I am pleased to introduce readers to the Institute for the Future of Law Practice (IFLP), a new nonprofit collaboration between law schools, law firms, corporate legal departments, NewLaw service providers, and legal technology companies.  Details of this new venture can be found online at www.futurelawpractice.org.

Per the picture above, IFLP (“i-flip”) will be hosting training bootcamps in May 2018 in Chicago (at Northwestern Law) and Boulder (at Colorado Law). The bootcamps are designed to prep law students for sophisticated legal and business work settings. Each student admitted to the program is paired with a legal employer for either a 10-week summer internship or a 7-month field placement. All internships and field placements are paid. The IFLP program currently includes four law schools — Northwestern, Colorado, Indiana, and Osgoode Hall (Toronto) — though the plan is to build an infrastructure that will support and serve a significantly larger number of law students, law schools, and legal employers.

Rather than summarize the contents of the IFLP website, I am going to use this post to answer four questions:

  1. What problem is IFLP trying to solve?
  2. How will IFLP be successful?
  3. Where did IFLP come from?
  4. How can industry stakeholders become involved?

1. What problem is IFLP trying to solve?

Legal education and the legal profession are at an inflection point where traditional models of education and practice no longer fit the shifting needs of the market. The biggest driver of change is increased complexity. Historically, the legal profession has dealt with complexity through specialization and division of labor.  However, the legal profession is now at a point where its members need to learn new tools and methodologies that were not, and are not, part of traditional legal education.

Unfortunately, law schools are unable to make this transition on their own. This is because (a) the shift in practice requires an integration of law with problem-solving methods that are not legal in nature (e.g., data, process, project management, technology, and team-based collaboration); and (b) the state of the art for these new approaches to practice are currently being developed in the field by practitioners and other allied professionals.

IFLP can help fill this void by identifying industry-leading practitioners and distilling their know-how and experience into an organized body of knowledge that can be taught to law students and mid-career legal professionals.

2. How will IFLP be successful?

IFLP will be successful if it can create training and internship programs that serve law students (through high-quality employment) and legal employers (through a rich pool of applicants with an expanded set of skills and knowledge). In its simplest form, our goal is to use education to build demand for new and better pathways to sophisticated modern practice.  The larger the demand, the clearer the signal to legal education on how to retool to meet the needs of a changing market.

IFLP is fortunate to have an anchor set of legal employers who want to create a talent pipeline that combines traditional training in substantive law with foundational training in data, process, technology, and business  (T-shaped lawyers). Further, as we develop IFLP curricula and training modules, these resources can be used to cost-effectively upgrade the skills of mid-career professionals.

IFLP is designed to be an intermediary organization that coordinates the interests of law schools and legal employers. We want to improve the content and quality of legal training in ways that widen the pathway to practice.  Under the best case scenario, students, law schools, and legal employers will converge on an industry standard that better serves the interests of all stakeholders. A half century ago, organizations like NALP, LSAC, and NCBE sprang up to fill an important industry gap. Similarly, in 2018, IFLP fills a pressing industry void.

3. Where did IFLP come from?

The founders of IFLP were inspired by their experience with the Tech Lawyer Accelerator (TLA) program at Colorado Law.  Since 2014, approximately 80 students (most from Colorado Law, some from Indiana Law) have participated in a 3½ week bootcamp at the end of their 1L or 2L year. The TLA focused on technology, process, and business skills, with students spending the balance of their summers in 10-week paid internships. In some cases, the internships were extended to seven months (the summer and fall of students’ 3L year). Colorado Law’s TLA is the foundation for the first iteration of IFLP. For additional background on the TLA, see Post 018 (summarizing topics covered in the 2017 TLA).

During four years of operation, TLA has garnered very favorable feedback from students and employers. But more significantly, we received “pull” from several employers to expand the program’s breadth and capacity.  In response to this pull, a small group of us conducted a needs analysis during the fall of 2017. This involved the formation of several exploratory committees drawn from our professional networks. One committee focused on law schools; a second on legal employers; and a third on the viability of an ongoing nonprofit business model.

Based on the feedback we received, in late 2017, we made the decision to go forward with the creation of IFLP.  As we embark upon this journey, we are very grateful for the support of our volunteer board.

4. How can industry stakeholders become involved?

IFLP is not an exclusive club.  However, to be successful, we have to meet a market test. This means offering an educational product that is valuable to students and employers while also generating revenues in excess of operating costs.  In our first iteration, we are limiting participation to a small number of schools. We need to work through the myriad of issues associated with cross-school collaboration. This is complex and requires us to go slow.  The goal, however, is to create a foundation that can support future growth.

At present, we are most in need of legal employers. If your organization wants to co-create a world-class educational program that can fill your need for world-class talent, please contact us.  We are also in need of industry sponsors who are willing to subsidize IFLP in its early days.  We are fortunate to have a handful of benefactors who are getting us off the ground.  The payoff is affiliation with a promising nonprofit working to align the interests of industry stakeholders. Announcement of our full roster of participating organizations and sponsors will occur later this spring.

For law schools and law faculty, we encourage you to visit the programs in Boulder and Chicago.  We value your input and are willing to share what we are learning.  With success, we will be able to expand to include more member schools.  If you are interested in getting involved, please contact us at this link.

What’s next? Lucy Bassli shares her thought process behind her major career move (044)

Answer: Be the relevant, accurate, and practical colleague

You may have noticed that I’m not one for hype and fantastical projections meant to scare actors into action. It is critical for credibility in emerging spaces to ground the noise back into reality. The key to becoming a trusted NewLaw and legal innovation advisor is to make it all very practical.

This “wait a minute, here” fire lit inside me after a doomsday litigation presentation at a conference a few years ago. After telling a room of litigation partners that they were going to be automated out of business in the next few years and thus needed the presenter’s services, it was my turn to take the stage. Continue Reading NewLaw can be overwhelming.  How can I make it less so for the benefit of my team? (278)

Preliminary thoughts on our next paradigm.

In Post 231, I presented a crowded and chaotic market map as evidence that the legal industry is the early days of a revolution in which the center of gravity is shifting away from one-to-one consultative services toward a new model that includes legal products and services. Further, I suggested that the auto industry circa 1905 provides the best metaphor to convey the breadth and depth of the change that is coming our way.

Another fruitful lens for analyzing the tumult in the legal market is the Kuhn cycle (see above graphic), which is the leading framework for explaining large-scale changes in science. See Thomas S. Kuhn, The Structure of Scientific Revolutions (4th ed. 2012). Continue Reading Does the Kuhn cycle apply to law? (233)

As the legal services market becomes more competitive, law firm strategy—or lack thereof—will have real consequences.

If we polled business school professors, all would agree that long-term strategy beats short-term strategy, at least over the long-term.  If true, the following two statements ought to be in tension with one another:

  1. The traditional law firm operating model is designed to maximize profits for ownership over the short-term.  See, e.g., Jonathon T. Molot, “What’s wrong with law firms? A corporate finance solution to law firm short-termism,” 88 So Cal L Rev 1, 5 (2014) (noting that law firms have “a decidedly short-term bias”); Jordan Furlong, Law is a Buyer’s Market 63-65 (2017) (noting that “most partners prioritize their short-term financial interests ahead of the firm’s long-term well-being, sometimes to absurd lengths”).
  2. Large corporate law firms remain remarkably profitable, even during a global pandemic. Nicholas Bruch, “Law Firms Are More Profitable Than Ever. How are They Doing It?Nat’l L Newsletters, Nov 2018 (attributing growing profitability to higher rates and higher leverage, albeit the pull on each lever varies by firm); Gina Passarella & Patrick Fuller, “Will 2020 Be Law Firms’ Most Profitable Year Yet?,” Law.com, Nov 12, 2020 (reviewing data that suggest higher profits during global pandemic, due in part to large reduction in expenses).

Even a gifted lawyer would struggle to make the case that the law of supply and demand doesn’t apply to the market for legal services.

Thus, a more plausible explanation for the success of short-termism in law, advanced in this essay and other Legal Evolution posts, is that the massively complex and segmented legal services market is slowly evolving in the direction of greater transparency, see Post 209 (Raj Goyle discussing how the advent of AI-enabled price transparency is the first step toward competition among large law firms), and that the benefits of the long-term are beginning to come into focus, particularly in the area of client-facing technology, see Post 213 (Zach Abramowitz reviewing bullish signs for law firm tech ventures).

We know the legal services market is becoming more competitive when clients have more and better choices.  The early stage of pressure on law firms has been the movement of work in-house, see, e.g., Casey Sullivan, “Law Firms are Seeing Renewed Competition–from Clients,” Logikcull Blog, July 9, 2020 (noting that “66% of law firms with 250 or more lawyers are losing business to law department in-sourcing”), and the migration of more work to ALSPs, see Alternative Legal Service Providers 2019, Legal Executive Institute (2019) (noting $10 billion market that is growing at 12.9% annual rate).

One of the next waves of client choice, which is being accelerated by the global pandemic, will be between (1) a relatively small group of firms who make strategic investments in technology designed to improve the client experience and expand overall client value, and (2) a larger group of law firms who forgo such investments in favor of ever more short-term profit. Cf. Stein’s Law (“If something cannot go on forever, it will stop.”).

This essay makes the business case that now is the time for law firm technology roadmaps with a client-centric design.  As discussed below, technology roadmaps are strategic planning documents with a multi-year time horizon. Likewise, client-centric design requires immersion in the needs and experience of key firm clients rather than the opinions or views of powerful partners.

We make our business case in three parts:

  • Part I draws upon market data on law firm demand to better understand the traditional law firm operating model and its fixation with short-term financial results;
  • Part II looks at data reflecting the voice of the corporate legal departments, identifying potential opportunities and sources of competitive advantage for proactive law firms;
  • Part III provides an exemplar of a technology roadmap that is tied to a realistic law firm strategy and reviews some of the fundamental steps to implement a client-centric design.

I. Short-term law firm strategy: the beginning of the end

Law firms’ fixation on the short term has been thrown into sharp relief by how they’ve responded to the global pandemic.

To illustrate, let’s break down some of the performance trends among some of the largest US firms, aggregated by Thomson Reuters’ most recent Peer Monitor Index report (Q3 2020).

A. Declining demand

Demand is perhaps the most significant revenue driver. As shown in the graphic below, through Q3 2020, 67% of firms have had demand contraction. Last year through the same point in time, 60% of firms (nearly double of the firms this year) had demand growth.

Although it’s possible for some firms—particularly larger firms—to sustain profitability through diversified practices with countercyclical demand (e.g., Real Estate-related services work negatively correlated with Restructuring), see, e.g., McKinsey & Co, “COVID-19: Implications for Law Firms,” May 4, 2020 (discussing effective law firm strategies during prior recessions), law firms cannot escape the fact that in comparable periods in 2019 and 2020 (Jan-Sept), aggregate demand at the average firm declined 2.1% on a year-over-year basis.

B. Higher billing rates

In times of flat to declining demand, law firms have offset revenue gaps through higher billing rates, more effective realization (collected fees), and by shifting work to higher fee earners (especially partners).

Notice that all these measures are aimed at protecting profitability but do not necessarily create a better client experience. In fact, some of them carry collateral implications that could impair the client experience and the long-term sustainability of the business.

For example, we can read in the chart below that worked rates continued their rise in the latter half of 2020, increasing by an average of 5.0% year over year.  Additionally, fees worked, fueled by higher average worked rates, increased by 2.7% in Q3 and is now up 2.6% year-to-date.

C. Trimming expenses

Moving from revenues to expenses, as shown in the graphic below, law firms have continued to aggressively reduce overhead expenditure through Q3, with average overhead spend down 3.7% on a rolling 12-month basis.  Included in overhead, however, are sizeable year-over-year cuts in recruiting, marketing, and business development, which is likely to impact a firm’s future operations and performance.

[click on to enlarge]
Moving from overhead to direct expenses (i.e., the cost of performing legal work for clients), non-partner timekeepers are, by far, the biggest component.  Direct expenses are still growing year-over-year (1.1%). Yet, if current lawyer staffing trends persist in Q4, we are likely to see overall direct expense contraction. This all demonstrates that firms are beginning to reduce lawyer headcount and relying on partners to pick up most of the work.

Reducing the number of salaried timekeepers is, at best, a stop-gap solution. All service-levels at least equal, one could expect that partners and more senior lawyers directly servicing clients could lead to retention and client satisfaction–that is, if clients are not price-sensitive. However, this approach opens the door to a competitive response from smaller large law firms who are willing to provide similar partner-led service at lower price points.

