The hardest puzzle I’ve ever tried to solve.
This is the last post for several months, as Legal Evolution is pausing publication until the fall of 2023. The reasons why don’t neatly fit into a box. In fact, per the graphic above, I needed several boxes to understand the problem I am trying to solve. I’m sharing my thoughts on this topic because I suspect some readers share some of my values and goals and hence will appreciate my candor.
The purpose of this post is to explain the mindshare matrix for legal professionals, using 20 years of observation plus my own work journey to illustrate the key points. After that, it’s a short walk to understand why the mindshare matrix is an immensely difficult problem to solve.
At the outset, let me stipulate that I’m a legal professional and likely you are too. The mindshare matrix applies to any legal professional, not just lawyers, who want to improve the practice of law and its connection to the common good. See, e.g., Post 314 (Jae Um revealing herself to be one of the best legal professionals on the planet). In other words, we’re just humans doing the best we can with incomplete information. For the most part, that’s our common bond.
Top Row: Means and Ends
Starting in the top row with the Work and Life boxes, most of us pursued a career in law because it offered a relatively direct pathway to a high-quality life: intellectually challenging work; the ability to help people, organizations, and causes we care about; earn a good living so we could support a family; and the ability to work within, and move across, several sectors and practice settings.
I don’t think it’s controversial to say that work is, or ought to be, a means to an end, with the end being a rewarding life that includes friends, family, health, hobbies, recreation, community, etc. One reason I believe this to be true is the large mindshare that our workplaces devote to work-life balance.
It’s certainly possible to spend multiple decades in the top row of the mindshare matrix. Building a successful legal career is time-consuming and expensive. Further, as fiduciaries to our clients, we’re required to place clients’ interests ahead of our own. So the analysis can stop right there: do our best to balance work and life until we’ve obtained professional success and financial security. This juggling act could easily consume 100% of our mindshare until the kids have graduated from college, the weddings are paid for, and our financial planner has concluded with 99% certainty that we’ll never run out of money.
Along the way, some of us become workaholics, treating career accolades and advancement as an end in itself. We rationalize our choices based on the good we are doing or the security we’re generating for our family. I’ve been there. Yet, over the course of our lives, we’ll have several opportunities to come to our senses and push ourselves away from the buffet. A recurring theme in my leadership class at Maurer Law is the importance of passing the “eulogy test”: if we died today, many of us would have a long list of personal and professional accomplishments, but not much else. The eulogy we want, however, is the positive and enduring impact we’ve on others—family, of course, but also friends, colleagues, and the broader community.
What makes the work-life row so compelling and intuitive is that it embodies the principle “we reap what we sow.” Want a good life? Take the personal action necessary to make it happen. Cf Post 252 (review of Sam Ardery’s book on conflict, lawyers’ stock-in-trade, with internal conflict being the most important to honestly acknowledge).
Top-left box: Work
We all have a story. I largely stumbled into my current line of work. Yet, there may be an element of fate involved. As discussed below, I quickly warm to the idea of working within a profession that has duties to the broader collective.
Last month, I turned 60. 30 years ago, I was a firefighter-paramedic for the Lyndhurst Fire Department (a suburb of Cleveland) and union president of IAFF Local 1676. Nine years earlier, I had dropped out of college after reading Eric Hoffer and Søren Kierkegaard (arguably too much) along with many other modern thinkers. I became interested in law because of the intricacies of collective bargaining and the fact that we routinely negotiated against lawyers from Cleveland’s most notorious union-busting firm. At age 35, I left the fire service to enroll at the University of Chicago Law School. My calculus was pretty simple. I was an average firefighter-paramedic who was there for the pay and hours (24 on/48 off with additional vacation and Kelly days). Most of the newer guys, however, loved the work. By pursuing a career that better fit my talents and interests, I’d open up a slot for someone better―literally, lives would be saved. See Post 070 (longer version of this story).
