing units was a challenge.

By “collaborative team” I mean a team that will pull on all the oars to move the boat. This is a team aligned behind the goal. Each member will do his or her part to get from start to finish. These are fun teams.

Lawyers are goal oriented, so we exceed expectations as members of teams that have specific goals. We can handle “close the deal,” “win the case,” and “finance the new venture.” We spend a long education career focused on goals—tests, grades, entrance exams, bar exams. Professional goals, like those I named, and career goals, like “make partner,” are part of the gig.

Our success level drops on the collaboration part. We want innovation, we (okay, some of “we”) want change, and we want clients to love us. But, we find it difficult to share with others. This is collaboration.

We can go back to Musk and going to Mars. To accomplish this goal, Musk needs a collaborative team. Your first thought went to building the rocket—he needs a big, powerful, reusable rocket. That sounds like what he does with SpaceX, build reusable rockets for space travel. He needs lots of engineers. Engineers working with engineers is like lawyers working with lawyers. We need broader collaboration.

The engineering team gets the crew to Mars. Remember, it is a 260 day journey. The crew will stay on Mars for three to four months. As we all know, planets travel on elliptical orbits. The nine month journey got the crew to Mars as Mars arrived at the point in its orbit closest to Earth. The crew will want the same advantage coming home. The crew will spend three to four months on Mars doing things as they wait for the right moment to get back to Earth in the shortest period. All in, the crew’s trip will last 22 to 23 months.

This trip requires a powerful rocket. The crew needs plans for food, medical emergencies, clothing, housing, social issues, communication, and travel on Mars. Musk has help to figure all of this out. He has a collaborative team composed of experts from many disciplines (I’m guessing he skipped lawyers). They must collaborate or they will fail and failure means people may die.

Teams Serve Clients’ Interests

Practicing law is serious, but most of the time a lawyer’s failure means something other than a client’s death. It can, however, mean the client suffers some serious consequences. Collaboration would help lawyers do better at tackling client problems. Client’s have problems with legal dimensions. The best solution may involve a small law component and big dollops of other things. Without a collaborative team, delivering that must-part solution is difficult.

Innovation suffers if everyone on the team wears the same “I am a ________” badge. Collaborative teams built with people from many disciplines perform better. Entrepreneurs know this and have focused their time and sponsor’s money building collaborative tools. The network is the thing.

Facebook is a collaborative tool. So is Snapchat, Slack, and even Word is  a collaborative tool (it offers “real-time co-authoring to see everyone’s changes as they happen”). I have seen products at various stages of development that try to break the “toss it over the wall” barrier. Lawyer drafts document, tosses it over the wall to opposing counsel. Opposing counsel edits document, tosses it over the wall back to the first lawyer. These products allow both lawyers to be in the document at the same time working through changes.

Outside the legal industry, collaboration takes the form of sharing research, writing, and knowledge. The scholars and practitioners use sharing to advance the domain. New tools have come out to make the collaboration process easier and interesting.

I am not endorsing any of these tools. All sit outside the legal industry. All  encourage collaboration outside a single domain. Scholars in natural science prefer some, scholars in social sciences favor others. Some will give you ideas to help collaborate and advance the legal industry. The tools are free (some have premium features). Think of what these tools could be if lawyers became part of the broader knowledge universe, rather than isolating their knowledge.

Authorea (https://www.authorea.com/)

Authorea is a collaborate writing and publishing tool. But, it goes further than static text. You can combine many types of information into one Authorea document. Text is the basic starting point. To that, you can add interactive figures, data that readers can modify on the fly, and equations. You can use dynamically modified charts. You can use simple writing languages (Markdown) or go to sophisticated typesetting languages (LaTeX). You can improve the document so readers engage with what is on the screen.

Lawyers think they produce text. But, lawyers need to tell stories using all forms of media. An article discussing self-represented litigants becomes interesting with graphs. Interest increases as the reader applies filters to the graphs giving dynamic control over the content. Including video in an article discussing body cameras makes a lasting impression.

Authorea is in Beta as the developers bring on features. It and other software in this category offer a “one-click” submission feature. It partners with journals. Authors can submit their article, formatted for a specific journal, without spending time re-formatting for each submission. Authorea authors can export their articles in various formats (including Word), and preprint articles on Authorea’s site (complete with DOI, a tool I discuss in a few paragraphs).

Overleaf (https://www.overleaf.com/)

Overleaf is another collaborative authoring tool. It uses LaTeX, a typesetting language I mentioned in the Authorea discussion. A mathematician developed LaTeX. He included formulas in his articles, But, available software lacked a way to type formulas. LaTeX has expanded so that today it is a full-fledged typesetting software. But, it has been something of a geek’s paradise. To use LaTeX, you had to love two things: 1) playing with code, and 2) bumps in the road (known as glitches).

Overleaf (and Authorea, and others) bring LaTeX to everyone. They make it easier to use LaTeX without having to know LaTeX. Create a paper on Overleaf with your co-author using a template, and you have a publication ready document. You can include graphs, images, video, and formulas. It includes version and change tracking (as does Authorea). You can use it to create presentations, brochures, and other documents.

ORCID (https://orcid.org/)

Ken Grady is a popular name. One Ken Grady does research in biology. One Ken Grady is a chief information officer and one is a teacher. I have seen links on Google to others, though at least a few seem to have had experiences with law enforcement on the other side of the bar. How is a poor software package going to tell us apart? Enter ORCID.

“ORCID provides a persistent digital identifier that distinguishes you from every other researcher and, through integration in key research workflows such as manuscript and grant submission, supports automated linkages between you and your professional activities ensuring that your work is recognized.” It is like a universal bar license number system. ORCID gives a computer a way to distinguish me from other Ken Gradys.

ORCID is a transparency tool. If each litigator used an ORCID, we could run a search to find all the cases involving that litigator. We could review briefs filed to measure quality. We could track what each lawyer wrote through articles, blog posts, briefs, and so on. For many lawyers, the thought of accountability could be scary. For others, it would be an advantage. For clients, it would mean transparency.

DOI (https://www.doi.org/)

DOI stands for “digital object identifier.” It is the ORCID for digital material—a unique identifier for digital matter. The International DOI Foundation is the governance and management body for the DOI® System. The DOI System meets the ISO standard 26324:2012 (Digital object identifier system). What does all this mean?

Lawyers use an outdated system for referring to materials built on hard copy publications. Instead, lawyers could use a persistent, standardized, and open identifier system. This system works in the electronic world. Citing to a case as “XXX F.3d XXX” tells us something if we use books published by West Publishing Company, part of Thomson Reuters. Today, most law libraries and law firms have disposed of the books. They use online tools, such as Westlaw, LexisNexis, or Fastcase. We cite books no one has, instead of DOIs that take us to the case. Law reviews stick to hard publication cites for the journals rather than using DOIs. Switching to DOIs would encourage broader readership and remove another obscure citation format.

SSRN (https://www.ssrn.com/en/)

The Social Science Research Network advertises that it provides “725,614 research papers from 334,913 researchers across 30 disciplines.” It includes economics, law, humanities, accounting, and cognitive science. You can find papers from authors seeking feedback. You can find papers accepted for publication. You can find conference papers and research papers the authors will not submit for publishing. This is an information dissemination network.

SSRN has had some controversy in recent times. Elsevier, owner of the scientific paper publishing site Mendeley, acquired SSRN in 2016.  That changed SSRN from a non-profit entity into a part of a for-profit publisher. Many have expressed concerned that SSRN’s open source content may change to pay-for-access content. SSRN has changed, but it remains open source.

One of the claimed benefits of the move is the association with Mendeley. The argument is that the connection between the areas covered by SSRN will become integrated with the areas covered by Mendeley. We will see what happens, but it is a sign that greater collaboration among disciplines fits with the mood of the times.

SocArXiv (https://socopen.org/)

SocArXiv is new, having started in July 2016. The founders announced it following Elsevier’s acquisition of SSRN. It is open source and focuses on social sciences. For many, it stepped into the space SSRN had occupied as the founders (and others) feared Elsevier’s impact on open source publishing.

SocArXiv focuses on preprints. It uses the preprint definition from the Open Research Glossary, “a manuscript draft that has not yet been subject to formal peer review, distributed to received early feedback on research from peers.” The legal industry has avoided peer review. To lawyers, preprints include “papers that have been accepted for publication in a scholarly journal, but not yet been ‘printed’ (on paper or electronically).”