In fact, we’re already seeing some evidence of this.  According to Thomson Reuters’ 2020 Legal Department Operations (LDO) Index, Amlaw 1-50 firm partners and associates increased their rates on average by ~3.6% from 2019 to 2020; the same fee earners in the Amlaw 101-200 band decreased them by ~1.4%, signaling a willingness to compete on price for the same book of business. See p. 14. What this all means is that law firms are successfully stopping the bleeding caused by a drop in client demand with measures that risk commoditizing their services and endangering long-term growth.

In the not-too-distance future, the levers of short-term strategy are destined to impose real costs on law firm profitability. Cf. Stein’s Law (“If something cannot go on forever, it will stop.”).

Client-centric firms would still be concerned about managing expenses in an economic downturn. However, instead of cutting expenses across the board as a stop-gap measure, law firms could be re-allocating investment into categories that are more likely to yield differentiation, a better client experience, and ultimately strengthen the baseline for sustainable business growth. In order to do this prioritization, they need to look externally and listen intently to their clients, mapping their investments directly to impact in their experience.

It may well be that some client experience accelerators are in technologies or non-billing employees of the law firm. When a firm is more focused on profitability and not tracking which non-revenue generating activities have the most impact to their clients’ satisfaction, retention, and conversion into other practice areas, they risk impairing future revenue drivers.

II. Finding the voice of corporate legal departments

For the last several decades, corporate legal departments have undergone a major growth spurt. See, e.g., Post 003 (between 1997 and 2016, the number of salaried lawyers in legal departments grew by 203% compared to 27% in law firms).  Much of the benefit of this approach came through simple labor arbitrage of bringing law firm associates in-house.  In the current era, however, ongoing cost pressures have forced legal departments to become more sophisticated, including how they engage with outside counsel and how they utilize and leverage technology.

A. Areas of accountability

Corporate legal departments have many areas of responsibility. In addition to delivering legal services for their enterprise stakeholders, they need to mitigate and manage risk for the corporation while consistently demonstrating efficiencies in delivering value to the business.  As a result, they are focused on costs, transparency, and demonstrable impact.

The graphic below provides a snapshot of areas of accountability for corporate legal departments.

Source: Thomson Reuters [click on to enlarge]
Law firms seeking to obtain more work from in-house lawyers need to zero-in on the pressures and pain points that surround each of these areas of accountability.

Indeed, to better manage these areas of accountability, corporate clients seek partnership from their law firms. Yet, a substantial number of in-house counsel tell us that it’s relatively rare to find a true strategic partner who understands their business and uses that business knowledge to be more proactive and more collaborative.  Not surprisingly, firms that fit this bill are awarded a greater portion of overall legal work.

As an example, in a recent discussion among a cohort of large corporate legal departments ($10B+ annual revenue), participants noted how law firms typically position the economic environment to justify annual rate increases. There was agreement among several large corporates that had a law firm been proactive in acknowledging the pandemic-related impacts to their business, reflected in reduced rates or other new tools or resources to help them deal with the reductions they are being asked to make internally, the in-house lawyers would be significantly more likely to award those proactive firms with more work now and into the future.

Based on the discussion in Part I, perhaps it is not surprising that no law firms — literally none — had taken a more proactive, client-centric approach to the challenges of the pandemic. After all, in the face of a downturn in demand, the largest firms are relying on price increases to maintain profitability. Given their perceived lack of options to maintain profitability, law firm leaders and partners may be burying their heads in the sand to avoid listening to the clients on this point. Indeed, this is all anecdotal hearsay until clients begin engaging with competitors in the next market tier who have reduced fees to capture market share.

At the same time that law firms are preserving profitability through higher rates and the shedding headcount and overhead, their in-house counterparts are experiencing a different set of stressors.  As shown in the graphic below, legal departments report increasing workloads and a need to deliver the same level of service with fewer resources—all while increasingly dealing with matters outside their normal areas of expertise due to the pandemic.

Source: Thomson Reuters

Notably, 27% of surveyed corporate legal departments are using more legal technology, while 35% report increasing use of outside counsel.  This picture illustrates how the COVID-19 pandemic has amplified the need for law firms to be closer to their client-base, who are more willing to spend on the right matters and engage with technology.

B. Growing use of technology and data

Increasingly, corporate legal departments are relying upon technology (and the data it collects and processes) to help them operate more efficiently, effectively, and better mitigate risk.

In Thomson Reuters’ 2020 State of the Corporate Law Department report, 70% of today’s corporate legal departments identified use of technology as a high priority. See  p. 16. Likewise, in our 2020 Legal Department Operations (LDO) Index, 56% of legal departments reported a rate of process or technology advancement that was either moderate (“demonstrated progress each year”) or fast (“large-scale advancement each year”).  See p. 9.  Technology and data ultimately help corporate legal departments better demonstrate their value and act as a business enabler. How many law firm leaders and partners are keeping pace with these changing dynamics?

Although the use of technology may have been accelerated by the pandemic, legal departments are not adopting technology haphazardly. Like other functions within the enterprise, even before the pandemic, they have incrementally defined legal technology roadmaps aligned with business strategy to help control cost, and drive efficiency and effectiveness.

For example, the 2019 Corporate Legal Operations Consortium (CLOC) Report identified technology as a key area of focus among legal operations professionals, with the goal of improving transparency, data analytics, efficiency, quality, consistency of work, and speed of execution.  Of CLOC members surveyed, 72% reported having a technology roadmap.  See p. 16. We should expect continued growth of technology alongside the evolution of legal department processes.

Jason Barnwell, AGC, Modern Legal at Microsoft

Technology roadmaps in corporate legal departments are being planned and deployed by expert talent brought in to leverage adoption accelerators. Gartner recently predicted that by 2023, 33% of corporate legal departments will have a dedicated legal technology expert to support the increasing automation of core in-house workflows.  Jim Murphy & Nader Henein, “Predicts 2020: Corporate Legal and Compliance Technology,” Gartner, Dec 17, 2019.  Additionally, as Jason Barnwell points out in Post 210, technology adoption costs have plummeted due to cloud services, no code low code platforms, and natural language machine learning models bridging the gap.

The most common technology used in corporate legal departments today is an eBilling/Spend and Matter Management system, but there is rapid expansion in the corporate legal use of technology, including contract management solutions designed for the legal work within the legal department, document management solutions, and the expanding the use of legal-specific productivity and workflow solutions.

An example of COVID-19 accelerating tech adoption can be seen in the use of e-signature technologies, which typically started with a few subscribers in the legal department, but in an all-remote working environment has expanded to all signers and members of the legal department within the corporation. Indeed, this was an opportunity for in-house lawyers to be true business enablers.  Law firms that enable similar outcomes will find themselves in a true long-term partnership with their clients.

III. Technology roadmaps that proactively meet client needs

Other posts on Legal Evolution have made the case that the legal services market is destined to become much more multidisciplinary, primarily because one-to-many products and solutions can only be built by combining law with expertise from other allied disciplines. See, e.g., Post 190 (“By their very nature, one-to-many offerings require multidisciplinary teams.”); Post 128 (Anusia Gillespie discussing multidisciplinary nature of legal innovation); Post 126 (noting that “[o]ne-to-many legal solutions are built by teams of multidisciplinary professionals”); Post 088 (Liam Brown discussing Elevate as a “1,200-person, multidisciplinary organization of lawyers, engineers, consultants, data scientists, and business professionals”).

One of these essential disciplines is technology.

A. Technology roadmaps: an example

A technology roadmap is a plan that identifies the specifics on how technology can support the organization’s strategies and priorities over a specific time period (typically a three-year window).

Within corporate legal departments, technology roadmaps are being designed to address the strategic needs of their business stakeholders. Likewise, in designing their own technology roadmaps, law firms would be wise to work with their clients to identify shared needs and opportunities to build in collaboration functionality, an enhanced user experience, and interoperability between systems employed by the law firm and their core clients.

Too often, law firm technology roadmaps are based exclusively on imitation of technologies used by competitors and in response to requests from internal firm stakeholders. If the development of a roadmap is approached as a client-centric design with implications for firm strategy rather than a planning exercise done for budgeting purposes, an organization has the opportunity to explicitly identify and reconcile internal stakeholder needs with client expectations.

In addition to understanding the technology roadmaps of the law firm’s key clients (i.e., at corporate legal departments), technology leadership at law firms should work closely with key Personas at their clients (i.e., legal operators and technologists) to understand the source of their priorities and challenges. By collaborating with true empathy, they may be able to stage technology investments at the law firm in a way that aligns the desired experience for internal and external ‘clients’ with feasible deployment and adoption schedules.

To help make the concept of a technology roadmap more concrete for lawyers working in law firms, consider the following prototype, which we built based on themes and data collected by Thomson Reuters. We start first with the known needs and desires of our clients.

According to a recent Insight update by research firm Acritas, the top 5 law firm improvements most desired by clients were the following:

Source: Acritas Quarterly Insight Update (Oct 2020)

With this knowledge, a law firm’s technology organization should frame assumptions and hypotheses around how their technology roadmap decisions could impact clients and vice-versa.  For example, if key client organizations are facing a significant need to control costs, should the law firm’s roadmap include investments in structuring and managing data that can help demonstrate the value and predictability of alternative fee arrangements?  Another example: Should the firm invest in financial management systems and processes to proactively show adherence to client billing guidelines and technologies to reduce clients’ internal time in invoice review?

The image below illustrates how we can take the top 5 client priorities for 2020 and translate them into strategic objectives for the firm:

Source: Thomson Reuters

In turn, we use these strategic priorities to inform the action component of the firm’s technology roadmap:

Source: Thomson Reuters

This example is based on general trends, which are a good source of information to form assumptions and hypotheses around client needs and expectations.

That said, a law firm’s technology roadmap should be designed around the specific needs of their key stakeholders, including internal practitioners and the firm’s clients. All law firms are different: from their internal planning and budgeting cycles to their risk appetite, technology maturity, and their client portfolio and relationships.

The key takeaway is that we’ve provided evidence for why embedding client-centricity in technology roadmap planning makes strategic and business sense for the law firm. We’ve also laid out how technology initiatives can be directly tied to discrete client priorities and expectations, in addition to internal law firm stakeholder expectations. The crucial piece for law firm leaders is to frame the roadmap planning process as a business service design exercise, where the output is a roadmap capable of aligning client value expectations with the law firm’s strategic goals and priorities.

B. Benefits of technology roadmaps; risks of not having one

The value of an aligned and communicated roadmap is that members of the firm understand the mid-term direction and technology strategy making the change management journey simpler.   Corporate clients continue to look for firms to be more proactive in demonstrating value, and a technology roadmap that is focused on client needs is a valuable way to differentiate.

A clear roadmap can also reduce the risk of deploying the wrong technology at the wrong time, reduce the risk of lack of connectivity between tools, and ensure resources to demonstrate technology success.  Finally, without a technology roadmap, there could be a competitive disadvantage, compared to firms who demonstrate client value through their technology strategy, as corporate clients are looking to award a greater percentage of work to firms that are proactive in value demonstration.

Below is a graphic we created at Thomson Reuters to remind stakeholders of the immense risk we take on when we fail to create a detailed client-centric roadmap:

Source: Thomson Reuters

C. Designing a client-centric technology roadmap

There are several principles that law firm leaders, working with their own technologists, can draw on to make their technology roadmaps more client-centric. Many of these principles can distilled from the application of Design Thinking methods on the planning process.

In this final subpart of our essay, we offer the following three pointers:

1. Contextualize and prioritize the problem

The clients’ biggest pain points and challenges are often the law firm’s biggest commercial opportunities.

One way to identify these problems/opportunities is to conduct a simple survey of the firm’s core clients. From there, build assumptions and hypotheses that can be validated through client discovery interviews, quick experiments and pilots. In addition, set up advisory board sessions with key clients and a representative group of law firm users (e.g., early adopters) to narrow down and prioritize investment opportunities.

What we are trying to build here is a methodologically strong sounding board to define problem and opportunity spaces before defining technology initiatives on the roadmap.

2. Map the Journey

Before a full-blown exploration of technologies and applications available in the market, it is imperative to understand the people, processes, and systems currently in place.

