ABA Journal

The New Normal

Law school leaders are dividing into two camps: stuck v. serious

By Paul Lippe

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Paul Lippe

As law schools continue to struggle with an extraordinary decline in applications, their leaders—deans—seem to be dividing themselves into two camps: the stuck and the serious.

The stuck camp is exemplified by the New York Times op-ed by University of California at Irvine Dean Erwin Chemerinsky two weeks ago.

”This crisis mentality is not only unfounded, but is also creating pressure for reforms that would make legal education worse, not better.” The stuck can’t see their way to a better place, so they defend the status quo.

Perhaps a more careful piece from Chemerinsky would have referenced the nearly identical November 2012 New York Times op-ed by now former Dean Lawrence Mitchell of Case Western, which has not held up to subsequent events (see attorney and consultant Bruce MacEwen’s excellent essay at Adam Smith, Esq.).

Among the “inconvenient truths” for the stuck:

• Only 57 percent of the class of 2013 have real law jobs; with the class of 2014 about to hit the market, there’s no way the numbers are getting better—if anything, expect to see salary compression at the high end, not rapid job uptake.

• Forget the peak in 2009—LSAT test-taking last fall hit its lowest point since 1998.

• The boom in law was driven by a onetime explosion in e-discovery and overall information complexity that yielded revenues for firms and law schools but not professional satisfaction for young lawyers. But now clients are looking for higher-quality, cheaper substitutes than traditional associate hours, and young lawyers either want law jobs that reflect the reason they went to law school in the first place or they want information-processing jobs that reflect the generally collaborative nature of younger companies.

• The financial underpinning of law schools has been full-freight, unqualified federal student loans, which are in rapid decline and subject to tighter repayment standards—as Bill Henderson said to me the other day: “Things are better today for law schools than they will ever be in the future.”

• Even recently graduated lawyers who have the highest-paying, “elite” jobs are quite dissatisfied with the hierarchical, pre-modern work styles that characterize most large firms (of course most deans left those firms).

This is not a P.R. problem, as the stuck would suggest; it is a reality problem—lawyers have not kept pace with modern demands to improve value, and dynamic young people see more attractive career opportunities in other fields. It is no overstatement to say that the driving force in BigLaw in my generation was lawyers looking at what was happening with their investment banker and private equity peers and trying to emulate them; now young people look at their more engaged contemporaries at Google and ask: “Why law at all if I can’t really apply my skills?”

Fortunately for all of us, the serious camp is now ascendant, the intrinsic value of the rule of law is enormously high, and most deans are grappling with reality, trying to preserve the best of law school while enabling appropriate change. Three of the most serious deans—Phil Weiser from Colorado, Dan Rodriguez from Northwestern and Trish White from Miami—were key players at the Future of Law School Innovation conference at Colorado Law last week and see various videos linked.

The heart of the conference was two presentations by George Kembel, the head of the Institute of Design at Stanford (full disclosure, my daughter is at d.school and loves it). Kembel describes a six-step approach to “design-centric thinking” for complex problem-solving: empathy, problem definition, ideation, prototype, test, iterate.

Many folks would argue/observe that “empathy” is a difficult trait for lawyers, or indeed any professional, because the professional is taught a combination of superiority and distance.

But as Kembel said, to really problem-solve, you have to think deeply about the problem and then consider changing the mix of how you solve it. “You have to decide which ‘constraints’ are fixed, and which you can change.”

Kembel talked about the challenge of improving access to incubators in Nepal. The d.school research team found that incubators were available in large hospitals in Kathmandu, but prematurely born babies in the countryside had no access to them. So the design team came up with a sleeping bag in which preemies could be safe while being transported to a hospital with the right equipment. (Kembel’s colleague Margaret Hagan was featured in a nice piece on “law by design” in CBA National Magazine last week, in which she laid out how these approaches can be applied to law.)

The big reveal from Kembel came in his second talk, when we shared a panel (no video available, so you’ll have to take my word).

First, when he disagreed with the moderator’s emphasis on “how law schools should prepare students to get jobs” by saying: “We think schools should prepare students to create their own jobs,” and second, when he disclosed that he himself was born prematurely, and so had a natural empathy for the “incubator problem.”

The good news is that lots of people throughout law have already implicitly been applying design-centered thinking, especially corporate legal departments and others who wrestle with problems of scale and complexity. Mark Roellig, the general counsel of Massachusetts Mutual Life Insurance Co., described his world-class legal department, which already does all the “innovative” things faculty are starting to argue for and so delivers far more bang for the buck than most law firms. Colorado law was already collaborating with Cisco on a legal internship and boot camp to build a better “bridge to practice.”

Many of the deans described similarly “design-compliant” initiatives for their schools:

• Miami (White) collaborating with UnitedLaw to develop project management skills.
• Northwestern (Rodriguez) focusing admissions on folks with work experience and better potential to become what Dan Katz would call “T-shaped” lawyers.
• Washington & Lee (Nora V. Demleitner) revamping the 3rd year curriculum.
• Brooklyn Law School (Nicholas Allard) reducing tuition to challenge the U.S. News orthodoxy of increasing rankings based on driving students further into debt.
• New York Law School (Anthony Crowell, former counselor to New York City Mayor Michael Bloomberg) creating an “Institute for In-House Counsel .”

Although she wasn’t at the conference, probably the single most “design-centric” move in law in the last decade was Harvard Dean Martha Minow’s putting Jonathan Zittrain in charge of Harvard’s library. “The faculty is the heart of our law school” is common talk, but the library has been the heart of the university for 800 years. If you connect law’s biggest library with its best technologist, something design-ish is bound to happen.

Law is enormously valuable for all aspects of society, but we have to come to the grips with the reality that some “better-designed” styles of practice are much more effective than others. If law schools use more client-and-lawyer empathy and a little less judge-and-academic empathy to start assessing those better practice styles, they can readily produce 21st-century lawyers and sustainable law schools.

Seriously getting this right is a lot easier than stuckedly defending a status quo that isn’t working.

Paul Lippe is the CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering.

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