During law school, I focused on building a strong academic profile, which included law review, a federal clerkship, and class papers that would eventually become law review articles. I wanted a job that would financially justify the career change while also letting me pick my own problems. As an influential mentor pointed out, law professor checked those boxes. I ended up focusing on business law because I found the underlying concepts relatively intuitive and interesting, particularly when they involved numbers. I was also attracted to the mechanics of education—how to better connect the subject matter to the real world.
My focus on the legal profession was an accident. Toward the end of my first year at Indiana Law, the associate dean told me that the business course I was scheduled to teach the following year was going to be taught by a senior colleague who was putting off retirement for a year. Thus, he asked, “what do you want to teach?” I suggested a course on law firms as businesses, as in my view, law school was (and is) both a pressure cooker and an information vacuum on anything besides large corporate law firms. This dynamic had (and has) the effect of pushing law students toward what’s easy and prestigious, something I’d witnessed firsthand with my younger peers at Chicago Law. Thus, as a counterweight, law students needed a more reliable and complete picture of law practice combined with the time and space to think about their future.
That course led, in whole or in part, to my empirical work on law firms and legal education; Indiana Law’s 1L Legal Professions course, which I’ve taught for nearly 15 years; my six years at Lawyer Metrics, see Post 257 (recounting our experience with Moneyball analytics applied to law firm associates); and the Institute for the Future of Law Practice (IFLP). The years have gone fast.
Bottom-left box: Profession
I started Legal Evolution in 2017 because I wanted to devote a larger mindshare to the bottom-left box. Further, I had a very clear idea of the problem I was trying to solve.
The traditional one-to-one consultative model, which was (and is) taught in law school, was (and is) intellectually coherent but in tension with the facts on the ground. Then as now, many life problems are entangled with law (e.g., housing, healthcare, employment, insolvency, old age, etc.), yet a large and growing portion of the public can’t afford a few hours of lawyer’s time to solve them. In the typical state court, 75% of cases involve at least one self-represented litigant. See Post 006. At the other end of the client spectrum, the nation’s largest corporations are awash in a sea of growing complexity, placing them on a collision course with the traditional law firm model. The core problem in both sectors was (and is) lagging legal productivity. Thus, in my view, the solution was to help accelerate the creation and adoption of one-to-many legal products and services. See Post 001.
After nearly six years in the trenches, however, I’ve come to some fairly strong intermediate conclusions. For the purposes of this essay, the most salient is that the U.S. legal profession has virtually no experience engaging in significant collective action that strengthens and improves our ability to better serve either the public or our members. To the extent we’ve engaged in collective action, the goal has often been to exclude, as many of today’s oldest and most prestigious bar associations were formed to wall off the profession from Jews, Catholics, blacks, and other outsider groups. See Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (1976) (burying bar leaders with their own words). Although today’s bar associations are fully inclusive in their membership, they’re also largely unified on one front—to preserve rules of law firm ownership and the unauthorized practice of law.
By a long shot, lawyers are not the only profession (or lobby or industry group) to engage in protectionism. Yet, we’re fairly unique in our failure to build critical infrastructure that would make us collectively stronger. For example, each year, the U.S. medical profession matches virtually every 4th-year medical student with a post-graduation residency that, as much as possible, reflects their desired area of specialization and geographic preferences. This service is provided by National Residency Matching Program (NRMP), a 501(c)(3) nonprofit founded in 1952. This matching service helps hospitals (who depend upon the well-trained and vetted labor), medical students (who have the security of future employment and training combined with significant agency over where they’ll end up), and the public (our physicians are well-trained and competent).
Obviously, the legal profession has nothing similar to the NRMP―but if we did, imagine how it would dramatically improve the mindshare of law students, freeing them up to focus on learning. A profession that provides beneficial infrastructure for the next generation makes it more likely the next generation will support continued collective action. Yet, at some point, the virtuous cycle needs a first mover.
