Skip to content

September 16, 2014

On specialization and the future of lawyering

by Dan Rodriguez

Some very thoughtful, provocative comments here and here by way of Prof. Ray Campbell at The Faculty Lounge.  Well worth a careful read.

Here is one quotation which frames the basic argument:

“[L]aw practice has changed fundamentally since Langdell reformed law teaching. Today law practice is highly specialized, and rather than roaming across the field of the common law modern lawyers tend to their own narrow patch of expertise. Today, no one can master all the ‘dogma’ that is routinely applied by lawyers in the major law firms or major government agencies. There is just too much. Whatever marks the commonality of the practice of law – and should therefore play into the training of lawyers – it’s not applying the same technical legal expertise on a day to day basis.

Neither does the background knowledge or skill reflected in ‘thinking like a lawyer’ provide a sufficient answer to training lawyers. As practice has evolved, legal reasoning remains important – much as putting is important to golf – but it’s far from the whole game.”

The “quandary,” Campbell notes, is how law schools ought to best train these students who will encounter a highly specialized practice.  I have some thoughts on that (as he and others certainly do).  More on that in a future post.  But, for now, note the important implication he draws from these observations about the trends toward specialization and commodification of legal services:

“As legal practice becomes more and more specialized, the possibilities for non-lawyer specialists to take on roles that used to belong to lawyers become ever greater. If a lawyer does not actually need broad based legal training to proved the specialized service, competitors who are not lawyers can enter the market unless the market is protected. On the corporate side, where regulatory barriers are largely papered over by having general counsel in between the law workers and the non-lawyer clients, we can already see a number of these – e-discovery specialists, document review specialists, litigation consultants, merger and acquisitions consultants, and on and on. Other countries, including the UK, have opened the doors to such providers, and some states have relaxed or are looking at relaxing barriers on the consumer side of the market. I think the range of non-lawyer specialists that compete for law work will only become more extensive and more elite over time.”

This is an enormous issue, of course, and one that is best framed around both positive and normative analyses.  I might quibble with the description as regulatory barriers being “largely papered over”  — claims regarding the unauthorized practice of law don’t always fail, and there has been controversy stirred up by individuals and entities entering the so-called traditional lawyer space with various services (litigation involving Legal Zoom, for example, continues in various state courts).  But the general point, that specialization in legal practice has and can drive legal generalists out of key parts of the market, seems surely right as a descriptive matter.  The normative implications, to say, the obvious are controversial and fascinating.

Comments are closed.