Embrace Collaborative Teams

Lawyers live in a world of confidentiality and privilege. That makes it easy for us to confuse sharing with professional responsibility. They write papers, articles, and blog posts every day. They file briefs in open court. They do public presentations.

Lawyers need to share with other lawyers, with clients, and with those outside the legal industry. Lawyers should collaborate on what they do, to get the benefit of many ideas. They need to create and leverage teams, to get something greater than what each can create alone. Lawyers must move past the gladiatorial battle cry of “my ideas will crush yours” to “how can our clients benefit from what we do.”

Conclusion

This is an essay on these details of publishing papers, presentations, and other materials. I avoided telling you how reading it would satisfy the “will this help me in the next 30 minutes.” If I frustrated you, I am sorry. Lawyers must work on their need for immediate gratification.

If you are outside the mix of developments in your area that interest your clients, you have lost relevance. Simple computer automation can take a big load off your back. Use the time to understand what your clients need and find value. That value lies in the world of material published every day, and to which you contribute, that is hard for all of us to access.

In my class on Entrepreneurial Lawyering, we discuss the idea of an “unfair advantage.” This is an advantage your competitors will find difficult to match. Ubers app is a good example. Taxi drivers may have a local app, but will find it hard to have one app you can use worldwide to hail and pay for a taxi. Being a lawyer educated in the developing ideas relevant to your client in your domain would—strangely—give you an unfair advantage. To succeed in that world you need to collaborate.

DNARemember those crime shows on television? You know the ones I mean. The bad guys committed the crime, the police investigated the crime, the forensics lab solved tricky scientific problems, and the DAs  prosecuted the crime, and the jury delivered a verdict. Everything was tied a neat bow. In one hour, injustice and justice combined.

Scientists got smarter and tests more sophisticated. DNA testing became commonplace. At first it took months to get the results, then day, hours, and now I am sure there is a show where they swipe the suspect’s hair on their iPhone and get the results before the police can raise the yellow crime scene tape.

DNA testing is the rage. Genealogy companies offer it as a service, you can get tested for health problems, and at least one company offers DNA testing as an employee benefit. I love the genealogy company commercials where the actor says he is part this, part that, and part the other thing. Confirmation that we all have a lot of everybody else in us.

We have the same DNA mixing going on in the legal industry right now. Four hot methodologies share common ancestors: lean thinking, agile (scrum) project management, design thinking, and lean startup. If we look closely, we can see the family resemblance.

Think Lean

Lean thinking sits closest to the roots of this family tree. Bits and pieces of what we call lean thinking started coming together in the 1850s, though of course nothing is new. We can find antecedents to many lean ideas if we look at how people solved nagging problems. But, most people point to the 1970s as the period when many ideas that became known as the Toyota Production System jelled. In 1996, Womack, Jones, and Roos published Lean Thinking. For most, this book was the tipping point. Lean thinking started growing in the United States. It now sits in all industries and as the most popular form of process improvement.

Manage the Project

Project management comes in two basic flavors: heavyweight and lightweight. Heavyweight is the traditional, waterfall approach to project management. Most people touch waterfall project management at some point in their careers. It requires significant planning, proceeds methodically from stage to stage, and works best if the situation calls for tight and sequential process control. Want to build a 100-story skyscraper? Waterfall project management will do the job. Lawyers have found waterfall project management a bit restrictive and not well-suited to a rapidly changing environment.

Lightweight is “agile” project management and includes several of flexible approaches. Scrum is the legal industry’s favorite. Scrum requires small amounts of planning, adapts quickly to changing circumstances, and focuses on doing only what is needed when it is needed. Lightweight project management was born in the software industry and has replaced heavyweight for many projects.

Think Design

Design thinking is gaining traction in the legal industry. It also has an interesting lineage. The version we see most often dates back to the 1960s (though it also has roots dating farther back). Brothers Tom and David Kelley developed it as part of their IDEO design business. As the wheel diagram shows, it has grown as the theories behind design have moved from user participation to users being an integral part of the design process. Design thinkers take a fresh approach to creating solutions, focus on the customer, and use rapid ideation and prototyping to avoid the slow and wasteful linear process to design.

DT Circle
From “A Brief History of Design Thinking: How Design Thinking Came to ‘Be’ ’” by Dr.Stefanie Di Russo. https://ithinkidesign.wordpress.com/2012/06/08/a-brief-history-of-design-thinking-how-design-thinking-came-to-be/

Startup Lean

Eric Ries brought us The Lean Startup and the idea that new ventures should adopt principles that helped old manufacturers. Most lawyers forget that their practices are startups. Client demands evolve, law changes, competition introduces new ideas. A lawyer, regardless of where she practices, should think as an entrepreneur thinks. Avoid waste, prototype and pivot quickly, focus on what your client needs not what you want to deliver, build only what is needed, and stay nimble.

Sharing the DNA

All four methodologies focus on delivering what the customer needs when the customer needs it. This focus ties into a broader theme in business right now, typified by the one-to-one marketing philosophy. Rather than trying to sell a product or service that compromises in many ways to meet the needs of the average consumer, businesses try to sell products and services tailored to the desires of each consumer. The closer the product fits the customer’s needs, the less waste involved.

The following chart, which comes from a paper Roland M. Mueller and Katja Thoring prepared for the 2010 Leading Innovation Through Design Conference, briefly touches on some of the similarities and differences of design thinking and lean startups. Their paper, titled “Design Thinking vs. Lean Startup: A Comparison of Two User Driven Innovation Strategies,” gives you a flavor of how two of the four methodologies bear a family resemblance.

Screen Shot 2017-03-18 at 8.04.09 AM
From “Design Thinking vs. Lean Startup: A Comparison of Two User Driven Innovation Strategies,” by Roland M. Mueller and Katja Thoring .

I can buy shoes and apparel that I’ve customized with colors and features. I can use websites to build my car or my furniture, selecting the specific accessories I want. Retailers are famous for marketing one-to-one, sometimes using a bit too much information to guess what the customer needs (the retailer offering discounts on baby items to the teen who hadn’t told her parents she was pregnant).

The four methodologies share a focus on speedy development and revision. In the past, businesses focused on planning. They built business models, planned for contingencies, and worked through as many angles as possible before they made a move. In the present, they try, change, try, change, and repeat. They get something out there, test it, and change direction as fast as they learn from customers. The lean-based methodologies I have named make that rapid approach possible.

We Know What We Don’t Know

The practice of law—the methods and techniques of delivering legal services—has received almost no attention from scholars. Why bother spending time on something everyone does the same way and no one will change? For decades, this omission distorted our understanding of law. How law is delivered impacts the substance of law as much as what law is delivered. Take a simple example. Contracts of adhesion. We sign them every day—every time we click through something that says “by clicking here you acknowledge our terms and conditions.” That method of legal services delivery impacts your rights (embedded somewhere in those terms and conditions) more than the theories of bespoke negotiated contracts.

The odd legal industry culture has received some attention, especially in recent years, as its idiosyncrasies have impeded progress in solving society’s problems (e.g., poor access to civil justice, quality issues, affordability issues). At this time, that culture—resistance to change, failure to adopt technology, lack of affordable legal services—has stirred resentment and anger among citizens. If someone cannot protect their legal rights and loses their job or their house, someone else is to blame. Lawyers play a part in those dramas. Ineffective legal services delivery has more importance than the substance of the law involved.

Four “Leans” and the Law

For the past five years, as interest in project management, process improvement, design thinking, and lean startups, has accelerated, we have seen a kaleidoscope of implementations. Few have a good grasp of how to combine these methodologies into a coherent program for delivering legal services, or choose which ones to emphasize and which to de-emphasize. Think of four musicians each learning a different instrument. One challenge is to learn the instrument, but the second challenge is to learn how to play as a band. We have inexperienced musicians who skip band practice.

This confusion has negative affects on law firms, law departments, and clients. Rather than providing coherent ways to deliver affordable legal services, based on concepts such as efficiency and increasing quality, they are seen as an extra burden to practicing law. Law firms and law departments have not learned how to make these methodologies work together. They have lacked the assistance of scholars to light the path. Some consultants have helped, but most focus on only one or two of the disciplines. A few of us work on researching, synthesizing, and explaining these disciplines combine in law, but it is—admittedly—a slow process.