The healthcare sector offers additional insight into the nature of our dilemma. A few years ago, I had the opportunity to pitch IFLP to the largest foundation in the U.S. exclusively focused on higher education. Yet, there was one wrinkle. Before the meeting, it was made clear to me that the foundation’s funding priorities were exclusively focused on programs at the associate and bachelor level—the first rungs of social and economic mobility, where the need is vast. Thus, I spent the next six weeks pulling the data together to show that 82% of all healthcare workers had either a bachelor, associate, or vocational degree and that only 9.3% had either an MD or DO. In contrast, 80% of legal service workers had a law degree. See Post 140 (presenting data)
“Law is destined to evolve in the same way” was my pitch. “Yet we need an intermediary organization [IFLP] to begin the process of developing new legal career paths.” To illustrate my point, I included the graphic below, which shows some of the myriad credentialing organizations that operate in healthcare, all of them 501(c)(3) or 501(c)(6) nonprofits.
Folks, the above chart represents a lot of collective action in service of a professional mission. In contrast, in the legal industry, we’re trying to elevate our game through 60-90 minute educational sessions at industry events that are substantially funded by vendors. This hinders our progress and reflects poorly on our so-called profession.
Two weeks ago, Legal Evolution published LexFusion’s Second Annual Legal Market Review, see Post 348, and Casey Flaherty’s epic preview essay, see Post 347. A key point in both was that large legal departments substantially lack the organizational and managerial skills and frameworks to cope with relentless increases in demand and complexity. Further, the skills and knowledge gaps within large legal departments, which are fundamentally nonlegal in nature, are increasing the systemic legal risk for the organizations they serve. See Post 347 (imploring clients to learn the crucial skill of value storytelling so they can obtain the resources they need to do their mission-critical work).
Things aren’t any better at the other end of the client spectrum. A month ago, we published a detailed empirical essay on legal deserts, which is a classification that applies to most of the nation’s rural counties. See Post 345. I once entertained the hope that the know-how and insights of legal operations would grow and diffuse to other classes of customers—that for practical business reasons, corporate clients were our starting point rather than an endpoint. Unfortunately, I’ve seen precious little evidence that any legal industry professional organization has the vision or willingness to fund and build the necessary infrastructure. So, to the extent diffusion of know-how happens, it’s likely to be piecemeal. This affects public attitudes toward the rule of law and faith in constitutional democracy, which is a topic that implications our professional duties as well as the long-term viability of our system of government. See ¶ 6, ABA Preamble (laying out the legal profession’s unique and very specific duties as public citizens). If the strength and vitality profession―the bottom-left box―had a larger mindshare, we’d be more embarrassed, perhaps even to the point of action.
Successful collective action begets more collective action. In the legal profession, however, we’re unable to convene a credible planning session. And without sufficient mindshare, nothing of consequence can happen.
After meditating on his problem for nearly a year, I finally landed on a compelling example of lawyers, judges, and law professors engaging in large-scale collective action: The American Law Institute’s Restatements of Law, which was a massive labor-intensive project that imposed order on sprawling common law. See Post 207. Some legal professionals may not know that the term “blackletter law” flows from the structure of the Restatements. As noted by William Draper Lewis, the former dean of Penn Law who served as ALI’s first executive director, “It is no exaggeration to say that the Restatement of the common law is the most difficult as well as the most important public work ever undertaken without the aid of government by the legal profession in this or any other country.” Post 207 (quoting Lewis, “Present Status of the American Law Institute,” 11 NYU L Rev 337, 343 (1929)).
Yet, regarding the Restatements, there is one additional point worth remembering: The ALI was wholly funded by the Carnegie Corporation, which supplied generous stipends to the law professors who served as official reporters. Further, until revenues from law libraries became a steady source of income (a process that took more than a decade), Lewis was perennially worried about running out of funds before the Restatements were complete. Id.
I’m reminded of this fact every time one of my colleagues in the market liberalization space flags the issue of who pays for the cost of overseeing and regulating the new market entrants. Philanthropic foundations are often suggested as a source of seed capital. Yet, the foundation officers I’ve spoken with over the years (more than my share) always point out that the legal profession, as a sector, is rich and thus ought to pay its own way. In my own fundraising efforts, I’ve never had a persuasive reply.
