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October 7, 2013

Instant Karma

by Dan Rodriguez

Change conversations in law school are mostly focused these days on the pressing economic questions for schools — applicant patterns, educational costs, accreditation, job security, etc. — yet the larger questions ever looming concern fundamental, structural changes in the profession.  Attention is lavished on these knotty sets of questions, but not typically by law profs.

Confining our attention to issues in our immediate backyard is perhaps understandable.  While economic pressures in the profession impact more or less immediately the bottom line of lawyers and law firms, these same pressures impact law schools only indirectly; indeed, these impacts are typically filtered through instruments such as the ABA Section on Legal Education, AALS, and the state bar examiners.  With many law schools facing more immediate challenges and, in some cases, real crises as the supply of law students declines, it is unremarkable that educators and administrators in these schools put off careful thinking and strategizing about the state and fate of the legal profession.

But “change in lawyering” is the elephant in the room, and he is taking up ever more space.

The distribution of legal services is undergoing major change; whether or not the overall demand for lawyers will decline significantly remains uncertain — although my bet is with those predicting a real contraction.  But it is rather more clear, based upon the data that I see, that the demand for law graduates pursuing the typical law firm associate route will decrease by a good amount.  And the track to partnership will become a more difficult one, both in the sense that there will be fewer opportunities for promotion and in the sense that the work-life balance of young lawyers who commit to that pathway will shift around in challenging ways.

Bespoke legal work, to use Richard Susskind’s phrase, will remain important and there will be a demand for excellent law graduates from top schools to come aboard to assist seasoned lawyers with that work.  But it is hard to see that this will become a dependable entering point into the profession for more than a subset of law grads.  Even at the very top schools, there will be fewer associate positions in the traditional sense available.  To be sure, well-prepared graduates (this is a Northwestern blog, so I would be remiss if I didn’t say “well-prepared Northwestern graduates”) from a handful of elite schools will be comparatively better off, and by a good margin.  But let’s not pretend that the impact of the changing structure of Biglaw will spare the elite.  The question for the “best” students from the “best” law schools will not be “will we be affected?” but, rather, “how do you compare our challenges to others?”

Further on the theme, we are going to see real adjustments to what our graduates are doing with their training in their early legal careers.  This does not have to be a prophesy of despair.  Redistribution of legal services, pushed by client demands for greater efficiencies and manifest value, may yield more interesting legal work.  Big litigation may shrink (although it is most unlikely to shrivel) and, in its place, alternative dispute resolution in even bet-the-company disputes may emerge.  Such lawyering will call for different skills.  In the transactional realm, lawyers may be pushed by sophisticated clients to engage in true business counseling, counseling where the objective is not to delineate all the traps and risks that grow out of the THE LAW, but, instead, help in defining, constructing, and implementing a business strategy that yields economic and social benefits.  Entrepreneurs emboldened by the modern revolution are demanding more creative counseling by lawyers; such efforts may portend a significant rethinking of the “lawyer as counselor” model.

And we should not forget the potentially transformative role of technology in all this.  Opportunities abound for the use of big data in the development of legal strategies.  Legal analysis will go through its own reshaping, with the development of “legal analytics.”  Skeptics rightly note that such techno-driven developments will not likely replace the seasoned lawyer whose wisdom and judgment is essential to the task (whether in the “bespoke” or “ordinary” situation).  However, the more interesting scenario is not one in which robots replace lawyers, but one in which the business of lawyering is reshaped by technological innovations that generate more capacity and reliability in lawyers and law firms, thereby providing more tangible economic value for clients.

The preoccupation in law schools with finding jobs for our students is wholly understandable.  We would be disserving our students if we were not truly preoccupied.  But the questions looming large go well beyond first job placement.  They go to the heart of our enterprise of training able lawyers.  That is, what is an “able lawyer” is going through some fundamental rethinking.  In this process, professional legal educators, nested in law schools which enable law profs to engage in careful study and analysis, should be key contributors to these important debates.  Self interest is not more impactful here than in other areas of the legal profession.  True scholarship, and preferably empirical scholarship, is required here on an expanding scale.

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