We can accomplish this by listing out systems utilized to form a clear picture of our technology stack, including contract renewal dates, available updates, and active utilization levels of technologies available to the firm.  We also want to Identify the most common internal requests for new products or technologies and understand common client requests for better collaboration or technology harmonization. For all existing and desired technologies, we want to place them into context within the existing workflows and evaluate how well they are working.

Mapping the journey should be about plotting scenarios where specific technologies can improve predetermined use cases, workflows, and metrics.  This is because we want to identify entry-points to the technology for users in the process as well as interoperability opportunities with existing systems for the technology investments under consideration.

The journey mapping process is also a golden opportunity to actively engage with clients. Legal departments are always looking for ways to proactively monitor and assess business risk, and increase speed in business transactions to act as a better business enabler.  We should be exploring how the firm’s technology investment and better data can help drive a client’s business objective.  For instance, one of the best-case scenarios is when a potential technology investment by the law firm can help position the client (i.e., legal department) as a revenue generator to offset the perception that legal is only a cost center.

Finally, as we go a level deeper and map processes that could be improved by technology investments, we need to define requirements and success measures along the way, including metrics that track the impact on the overall client experience. Setting these benchmarks will allow us to better plan adoption and monitor how the investment is trending.

3. Plan for implementation and/or procure solution

Technology roadmaps don’t always have to result in the procurement of new technology—indeed, we may have a system in place that needs to be optimized versus replaced. With a map of priorities and processes, it will be easier to stage initiatives in ways that build on each other and demonstrate value along the way. It will also allow us to allocate resources for deployment.

In summary, if a law firm invests the time and resources into creating a high-quality client-centric technology roadmap, they are likely to be repaid many times over through the time saving and reduced risk of actual technology purchase.

The graphic below provides a quick recap of the process for creating a client-centric technology roadmap.


Engaging customers in the technology roadmap journey is a true opportunity to gain a greater share of overall corporate work. In addition to producing a truly differentiated client experience, over the long-term, it is sure to equate to greater law firm profitability and the future sustainability of the law firm operating model.

Legal professional skepticism of the future value of change investment leads to underinvestment.

A first-pass look at our future.

In earlier Legal Evolution posts, I’ve shared reflections upon my career journey (080), professional evolution (143), and current area of focus (159).  This article describes an investment hypothesis for the upcoming decade focused on building the future of the practice of law [hereafter, “future practice”]. The conclusions are inaccurate, which obviously requires some explanation.

The goal of this essay is to frame the problem, describe the starting direction, and share updates as we get smarter.  Indeed, what we are trying to solve is what policy analysts call a “wicked problem”— a problem so complex that it is highly resistant to resolution.  Because “[t]ackling wicked problems is an evolving art,” Australian Public Service Commission, “Tackling wicked problems: A public policy perspective,” June 12, 2018, we must give away the playbook so that the entire ecosystem can evolve to support our adaptation.

[Editor’s note: This is a dense essay that’s worth your time.  If Susskind gets credit for the concepts, Barnwell is the practice master who can draw the blueprints. wdh]

Society needs better legal infrastructure

Legal systems matter because they are infrastructure for civil society. We all share these roads. Our current legal infrastructure was designed for the pre-industrialized 19th century. See Gillian Hadfield, Rules for a Flat World (2016) (history of the development of legal infrastructure); see also Post 207 (discussing Restatements of Law as a prime example of shared legal infrastructure). But we live, work, and play in a world with far more volume and types of interactions. Our legal infrastructure’s systemic lack of process rigor, information, and adaptability will produce consequences with increasing frequency and systemic outcome severity. See Chris Clearfield & András Tilcsik, Meltdown  (2018) (when complex, tightly coupled systems fail, they do so spectacularly).

Source: HBR.org [click on to enlarge]
The implication is as obvious as it is hard:  We must evolve our legal systems and how we perform legal work within them to provide speed, scale, quality, and access. See Daniel W. Linna, “Evaluating Legal Services: The Need for a Quality Movement and Standard Measures of Quality and Value” in Research Handbook on Big Data Law (Ronald Vogl, editor, forthcoming 2021)(law needs standardization, empiricism, and data to evolve). The emerging dynamics that require these changes are being examined with more rigor and provide investment targets. See Nathan Bennett & G. James Lemoine, “What VUCA Really Means for You,” Harv Bus Rev, Jan-Feb 2014 (offers general approaches to volatility, uncertainty, complexity, and ambiguity, referred to as “VUCA”).

Legal Infrastructure’s change resistance was a feature and is a defect

Legal infrastructure is built upon institutions, systems, and culture that change slowly. This inertia insulates the participants from capricious change. It also limits the system’s ability to react to necessary beneficial change. Society’s accelerating evolution makes systemic non-reactivity to change more of a liability than an asset. These systemic traits devolve from us as legal professionals.

The legal profession has long selected for, trained, and rewarded narrowly focused subject matter experts who draw from the past to build the future.  Cf. Post 043 (reporting on launching of IFLP as a vehicle for training T-shaped lawyers with process and design complements). This backward focus has been rational behavior that has launched many successful careers. But it also carries downside risk, particularly for the profession as a whole, such as an underinvestment in assets that could prepare us for a future that looks very different from the past.

In the famous “multi-armed bandit” resource allocation problem,  the agent seeking to maximize her chances of survival has to allocate her finite attention between acquiring new knowledge (exploration) versus deciding based on existing knowledge (exploitation). If the maintenance of civil society depends upon redesigning and upgrading legal infrastructure, what is the optimal mix of our attention between exploration versus exploitation?

As this essay’s lead graphic suggests, if we are paying any attention at all, it’s obvious that our profession’s skepticism toward change affects our change investment.  See, e.g., Post 160 (per Randy Kiser, lawyer attitudes toward “non-essential” learning limits profession’s adaptability); Larry Richard, “Herding Cats: The Lawyer Personality Revealed,” Report to Legal Management, Aug 2020 (attorneys average 90th percentile for skepticism); Ron Friedmann, “Our Perception of Change,” Prism Legal, Dec 2019 (perception of change is relative to observer’s career starting point).

In turn, this underinvestment exposes all of us–lawyers, clients, and broader society–to potentially large system-level risk.  Below is a graphic that models the career investment behaviors of the typical legal professional. Note how our exploration tends to flatten out shortly after becoming a minimum viable lawyer (MVL).

Legal professionals invest less in exploration investment behaviors as their careers progress.

Modeling future behavior on past behavior without revision becomes irrational following system inflection points. Reshaping career investment patterns is just one small part of the overall wicked problem of legal infrastructure upgrade and adaption.

We are at a system change inflection point

People have predicted radical shifts in the delivery of legal services for decades. Pioneers have been doing the heavy lifting to prepare the market. See, e.g.,  “How to Run a Legal Department Like a Business,” Business of Law Podcast, July 2, 2020 (Jeff Carr details systematically creating a business-adaptive legal department). In my work for Microsoft I see signals in the commercial legal market that predict system change.

One of the most significant is that more legal professionals with elite executive and business management skills are ascending to leadership roles at enterprise legal services buyers and driving value-focused approaches to their business. Commercial engagement models among enterprise legal services buyers and sellers were historically driven by two primary factors: relationships and outcomes. The emerging breed of leaders are adding a third factor of how the work is done to maximize value for the business. Because they have executive leadership capabilities, they’re able to drive behavioral change at-scale within their organizations.

We also see legal executives who are data fluent. We will see far fewer senior legal leaders proudly proclaim they went to law school because they do not like math. Everyone who reports into the C-Suite will bring data that supports their story for the value their organization brings to the enterprise. See Corporate Legal Operations Consortium, “From Global Pandemic to Inspiring Innovation,” CLOC Global Institute, November 19, 2020 (General counsel share professional executive approaches to transformational leadership during a pandemic).

Enterprises are creating demands and constraints that require us to change how we deliver legal services.  As they invest in growth businesses, they are driving more work through their business capabilities, which in turn generates increased legal demand.  Yet, as the business value chain tightens, that work must be done more quickly. Businesses are simultaneously holding all functions more accountable for their resources and creating constraints that make it harder to service increased demand with conventional approaches. If capacity must increase by 10x, our current approaches breaks, as the option of a 10x increase in hiring is simply off the table. We will continue to see these demand/constraint pressures amplified as other parts of businesses make smart investments that force adaptation by their internal and external partners. See Walter Frick, “The Real Reason Superstar Firms are Pulling Ahead,” Harv Bus Rev, Oct 5, 2017 (outperforming firms holistically build business systems powered by IT investments).

Technology that can transform legal work has been available for decades. Unfortunately, it has not taken hold because it required too much specialized expertise to put into production and it required the people who do legal work to change too much to use the systems.  Yet, in recent years, the adoption costs have plummeted:

  • Cloud services ease the burden of acquiring new technology;
  • No/low-code application development platforms reduce dependencies upon scarce development talent; and
  • Natural language machine learning models create software powered experiences that do not require legal professionals to change much about how they work.

Indeed, low-code is akin to adding moveable type to the printing press—you no longer need a scarce expert to produce something good enough that scales. See Annie Keating, “Low-Code Automation and the Future of Work,” Forbes, Apr 28, 2020 (low-code software solutions bridge the divide between business needs and solutions).

Early career legal professionals are acquiring skills that complement their substantive legal capabilities that will let them leapfrog their conventional peers. People like Cat Moon, Dan Linna, Gabriel Teninbaum, and Houman Shadab are imbuing legal professionals with design and technical skills that change how they can solve problems.

This influx of skills changes the scale of the problems we can address. It also radically reduces the effort required to produce a solution because you do not have to attract skills that don’t normally interact. The combination of some system thinking and process skills (perceive the problem), some design skills (envision a potential solution), and some technical skills (implement the potential solution) converges to produce a legal architect who can make an alpha release product with little support. In small steps, this convergence is already happening. See, e.g., “Design Thinking,” Business of Law Podcast, Sept 3, 2019 (Microsoft partnered with Bold Duck Studio to catalyze innovation with basic business design skills).

In 2017 we ran an experiment in our productivity hacking community to empower anyone in the Microsoft Legal Department who wanted to create a bot to make a bot. See “Orrick and Microsoft Legal Productivity Hackers discuss innovation and Microsoft Teams,” Business of Law Podcast, May 23, 2019. We produced several simple bots that did basic things, but the real value was acquiring know-how and activating our people. One of those intrepid bot builders was not satisfied with his out-of-office bot and partnered with an engineering team to produce an enterprise-scale bot that supports the commercial legal team. See “Building an Enterprise-Ready Bot,” Business of Law Podcast, July 11, 2019.

Indeed, in 2020, people can build useful bots very quickly.  In part, this is because the required technical effort is now a fraction of what it was just a few years.  Another part is the combination of low/no-code and off-the-shelf machine learning services, which results in tools that are truly useful to the sophisticated tasks of in-house lawyers.

Indeed, these building blocks are available now. What is missing, however, is the cultural and technical capabilities to deploy them—which is why we need to invest now.  We can build or buy technology, but culture is always a nonnegotiable build.  At Microsoft, our know-how on this is hard-earned.

The future practice is in production at enterprises

Microsoft’s Open Source and Standards practice demonstrates a pattern for delivering legal services at massive scale. See “How to Scale a Practice,” Business of Law Podcast, July 20, 2020.

The open source practice has scaled to service 1,000 times the starting request volume over the last decade, yet the legal team has not grown. Scaling support for orders of magnitude of growth requires rebuilding the processes from the ground up, building optimized machine support, and a ruthless focus on conservation of human attention.

The open source practice built an extensible model for identifying the type of issue they were facing (e.g., a given open source family type applied to a given business motion) and what to do about it (e.g., ask these questions of the business, and if within specification, deliver this guidance). They built a systematic process for identifying the gaps in their data and processes and created mechanisms to constantly convert their known-unknowns to known-knowns. They also partnered very closely with their business clients to develop a shared taxonomy and set of procedures that work across internal organizational boundaries.

The open source practice’s common taxonomy process and framework was the basis for creating tooling that scales and accelerates the business and legal processes. It pushes as much work as possible into rule-driven workflows that meet the end-user customers where they are. The first two generations of open source tools pulled engineers out of their native tools and created friction. The third generation was built by the business with constant input from the legal team and was native to the engineer tool space, but still had substantial manual elements. The fourth generation turned the tool into a background process analogous to other standard elements of the build and testing process for most scenarios. It runs with minimal human intervention unless there are exceptions.

