A Call For Legal Innovation

NEW YORK (MainStreet)—A mere five years ago, parents would boast about how their child was attending law school. A lawyer-in-training could rest assured of economic stability, urban decadence and an office in a glassy high-rise. The world viewed corporate lawyers through a college ranking-obsessed pre-Instagram lens of champagne, inflated bank accounts and unrivaled power.

But this vision existed in a vastly different cultural and economic landscape, one in which consumers purchased movie tickets at the theater and subscribed to magazines on 5x7 cards. One in which gay marriage was but a dream and defense cuts were anathema.

Also see: Reducing Your Student Debt (Or Why You Shouldn't Go to Law School)

 

Since 2007, the U.S. government has been a controlling shareholder of AIG, GM, Citigroup, and Fannie Mae. The Lehman Brothers websiteis now defunct, and what was once the 22nd-largest law firm in the world has fallen into the sinkhole of dissolved partnerships.

Throughout this upheaval, however, both legal education and law firm culture have remained stubbornly steadfast despite the fact that law students are graduating woefully unprepared for the legal profession with crippling debt and gloomy-at-best career prospects.

The Law School Problem

Law school is the root of the problem with the legal field, stemming in large part from a disastrous model of personal finance. The calculus of law school has been broken by years of inflated law school tuition and the failure by public and private actors to deal with crushing amounts of readily accessible student debt.

Law school now costs more than $40,000 per year on average, and law students graduated in 2012 with an average debt of $100,433. The placement of law graduates in private practice in 2011 dipped below 50% for the first time in 30 years, and half of all law graduates in 2012 who did find a job earned less than $60,000 per year, the same as a sanitation worker in New York City (after taxes).

 

And for what reason are would-be lawyers crippling their personal finances and putting their personal lives on hold for three years? Why do people go to law school in the first place? I find this answer to be revealing; over the five years I have had contact with Georgetown Law students--as a lawyer-in-training myself and then as an alum--"human rights," "access to justice," and "public defense" have been cited exponentially more than "making money." And for those who do have purely profit motives, nearly all of them wish to practice overseas, at least for a time. People are therefore entering the law to make a difference, to help the poor, to improve justice systems elsewhere in the world, or simply to learn international business practice. Yet law schools seem indifferent to the exploding international and cross-disciplinary aspects of the law, seeking only to maintain their status quo.

The vast majority of first-year law school curricula focus on contracts, torts, civil procedure, and constitutional law. Students dutifully learn to cite all forms of legal texts, write briefs and memoranda in the ordained formats, and memorize information in order to regurgitate it onto finals and midterms. And a law student can then graduate and sit for the bar without ever having seen the inside of a courtroom.

Also see: Leaving The Law: A Risky Career Change Toward Passion

This antiquated model of legal education endures, though its economic and philosophical underpinnings have crumbled. The ABA has bemoaned law students'unpreparedness for actual legal practice since at least 2011, highlighting what everyone else has known for two decades. Knowledge of 19th century English law is good to have, but it will not facilitate the job search, serve the profession, promote justice or stimulate transnational dialogue. There is little doubt why law school applications have fallen by 40% in the past three years.

The Law Firm Problem

Law firms are on the receiving end of the legal pipeline, with a model that is the polar opposite of the overly theoretical legal education. Firms' hard-nosed profit model is based on billable hours, or "billables." Billables are the bane of an associate attorney's existence and the bread and butter of a law firm's revenue.

Young attorneys compare notes about their firms' minimum billables, spending (unbilled) hours measuring their time spent on cases and inputting it into one of the dozens of professional software used by firms to amalgamate billing data. This information is then reviewed by partners, who, in a market where the bargaining power of a client has drastically increased, will usually write-off hours to reduce fees and stay within the client-imposed budget.

This is a distressed system, for both clients and firms. Clients increasingly insist on quota billing, and refuse to spend money on what they perceive as wasted or inflated hours. This is especially true when they assume time is spent training young attorneys, because their law schools failed to do so.

And it is why corporate clients increasingly outsource their legal work to Indian or contract-based document review firms, and why small clients have replaced local counsel in droves with self-help sites such as LegalZoom.

Georgetown Law Professor Tanina Rostain explains the "big shift in the market for legal services" by corporate clients who once "pretty much accepted what their firms said they needed, at a particular hourly rate." She elaborates that this marks a general shift in clients' attitudes from "treating each legal problem as unique" towards the desire "to innovate systems that can address a class of problems."

Professor Rostain's call for innovative, systems-based legal analyses may come as taboo to firms that rely upon billables for profit. But the billables system can lead to perverse incentives – such as a less-efficient colleague being promoted for having posted higher billables, whereas the more efficient worker may be left with little incentive to further improve her legal skills and/or resourcefulness.

Breaking the cycle

The law is the most self-regulated profession in existence; attorneys create not only the rules of their own profession but also the rules of the society in which their profession is couched. This opens the legal craft to an extraordinary level of freedom to innovate, to advance the profession, and to serve the public.

Yet legal practice stays the same, while all other sectors of society transform at breakneck speed, students are crushed in debt, and young attorneys are incentivized away from efficiency. But why can't law firms begin thinking in new and creative ways? Why can't law schools apply a tech-savvy, international approach to the law? At a time when employers are increasingly requiring their entry-level employees to understand a bare minimum of computer programming and Americans are experiencing a severe foreign-language proficiency deficit, this represents a missed opportunity for law schools and firms alike.

Also see: Can the Student Debt Crisis Outshine the Housing Bubble?

In this vein, Professor Rostain has called for transforming lawyers into "tech-savvy architects and designers" of legal solutions. And there are bright signs of change.

Deans are beginning to takenotice of the problem, and the ABA has sicced its tortoise-paced commission on the issue.

At Georgetown Law, Professor Rostain and Associate Librarian Roger Skalbeck have instituted the Iron Tech Law Competition, at which students design and demonstrate on-line apps to promote access to justice and elucidate complex legal problems. Examples include a same-sex marriage legal app, a disability service advisor, and an online guide to the U-Visa application.

It is this kind of call for innovation, and the time to think and create away from external constraints, that has stimulated the best inventions of our civilization. It is the same reason tech firms such as Google give their employees time to play and think – because creativity is more profitable in the long run than forcing brilliant minds into pigeonholes dictated by tradition and practice.

As Mark Twain once quipped, one should never let schooling interfere with education.

There is no doubt that the key to education, profit, and serving the profession is thinking creatively and outside the box. The current system of debt and tradition stifles those who would do so. And that is everyone's loss.

--Written by Seth Engel for MainStreet

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