This leaves the industry with a gap. Many lawyers acknowledge the need for change, but find it difficult to do so without significant help. Other lawyers need convincing. They want proof that if they change, they will succeed. Most stay on the fence. Clients, however, are not on the fence. They want change.

Getting the Band Together

How can we proceed? In the context of the four methodologies I have discussed, I will make some suggestions:

1. Collaborate and Share. Break down the historical barriers between the practicing bar and academia. Scholars need access to practicing lawyers, data, and clients. With this access, they can apply many tools and techniques to identify challenges and point to solutions. Scholars have strong interest in this work, and law firms, law departments, and clients benefit.

2. Focus and Share. A big challenge in evolving legal services is deciding where to focus your energy. Every month someone has a new thing to draw your attention. Metrics. Technology. Process. Project. Doing the basics of a law practice seems to take a full day. Add these new things to the old add-ons (e.g., marketing) and focus drifts. Nevertheless, you must focus. Go T-shaped. Understand your domain in depth, but become familiar with the other areas. If you spread what you need to know among many, the burden on each of you drops.

3. Bend and Share. Inflexibility. Lawyers do what they do because that is what their mentors did, and their mentors, and so on. Decades of doing the same thing worked well for most lawyers, until the late 1980s. The two-humped camel of the legal industry emerged. Large law firm lawyers to the right, everyone else to the left, and a valley between them. As real competition emerges in the legal industry, lawyers must learn to flex, to bend, to adapt. Sharing knowledge and techniques among themselves and with others will be key to coming through this transition and succeeding on the other side.

The Stakes Are Higher Than Large Corporation Legal Fees

Although the legal industry has existed for centuries, it is an immature industry. The business model that brought many lawyers fortunes was fixed a century past. Now, it has a stranglehold on us inhibiting change. The four lean methodologies I described are opening new business models, but we have a long journey ahead. We need to progress faster if we want to keep the profession from slipping deep into irrelevance. That is a worthy reason for change. The compelling reason lies outside the industry. A healthy, functioning, and responsive “legal infrastructure” (as Gillian Hadfield has named it) is essential to our society. Letting that legal infrastructure decay, the way our general infrastructure has decayed, brings a massive threat to all of us.

Red HerringWe should start with the phrase “red herring.” We know that it means a decoy intended to lead us in the wrong direction. But do you know the origin of the phrase? No one knows. As with many phrases, we can find an origination. The oft-cited story explaining the modern use of  this phrase is that someone used a red herring (a type of salted herring) to obliterate his smell so that hounds or wolves lost his scent.

Today’s red herring is the argument that we must have de-regulation, or changes in regulation known as re-regulation, in the legal industry. Through these changes, we can overcome the appalling and declining lack of access to justice. Let’s tear this decoy apart.

De-regulation or Re-regulation

I think most individuals looking for change in the legal industry stay away from de-regulation. Eliminating regulation of legal services delivery would let the charlatans who prey on the unsuspecting ply their trade. We can put de-regulation to the side. I have heard and read arguments for the alternative—re-regulation or changing legal services regulation. In this version of the future, lawyers lose their monopoly, but those who provide legal services must follow “legal consumer” protection laws.

Those who favor re-regulation believe authorities should remove the monopoly chokehold lawyers have on the practice of law. The UK’s Legal Services Act of 2007 gets dragged into the fray as one example. Australia’s and New Zealand’s changes are others.

Removing the monopoly should encourage new parties to provide legal services. Those new parties would bring cost competition, creativity, and access to legal services for people without access. The corporate end of legal services should benefit too. The influx of new providers will drive innovation. The theory is we will move from our dismal world ranking on access to justice (out of 100, the US falls between 65 and 94 depending on whose ranking you look at). The hope is that our ranking will improve because clients will get what they need in legal services.

Fair enough. Changing the regulations, depending on how they change, may deliver those benefits. In the UK, citizens have gotten benefits, though fewer than they or the government expected. The UK has established a group to examine the 2007 Act’s with the hope of determining what has limited the effects of the law. Let’s all agree—changing the regulations could help.

So…

We Can Do Better Without Waiting

The red herring is the re-regulation argument. We have what we need to fix the lack of access to civil justice problem. Changing the regulations may make a few things easier and transaction costs could drop. But, the problems we need to solve are independent of the regulatory structure. The barrier to solving the problems is lawyer resistance to change. Fix that problem and changing the regulations will become a side show at best.

Consider this one example. Solo practitioners argue they have a technological disadvantage. The cost of emerging software is beyond their grasp, either in time to implement or money. The professional responsibility rules prohibit law firms from having owners without law licenses. If we re-regulate, the argument goes, these firms can get access to money and resources through new owners. They can use those investments to bridge the technology gap. We already have a solution. Create a technology business (incorporation costs are trivial). Get investments in the second business which acts as a services business to the law firm. Spread the technology firm’s costs across several small firms. This model, or variations of it, exists.

We could change the current business model for legal aid. Necessity being the mother of invention, we will need creativity if the federal budget drops the Legal Services Corporation (which the proposed budget does). Middle class Americans lack or shun access to legal services. But, we have tools and can put in the field a different legal services model, compliant with the current rules, that gives this group access to legal services. The small firm lawyers providing the services would make a nice living.

Ignore the re-regulation decoy, we could improve today. But, lawyers resist change. Go back to that false premise: many lawyers believe that they have a monopoly to practice law. Wrong! Lawyers, at best, have a monopoly to represent other parties in certain situations (e.g., court hearings). Want a will? Go ahead, draft one. Or, go on LegalZoom or Rocket Lawyer and use a form. Or, go on the Internet and download a form. Confused? The online services have help sections, you can read many articles, you can buy DIY books that may answer your questions.

You can be your own lawyer whenever you want. Bye bye monopoly. “But wait,” you say, “that isn’t what I meant. I meant you can’t hire someone to do certain things for you unless that person is a lawyer.” If you need that someone to go into court, the lawyer monopoly applies (unless you count self-representation). Clients go without lawyers because lawyer put barriers between themselves and clients. Other niches exist. Everything else requiring hiring someone to do work for you falls into that ambiguous bucket the “unauthorized practice of law.” And watch out for smart contracts. Computers practicing law without lawyers.

Could a consultant draft a contract? They do. Could a financial planner write a will? They could point you to LegalZoom. Most lawyers would say “no” to both questions. But Legal Zoom, Rocket Lawyer, and the Internet have blurred the line. It is difficult to define the unauthorized practice of law because we can’t define  the practice of law. We like to think we know it when we see it.

If we go big, to corporate legal work, the unauthorized practice of law gets fuzzier. Most bar authorities believe that corporations can take care of themselves (they can) so they don’t waste time protecting them. That has left the field wide open for entrepreneurs to move in. It is hard to say today that lawyers have a monopoly. Lawyers have a pre-existing claim to certain legal services that shrinks by the day. This is one of the reasons small firm lawyers have stagnant income.

Strange, since lawyers resist change to protect incomes. They want to defend what they have left of the monopoly. They want to retain some level of prestige. They want to retain power. The list of actual and possible reasons seems unlimited. Whatever the reasons, lawyers resisting change is the principle barrier to fixing our access to justice problem.

Making Progress

My concern with the re-regulate movement is that it has become a distraction. Rather than acting to fix problems, we justify lack of action on failure to re-regulate. Regulation may affect how we structure changes and it may make some structures higher cost than others. Those are details. Let’s dig in and fix the problems. As the problems get fixed, regulation will become a minor issue and regulatory change will happen. As the regulators ponder, we will solve problems.

If we can fix problems, what holds us back? Go back to lawyers resisting change. We are 10 or 15 years into real change efforts in the legal industry. I have been at it for 38 years. Others have decades of change-resistance fighting on their resumes. In the boom times of the 1980s, lawyers gave no thought to change despite what I and others said. As lack of access to civil justice came to the forefront, as the recession hit, and as lack of access to civil justice is tied to larger societal problems, change is in the air. But, lawyers hold us back.

We can measure change in the legal industry by the movement of glaciers. Lawyers agreeing to change is the start. Change is big—it requires lawyers learning new ways to deliver legal services. Lawyers have to work as part of teams. Lawyers will cede some authority to gain influence. How a lawyer earns money needs to change. The changes needed to fix the problems like access to civil justice aren’t small and they aren’t without controversy.

For those who want to direct their limited time and resources at the American Bar Association or state bar associations and argue for re-regulation, go for it. The ABA is a byzantine group with as many political agendas as members. I think focusing on fixing the problems is a better use of time.