The success of the open source practice required business investment to solve the system-level problem.  It took years to create buy-in that (a) the work had value, and (b) needed to be a business native solution that includes continuing architecture and expertise input role for legal. Yet, the result was a 1000x gain in productivity.

Today, the open source team spends most of their time looking for unknown unknowns and working on known unknowns. They are a small team that supports the work of tens of thousands of engineers. This leverage is built upon a disciplined approach to avoiding duplication of effort. They structure the way they ask for work and the delivery form of work product from outside counsel to ensure optimal re-use with minimal work translation effort by their team. They spend more of their time policing the frontier because they did the foundational work of installing traffic lights in town. They are simultaneously pioneers and town planners. See Simon Wardley, “Pioneers, Settlers and Town Planners,” Pieces or Bits, June 4, 2012 (role archetypes for scaled value creations); Simon Wardley, “On Pioneers, Settlers, Town Planners and Theft,” Pieces or Bits, Mar 13, 2015 (how to foster the archetypes).

Some believe this scaling model cannot be applied to other types of legal work. They presume the nature of the open source pattern’s legal work creates implicit work standardization, and the interaction with engineering clients increases tooling automation potential. But the pattern can be applied to so many kinds of practices if the legal professionals can get past two challenges.

  1. Status and identity.  Some legal professionals view these implications of process and mechanization as a threat to their status and identity. Many legal professionals take pride in being craftspeople with the exquisite capability to deal with nuance, context, and ambiguity. And they should. But being able to describe the decision tree and operations that produce an outcome does not diminish the impact of the outcome produced. Some of those operations are complex and can only be performed by skilled experts. Some of those operations are highly context and judgment dependent and can only be performed by experienced experts. It is often the most adept who can describe complicated things in simple terms, and sort matters as novel or routine.
  2. Critical thinking swamps system thinking. Some legal professionals struggle to see the patterns in their work because they developed strong critical thinking skills to the exclusion of system thinking skills. They are so adept at distinguishing and advocating for why things that seem the same other are different that they are challenged to observe and describe patterns based upon similarity. See Post 080 (discussing tension); see also Herman Kahn, “The Expert and Educated Incapacity,” Hudson Institute, Jun 1, 1979 (expertise can blind us to solutions outside our own discipline). Design thinking exercises that bring together groups of experts facilitated by allied professionals can be invaluable. Exposing legal professionals to these ways of thinking and skills earlier in career changes their potential to create an impact because it accelerates their progress to change-makers. And because most legal work is a form of knowledge work, see Post 159, we can import and build upon general knowledge work concepts to build an investment strategy that can balance cost, risk, and talent over the long term.

The graphic below attempts to summarize the enormous skills and mind shift needed for us to transition to big-picture systems-level thinking and problem-solving.

A learning and development process that helps people embrace systems thinking.

Because of a lack of investment in foundational training, we often get stuck at the “collaborate effectively” phase. Obviously, this is a transition destined to last a full generation or more.

System dynamics shape investments that create the future practice

The environments in which legal services will be delivered are increasingly volatile, uncertain, complex, and ambiguous (VUCA).  Building upon the Bennett and Lemoine VUCA approach, we can create an investment framework that helps our organizations and institutions systematically adapt

We can define a problem space that describes the characteristics of legal issues in relation to how much we know about an issue (information) and what we know to do with an issue (approach). These defined spaces for volatility, uncertainty, complexity, and ambiguity produce a prototype virtuous cycle solving sequence that can be used to develop and sequence a strategy for systematic adaptation. Such a prototype might look like this:

  1. Take what you know how do to, identify and extract the processes, refine them, and instrument them to start producing data from the work.
  2. Feed the data from your upgraded processes into an intelligence mechanism that classifies, derives insights, and shares information broadly with your organization and partners.
  3. Build processes that influence the behaviors of your people and collect data on the outcomes, and feed what is learned into process redesign and intelligence mechanisms.
  4. Use the efficiencies gained from optimizing activity for impact to redeploy resources as reinvestment, and offer your investment to others who have resources deployed to underperforming assets.

The graphic below is a visual depiction of this suggested prototype:

An investment cycle framework for addressing volatile, uncertain, ambiguous, and complex issues.

The path to structure and process invites thinking about scale with the premise that expert human attention is the primary constraint on scaled legal work. [emphasis added by editor. Go ahead and read it a second time. It’s that important. wdh]

The future practice scales

Growing demands for legal services can be satisfied by using approaches that scale, which in turn manages the problem of growing complexity by applying structure. This typically means providing services that deliver adequate quality, faster, using techniques that consume fewer scarce resources, such as the time of experts.

A conventional approach to scaling a practice by applying structure might look like this:

  1. Experts teach novices enough about what to look for in the work and what to do when found to make them generally work-capable within mostly known scenarios with continuing expert oversight. This might create 10x leverage on the expert.
  2. Expert and capable workers partner with process experts to produce instructions that allow humans with very limited understanding of the subject matter to operate within fully known scenarios with continuing expert and capable oversight. This might create 100x leverage on the expert.
  3. Process experts partner with the expert workers, capable workers, and tools experts to build machine powered capabilities based upon the information observed through the instructable workers with continuing expert, capable, and process oversight. This might have no upper bound on the expert leverage.

We need to get from expert-delivered to machine-delivered experiences faster. The conventional approach is challenging because it has high coordination costs and often requires selling the experts on the value of investments that may not be aligned with their personal interests (subject matter interest and prestige) or economic incentives. See, e.g., Post 051 (Jae Um noting that legal innovation is hard because the ecosystem is complicated and actors are obscured); Post 010 (discussing how professional service firms, even in the managed services space, must balance interests of clients and talent to achieve both profit and long-term stability).

Organizations that want to accelerate legal innovation with a radical approach will hire and/or retain subject matter experts who have some process and tool capabilities that tighten the innovation loop. The graphic below provides a preliminary sketch of how such an approach could be conceptualized and built.

Scaling legal work requires complementary skill sets.

The above model might work in theory, but what about in practice?  Another part of our wicked problem is the alignment of both intrinsic and extrinsic incentives with innovation behaviors.  Getting this design element right is no less tricky than a complex workflow or a sophisticated piece of technology. Cf. Post 203 (noting how one-to-many solutions require the creation of new business models, as the technology already exists).  William Henderson, “The Legal Profession’s Last Mile Problem,” May 26, 2017 (same).

That said, in pursuit of scalable legal work, we should not try to turn legal professionals into software engineers. Success is producing legal professionals capable with basic process and design thinking approaches and the emerging set of tools that can produce software solutions without writing code. We are capable of learning new tools when we have proper incentives and support. Indeed, there was a time most attorneys relied upon secretaries to type for them.

Organizations that make these investments create an option to disrupt existing businesses, including their own. See Clayton M. Christensen, Michael E. Raynor, & Rory McDonald, “What Is Disruptive Innovation?,” Harv Bus Rev, Dec 2015 (addressing the underserved bottom of a market creates growth trajectory that can reach upmarket and dislodge entrenched providers). But this “disruption” does not have to be destructive for the value or experience of experts. Rather, it can give them more of what they want.

The future practice explores

Most attorneys probably went to law school seeking an aspirational career outcome. They wanted to be intellectually stimulated and produce work that creates a beneficial impact. They did not seek a practice of repetitive tasks, acting as human information routers and middleware, and otherwise spending their time on the realm of known-knowns that do not demand their analytical skills.

Experts spending so much time with the known is a perverse outcome of needing more information to adapt to increasing uncertainty. The tedious gathering of that information by lawyers is justified (or rationalized) based on reducing or managing risk, albeit framing it this way does not make the work more enjoyable for the lawyers.

We spend more of our time on this mundane work because we do not wrap our work in structure, systems, and tools that shape work and feed back refined information. Instead, we become the system that constantly translates inbound and outbound work, even when that work is well known for type and context. Attorneys will try to push the work they do not want to do to other humans with different skills. Delegation is critical. But the delegation must happen in a way that supports the future practice.

Work and information must land in a machine-supported state that creates shared knowledge. When we transact information solely with humans, we are subject to the limits of our collective human cognition. This includes our limited abilities to reason across massive amounts of information, the speed with which we can service requests, and our limited capacity to switch across information formats and experiences. We see the normal human response to these burdens when people do not share information and do not consume information.

The graphic below depicts the system friction inherent in our information flows.  Along the left and right sides are four hypotheses that illustrate some possible reasons why this is a very wicked problem to solve.

A surface plot highlighting communication switching costs.

We can frame the investment pattern for systematic adaptation that builds the future practice in a way that (a) elevates the work legal professionals crave and (b) creates less identity threat and incentive misalignment.  Indeed, we want legal subject-matter experts exploring the frontier of their practices looking for unknown-unknowns and solving for known-unknowns. See Post 071 (Bill Henderson describing investment in substantive law (Type 0) and service delivery (Type 1) and how rarely new opportunities are pursued);  “Clive Gringras discusses an International Legal Practice Built for the Future,” Business of Law Podcast, Apr 2, 2020 (how to learn clients’ business and preferences to identify work and shape innovation investment).

The investment pattern asks experts to do something that is both unnatural and difficult for them:  work within a process that reduces the concepts that identify issues and the principles that govern how they address issues into increasingly concrete and granular descriptions that can be handed off to actors with decreasing context and judgment capacity.  In its highest form, work is delegated into the machine realm. This investment pattern and evolution gives experts more time to roam the frontier pursuing the most interesting work and brings them data-powered insights that help them cover more ground faster. This systematic approach also unlocks a higher tier of the future practice that takes it from data-informed to data-driven.

Below is a graphic that illustrates how this type of systematic adaptation might work in practice.

Creating scale on legal work involves systematic adaptation that focuses on conserving the attention of the most skilled humans.

The future practice experiments

The future practice will support organizations that systematically adapt to pursue ambiguous opportunities using experimentation.  Indeed, these experiments are, in essence, how the organization (i.e., our client) gathers the data necessary to develop a high-value/low-risk strategy. Below is a graphic that illustrates the competitive advantage inherent in this approach.

Legal work can be scaled with the combination of knowledge management and systematic experimentation.

It is unrealistic to conclude that experimentation will not diffuse into the legal function. To prepare the way,  we need to adopt and support similar frameworks. A knowledge management (“KM”) process and system that builds upon machine intelligence are required to make this performant (computer jargon for “good enough”) and scalable.  In turn, by solving individuals’ problems, these systems will earn the access necessary to create collective knowledge. See, e.g., “Ballard Spahr’s COVID-19 Legal Response with Digital Transformation,” Business of Law Podcast, June 22, 2020 (practical approach to creating a scaled information resource).

In the years to come, we will see KM blossom as machine learning reduces adoption costs by meeting people where they are—in the communication layer. What does this mean? The ground truth of what is happening in an organization is probably best defined in the communications that flow among the organization’s people. Systems of record and formalized documents often reflect dated information because they require a person to break out of the inner loop and tools that power their work. Working in these secondary systems is expensive because they require an additional layer of skills to use them and context switching to access them. People minimize their tax by batching their engagement, which in turn creates delay and inaccuracy.

To operate within the communication layer, we must invest to build domain-specific, natural language, machine learning models. Legal professionals use a combination of practice, customer, and organization-specific jargon in their work. Unsupervised learning (a specific type of machine learning) offers promise for the future, but without help, current off-the-shelf models may not work well in these specialized environments. To bridge the gap, we will use commodity tools to train models that can operate in subject-matter experts’ native tools and perceive intent and signal accurately enough to act with confidence. See “Tagulous Demo for CLOC Las Vegas Institute 2019,” Business of Law Podcast, May 14, 2019 (prototype approach to capturing actionable signal from email using machine learning that supports KM built on commodity cloud services). Earning the privilege to act within the expert’s primary toolset is necessary to transition from data-informed to data-driven.

The future practice is elegantly data-driven when supporting systems of intelligence inform an actor with the least amount of information necessary to make a better decision before they are committed to a course of action.

My commute provides an example of what this looks like in real life. Shortly before I choose between two routes, I get specific information on a road sign that updates with current commute times of my options. This is exactly what I need to make a choice with better outcomes. As our approaches advance and mature, we will produce more experiences that inform while also taking extreme care to preserve scarce human attention.

The future practice is fully connected

To operate at the scale that unlocks the greatest potential of our legal infrastructure, the future practice need standardization across organizations that enables more machine supported patterns that help us connect our work.