Bottom-right box: World
It’s generally my nature to make the best of things. But in 2021, I hit a bit of a breaking point. In both my Legal Professions and Leadership classes at Indiana Law, students were doing coursework that asked them to extrapolate their lives and legal careers into the future. The most striking feature of their replies was the tacit assumption of political stability and economic prosperity—that the future would be largely the same as the past, at least for the lawyer class. I had noticed this pattern in prior years, flagging it as something that deserved further thought (i.e., mindshare). But after the January 6 Capital attack and all the political turmoil and denialism that followed, I realized that I had long harbored similar unstated assumptions.
As some readers may recall, I updated my assumptions in a series of bleak essays that I published over the summer. See Post 312 (carefully reviewing the history of the original Gilded Age lawyers); Post 319 (based on a careful re-reading of what Alexis de Tocqueville and other sources, considering the very real possibility that, as a collective, we may not be up to the task of transcending our own self-interest); Post 321 (reviewing three empirically based theories of national decline as a very heavy counterweight to our tendency to see what we want to see).
Our nation and world are facing a set of problems that require immense creativity, sacrifice, and courage to solve. Here are some of the problems on my mind, albeit readers could and would enlarge the list:
- Climate change, which is challenging enough. But it’s also setting in motion environmental migration on a mass scale. Wealthy people are the biggest contributors to global warming. See Florian Zandt, “The One Percent’s Huge Carbon Footprint,” Statista, Feb 23, 2022. Just getting off the money treadmill is a step in the right direction.
- Unprecedented wealth inequality and concentrated economic and political power, which are two sides of the same coin. As a historical matter, we know this results in political instability that undermines democratic institutions and the rule of law. All too often, the endpoint is war, autocracy, and economic ruin. We need to face the fact that many of our most lucrative clients need to be regulated and downsized. This is hard, complex, and unpopular work that needs the support of a collective.
- Disease, food insecurity, and political instability outside our borders, which causes families to risk everything to illegally cross our borders. Solving root causes is the only long-term solution. This requires resources, advocacy, and a large measure of sacrifice.
- Massive and accelerating advances in A.I., which tech executives acknowledge are likely to result in large-scale technological unemployment and the creation of trillionaires. See, e.g., “Sam Altman on the A.I. Revolution, Trillionaires and the Future of Political Power,” NY Times, June 11, 2021. Sam Altman is the CEO of Open AI, which is the creator of ChatGPT. Erza Klein summarizes Altman’s thesis: “A.I. will create phenomenal wealth, but it will do so by driving the price of a lot of labor to basically zero. That is how everything gets cheaper. It’s also how a lot of people lose their jobs.” Id. Perhaps Altman is wrong, but the possibility that he’s right warrants the mindshare of legal professionals.
Today, I struggle with the following question: “Can we garner enough mindshare to live up to our own ideals?”
Consider the following thought experiment. Tomorrow, the wealthiest 50% of the legal profession commit 10% of their wealth towards solving some of the nation’s most pressing problems, including the financing and building of critical legal infrastructure. As a consequence, up to 10% of lawyers and legal professionals would be invited to join the cause, making an in-kind contribution in the form of working for lower wages (still a living wage, but not on par with corporate law firms). As a result of this collective action, up to 10% of the US legal profession could devote 100% of their mindshare to activities that are focused on the long-term public interest.
In her efforts to get new federal antitrust law off the ground, Senator Amy Klobuchar (Chicago Law ’85) recently commented, “It is really hard to take on these subjects when you have the biggest companies the world has ever known, that control an inordinate part of the economy, opposed to it. It is an incredible amount of money I’m up against. I have two lawyers. They have 2,800 lawyers and lobbyists.” Sara Morrison, “Sen. Klobuchar says Big Tech money hasn’t stopped her antitrust push … yet,” Vox, Sept 6, 2022. Think about the political heft and public education effects of an organized but independent branch of the legal profession serving as a counterweight to monied interests―by itself, this would go a long way toward rehabilitating the negative public image of lawyers.