That statement presumes we can fix the problems, and I think we can. One problem that gets in the way of most others is the economic model for legal services. The current model uses high-cost labor. It is a model that worked in the 1800s, but is ill-suited to the 21st century. We know how to change the model. The tools to change have existed for decades. Some tools have existed for 100 years. Newer tools emerge each day, such as computer technology. But a world with tools ignored or left idle is as good as a world without tools.

Fix the Problems

Should we abandon the re-regulation fight? We should continue the fight, but put it in perspective. Ask yourself a question—What do I want to do to fix the access to justice problem that I am prohibited from doing by regulation? Ask if you could find a different way to do what you want to do. I ask those questions of people who tell me re-regulation is the barrier. I believe we can do what we need to do despite the lack of re-regulation. Re-regulation may help, but I am willing to solve the problems without it.

BrittleI recently made my predictions for 2017, and one was that pundits and others in the legal industry would keep talking about AI and law. Since I want to get 100% on my predictions, again, I thought I would start the New Year by ensuring I at least got this one right. So, I’ll talk about AI and law.

I am going to skip the usual topics when AI and law comes up: when will LawNet go live; will Arnold Schwarzenegger agree to play Chief Justice of the Future in the mashup of Terminator and First Monday in October. Instead, I am going to focus on some questions that you do not hear discussed every day. They circle around an interesting question: are the emerging technologies, such as AI and smart contracts, about to make law more brittle.

To understand where I am going, you need a bit of a running start. First, AI. AI in law is based on machine learning (outside law as well, but let’s not go there). In very simple form, using machine learning tools, data scientists have computers hunt for patterns. Given the power of computers, they can hunt for patterns where humans would never find them. A computer can “watch” millions of videos of cats and find patterns that it can use to define “cat.” Show the computer a new group of videos, some with cats and some without, and the computer will do a very good job of separating the cat videos from the non-cat videos. Sounds a bit like separating relevant from irrelevant documents in discovery, doesn’t it?

Let’s try that same trick with Supreme Court cases. First, understanding the text of a case is much more difficult than understand “cat” from “non-cat.” Second, the data set to learn about cases is much smaller than the data set to learn about cats. The Supreme Court has issued fewer than 30,000 decisions on the merits. Compare that number to the volume of other stuff out there:

  • 300 hours of YouTube videos are uploaded every minute (that’s right, 432,000 hours each day);
  • 1.9 million blog posts are published each day on WordPress alone; and
  • Over 1 million books are published each year.

When it comes to data sets, the volume of material “available” for a computer to chew on in the law is minuscule compared to the volume of materials computers outside the law use to learn about the world. I put available in quotes because much of law is not available. It is locked behind absurd paywalls (ahem, I’m looks at you PACER) or in confidential files. Much of it is not digital or is barely digital.

The small volume has meaning. The lower the volume, the harder it is for the computer to find patterns unless they are incredibly obvious. The less than 30,000 Supreme Court decisions already is a small data set, but we have to further break that down. The cases are not all on one issue (like cat videos all contain cats), so a computer attempting to learn bankruptcy, antitrust, or securities law has far fewer decisions to chew on. And, of course, the cases in any substantive domain—say, securities law—don’t all cover the same issue. The computer is not looking at 1,000 cases on the standard for liability under Rule 10-b(5), it is looking at one case. Some of the cases do overlap and the Court does come back to issues, but the variability in case law is tremendous. “Cat” also is variable, but when you get to look at millions of cat videos, it is much easier to find similarities than when you get to look at just a few cases.

Let’s assume we throw in all the federal cases on Rule 10-b(5) (at one time, the dean of my law school kept a copy of every 10-b(5) decision and had the cases in file cabinets outside his office), so the computer has a larger data set, though still small by most standards. The computer chews on these cases for a while and finds what we will call some Rule 10-b(5) patterns. Our idea is to apply these patterns to new fact situations, and let the computer predict possible outcomes. For example, we might ask the computer, “What are the odds that we will win this case if we go to trial and file any necessary appeals?” The computer considers our fact pattern and replies:

  • 60% probability of a “win” at trial;
  • 35% probability of a “win” at the federal appellate court; and
  • 5% probability of a “win” at the Supreme Court.

I’ve glossed over many things to get us to this point, so don’t think we can do this today or that our data sets are up to the challenge. Just assume with me that we could get these answers.

This is where the brittle problem comes in to play. The computer can only learn from looking at the text of the cases. To put it in Donald Rumsfeldian terms: the computer knows what it knows, but it doesn’t know what it doesn’t know. The computer cannot consider what the judges in those cases may have considered, but never wrote in their decisions. The problem reminds me of an exchange I once heard in a deposition:

Q. Did Tom attend the meeting?

A. I don’t recall.

Q. Did Dick attend the meeting?

A. I don’t recall.

Q. Did Harry attend the meeting?

A. I don’t recall.

Q. Well, who was at the meeting?

A. I don’t recall.

Q. Well then, who wasn’t at the meeting?

A. Uh, well, most the people in the world, I think.

The computer does not know what the judge considered that was in the record (presumably a data set that would be possible, if difficult, to create) and certainly does not know what the judge considered beyond the record (did the judge do some Internet research, rely on his priors, or perhaps gather information through discussions with others about hypotheticals?).

The AI assumes that what it reads is the truth. If the judge says that facts X, Y, and Z form the basis for his opinion, then the computer assumes they did indeed form the basis for the opinion. In reality, of course, the judge may have made up his mind and then asked his clerk to find things to include in the opinion which could plausibly add support. A human can apply skepticism when reading the decision, where the computer cannot. We do this all the time. A Supreme Court decision holds 5-4 in favor of the appellant. We read the decision, but we know that holding for the appellee would have gone against popular opinion and caused problems for the Court. Nothing in the decision hints at that problem, but it would be foolish to believe otherwise. The Court is a political institution. The reasoning in the decision sounds plausible, but few believe that reasoning tells the real story of the decision.

Depending on how the AI analysis is used, it can make the law brittle. It gives the users the appearance of mathematical precision (60% probability), in part because it has difficulty sorting between what is known and what isn’t known. Over time, layering AI analysis upon AI analysis can lead to cases not reaching the courts that, had they made it, would have built additional factors into legal decisions and kept the law plastic.

Smart Contracts or Brittle Law

Now let’s look at smart contracts. One premise behind smart contracts is that we can code into the blockchains “if-then” situations, leading to predictability and certainty in outcomes. If I make a deposit into your bank account in an amount equal to X on or before a certain date, then you will record my payment as complete. If I do not make the payment on or before the date, or if the payment is less than X, then you will record my payment as incomplete. If my payment is incomplete, you will declare my account in default.

Today, we have computers that follow this process and, if the payment is incomplete, generate an exception report. The exception report may trigger a letter “We have not received your payment …” or something harsher “Because you failed to pay on time, we have closed your account.” I call and explain that you mailed the check on time, but it arrived later than the due date. I invoke the “mailbox rule” (payment was complete when I deposited the check in the U.S. Mail) and you relent and mark my account as “current” (since you received the payment).

We can live with plastic law (which we call equity) and modify the outcome based on the circumstances. Or, we can move to brittle law—the outcome depends on the “if-then” statements. Once we say the outcome may depend on the if-then statements, but equity (humans) will get involved when there are exceptions, we move from smart contracts back to our current world. In other words, we raise the question: how brittle do we want to make the law?

There is, of course, a trade off. We can keep the law as plastic as it is today, but use smart contracts as a way to replace some of the cumbersome and not very secure aspects of our current systems. In other words, we don’t use smart contracts to make the law more predictable, but we do use them to make the transactions more secure. The registry for chain of title is put on a blockchain, so we can all view it and rely on it. But, if there was an erroneous entry in the blockchain, humans will consider it and update the registry (put a new entry in the blockchain), where there was an error.

I have given a simple description of smart contracts to demonstrate a point, and there is a lot of gray area I did not cover. That gray area represents the many issues we should address as AI and smart contracts move into law. It represents the bigger question of how technology and humans should work together.

Lawyers Should Shape, Not Fight, The Future

If I did my job, this essay raises many more questions than it answers. That is good. Emerging technologies, such as AI and smart contracts, are raising lots of issues. Our problem is not that there are issues, our problem is that lawyers are not engaging with the issues and working on answers. We are heading down a path where technologists move law from the current structures onto digital platforms. But, we haven’t thought through the consequences. We will never know all the consequences in advance, but I think it is fair to say today we have put very little effort into thinking through the consequences so we are far behind the curve on helping enable a successful integration of these technologies.