The image below models a standard interaction pattern for legal work. Imagine a basic request for some form of contract review. It begins with a business customer, migrates through internal counsel, emigrates to outside counsel, and ultimately round trips back to the customer. This kind of interaction is typically transacted through a series of point-to-point email communications that may include attachments.

Scaling legal work with augmenting machine support.

We will build standard definitions for frequent, known-known work requests that operate inside and across our organizational boundaries. This will support the adaptation and KM investments by making it easier for machines to assist work as it moves through enterprise information systems. When we build open standards for work definitions, we can (1) transact knowledge across organizational boundaries with partners more efficiently, (2) measure work quality more easily, and (3) promote re-use by avoiding duplication of efforts. See Standards Advancement for the Legal Industry (SALI) Alliance (focused on developing open industry standards).

We also need a set of legal industry-focused application programming interfaces (“Legal APIs”) that allow us to start building machines in all parts of the ecosystem that can efficiently throw and catch work with different combinations of customers and partners. This is a critical investment that will bring speed, efficiency, and better decision-making, at-scale. And it will help our profession evolve into an industry that continues to provide the critical infrastructure society needs.

The future practice pattern will create more value through access

My perspectives are informed by commercial concerns, but the patterns can be applied to many types of legal services for many types of customers. Enterprise and consumer. Commercial, public sector, and public good. We will create more value if we can create more commonality across our respective needs. I believe we will get there. It is a question of path and pace. But the journey has already started.

Jumping as metaphor for innovating

The low bar set by an insular, self-satisfied profession.

The legal profession is stymied by an innovation crisis. We lack the bold ideas, new models, and financial commitments necessary to address our acute dilemmas and deficiencies in law firm efficiency, client satisfaction, legal education, law student indebtedness, racial injustice, lack of diversity in law firms and courtrooms, attorneys’ mental health, access to justice, gender bias, legal services delivery systems, sentencing disparities, civil justice expense and delays, bail reform, and mass incarceration. Each of these problems requires a level of innovation that has evaded the legal profession for decades.

In this post, I hope to accelerate our understanding of legal innovation by discussing these five questions:

  1. Where do attorney innovators come from?
  2. Are law firms innovative?
  3. What does innovation look like?
  4. What is not innovation?
  5. Why don’t we innovate?

As discussed below, the legal profession suffers from a paucity of innovators, a tendency to package minor changes as major innovations, confusion about the origins and elements of innovation, and cultural and personal traits that inhibit or outright quash innovation. To become innovators, we have to look at successful, innovative organizations and adopt their philosophy that innovation is everyone’s responsibility and should permeate every decision about people, processes, policies, and priorities.

1. Where do attorney innovators come from?

While the current technological revolution is transforming nearly every aspect of social interactions and business practices, only one percent of undergraduates cite “ability to work with or develop cutting edge technology” as a factor in considering a law degree. Only three percent of undergraduates consider “opportunities to be original and creative/innovative” as a reason to consider law school.  See Association of American Law Schools, Beyond the Bachelor’s: Undergraduate perspectives on graduate and professional degrees at 42 (2018). No other graduate or professional school has been this successful in persuading candidates that their interests in technology, innovation, and creativity are unwelcome and likely to be thwarted.

The perception that the legal profession is hostile to technological advancements and innovative thinking has discouraged generations of inventive undergraduates from applying to law school. If a tiny percentage of inventive undergraduates sets aside their apprehensions and applies to law school, believing that opportunities for new technology and innovation might exist in law, the law school admissions process often imposes another barrier to entry. Inventive students present profiles that may not match conventional law school admissions criteria, and it is difficult to find a law school that expressly considers innovation, creativity, and technological proficiency among the factors secondary in importance after LSAT scores and undergraduate GPAs.

Given undergraduates’ general perception that the legal profession does not provide opportunities for technological advances and novel thinking, and law school admission practices that emphasize conventional achievements and skills, law firms and legal departments hiring attorneys are left with a tiny pool of potential innovators. And they may not be interested in hiring potential innovators anyway. Legal employers generally place a low priority on technology and innovation, as indicated by the Institute for the Advancement of the American Legal System’s (IAALS) survey of 24,000 lawyers: “Three of the four Technology and Innovation foundations were classified as necessary in the short term by one-quarter or less of respondents.” IAALS, Foundations for practice: The whole lawyer and the character quotient, at 24 (2016).

Consistent with the profession’s depreciation of innovation, Harvard Law School’s Office of Public Interest Advising has identified 90 likely interview questions, and only one question specifically addresses creativity. No specific reference to innovation or technology appears in the other 89 questions. While innovative companies are asking job candidates, “Tell me about a time when you invented something,” many law firms are still asking them, “Tell me about a complex legal issue you worked on.”

Scott Westfahl

If an aspiring innovator survives the law school admissions and law firm recruiting processes, she will find it difficult to innovate as an associate attorney. In the initial years of practice, as Scott Westfahl, Director of Harvard Law School Executive Education, notes, attorneys are confronted with the harsh reality that “they need to focus most of their attention on building technical legal skills because they did not learn them in law school.” Westfahl, “Learning to lead: perspective on bridging the lawyer leadership gap,” in Leadership for Lawyers, at 80 (Gardner & Normand-Hochman, eds. 2019). They are at “a significant disadvantage,” Westfahl states, because the need to acquire core technical skills “crowds out” the development of other professional skills. “It’s hard to catch up,” he adds, “especially when you do not know what you do not know.”

In that sense, legal education stifles innovation because it does not provide the threshold skills necessary for the practice of law. When only three percent of surveyed students cite “practical skills” as the most important skill developed in law school, we can’t expect new attorneys to innovate; they are struggling to meet basic performance requirements. See Gallup & AccessLex Institute, Examining Value, Measuring Engagement at 14 (2018). Since law schools are not preoccupied with teaching technical skills, we might expect that they are developing a few students’ innovation and creativity skills. But Gallup reports that “0%” of students identify “creativity” as the most important skill developed in law school. Id. at 14.

As attorneys advance from associate to partner, they learn that law firm incentive structures do not emphasize innovation, creativity, and technological advances. In fact, those factors do not appear on surveys identifying the key factors in partner compensation. See Major, Lindsey & Africa. Partner Compensation Survey at 40 (2018). When asked to identify qualitative and quantitative factors that should be given greater weight in partner compensation, partners do not mention innovation, creativity, or technological advances. Id. (reporting changes partners would like to see in their compensation systems). A lack of creativity, innovation, or technological proficiency, moreover, is not cited by partners as a barrier to making partner.  Id. at p. 48.

2. Are law firms innovative?

Since the legal profession does not seem to attract, promote or retain many innovators, it has to magnify the relatively few innovations it produces and characterize modest changes as innovations.

Stephen Poor

Stephen Poor, Chair Emeritus of Seyfarth Shaw, advises, “Never underestimate the resistance to change from lawyers. Even more likely, never underestimate the ability of lawyers to describe virtual status quo efforts as revolutionary change.” J. Stephen Poor, “Re-Engineering the Business of Law,” New York Times, May 7, 2020.

Mary Shen O’Carroll

Poor’s concerns about this tendency to package nominal changes as innovation sensations are amplified by Mary Shen O’Carroll, the director of Google’s legal operations. O’Carroll sees law firms as making “small incremental changes in the face of big disruptive changes.” While clients “are demanding efficient, new legal service delivery models,” she explains, their outside counsel “is largely offering symbolic, superficial innovation.” Victoria Hudges, “Google’s Mary Shen O’Carroll: Some firms don’t realize they can be replaced,” American Lawyer, Feb. 28, 2020.  Many law firms, in short, may be confusing minor changes and improvements with innovation. They set the bar too low and congratulate themselves on hurdling it too quickly.

The consequences of law firms’ low expectations and high self-satisfaction are disturbing and suggest that most firms are unprepared to meet clients’ demands and expectations. The 2020 Wolters Kluwer Future Ready Lawyer Survey is revealing:

  • 76% of lawyers believe their law firms or legal departments will be impacted by “the increasing importance of legal technology.” But only 28% think their organizations are very prepared to address it.
  • 73% of lawyers acknowledge a growing demand for “improved efficiency/ productivity.” But only 28% believe they are very prepared to meet this demand.
  • 71% of legal departments report that, in choosing a law firm, “uses technology to deliver the best service possible” is an important attribute. But only 29% report that this attribute describes their current firms very well.

Examining ten major trends that will have the greatest impact on law firms and legal departments over the next three years, the Wolters Kluwer survey concludes, “there is an alarming gap between overall market trends and readiness to address them. Fewer than one-third of respondents report their organization is very prepared to address any of these issues.” Wolters Kluwer at 6.

When asked to describe their law firms’ progress in “improving the efficiency of delivering legal services,” most law firms report “no real action,” “ad hoc efforts,” or “still working on a plan.” Altman Weil, Law Firms in Transition 2020 at 37.  Seventy percent of law firm leaders cite “partners resist most change efforts” as the leading reason they are not changing their legal services delivery model. The percentage of law firm leaders citing “partners resist most change efforts” has increased steadily during the last six years, from 44% in 2015 to 70% in 2020.  Id. at 13.

Similarly, BTI Consulting Group’s recent survey indicates that law firms’ innovation efforts are decreasing: “Fewer law firms are showing clients innovation around improving the client experience – top legal decision-makers point to 14.6% fewer firms than last year.” BTI Consulting Group, “Fewer Firms Improving the Client Experience,” The Mad Clientist, May 22, 2019.

3. What does innovation look like? (CUGS)

 Innovation is associated with creativity, originality, uniqueness, and singularity. The distinguishing feature of innovation, in popular depictions, is novelty, but innovations do not move from conception to large-scale adoption unless novelty is accompanied by usability, gratification, and survivability.

Sustainable innovations are not only novel concepts; they also must be practical, desirable, and durable. Tesla automobiles, for instance, satisfy multiple objective and subjective needs of their owners apart from their competitive advantages in battery technology.

To present a concrete model of what constitutes innovation, and to assist law firms and departments in identifying genuine innovation, I have identified some key elements (concept, usability, gratification, and survivability) in the table below. As the table indicates, innovation is not incremental or derivative change but usually requires novel concepts, exceptional usability, memorable gratification, and long-term survivability.

CUGS (Concept, Usability, Gratification, Survivability) Innovation Model

Concept Usability Gratification Survivability
Originality (creativity, novelty, singularity, distinctiveness, imaginativeness) User-centric (ease, speed, confidence, comfort) Sensation (pleasure, security, enjoyment, health) Practicality (durability, reliability, results-orientation)
Boldness (scope, vision, transformativeness, comprehensiveness) Effectiveness (functional, advantageous, superior, utilitarian) Acceptance (likeness, affiliation, conformity, tribalism) Accessibility (affordability, availability, controllability, manipulability)
Divergence (fluency, flexibility, associativeness) Replicability (scalability, modularity, adaptiveness, multiplicity) Signal (identity, affluence, prestige, symbolism, status, egotism, position) Transparency (demonstrable, measurable, provable)
Integration (multi-disciplinary, centripetal, exhaustive, inclusive) Non-iatrogenic (safe, innocuous, undamaging, benignness)
Elegance (simplicity, clarity, vividness, incisiveness, precision) Stickiness (concrete, credible, endearing)
Source: Randall Kiser, DecisionSet

We can pose the following questions relative to each element of innovation to determine whether an idea, service, or product is innovative or merely an incremental or derivative change,

  • Originality. Is it original – creative, different, imaginative, novel, and distinct?
  • Boldness. Is it bold – does it identify and solve a major problem, reflect a comprehensive understanding of the problem, and address all of the problem’s dimensions? Does it take on what Jim Collins calls a “Big Hairy Audacious Goal (BHAG)”?
  • Divergence. Does it reflect divergent thinking – fluency (volume of responses), flexibility (ideas that differ from each other), and associativeness (the capacity to see connections between seemingly unrelated thoughts and items). See Mihaly Csikszentmihalyi, Creativity at 368-370 (1996).
  • Integration. Does it integrate research, theories, observations, and ideas from all possibly relevant domains and all possibly helpful authorities and affected parties? Does it display centripetal (unifying) thinking?
  • Elegance. Is it clear, vivid, simple, incisive, and complete – or as Einstein said, “as simple as possible but not simpler”? Cf. Post 125 (using Einstein quote to describe Delta Model).
  • User-centric. Is it designed for users’ benefit, ease, comfort, and productivity and easily implemented by them?
  • Effectiveness. Is it easily testable, does it fully comprehend users’ purposes, can it consistently meet users’ requirements, and is it superior to other services and products?
  • Replicability. Is it easily and economically replicable, scalable, or modifiable in multiple contexts where it could be useful?
  • Sensation. Do users enjoy or perceive a benefit in using, implementing, and being identified with it? Do users derive utilitarian, emotional, and symbolic gratification from using it?
  • Acceptance. Does it facilitate or expedite users’ acceptance by peers or other persons or groups important to users? Does it enhance users’ affiliation with a person or organization and assure that person or organization that they share common goals, beliefs, and preferences?
  • Signal. Does it have symbolic value and contribute to users’ self-construction and self-verification? Does it harmonize with users’ projection of their status, affluence, prestige, and position?
  • Practicality. Is it durable and reliable, and does it consistently provide the results users wants and only the results users desire?
  • Accessibility. Do users perceive it to be accessible – affordable, available on user’s timetables, controllable, and manipulable?
  • Transparency. Are the benefits demonstrable – clearly evident or provable to users, stakeholders, critics, and opinion-makers?
  • Non-iatrogenic. Will it deliver its benefits without causing observable or latent harm to users, their organizations, and society?
  • Stickiness. Is it sticky – simple, unexpected, concrete, credible, emotional, and driven by stories? Chip Heath & Dan Heath, Made to Stick (2007).