The most important element in my thought experiment is the intergenerational link between older legal professionals, many of whom have achieved, by any objective measure, financial independence and security, and younger legal professionals, who lack such security yet have to live in the world we’re leaving behind.
Readers can laugh at my ideas. That’s fine. Yet, it’s obvious that a project that reflects even 1% of the profession’s wealth and talent would have a shot at being truly transformative. And like our other institutions, the more successful it becomes, the more successful it becomes. But even more salient is the fact that 100% of mindshare in the work-life row—the natural resting place for most of us—is a train heading off a bridge. Collective action offers the hope of solutions. A subset of the legal profession needs to take the risk of setting collective action in motion. It has to start somewhere.
Big grey box
The big grey box contains the principles and belief systems we draw upon to allocate our mindshare. The life and career of Louis Brandeis offer one possible solution.
Many readers may know that Louis Brandeis was one of the most accomplished students in the history of Harvard Law School. Although he was offered the opportunity (several times) to join the full-time Harvard faculty, he thought he could have a larger impact as a practicing lawyer. Shortly after entering into a partnership in Boston with one of his classmates, Brandeis resolved to allocate one hour of every day to matters that benefited the public. By his mid-40s, his law practice, which focused on business law, was one of the most prosperous in Boston (Brandeis was an office practice innovator on par with Paul Cravath). Thus, he began allocating 50% of his efforts to public interest matters, often putting himself on a collision course with the interests of big business—a fact that nearly derailed his confirmation to the U.S. Supreme Court. See Melvin I. Urofsky, Louis D. Brandeis: A Life (2009).
In 1911, Brandeis told a reporter:
Some men buy diamonds and rare works of art; others delight in automobiles or yachts. My luxury is to invest my surplus effort, beyond that required for the proper support of my family, to the pleasure of taking up a problem and solving, or helping to solve, it for the people without receiving any compensation. … I have only one life, and it is short enough. Why waste it on things I don’t want most? I don’t want money or property most. I want to be free.
Id at 154. See also Louis D. Brandeis, “The Opportunity in the Law,” Talk given to Harvard Ethical Society, May 4, 1905 (outlining Brandeis’s view of the problems of modern society and the legal profession’s unique opportunity to help solve them).
There are no guarantees in life, but solving our collective challenges—both the creation of effective means and their deployment toward worthy ends—is a matter of choice. See Bill Henderson, “A Poor Man’s Newcomb Problem, aka The Game of Life,” Legal Whiteboard, Feb 24, 2013.
Pausing Legal Evolution
As noted at the outset of this essay, I am putting Legal Evolution on pause until the fall. When I started Legal Evolution in 2017, the goal was to focus on “applied research,” which is a technical term within a university setting. According to the Lawrence Berkeley Lab at UC Berkeley, “Applied research is designed to solve practical problems of the modern world … . One might say that the goal of the applied scientist is to improve the human condition.” See Post 001 (italics in original). That remains the mission.
I am immensely proud of the content published on Legal Evolution, in particular the work of our many contributors, all of whom have knowledge, skills, and perspectives that I lack. They warrant a high-quality outlet that gives them space to think through and address complex problems within the legal industry. Yet, to make sure I’m pointing our applied research in the right direction, I need additional mindshare. The problem set I started with in 2017 is very different than the problem set circa 2023.
During my break, I’ll finish writing a book based on the mini-case studies in my Law Firms as a Business Organization course. See Posts 330, 332, 335 (draft chapters in the forthcoming volume). That has turned into a worthy project. I also plan to acquire some new technical skills and begin some ambitious research that, I hope, is relevant and useful to the project of our shared collective action. Again, that content will appear sometime in the fall.
Many thanks for your readership. We’ll reconnect later this year. wdh.