Most of the chatter about AI and smart contracts is of the “what about me” variety. Will AI take my job? Will smart contracts eliminate the need for lawyers? We should instead focus on the applications and implications of these technologies and do what lawyers should do: consider how to make them work in our society and raise flags where we see conflicts and problems. Putting a drag on the system because we are afraid of or do not understand the technologies does not help anyone, including lawyers. We should start off 2017 by looking at how we can help society, not just how we can protect lawyers.

2017PredictionsIn 2015, I made several predictions for the legal industry in 2016 and I am proud to say that I had 100% accuracy (so there, Professor Tetlock). Of course, the naysayers (haters just want to hate) may say that my predictions were not really “predictions,” but more of a “stating the incredibly obvious.” It is easy to criticize—especially if you are a lawyer—but I stand by my success record.

So, it is with some trepidation that I take up the gauntlet being thrown by, like, every legal publication out there—what will happen in 2017? I am going to make my predictions without the help of all the newfangled knowledge and tools. No data analysis, no crowdsourcing, no prediction tournament, and in particular no use of AI to analyze all of the information on the InterWeb and reduce it to one clear, concise statement. I’m going to do this the old-fashioned way: guess!

With that preamble finished, here we go.

1. One or more large law firms will merge with one or more small, medium or large law firms.

Although 2016 looks like it may set a record for law firm mergers, I’m going to stick my neck out and say this trend is not done. I think it is entirely possible that a large law firm will get together with another firm of more than two lawyers in 2017 and tie the knot, in the interest of global domination.

2. Pundits, law firm leaders, legal technologists, and everyone who provides anything or gets anything from someone remotely connected to the legal industry, will continue talking about AI and law.

While I did not use AI to come up with my predictions, I have it on good authority that AI has decided to take over the legal industry—worldwide. I have checked and double-checked my primary sources (Johnny Depp in Transcendence, Scarlett Johansson in Lucy, James Cromwell in iRobot) and it is clear that the legal industry is top of mind (chip?) for all sentient computers. Why not? Once they control the lawyers, they control the rules that govern society, and ruling society itself cannot be far behind.

3. US law schools will stay the course, graduating far more lawyers than there are positions for lawyers from the US law schools.

If the legal industry has taught us anything, it is that the laws of economics do not apply when it comes to our industry. When demand for legal services from large law firms falls, prices go up. When demand for newly-minted lawyers falls, law schools still churn out graduates. To make it more interesting, most law schools refuse to change their curricula so that graduating law students would better meet the needs of the market.

4. No matter what law schools do, the average first-take bar passage rate in the US will change very little.

After years of trying to change the first-take bar passage rate, those who complain will learn that the purpose of the bar exam is to limit the number of lawyers. Increasing the odds that a graduating lawyer will pass the bar simply means the score to pass has to be increased. Otherwise, the number of lawyers will rise. With this message finally being delivered, nothing will change because … some things in this world never change … and some things do.

5. The number of startups tackling legal issue opportunities will increase … and then decrease … and then increase. But, Peter Thiel will not form a new private equity fund focused on his beloved legal industry.

For a few weeks during 2016, there was an intense effort to quantify the number of legal industry startups. The discussion turned to esoterica, such as whether a startup of an established player was a startup or not. After much filtering and number crunching, everyone agreed that there were more than a few, yet less than what they first thought. Legal startups are liked startups in any other industry—a few thrive, some survive and then are bought, but most don’t make it. Nothing remarkable here, folks.

6. The number of regulations corporations must address will grow in the United States and in other countries.

Despite rhetoric about red tape, regulations, and compliance burdens, governments worldwide will continue to pass laws. The “more with less” movement, which became the “more with more” movement when corporate legal department hiring took off, continues its fade to black.

7. Law firms and law departments will continue licensing new software, while conveniently forgetting that everyone uses <1% of the capabilities of the software already installed.

Never wanting to be left behind on the hunt for the “next best thing in law” legal services organizations remain firmly committed to bringing on board still more software no one knows how to use. As one CIO was heard to say, “it doesn’t matter whether users can get value out of the stuff, what’s important is that they have a lot of icons to choose among when they want to compose a letter.” Another CIO proudly says that anyone in her organization can now send a letter right from their laptop, after fighting through 20 macros, composing the text, making 32 corrections to what the macros inserted, and then waiting 10 minutes for the last package to encrypt the document so that not even the law firm can de-crypt it.

8. Legal technology consultants, after holding the line for all of 2016, finally throw up their hands and admit, “yes, it is true that all software is AI and legal services use more AI than all other industries—combined.”

Law firm and law department leaders get with the program. They agree upon industry-wide metrics focused on technology proficiency and efficiency. At a joint press conference, the leaders announce the first set of metrics that everyone will use:

A. Percent lawyers who can reboot their computers without IT assistance.

B. Ratio of iOS to Android to Windows users.

C. Lead time for a lawyer to unlock his or her smartphone, open the mail app, and open the latest email from a client. (Separate metrics will be kept for biometric identification devices and passcode entry devices.)

In the joint press release, the leaders say, “It is time our clients know that we fully support emerging technologies and their role in the delivery of legal services. When it comes to technology, we are firmly committed to the idea that no lawyer should be left behind.”

One More Thing…

This last one isn’t a prediction, but it is a teaser for what might happen. Democrats and Republicans remain deadlocked on Supreme Court nominees. One enterprising technologist points out that the U.S. Constitution is silent on the qualifications of Supreme Court Justices. Indeed, he notes, the Constitution does not require a Justice to be a Natural Person or even a Person. The deadlock solution seems simple. Given the increasing prominence of AI in the legal industry, and the desire to have someone sit behind the bench to hear oral arguments, the President nominates and the Senate approves an AI-enabled robot as the next Supreme Court Justice. The robot can be programmed to follow whatever dogma is appropriate, thus eliminating the problem of Justices doing what they think is right instead of what they were nominated to do. Of course, given other provisions of the Constitution, the computer will sit for life (its life, which implies forever).

In Conclusion

Thank you all for reading SeytLines. Although I have done my best to capture what I think will be the significant developments in 2017, I am sure there will be a few surprises. I look forward to continuing our discussions.

GeneralCounselLike many of you, I have worked with general counsels for most of my career. I chose to go to a boutique firm when I graduated from law school so that I could practice law, not just research. The firm had a very nice roster of clients and I worked on complex patent and securities lawsuits and large transactions. As many lawyers have discovered or re-discovered in recent years, small law firms have advantages. One, for me, was the chance to work directly with senior executives, including general counsels.

After several years, I moved to a large law firm, became a partner, and continued working with general counsels, though I’ll admit the size of the clients grew as my practice switched to the large law firm. I moved in-house after many years, which took me from the role of agent to principle and made the general counsel my boss instead of the client. After many more years, I  became the general counsel, a role I held at three Fortune 1000 corporations. So, it is with some interest that I ask the following question—what is the essence of a general counsel?

A Brief History of General Counsels

I am not the first to ask the question. We can find discussions about what it takes to be a general counsel and what qualities make a good general counsel going back over decades (here is a recent one). Even though the question has come up many times before, asking it again periodically helps us frame where an important part of the legal profession is going and takes us further into what general counsels need to do their jobs well.

General counsel have been around since the latter part of the 1800s when industrialization was taking hold. The railroads hired in-house general counsel, and many lawyers aspired to those positions. They general counsels wielded great power, made a lot of money, and were leaders in the bar. During the first half of the 1900s, the position waned a bit. For a time, a general counsel typically was a lawyer from the law firm that had the closest relationship with the corporation. A lawyer who wasn’t cut out to become a partner, or perhaps a partner who needed a different direction, was helped into a general counsel position by his firm. The role was somewhat administrative and often involved many ministerial corporate secretarial duties.