As you consider these elements of innovation and the questions that flesh them out, how many recent changes in law firms, legal departments, law schools, and civil and criminal justice systems come to mind? How many of those recent changes display more than half of the elements of genuine innovation? How many attorneys, judges, policy analysts, court administrators, and law professors come to mind as innovators?

4. What is not innovation?

 We can advance our efforts to become innovators by candidly acknowledging that much of what we call innovation in law is minor change or improvement, not genuine innovation.

Eric Schmidt

To become innovators, we need to dramatically expand our objectives, assume broader responsibilities, and redefine our capabilities. We can start this process with cautionary advice from Eric Schmidt, the former CEO of Google:

If your customers are asking for it, you are not being innovative when you give them what they want; you are just being responsive. That’s a good thing, but it’s not innovative. … For something to be innovative, it needs to be new, surprising, and radically useful.

Eric Schmidt & Jonathan Rosenberg, How Google Works at183 (2016). By this measure, law firms may be making some progress toward being responsive to clients but many are not being innovative.

David Cunningham

Even when they are upgrading technology, law firms are rarely being innovative. David Cunningham, Winston & Strawn’s Chief Information Officer, notes that other industries were collecting “near real-time information” years ago: “When you step outside of legal, you realize we have a 15-year immaturity gap.” Describing his new system to digitally share diversity data between clients and law firms, he states, “This isn’t really innovation. It is trying to catch up with other industries for both law firms and legal departments.” Roy Strom, “Clients Track Diversity But Law Firms Miss the Message,” Bloomberg Law, Feb. 27, 2020.

When asked to identify their recent innovations, many firms point to pricing. But outside of law, pricing improvements are by-products of innovation and are not considered stand-alone innovations. Innovations disrupt pricing structures because they typically lower costs, improve quality, and increase choices by changing systems, methods, materials, products, and technologies. The innovation dog wags the pricing tail, and if the pricing tail is trying to revive the innovation dog, it might be sick.

When an industry’s innovation efforts are focused on pricing, as has occurred in the U.S. airline industry, it frequently signals that innovation has stalled. Pricing, specifically “dynamic pricing,” gets a lot of attention in U.S. airlines because very little has changed in that industry other than the number and size of seats being squeezed into a fuselage. If pricing has become the most innovative enterprise at law firms, we are abandoning our larger responsibilities to clients, courts, society, and the latest generation of attorneys—44% of whom attended law school to “help others/contribute to society.” Gallup & AccessLex Institute, Examining Value, Measuring Engagement at 10 (2018).

5. Why don’t we innovate?

The persistent lack of legal innovation results from multiple shortcomings in how students are selected for admission to law schools; how law schools educate students; how law firms and legal departments recruit and select candidates; and how law firms and legal departments orient, develop, animate, and compensate attorneys. The lack of innovation is rooted in a fundamental, albeit flawed, concept of what an attorney is, what attorneys are accountable for, and what constitutes achievement in the legal profession.

Correcting our mistakes, deficiencies, oversights, and misconceptions – if this occurs at all ­– will take many years. But in the meantime, we can identify some of the attitudes and practices that impede innovation and start to overcome them now. To facilitate this process, I outline four impediments below. Since they are largely attitudinal and philosophical, they are amenable to rapid adjustments given a motivation to innovate.

Retrospective thinking

Legal analysis is precedent-based, and this perspective gives attorneys the false confidence to drive forward while focused on the rear-view mirror. Retrospective thinking that would cause severe accidents in other professions and occupations is often seen as prudential when displayed by attorneys. Although innovative thinking is perforce forward-looking, conventional legal thinking is backward-looking, continually searching for direction from old statutes, cases, and authorities that already have proven to be unhelpful in deterring malevolent behavior or resolving a conflict.

Judge Richard Posner describes the dangers of precedent-based thinking: “Instead of the judge’s asking: here is a novel issue – how should it be resolved? – he asks: here is a novel issue – what resolution is dictated by existing legal materials, the product of decisions … made in the past, often long in the past? … It’s saying: let the past control the present and the future, or as Nietzsche put it sarcastically, ‘Let the dead bury the living.’” Richard Posner, Divergent Paths, at 76-77 (2016).

Extrinsic motivation
Bruce MacEwen

Large law firms are fixated on extrinsic motivation. They compete fiercely with each other – the “nuclear weapons club,” as consultant Bruce MacEwen describes it – to set higher levels of attorney compensation and new records for profits per partner (PPP). The American Lawyer’s annual announcement of law firm rankings by PPP, gross revenue per partner, and revenue per lawyer may be the gaudiest celebration of extrinsic motivation by any profession.

Unfortunately, extrinsic motivation and innovation don’t mix well. Research consistently confirms that extrinsic motivation (typically income, bonuses, tangible incentives, and visible status) is antithetical to innovation, while intrinsic motivation (an independent drive to fulfill a purpose and achieve a goal set for its own value or interest) promotes innovation.

Mark Joaquin Ruiz

For extrinsically motivated people, work is instrumental and “must lead to something else.” For intrinsically motivated people, work “is inherently interesting and challenging.” Randall Kiser, Soft Skills For The Effective Lawyer at 64 (2017). As innovator/entrepreneur Mark Ruiz explains, “even though I’m an entrepreneur, what drives me is not really the money. What really drives me is a deep sense of mission and purpose.”  Jeff Dyer, Hal Gregersen, & Clayton Christensen. The Innovator’s DNA at 238 (2011).

In his incisive study of the American automobile industry’s decline and the ascent of Japanese automobile manufacturers, David Halberstam focuses on the legendary innovator W. Edwards Deming. Scorned by American automobile companies, Deming emerged as the key innovator in quality control systems for Japanese manufacturers. “He was for most of his career virtually unknown in America,” Halberstam writes, “a prophet without honor in his own land, but he was one of the most important figures of the second industrial revolution, that is, the challenge of East Asia to the West.” David Halberstam, The Reckoning at 312 (1986).

Like other effective innovators, Deming was immune to extrinsic motivation and was fueled by intrinsic motivation: “Deming’s passion was for making better products, or more accurately for creating a system that could make better products. It was not for making money. He clearly had little interest in material things. … The Japanese who trekked to see him were aware that he could have profited immensely in those days, selling himself and his services to Japanese companies. The subject just never seemed to come up.” (Halberstam, p. 312).

Who is the W. Edwards Deming of the legal profession?

Artificially low innovation in low-margin markets
Clayton Christensen

In his seminal book, The Innovator’s Dilemma, the late Clayton Christensen explained how large, successful companies “were getting blindsided by newcomers offering products or services that may not have been as good, but were simpler, more convenient, and more affordable.” Warren Berger, A More Beautiful Question at 136 (2016). Breakthrough innovation, Christensen discovered, “was at the low end of the market.” But the large companies would not change their business model to make their products more affordable and accessible. They walked away from the opportunity to control the mass market because they preferred selling high-margin products to high-end customers rather than low-margin products to a mass market.

In the legal services industry, unlike the markets Christensen studied, there is no threat of innovation from low-end markets. The innovations that normally occur in the low end of a market do not exist in legal services because the small firms and solo practitioners serving this segment are barely surviving and frequently lack business and time management skills. See Clio, Legal Trends Report for 2017, 2018, and 2019. The economic asphyxiation of small firms and solo practitioners ensures that large law firms will continue to deliver high-margin services to high-end clients without facing competitive threats usually posed by low-end market innovation. Although large law firms have the resources to develop innovative products and services for the low-end market, the segment Bill Henderson calls “PeopleLaw,” they have little or no interest in that market.  See Legal Market Landscape Report (State Bar of California 2018).

Large law firms could serve the middle and low-end markets and generate innovation by establishing and funding separate law firms (think Lexus/Toyota, Marriott Ritz Carlton/Marriott Fairfield Inn, Nordstrom/Nordstrom Rack), but this is an unlikely reputational risk. Until large law firms are required to provide legal services to low-income citizens in proportion to a law firm’s share of the U.S. legal market, consistent with their exclusive franchise rights and responsibilities, we will not see the innovations that normally emerge from low-end markets. The bifurcation of the U.S. legal market into the perennially overserved Organizational Clients and the chronically underserved PeopleLaw is an unacceptable externality in the U.S. economy, and it should be corrected by the actors who have benefited from the immensely profitable franchise enforced by state bar associations. See Daedelus, Winter 2019 (Access to Justice issue).

If large law firms become responsible for serving low-income markets in the same proportion as their market share, the scope, quality, and rapidity of innovation in low-end markets might be astonishing. This innovation, in turn, would generate competitive pressures that, Christensen confirmed, normally exist in competitive, non-franchise markets.

Legal innovator traits

In their extensive, eight-year study of major innovators, The Innovator’s DNA (2011), Jeff Dyer, Hal Gregersen, and Clayton Christensen identified five essential innovator traits:

  • Associating. Innovators connect “wildly different ideas, objects, services, technologies, and disciplines to dish up new and unusual innovations.” They understand how seemingly unrelated things could have something to do with each other, and they recombine the ideas they collect in new ways, “allowing them to offer something new to the market.”
  • Questioning. “Innovators treat the world as a question mark, rarely working on autopilot and constantly challenging the accuracy of their mental maps about the territory (whether products, services, processes, geographies, or business models).”
  • Observing. Innovators observe how things work and are sensitized to what doesn’t work; they actively observe customers to understand how they work with products; they constantly look for surprises and anomalies; and they regularly visit new environments to discover what they are missing and have overlooked.
  • Networking. Innovators do not network for resources or career progression, and they do not target people who are like them or people with power, positions, and influence. Instead, they network to expose themselves to new information and ideas, and they target “people who are not like them” and “experts and nonexperts with very different backgrounds and perspectives.”
  • Experimenting. Innovators try new experiences; deconstruct and take products and processes apart; and test ideas with prototypes and pilot programs.

When we look at the current leaders in legal innovation, it’s not clear that their chromosomes form what Dyer, Gregersen, and Christensen call “the innovator’s DNA.”

Although we cannot be sure that legal innovators need to have the same personal traits and behaviors as the innovators in Dyer’s study, we should consider whether legal innovators would benefit from a re-configured skill set and a more ambitious vision. Legal innovators tend to be independent, conscientious, receptive to change, and willing to challenge conventional ideas and practices, but some may be excessively cautious, setting their expectations too low for the sake of achieving small wins. Some legal innovators, in addition, may have difficulties understanding how others interact with providers and services, and they may be ineffective in describing and convincing decision-makers of an innovation’s advantages and the speed at which technologies should be adopted.

Ten years from now we may conclude that some of the thought leaders we regard as innovators today were actually antecedents to innovation.


If we can be realistic with ourselves, we will recognize that the legal profession has not fulfilled all of its responsibilities as the exclusive provider of legal services in the United States.

