In 1938, Karl Llewellyn lamented (PDF) the age of industrialization. “Specialized work, mass-production, cheapened production, advertising and selling—finding the customer who does not know he wants it, and making him want it: these are the characteristics of the age. Not, yet, of the Bar.” Despite Llewellyn’s grave misgivings, today, all three aspects of industrialization are standard practice:
• Specialized work came first, fueling the rise of boutique law firms and the modern trend towards sophisticated in-house legal practice groups.
• Legal mass production and legal commoditization have taken the form of legal software products, do-it-yourself texts and paralegal services.
• Lawyer advertising has long been the mainstay of class action juggernauts and local neighborhood attorneys alike.
But the transformation that heralded the industrial and information ages has been slow to transform the education of lawyers. Law schools have done well on specialization. Through centers of excellence, law schools emphasize academic disciplines such as intellectual property, tax, or international trade. Often, these have direct application to the issues faced by clients needing complex, specialized services. Other programs, however, seek to place legal education in the social sciences, which may be useful to augment the role of the law school in its university but less relevant to the practice of law.
Beyond specialization, however, law schools rarely address commoditization or marketing. They are only beginning to recognize the need to prepare students for the discipline required to operate successfully in a highly competitive, performance-based market economy. Gone are the days when a Fortune 100 general counsel could protect his reputation by hiring the largest firm at the most prestigious location. Instead, that potential client is also a competitor. It has moved many of its legal services in house and closely scrutinizes the value provided by the occasional outside counsel. It likely refuses to pay any hourly rates for first-year associates, bids each legal matter competitively, and places pricing caps on the aggregate matter cost. Successful large firms have adapted to address these demands; others are struggling to survive.
Even more importantly, the modern small law firm has also transformed itself from a quill-and-ink scribe of original legal documents to a technology driven superstore, offering an unlimited array of legal services–often online while the customer waits.
If both big law and small law have changed, then law schools must transform as well.
In a forthcoming article in the University of Connecticut Law Review, “Legal Education in Disruption: The Headwinds and Tailwinds of Technology,” I document this economic and technological transformation of the small law practice, the effect of which drives certain inevitable changes to the legal curriculum. If the profession is shrinking and changing then not only should legal education produce fewer lawyers, it should produce those prepared to compete in the modern marketplace.
First and foremost, this requires that law schools teach the discipline of running a legal business. Lawyers must understand the consequence of their own financial statements, balance sheets and capital accounts. Other business skills including human resource management, marketing, risk management, organizational behavior, leadership and strategic planning are all part of a lawyer’s professional management of her firm and essential to being an effective resource for her client.
Second, specialization is no longer enough. A lawyer should fully understand the relevant context in which a specialization is utilized. Successful lawyers understand that clients seek lawyers to solve complex issues that have legal, regulatory, logistical and economic attributes. Context for the legal issues is essential to properly understand the nature of the problem and to recommend appropriate strategies for resolution. Law schools must provide training to teach lawyers to better understand, analyze and interpret the environment in which their clients operate.
Third, law school should provide law students with hands-on training for the tools of practice and the impact of technology. The ABA has moved in this direction through its Ethics 20/20 Commission’s recent amendments to the Model Rules of Professional Responsibility. In adopting ethics and competency rules on technology as it affects confidentiality, client development and marketing, the ABA recognizes the need for lawyers to understand the consequences of technology changing the way information is stored, retrieved and communicated. Law students should gain experience, applying practical and ethical decision-making using these tools before they enter practice.
Both the context and the methodology of practice can be taught well through a live-client setting which also adds greatly to other professional competencies. Moreover, to the extent that the new normal has jettisoned the bar’s obligation to transition law graduates into working professionals, then these real-client educational apprenticeships are becoming essential for the professional development of each lawyer.
Fortunately, schools across the country are exploring ways to address these growing demands. Many combine the real-client component with aspects on the business of lawyering or utilize joint degrees or certifications that increase the context and specify of the law degree. Here are a few of the many examples:
• University of Connecticut School of Law has been the most recent school to announce a real-client graduation requirement. In its press release, UConn suggests it is joining 20 other schools which have made a clinical or externship component mandatory.
• The Northeastern University School of Law and the Drexel University Earle Mack School of Law co-op programs perhaps represent the most comprehensive real-client field placement programs, offering full-time field placements for their students.
• NYU School of Law has added business and financial literacy as well as leadership and collaboration as key components to its core curriculum. It has also emphasized globalization and interdisciplinary specialization.
• Northern Kentucky University Chase College of Law has partnered with the NKU College of Informatics for specialized joint degrees pairing law with Business Informatics and Health Informatics, creating an academic program highlighting the technology driven context of modern business and health care.
• Hamline University School of Law has expanded its Health Law Institute to create the Health Care Compliance Certificate accredited by the Compliance Certification Board (CCB), making the students eligible to take the Certified in Healthcare Compliance Examination (CHC Exam).
• Michigan State University College of Law, created the ReInvent Law project, described as “a law laboratory devoted to technology, innovation, and entrepreneurship in legal services.”
• University of Miami School of Law has sponsored LawWithoutWalls, to foster “skills needed by the professionals of our future such as presentation, communication, entrepreneurial, teamwork, global and cross-cultural, business planning, branding, technology, social media, business networking, self-awareness, work-life balance, innovative research, professionalism, ethics, and idea generation.”
These examples of real-client education, contextual development, and exploration of the business acumen needed to work in the 21st century legal environment are at the heart of legal education reform. At the same time, however, the core of legal education should not change. Students must be taught to think like a lawyer, meaning to synthesize large volumes of information, evaluate facts and rules, reason carefully and communicate effectively. They continue to need courses in torts, contracts, civil procedure, constitutional law and criminal law (among others), because these reflect the substantive building blocks on which the other skills are developed.
But since the practice of law has been transformed, then law schools should meet the challenge, providing education related to the new normal practice environment.
Jon M. Garon is the inaugural director of the NKU Chase Law + Informatics Institute and a professor at Salmon P. Chase College of Law at Northern Kentucky University, where his teaching and scholarship focuses on business innovation and the development of best business practices regarding the exploitation and effectiveness of information and data systems in business, health care, media, and entertainment, and the public sector. Garon, the author of Own It: The Law & Business Guide to Launching a New Business Through Innovation, Exclusivity and Relevance, is also of counsel to the law firm of Gallagher, Callahan and Gartrell .
He blogs at Law + Informatics Institute.
Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, Patrick Lamb, founding member of Valorem Law Group and their guests. New Normal contributors spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. You’re invited to join their discussion.