There were exceptions. The most well known was Nicholas deBelleville Katzenbach. Katzenbach was, as far as I know, the first general counsel of the modern era. Katzenbach attended Phillips Exeter Academy, then Princeton. He enlisted in the U.S. Army Air Corps during his third year at Princeton (right after Pearl Harbor), became a navigator, was shot down and spent two years in POW camps. After the war, he returned to Princeton and graduated cum laude (receiving some academic credit for having read approximately 500 books while he was a prisoner). He then went to Yale Law School and was an Articles Editor on the Yale Law Journal. He received his LL.B. cum laude and spent two years at Balliol College, Oxford University, as a Rhodes Scholar. He spent many years teaching law and serving in various government roles. President Johnson appointed him U.S. Attorney General and from there he became Under Secretary of State. After this already stellar career, he became general counsel of IBM. (Although not central to this discussion, Katzenbach did not stop there. After retiring from IBM, he continued his career adding a number of notable roles to his already stunning resume.)*

Katzenbach was clearly a different type of general counsel. He had wide ranging accomplishments in academia, government, and private practice. The general counsel position at IBM was not a safe place for him to ride out his career. In fact, he, along with lawyers from Cravath, Swaine & Moore, fought one of the most notorious legal battles of the 20th century: the government’s antitrust lawsuit against IBM.

The next person most recognize as a modern general counsel is Ben W. Heineman, Jr. Heineman is the former general counsel of General Electric. He was hired by Jack Welch. Many mark Heineman joining GE as the beginning of the late 1900s tipping point for general counsel in corporations. It became the trend for corporations to hire general counsel who had very successful careers outside corporations, like Katzenbach and Heineman. Corporations brought on board successful law firm partners and individuals who had senior positions in government. The corporations did more—hiring partners and other highly skilled lawyers to staff the in-house departments led by the legal “stars.” Although it would take years to become evident, this change marked the point where the balance of power between principle and agent—client and law firm—began shifting back in favor of the principle.

Law departments have grown in size, though with many ups and downs. Today, in many large corporations, the size, sophistication, and successes of the in-house legal team equal or exceed those of many law firms. Very recently, as law departments started growing again, corporations have been pulling back work from law firms creating an interesting shift in the operations of the legal industry. General counsel have become major players and many have become CEOs. But that brings us back to my question—what is the essence of a general counsel?

What We Already Know

The general counsel role has evolved organically across many corporations, many hiring philosophies, and many needs over the course of many years. No one sat down and put on paper the specifications for “general counsel” and then asked everyone to work to those specs. In fact, general counsel has meant many things within any corporation, and from corporation to corporation, across time.

I am not aware of any rigorous studies covering what we mean—or more importantly, what corporations mean—when they say “general counsel.” Perhaps the major recruiting firms involved in locating candidates for these positions or the Association of Corporate Counsel have done in-depth studies. If not, it would be an interesting research project.

From my own experience, the definition of who a general counsel is and what he or she does seems to have amorphous edges. I have been contacted for help filling general counsel positions that were nothing more than glorified retail leasing counsel jobs (and much of the work the “general counsel” would do was handled by legal assistants at the large landlord companies). While the role might be titled “general counsel,” the substance was more akin to what a junior paralegal might do. I have been recruited for jobs that clearly fit anyone’s reasonable definition of general counsel: report to the CEO, member of the executive committee, responsibility for worldwide legal affairs, oversight of multi-jurisdictional in-house legal teams, responsible for a substantial legal budget, corporate secretary, and so on. And of course, I have received inquiries that fall at various points along the line connecting those positions. In other words, “general counsel” meant what the hiring party wanted it to mean at a given time.

Apart from the hiring party’s definition, there are certain features other parties want to fit into the general counsel’s job description. If the corporation is traded on a public exchange, regulators want to hold the general counsel responsible for the legal affairs of the corporation. Sometimes, they want to go further. The public also expects a general counsel to exert some “legal authority” over the corporation. Opposing parties may believe that the title “general counsel” gives a person a certain amount power within a corporation, even though the CEO doesn’t quite see it that way.

So far, I have focused on what many parties may implicitly or explicitly build into a general counsel’s role. Another way of looking at the issue is from the inside out—what do general counsels themselves think they should be able to do. Again, this varies widely, often depending on the education, training, skills, and aspirations of the person holding the job. Some want to be great administrators, some want to be leaders within their industries, some just want to do interesting legal work. General counsels range from caretakers to activists, from struggling legal technicians to potential Supreme Court Justices. As with any other position in corporations, the range of the role varies as widely as the range of individuals filling the role.

Is There Value in the Task

I still have not answered the “what is the essence of a general counsel” question and I am not going to proffer a definition here. I think that what was accurate still is accurate—the definition will vary from enterprise to enterprise and from time to time. I’m sure there are some basic requirements we could set, and perhaps we should do so. Having a basic definition of “general counsel” could assist corporations, recruiters, and candidates. The extras are what each enterprise needs at a given time beyond the basics. But, rather than focusing on answering the “what is the essence” question, I’m going to focus on how and why.

We could look to the medical profession. The profession has minimum standards for doctors. But, the medical profession has certifications that tell the world a doctor has some expertise beyond the basics. A doctor certified by the American Board of Neurological Surgery has passed exams intended to signal to the world that the doctor has expertise in her field beyond being a competent (or even premiere) doctor. A board certified neurological surgeon brings more to the operating table than a general surgeon.

The legal profession could do something similar, such as create a certifying process for “general counsel.” Some states already have certification processes for legal specialties and if you want to prosecute patents before the U.S. Patent and Trademark Office, you need admission to a specialized bar (requiring both a certain level of education in the sciences and passing a test). Our “board certified” general counsel presumably would have more of whatever those doing the certifying feel a general counsel should know.

Another approach is the one that recruiters and corporations seem to favor. It involves a mix of simply being a lawyer who has had “success” in other roles (lawyer at a certain level in government positions, partner in a law firm) and a minimum number of years practicing law (the recruiting equivalent of billable hours—valuing time over content).

Why go to the bother? From the profession’s standpoint, establishing minimum criteria is a way of saying that lawyers are experts on what it takes to do the job well. For example, lawyers may say that it really doesn’t matter whether the general counsel candidate has five years’ or fifteen years’ experience practicing law, but it does matter if the person can’t read and understand a balance sheet. A person who has not been certified could still be hired as a general counsel, but over time corporations may gravitate toward hiring only those who have the certification.

Certification programs have other potential benefits. Certifying lawyers on what it takes to be a general counsel could help clients solidify what they want out of their general counsel. Do they want a senior strategist, an expert administrator, a tactician, or something else? Seldom will a corporation find someone highly skilled in all areas. Unfortunately, corporations often do not focus on what they really do want, and so they may get a good lawyer but not the lawyer they need as their general counsel.

Obviously, candidates could benefit by making sure they fill in the gaps that will help them as general counsel (or at least get certified). During the dot com craze in the late 1990s, it seemed that anyone with a law license could become a general counsel of a startup, and indeed that often happened. Almost overnight, corporations with hundreds of millions of dollars in funding were relying on a lawyer one year out of law school who had spent that year putting together venture capital funding documents to advise the corporation on anything from employment law to international trade structures. Unpleasant things happened. It would have been nice to have general counsels who knew and could do a bit more.

I don’t want to leave this essay with anyone thinking I am arguing in favor of board certified general counsels. I am not sure whether certification, or even attempting to establish basic criteria, is the right way to go. I think the question deserves more thought, just as the question of the evolving market for legal services deserves more thought. Although I started with the question, “what is the essence of a general counsel.” I think the answer is bound up with a bigger question many are trying to answer today, and that is “what is the essence of a lawyer.” It is this second question that bedevils many today, and the answer to that question will stand behind what we really need as general counsel.

* While not taking anything away from what Nicholas deB. Katzenbach achieved, he had what some might call a running start. His father graduated from Princeton, became an instructor in political economy at Princeton, and then attended and graduated from Harvard Law School. His many accomplishments included a successful law firm (where Nicholas worked for a while) and serving as Attorney General for the State of New Jersey. Nicholas’ mother served as the first female president of the New Jersey State Board of Education. Nicholas’ brother served as Deputy Assistant Secretary of Defense for Education and Manpower Resources under President Kennedy. See Edward L. Katzenbach, Wikipedia.

Payback
The legal profession has never been filled with saints. Long before industrialization gave an adrenaline shot to the profession, lawyers were admired for their skills, though not known for their charitable ways. Oh sure, you can find examples of lawyers who did wonderful things, just like you can find examples in any profession of people doing wonderful things. But, we need to accept gracefully the fact that among the three learned professions (divinity, medicine, law), lawyers cannot claim the frontrunner spot except when it comes to making money.