Since we have been the exclusive providers for about 100 years, we have to accept responsibility for a legal system that is inaccessible to middle and low-income citizens, scores below many other industrialized countries in citizens’ trust and confidence, encounters difficulties in consistently satisfying its affluent clients, and resists pressures to change its business models. We cannot blame others for our shortcomings since we have controlled the practice of law through state bar organizations and have generally opposed reforms that would allow non-attorneys to provide some legal services and own interests in law firms. See, e.g., Sam Skolnik, “California Bar Swamped by Comments Opposing Ethics Rule Changes.” Bloomberg Law, Aug. 6, 2019.

Our fixation on control of legal services rather than responsibility for legal services has many repercussions, some detrimental to innovation specifically and others harmful to society generally. Small wonder then that most attorneys in the Millennial generation believe that “the law firm business model is fundamentally broken” and “partnership is much less desirable than it was a generation ago.” Major, Lindsey & Africa, 2019 Millennial Attorney Survey at 26-28. Innovation is the counter-weight to this new, powerful wave of Millennial attorneys’ distrust, skepticism, and disappointment. We can win back the confidence of attorneys, clients, and the public by demonstrating a commitment to innovation and showing that, as Dyer urges, “innovation is everyone’s job.”

It’s also compounding racial inequality. The story in ten charts.

My fundraising work for the Institute for the Future of Law Practice has required me to delve into the equities of modern legal education, particularly around the debt loads and employment prospects of historically underrepresented groups.  This is because virtually all potential benefactors want diversity and inclusion baked into anything they fund.  What I’ve discovered has truly shocked my conscience.

The failure is both large and longstanding. Further, the competitive dynamics of US legal education are only making things worse.

The post is organized around ten data charts that cover three themes: (a) graduate education (inclusive of law school) and its connection to economic and social mobility, (b) first-generation college students who are pursuing law degrees, and (c) the large overlap between race and class.  The ten charts, however, do most of the talking.

I end with a few editorial comments—not too much, however, because we all need some time to digest the magnitude of this failure.

(a) graduate education and social and economic mobility

Chart 1. Educational attainment is a function of “educational inheritance”

The lead graphic above shows, in a visual format, the concept of “educational inheritance.”  See Julie R. Posselt & Eric Grodsky, “Graduate Education and Social Stratification, “43 Ann. Rev. Soc. 353, 356  (2017) (pulling data from National Survey of College Students, NSF 2013).

Basically, if either your mother or father earned a professional degree in the 1990s, you are 3.5 times more likely to also earn a professional degree. This extremely large boost in probability is only a slight increase from 20 years earlier (compare red and blue diamonds over professional degree column) when the probability was 2.5x. The same phenomenon can also be observed for parents with doctoral degrees—their children are 2.5-3x more likely to earn a doctorate and nearly twice as likely to earn a professional degree.

Unfortunately, educational inheritance also works in the opposite direction.  Using the population as a whole as a baseline, first-generation college graduates are significantly underrepresented among those earning professional degrees. See Byeongdon Oh & ChangHwan Kim, “Broken promise of college?  New educational sorting mechanisms for intergenerational association in the 21st century,” 86 Soc. Sci. Res. __ (Feb. 2020) (using statistical analysis to isolate how educational advantage compounds intergenerationally).

Chart 2. Graduate degrees lead to higher household income

The relationship between educational attainment and income is obvious to everyone.  Chart 2, however, shows the strength and magnitude of the relationship.

To the extent that demand for graduate education is relatively price inelastic, this chart explains why.

Chart 3. Graduate education is gateway to power

Only 14.6% of workers of US workers over the age of 25 have a masters, doctorate, or professional degree.  See U.S. Bureau of Labor Statistics, Tbl. 5.3 (2016-17). Yet, as shown in Chart 3, these degrees have become a prerequisite to positions of power in corporate America.

As high as these educational requirements are, the bar appears to be even higher for women and racial minorities.  Among Fortune 500 corporate directors, 69.7% of white males have a graduate degree versus 74.5% for white women, 71.7% for Latinos, 88.8% for African Americans, and 94.7% for Asians. See Richard Zweigenhaft, “The Role of Elite Education for White Men, White Women, and People of Color in the U.S. Corporate Elite,” presented at Elite Educational Conference (Toronto, June 2015).

So, to non-majority knowledge workers who aspire to power and influence, the message is clear: graduate education is a de facto requirement.

(b) legal education and first-generation college grads

Chart 4. Most law school financial aid is “merit-based”

The vast majority of law students receiving grant-based financial aid are receiving it in the form of “merit-based” scholarships, which means it is likely tied to academic credentials used in the admission process.

Unfortunately, as the competition for high-credential law students has heated up over the last 20 years, total dollars for merit-based grants have grown roughly 10x times faster than total dollars available for need-based grants.  See LSSSE, 2016 Annual Results at 8 (citing data from American Bar Association).

This is occurring because of the prisoner’s dilemma of prioritizing affordability over prestige—changing priorities at the school level cannot be done without significant market consequences that weaken a school’s long-term market position and finances. Sure, morality is involved, but the solution has to be at the government or regulatory level. More on this below.

Chart 5. Less merit-aid goes to first-generation college grads

It’s a strange world that gives the largest subsidies to students from the most affluent families.

As of 2015, 47% of first-generation law students were exiting law school with more than $100,000 in debt compared to 34% of students with at least one college-educated parent. See LSSSE, 2016 Annual Results at 12

Of course, as shown in the next two charts, there is a simple reason why.

Chart 6. Merit-based aid is based on LSAT scores

Merit aid is overwhelmingly driven by LSAT scores …

Chart 7. First-gen college grads tend to have slightly lower LSATs

And first-generation college grads tend to have slightly lower LSAT scores.

So what does this privilege look like at the ground level?  On average, a first-generation law student is spending 8.0% more time (~2 hrs/ week) studying and 25% more time doing paid work (~3 hrs/week).  See LSSSE, 2014 Annual Results, at 11.  That’s a half-day of additional responsibilities per week. That is a lot of time when stretched over three years.

Yet, the story has another layer of inequity.

(c) Overlap between race and class

Chart 8. Large overlap between first-gen and minority students

Underrepresented minority students are much more likely to be first-generation college graduates.

This is such a stark gap.  Further, it cries out for a coordinated policy response.  Nearly 20 years ago, a prominent professor in higher education research wrote:

The weight of evidence … indicates that, compared to their peers, first-generation college students tend to be at a distinct disadvantage with respect to basic knowledge about postsecondary education (e.g., costs and application process), level of family income and support, educational degree expectations and plans, and academic preparation.

Ernest T. Pascarella, et al., “First-Generation College Students,” 75 J. Higher Ed. 249, 250 (2004). Obviously, when a first-gen student is also a racial minority, there’s a compounding of disadvantage.

Chart 9. White students get the largest proportionate share of merit aid

If we value racial diversity, why are shoveling most of our financial aid dollars to white students, most of whom tend to come from more affluent families?

Here is my best guess on what is happening: After doing everything in our power to maximize the inputs for US News rankings (LSAT and UGPA), we focus on diversity.  And then we only focus on diversity as a percentage of total enrollment and, by default, ignore the uneven and unfair financial burdens we have placed on our students. It is easy to ignore because measurement and quality control are not part of our culture. Instead, we have longwinded meetings and promulgate rules and resolutions, which are words we struggle to implement.

As someone specializing in legal industry data, I never dug this deeply into issues of class and racial equity until potential IFLP funders starting asking the right hard questions.  This is akin to opening the wall of your home and finding a terrible infestation.

Finally, below is the data chart that truly shocked by conscience.

Chart 10.  Total law school debt, by race

If we view total student debt as the functional cost of law school, at least as borne by the individual student, Hispanic/Latinos are paying a 50% premium for law school and blacks are paying double the costs of their white counterparts.

The data presented in part (a) above reveal why a student—rich or poor, white or non-majority—would go deeply into debt to pay for a law degree. But why charge black students twice as much?

It is worth noting that since the Great Recession, law schools have filled empty seats by enrolling large numbers of underrepresented minority students. This is because in the queue to get admitted into law school, the largest proportion of prospective minority students are in the next available tranche of credentials. See Aaron N. Taylor, “Diversity as a Law School Survival Strategy,” 59 St. Louis U. L.J. (2015).  Nonetheless, as a group, this cohort of more diverse students is destined to graduate with very high debt and relatively low entry-level salaries, as they are disproportionately clustered in lower-ranked schools.

These bleak statistics build upon a tradition of inequity.  For example, data from After the JD (Wave III) reveal that 12 years after graduation, 60.1% of Asians law grads, and 48.4% of Whites, had zero educational debt compared to only 30.4% of Hispanics and 23.3% of Blacks.  See After the JD III: Third Results from a National Study of Legal Careers at 81, tbl. 10.1 (2014).

No one “designed” these outcomes as a matter of policy. Rather, they have all been an outgrowth of 200 law schools competing for a shrinking supply of law students.  Yet, from a distance, this has all the hallmarks of structural racism.  How are we going to fix it?

Editorial comments

The ten charts in this post reveal the rudderless state of legal education. As a collection of institutions, we are not serious about educational quality and equity because we don’t govern ourselves with any discipline around measurement or data.

But more troubling, when we cannot escape the foolish and harmful features of our current system, where do we turn for a remedy—the American Bar Association? The Association of American Law Schools?  The supreme court justices in 50 different states? The Department of Education?  It’s hard to say which is the bigger challenge—the will to act or the authority to compel change.

As a profession, we are consumed with the pursuit of individual and institutional prestige. Unfortunately, we are now four generations removed from the estimable acts that created our current prestige hierarchies.  We have more in common with our political system than we care to admit, as we also seem to lack the will, leadership, and courage to follow the data to cure our own diseases.

I’ll return to this topic after we’ve all had some additional time to digest.

Scenes from my pre-law life and careers

Doing my best to make sense of the experience.

In October 2019, I was in the first session of his Innovation Diffusion in the Legal Industry class at Northwestern Law.  I was puzzled because I couldn’t figure why Professor Henderson, who was 16 years my senior (I am 41, he is 57), was openly acknowledging that the legal service market was remarkably inefficient. He claimed that much of the business of law was held together by perceptions of eliteness and pedigree rather than the objective and reliable measures of talent, ability, and productivity.  And he backed it up with data from both the past and present.

The source of my initial confusion was not that I disagreed with Professor Henderson in any way. Rather I was surprised to have an industry insider validate my observations that legal education and the legal profession suffered from a terrible case of faulty groupthink.

Soon thereafter, I read Bill Henderson’s backstory in his Legal Evolution post,  I am a LegalZoom Customer (070).

It turns out that we both finished our bachelor’s degrees in our 30’s (on the second try), for the purpose of going to law school. We both spent years sweating in blue-collar jobs as contractors, and we both followed our contracting gigs with jobs that required diligence and pragmatism on a daily basis, with people’s lives at stake: Bill was a firefighter/EMT-P, and I sailed passenger ships in the U.S. Merchant Marine. Now I understood his perspective as we both were looking at the legal world from the vantage point of outsiders.  Cf. Post 080 (Jason Barnwell describing how his prior training and experience as an software engineer also gave him an outsider’s perspective on law).

The outsider perspective makes it easier to see that law firms’ partner-associate train-on-the-job system is breaking down and that law schools are not currently well-equipped to pivot to a 21st-century skill set.  Bill’s solution was the Institute for the Future of Law Practice (IFLP), founded with another of my forward-thinking law professors, Dan Linna, who taught my Innovation Lab class.

IFLP’s existence reinforces the point made by Duc Trang (formerly BigLaw, now general counsel specializing in human capital for Major, Lindsey & Africa): J.D. programs do not create quality job candidates, as they are all narrowly focused on substantive law. Instead, the differentiation between good candidates and great candidates comes from somewhere else, such as work experience, technical training, and interpersonal skills.

I should note that while I was, in fact, taking a law school class, I was not a J.D. candidate. Instead, Bill’s Innovation Diffusion class was one of several offered at Northwestern Law to JD’s, LLM’s and MSL’s (I am a 2020 graduate of the Master of Science in Law degree program). The MSL fulfills a simple but long-unmet need: sowing the seeds of legal knowledge in the minds of scientists, doctors, and engineers. Dan Rodriguez, when the Dean of Northwestern Law, worked with other technologically savvy and forward-thinking law professors to create a program that taught law to “non-lawyers.” See Post 077 (Dean Rodriguez discussing the origins of program). The MSL’s main entry requirement is a Science/Technology/Engineering/Math (STEM) background, and pulls students from a wide range of disciplines (my classmates were nuclear engineers, immunologists and MBA venture capitalists).