I should not have been surprised, therefore, when I received the responses I did to my request that lawyers send me ideas for a moonshot. I thought I had carefully framed the challenge—a moonshot was on the order of, well, going to the moon. The most recent visible moonshot idea was the charge to defeat cancer. A moonshot is a big idea, a bold and ambitious attempt to conquer some amazing challenge within a reasonable period. Moonshots take us beyond what we normally can do, because they give us the feeling that as part of an inspired group, we can accomplish great things. For those lawyers who responded to my moonshot challenge, the great thing was “make more money.”

There were exceptions, of course. A few lawyers went the high road and pointed to access to justice as a worthy moonshot. But the bulk of the respondents chose “make more money” as the suitable moonshot for lawyers. As I said, I should not have been surprised, but I was.

I did not publish the results of my moonshot challenge right away, because I wanted to ponder them a bit. What does it mean when your profession (admittedly, a very small and certainly not random sample of the profession) thinks the greatest thing it could spend time on is making more money? On the one hand, you could read it as lawyers saying “get over yourselves, we are working folks just like the rest.” Lawyers are in business to earn a living, not do good.

Of course, many of us still have that voice in the back of our heads that says “we are a profession, and professionals have a higher calling than just making money.” Sure, we need to make a living. But as lawyers, aren’t we supposed to do something more? This is a conflict many of us, especially those in the Baby Boomer generation, have felt. Law was a way to earn a very nice living, and yet most of us did not give much back to our communities.

So I thought that Baby Boomers, as we reach our retirement years, might be interested in lessening the conflict by putting their efforts behind a moonshot. The results of my representative-of-nothing survey say resoundingly “no”! And this is where we get to payback.

For Over 100 Years Lawyers Have Let Things Slide

The many problems with our legal system did not spring into existence during the past decade. In 1919, Reginald Heber Smith published what for many decades was considered the leading book on legal aid societies, titled “Justice and the Poor.” At that time, the Boston Legal Aid Society, where Smith was general counsel, was one of the few legal aid societies in existence. Roll forward, and the number of legal aid societies increased, while the number needing legal aid vastly outstripped the resources of those providing it. Over the past 100 years, one could argue convincingly that the total volume of charitable work by lawyers has increased, but the per capita aid has decreased.

The list of deficiencies in our legal system is long, legal aid is one, and this is not the place to repeat all of them. The simple point is that during the last 120 years, while the legal profession has grown and prospered, society has suffered. Lawyers have prospered while clients have not. Regardless of your political affiliation, if you are poor you are unlikely to get legal assistance. No matter who you vote for, if you are middle class most legal services are priced out of your reach. Independent of which PAC your corporation supports, your corporation will face a tremendously long lag time if you try to prosecute a case through the federal courts, and you will encounter a system ill-prepared to handle your dispute. When we say justice is blind, in the modern context of the United States that means you will find a legal system struggling to handle your needs regardless of who you are or which candidate you support. The rich get better legal services because they can throw lots of money at their problems, not because they have access to better or faster courts, or even better legal services providers.

Yes, yes, there are exceptions. There are always exceptions. But exceptions do not prove the rule of law. So this is the rub. Now it is payback time. Lawyers are feeling under the gun. Society is pushing back and yelling “I’m mad as Hell and I’m not going to take this anymore.” There are many messages from the recent election and surely this is one of them. We may want to argue we have the best legal system in the world, but the numbers tell a different story.

It does not help anyone when people feel free to snub their noses at the law. Regardless of party affiliation, we all can point to instances on our side of the aisle and the other side of the aisle where the law came in second to some person’s or organization’s self-interest. This past 18 months, we have seen those transgressions become the focal point of conversation, rather than the exception. But as lawyers, we can appreciate that when law becomes the focal point of any conversation, good things probably are not happening.

The question for lawyers, then, is whether we have moved past the time when considering a moonshot is an exercise worth discussing. Doctors have their battle to eradicate (or at least make curable) all illnesses. Techies have their battle to create computer intelligence that can match or exceed human intelligence. Are lawyers left with battling for incomes that match or exceed what anyone else can earn?

Let’s talk about artificial intelligence. Right now in the legal industry, you can’t look anywhere without seeing another article about how AI is or will take over what lawyers do. In the next breath, the author speculates about what the economic impact of AI will be on lawyers. I thought lawyers looking for a moonshot might ask some different questions:

  • How do we modify existing laws for a society populated with intelligent machines and people?
  • Regardless of what intelligent machines can do, should we build into our governance systems limits on what we want the machines to do?
  • Should there be limits on what “garage tinkerers” can do with intelligent machines (yes, you may have the technology to tinker on humans in your lab, but that doesn’t mean we give you full license to do so)?
  • How will our legal system evolve as intelligent machines play greater roles and more autonomous roles in our society?

These questions represent a small fraction of the questions we will confront as machine intelligence increases, even if more intelligent machines help us live “better” lives. Yet these were not anywhere near the moonshot ideas I received.

Let’s go in a different direction. One of the major questions of our times is whether our government institutions are no longer sufficient. Are we operating a country using 18th or 19th century institutions in a 21st century world? When the U.S. Code, the compendium of federal laws, has over 67,000 sections, someone should ask whether the concept that each of us is responsible for knowing the law makes sense. Can our institutions handle the challenges being thrown at them? Does governance by regulatory agency supersede governance in other forms? Making how our government functions more flexible and less costly, whether you think there should be more or less regulation, seems like a worthy moonshot, yet it wasn’t on the list.

Nick Bostrom has posited that AI represents a unique existential risk for humans. Never before have we faced something we are creating that has the potential to eliminate us. AI is not the only such risk (nanotechnology and genetic modification are two others that make the list), but it is a leading risk. Although most lawyers would deny it, the legal profession also faces an existential risk. Not today, not tomorrow, but at some point if we continue on our current path, the need for lawyers will be gone. Technology, client friendly problem solvers from other domains, and innovative disruptors will take away what we do. There are no physical or other barriers to prevent the land grab. The efforts of state bar associations to prevent the demise of lawyers simply hasten the process of destruction. A few lawyers will remain, but the existential risk for lawyers is that most become irrelevant.

Is There A Moonshot Left In Us

Any good disaster flick has the moment when the protagonist can see what must be done to save the world. The payback of the last 18 months has brought us to the point where lawyers must ask if they can see what they need to do to save the profession and build a better, more responsive, and more resilient legal system.

A group of us who have been (at least self-proclaimed) disruptors are meeting in the next few weeks to talk about change in the legal industry. I’m sure we will cover many fascinating topics. I hope that we will find some time to talk about change in a broader sense than making more money.

There is no mandate that lawyers do anything more than what they have done for centuries. We do not have to change, nor do we have to look beyond what is in our own immediate self-interest. There is a valid argument that the legal profession reached its zenith many years ago and that it will fade away as many other professions have faded away before it. This may be our payback—we had our run and now we are being told that run is over.

Perhaps many lawyers are correct—now is the time to treat lawyering as a cash cow. We should all make the most we can from it and continue to do so for as long as we can. Something will come along to take its place, but that is not our worry.

I don’t subscribe to the cash cow theory. I think there will remain a need for societies to govern themselves and I think there is a role for lawyers to play. I remain convinced that if we can change some fundamental practices in the legal industry, we can get past this moment and revitalize the profession. I do not subscribe to Richard Susskind’s belief (and I’m overstating a bit here) that the profession is dead, it just doesn’t know it.

I am looking forward to meeting with my friends in the next few weeks and to our discussions. I hope more lawyers around the country will take some time and do the same thing. I encourage you to get together for a few hours with your friends and ask whether you believe lawyers should play a role in re-building the legal system in the United States and, if so, what that role should be. For a moment, put aside the skepticism that drives us all. I think it will be time well spent. And, if you have a few moments left over, ask yourself whether the legal profession has a worthy moonshot beyond making more money.

References Continue Reading It’s Payback Time, Or Lawyers May Have Sown The Seeds of Their Own Destruction

ElectionThe 58th quadrennial United States presidential election is over and now we turn to the next four years. The discussion focuses on what to expect from the Trump Administration and the reality is we don’t know. But, as the transition begins, I hear one phrase repeatedly mentioned, “rule of law.” President Obama, Secretary Clinton, and most recently the leaders of three major law firms have all emphasized that we (Republicans and Democrats) must act to protect the “rule of law” as we go forward. It is a phrase that carries great promise and “we” should talk about what it means to say “protect the rule of law.”

A Distinguished History

The rule of law idea dates back at least to Aristotle, who used the similar phrase “law should govern” in Politics. The idea pops up again here and there in antiquity. For example, in England the House of Commons included the phrase “rule of law” in a petition to James I of England in 1610, and again in 1644 the phrase appears in a piece by the Scottish theologian, Samuel Rutherford (apparently not someone who subscribed to the modern theory of short titles, Rutherford’s piece was titled “Lex, Rex: The Law and the Prince. A Dispute for the Just Prerogative of King and People. Containing the Reasons and Causes of the Most Necessary Defensive Wars of the Kingdom of Scotland, and of Their Expedition for the Ayd and Help of Their Dear Brethren of England. In Which Their Innocency Is Asserted, and a Full Answer Is Given to a Seditious Pamphlet.”). According to Rutherford:

The prince remains, even being a prince, a social creature, a man, as well as a king; one who must buy, sell, promise, contract, dispose: ergo, he is not regula regulans, but under rule of law….

Samuel Johnson included the phrase in his 1755 Dictionary, which means it must have had somewhat common use by that time, at least among Johnson’s peers in England. Clearly, when the United States was coming together as a country, the idea of “rule of law” existed among Europeans and was becoming important in our new country. From that point on, “rule of law” is in regular use, even though implementation of the idea has seen its ups and downs

An Unclear Meaning

Given that the idea has been around for many centuries, we could hope that it has taken on a clear meaning. We could hope, but it would be for naught.

“Rule of law” seems to have many meanings today. Theorists group the meanings into three categories: formal, substantive, and functional. The categories differ in many ways, including whether the content of law must have specific meaning or whether “rule of law” refers to characteristics, but not content. The functional category focuses more on the degree of discretion man, particularly government officers, has in deciding the law (for example, to what extent does natural law play a role). For our purposes, “rule of law” must be something measurable and so we will turn to a more concrete definition.

A Mediocre Performance

Settling on a definition of the rule of law is a challenge. But a greater challenge is overcoming our perception of the United States as a leader in the rule of law compared to other countries. Most people tend to think that the United States ranks high—among the world leaders—when it comes to rule of law. This gets a bit tricky, because it is difficult to rank countries on their implementation of the rule of law if we have trouble defining it. But, we can approximate by defining key characteristics of the rule of law and when we do, it changes our perception of the United States.

The World Justice Project has for many years ranked over 100 countries to compile an overall Rule of Law Index® ranking. The Index is subdivided into eight categories and 44 subcategories. The categories cover areas such as absence of corruption, civil justice, and criminal justice. I am not arguing that the WJP’s approach is the best way to measure access to justice, but it will serve well for our purposes.

Since I am using the WJP’s rankings on rule of law, it will help to understand how the WJP defines rule of law. According to the WJP, “the rule of law is a system in which the following four universal principles are upheld:

  1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
  2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
  3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
  4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.”

Overall, in 2016, the WJP ranked the United States 18 out of 113 countries on the Index—an okay ranking but certainly not world class. For the category access to civil justice, the United States ranked a measly 28 out of those 113 countries. For comparison, in addition to countries you might expect such as Germany, Japan, the United Kingdom, and Canada, other countries outscoring the United States included Estonia, Uruguay, and Barbados.

The following quote from Judge Jed S. Rakoff, a United States District Judge on senior status for the Southern District of New York, elucidates one part of the problem:

Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.

The rule of law we hear about is not the rule of law most in the United States experience.

The Role of Lawyers

This brings us to an awkward spot. We have leaders giving us full-throated encouragement to support and defend the rule of law at a time when our record on rule of law is abysmal. There is a terrible disconnect between the aspirational state and the current state of affairs on “rule of law.”

This type of disconnect is not surprising, especially to those who spend time with the philosophy of lean thinking or behavioral economics. In both fields, we frequently see a broad gap between the way the world is and the way we describe the world. In lean thinking, we use tools to bridge that gap. In behavioral economics, we seek to understand why the gap exists. Either way, we understand that gaps are common.

Thus, when we hear our leaders exhort us to defend the rule of law, we should recognize that the rule of law they encourage us to enforce is not the rule of law that exists. They are asking us to defend their vision of the rule of law, for surely they cannot be asking us to defend the rule of law that puts the United States at the bottom of the first quartile among 113 countries.

This is the fundamental problem the legal industry faces and lawyers face as we try to haul the United States’ antiquated legal system out of the 19th century and into the 21st century. The vision many lawyers carry is not a clear-sighted view of reality. For most, it is of a scholarly profession, providing bespoke solutions to the complex problems of society through the use of a unique science known as the practice of law.

This gap between vision and reality cannot be sustained. One of two things will happen. Either lawyers will modify their views of what they do and bring the services they provide more in line with what clients need and are willing to pay, or lawyers will maintain their views and clients will find other ways to solve their problems. The third approach, which many lawyers explicitly or implicitly hope for—that clients will stop pushing their views and let lawyers do what they want—is not a viable option.

A recent survey reminded us, as if we needed reminding, of the growing problem. It tells us that barely one out of three corporate clients is satisfied with the services provided by large law firms. Whether you are at a law firm that thinks it is different, listens to its clients, and has modified its behavior or you are at a firm staunchly defending the 19th century view of the world, you should be worried.

With each story, survey, and article that comes out highlighting the large and growing dissatisfaction among clients at all economic levels with the performance of attorneys, the situation becomes more precarious. The flimsy rope bridge that lawyers have constructed to the sides of the gap gets stretched a bit tighter, the creaking gets a bit louder, and the day gets a bit closer when the ropes holding the bridge will snap.

Some lawyers can afford to roll the dice. They can bet that retirement will come for them before the ropes break. They gamble on the number of years between client dissatisfaction and defection. The majority of lawyers do not have that luxury of taking the risk. They have too many years left in their careers to expect that clients will be that patient. Yet, the majority of lawyers hang back watching the bridge get stretched tighter and tighter by the day.

A Time for Renewal

The social media outlets, Facebook, and other organizations are starting to grasp the role they may have played in this historic election. Again, regardless of which candidate you preferred, we should all understand as part of being informed citizens, the roles that organizations play in shaping our views. Lawyers should pause and consider what role they played in this election.

Both Democrats and Republicans found large swaths of voters disenchanted with government. The legal industry plays an important role in society and our government. It is hard to say in a country which ranks 28th on access to civil justice and where, as Judge Rakoff notes, “US citizens have increasingly been denied effective access to their courts,” that the failure of the legal system to meet the needs of the citizens played no role in alienating voters.

If we are going to focus on values, such as the “rule of law,” we should all understand the differences between vision and reality. We should speak clearly when we encourage others to enforce the “rule of law.” We should acknowledge that the rule of law that once was in the United States is not the rule of law of today. Much will have to be done to bridge the gap. The starting point for all of us should not be focusing on how much more lawyers can extract from the people in furtherance of a legal system that has passed its freshness date. It should be to ask what our clients need from us and how we can best go about delivering—affordably, timely, and with the highest quality that meets those needs—legal services that return the United States to a leadership role in the rule of law.

References

Aristotle. Politics. The Barnes & Noble Library of Essential Reading.  New York: Barnes & Noble Books, 2005.

Isaac, Mike. “Facebook, in Cross Hairs after Election, Is Said to Question Its Influence.” The New York Times, November 12, 2016.

Montagne, Renee. “Social Media’s Increasing Role in the 2016 Presidential Election.” NPR, 2016.

Morris, David Z. “Zuckerberg Responds to Accusations That Facebook Influenced Election.” Fortune, 2016.

Rakoff, Jed S. “Why You Won’t Get Your Day in Court.” Article, The New York Review of Books, no. November 24, 2016 (2016). http://www.nybooks.com/articles/2016/11/24/why-you-wont-get-your-day-in-court/.

Rutherford, Samuel, and Pre-1801 Imprint Collection (Library of Congress). Lex, Rex: The Law and the Prince. A Dispute for the Just Prerogative of King and People. Containing the Reasons and Causes of the Most Necessary Defensive Wars of the Kingdom of Scotland, and of Their Expedition for the Ayd and Help of Their Dear Brethren of England. In Which Their Innocency Is Asserted, and a Full Answer Is Given to a Seditious Pamphlet, Intituled, Sacro-Sancta Regum Majestas, or, the Sacred and Royall Prerogative of Christian Kings.  London: John Field, 1644.

“World Justice Project Rule of Law Index 2016.” Seattle, WA: World Justice Project, 2016.