It is from this non-lawyer and blue-collar perspective that I explored the legal ecosystem, and from where I’d like to share some insights:

Law practice is hazardous to health

Substance abuse and suicide statistics for lawyers are disproportionate compared to other learned professions. I attended the country’s #1 BigLaw feeder school, but only met one alum who was still working in their post-graduation stretch of BigLaw employment. All the other alums I met, from corporate legal ops professionals to Alternative Legal Service Providers (ALSPs), were “BigLaw survivors”.  They cut their teeth at a big firm, realized how unhappy they were, and switched paths.

The sole alum I met that was still enjoying their time in a big firm had one piece of advice: “Don’t buy the big house.”  That is, the likelihood of an associate becoming dissatisfied with their position inside a firm was so high, they shouldn’t bind themselves to monthly payments so large that they felt trapped in their (high-paying but stressful) job.  Cf. Post 177 (reviewing data on challenges of mental health inside BigLaw).

Change comes from leadership at the top … 

In terms of sheer persuasiveness for discussing the business of law, two of the most memorable from my law school experience were “non-lawyers” Angela Hickey (MBA) and Kim Craig (PMP/Six Sigma).  Both are two great examples of how to implement positive change leadership. They represent the future of law practice: Let the lawyers handle the subject matter, let the business folks handle the business of law, primarily because they know things the lawyers have simply not had the time or interest to learn.

Through my classes at Northwestern, both Hickey and Craig shared the insight that the reformation of their respective firms would have been difficult (if not impossible) without innovative managing partners that enabled them to build their own internal credibility with stakeholders.

Disconcertingly, candid thoughts from other legal ops professionals showed me the other side of the coin: when the innovative partner eventually departs the firm, the remaining “old guard” partners will often defund the efficient and profitable firm improvement efforts and revert back to the old ways (this has been exacerbated during the COVID-19 economic downturn).

… But they don’t teach leadership.

In the MSL program, I learned how to calculate the value of complex Intellectual Property portfolios using multi-layered Excel models from Joshua Gammon, who explained IP valuation’s interplay of dollar amounts, timeframes and probabilities by way of Drake’s equation:

The number of civilizations in the universe capable of communicating with ours = (Total number of stars) * (% stars that have planets) * (% planets that could support life) * (% viable planets that actually develop civilizations) * (% civilizations that develop detectable transmissions) * (length of time it takes those transmissions to reach us). Those trained in risk management should also recognize the same basic logic in the lottery (a $2,500,000 payout on a 1 in 13,000,000 chance makes a ticket actually worth $0.19, not $1).

Leadership relies upon similar calculation strategies. Leaders must constantly weigh costs against benefits, taking into account the probability that any good or bad event may happen, and make the best decisions with the knowledge at hand. Taking calculated risks (innovation, entrepreneurship) is what drives businesses forward. However, as Vanderbilt Professor Cat Moon points out so well, lawyers hardly take any risks and should try to fail more often. See Post 153.

I do not suggest lawyers place undue risk on their client’s wellbeing. Yet, there are many ways in which the practice of law can improve if those in charge would try new methods and ideas — it is hard to overstate how obvious this to an outsider with real-world life experience.  Cf. Josh Kubicki, “The Intrapreneur’s Dilemma,” Medium, Aug. 20, 2014 (describing unconventional work experiences that fundamentally shaped his career in legal innovation).

Follow the money

First-year BigLaw associates make $190,000 on average. This is possible not because of the value they create—indeed, everyone acknowledges they leave law school with gaps in their education—but because of the astronomical hourly rates charged by their firms. This has progressed to the point that many BigLaw clients refuse to allow their accounts to be billed for any first-year associate time: “Why should I pay you to train your employees? Give them a HotShot account and let me know when they’re ready to do their job.”

Slowly, client money and the fiduciary duty of lawyers as professionals will drive more and more work to technology and “non-lawyers.”  eDiscovery was the first piece on the chessboard: when a computer can do the job of reviewing, sorting and parsing documents faster, cheaper and more accurately than lawyers, the lawyers are obliged to surrender the task to machines.

In a single lecture series, I have heard computer scientists insist that any process of human cognition can (eventually) be replicated on computers, and heard lawyers insist that no one can do what they do. Admittedly, there are high-level legal counsel tasks best left to industry veterans. That said, with my training, I can automate an awful lot of legal services with AI-driven knowledge tools if you give me some subject matter experts and a Neota Logic account. Client money will follow the most accurate, efficient, and cost-effective solutions, albeit the diffusion will be slower when the decisions are being made by in-house lawyers socialized into the BigLaw mindset.

Model rules stand in the way

I considered a research project where I’d look into the ABA model rules, ferret out why the current rules existed as they did, and prescribe how to change them to fit the times. “Access to justice” is the usual cited cause for rule reform, but I have met lawyers who intentionally stopped collecting CLEs in order for their bar accreditation to lapse, and thus no longer be bound by the model rules. Why change a system when you can just walk away?

Modern business methods rely upon cross-platform collaboration, and if a professional standard prevents you from partnering with non-lawyers, see Rule 5.4, then you might just surrender your ability to practice law in order to better serve your clients.  Some have, and the number will continue to grow.

The path forward

I believe in IFLP’s mission to improve the variety of tools given to lawyers in pursuit of their craft. However, as a “non-lawyer”, I must also advocate for the corollary: give the tools of law to technical specialists who can improve legal service delivery.

This was the impetus for my founding of the 501(c)(6) trade advocacy group, the American Society of Legal Engineers, which is working to create educational and ethical standards for those who apply technology to the legal ecosystem. Cambridge Analytica is but one example of computer scientists applying their immense analytical power to legal and political systems to the detriment of society overall. We should strive to imbue those capable of such wholesale systemic change with the ethical reasoning to ask “just because I can do this, should I?”

I hope my insights from outside the inner circle prove useful. For questions (or if you are hiring) I can be contacted at info@americanlegalengineers.org.

Homepage for American Society of Legal Engineers


Details on Bucerius Legal Tech Essentials

Every summer since 2018, Bucerius Law School has offered a three-week, on-campus Summer Program on legal technology and operations. In total, the program has now educated nearly 70 highly selected students. The faculty has included some regular contributors to this publication and will hopefully also include others in the future.

 This year, we originally wanted to build the best on-campus program we’ve ever offered. When the pandemic forced us to cancel our on-campus program back in April, we were heartbroken. Especially in the face of a near-certain recession and the uncertainty it engenders, we were convinced that it would be worthwhile to offer something this year. Nonetheless, it would take some courage and an open mind to do things differently this year. 

Here’s what we’ve come up with: We now offer a curated program, via webinar, open to everyone, entirely free of charge. We call it Bucerius Legal Tech Essentials and it is a series of one-hour webinars, weekdays at noon US Central. The lectures will start in late June and carry on through early August. Participants can decide to join all webinars or pick and choose. So far, over 1,700 participants from more than 80 countries have registered and nearly 20 lecturers joined us for the ride.

We are aiming to cover a broad range of topics: From foundations in legal technology and startups, artificial intelligence and analytics and computational law to legal operations, digital justice, online courts and the regulation of legal technology. One category puts innovative founders into the spotlight, while another features ground-breaking research from Computational Legal Studies, complexity and data science. Finally, we’re adding in a series of lectures that offer entirely different perspectives on law by viewing them through the lenses of innovation diffusion, network science and design thinking.

Our lecturers include scholars from prominent law schools in the U.S., Europe and Asia, regulators from Canada, Germany and the European Central Bank, entrepreneurs from law firms, law companies and legal finance, as well as in-house innovators from Banco Santander and Google. They will bring different perspectives on the legal ecosystem and share their immediate experiences and learnings. We hope that they inspire our participants to change their industries for the better and give hope to those in difficult circumstances. 

Here are confirmed lecturers so far with more to be added soon: 

You can sign up for the program for free here.

This program is as much a learning opportunity for us as it is for those taking part. We are trying out new topics, new formats and an entirely new approach to our legal education. We will collect data, capture our experiences and share the results with the community. Others, such as our friends at the Institute for the Future of Law Practice, have demonstrated that you can take programs online. Our partners at Passport to Practice will follow an even more extensive approach including readings, homework and eventually a certificate.

Bucerius Legal Tech Essentials is made possible by generous support from Baker McKenzie. 

Bucerius Law School is a private non-profit law school in Germany. It has been leading the country’s most important ranking for over a decade. The school offers technology certificate, regular legal technology lectures and is regarded as a global hub for legal technology and innovation. Its Center for Legal Technology and Data Science and the Center on the Legal Profession regularly publish academic papers and studies, hold conferences and shape the discussion on legal technology and access to justice in Germany and Europe.

Dirk Hartung and Dan Katz

Bucerius Center for Legal Technology and Data Science

Congrats to the KO law firm, an IFLP employer, for winning 2020 CLOC Legal Innovations in Operations Award.

When you’re a small growth company focused on product development, sales, and customer service, you don’t have a lot of time or interest in talking to expensive lawyers. That said, you likely do have a strong interest in plug-in solutions that solve key operational challenges or move the team closer to core business objectives.

Last week, CLOC sent a powerful message about the role of legal operations in the success of growth companies when it named the KO firm as a winner of CLOC’s inaugural Legal Innovations in Operations (LIO) award. See CLOC press release, May 28, 2020.  The KO story leaves no doubt regarding where the legal industry is headed, as we’re seeing a pattern of innovative law firms becoming true solutions providers.

The KO story

KO is a small law firm in Colorado that I know well because of its connection to the Institute for the Future of Legal Practice and its predecessor, the Tech Lawyer Accelerator (collectively “IFLP”).

KO specializes in representing emerging growth companies, most of which have no internal law department.  Recognizing the impact that sound contract management can have on a company’s valuation when raising money or being acquired, KO developed a “contract in a box” solution that includes both traditional legal work and contract management, enabling early-stage companies to handle contracting in an efficient, compliant, and centralized fashion, including analytics that improve visibility into the business.

Delivering these types of solutions requires legal professionals with both legal and operations expertise (T-shaped). Many of KO’s lawyers have in-house backgrounds, and KO has long supported IFLP in its efforts to train the next generation of T-shaped lawyers.

This began back in 2015, when KO hired a 7-month IFLP intern, Greg Garcia, who had spent the previous summer interning for a KO client.  At the end of the internship, KO recognized that the intern had the T-shaped skills and practical experience necessary to deliver value to clients immediately and hired the intern as an associate even though the firm had a practice of not hiring new law grads.  (Garcia is now a corporate counsel at Techstars, a Colorado-based innovation accelerator.)

Ben Oelsner

More recently, KO partner Ben Oelsner developed a flipped classroom exercise for our recently completed 2020 boot camp. The exercise was based on KO’s extensive experience with the automation of NDAs. As a result, another crop of students are learning that what looks exotic and high tech from far away is actually not that complicated once you have foundational knowledge in legal operations.

A similar example at BCLP

When it comes to supporting emerging growth companies, other members of the IFLP ecosystem have taken a similar legal operations approach.

For example, earlier this year, IFLP supporter Bryan Cave Leighton Paisner (BCLP) took first place in the UK Managing Partners’ Forum for “Best Business Innovation.” The winning project was BCLP Cubed,  another solution offering in which expert advice on complex legal issues is combined with access to low-cost, high-volume service centers and support from legal ops and technology professionals.  The elegance of the BCLP Cubed reflects the diverse skill sets of long-time IFLP instructors Katie DeBord, BCLP’s Chief Innovation Officer, and Angie Ligon, BCLP’s Director of Legal Operations.  Further, it flows from many years of paying close attention to the business needs of clients.

For example, in 2016, BCLP partner Mark Weakley led an engagement with IFLP and Fathym, an early-stage software company, to pair the firm’s expertise with a 7-month IFLP intern to develop and implement a legal document management protocol designed to make Fathym “diligence ready” at any time. In addition to delighting a client, the IFLP intern, Stephanie Drumm, entered the firm with an advanced skill set that has kept in high demand with clients and other partners.

This activity yields several conclusions.  First, even companies that are still too small to have a law department can benefit significantly from legal operations.  Second, law firms that innovate and use their scale to make this service available to their emerging growth clients can achieve a competitive advantage.  Third, delivering these types of services requires legal professionals who have T-shaped skills and experience, and T-shaped interns, young lawyers, and contract managers can have an impact that far exceeds their level of experience or traditional pedigree.