L21C Book Club: The Citadel

In my non-work time, I’ve been re-reading a novel that I first read many years ago: The Citadel by A.J. Cronin. The Citadel was published in 1937. It was made into a film in the 1930s, and adapted for television several times, most recently in the 1980s.  The Citadel was once a very famous book, but it seems to have faded out of consciousness these days.  I hadn’t thought about it for ages, then I saw it mentioned somewhere by chance and thought “I’d like to read that again.”

I’m glad I did.  It’s a good read.  But more importantly – and the reason for doing a blog post about this book – it turns out that this is a fascinating to read from my point of view now, as a someone who’s part of a profession undergoing great change and examination of its own purpose, ethics, and place in society.

A.J. Cronin was a doctor.  His novel is about a doctor, his fictional alter ego Dr. Andrew Manson.  At the beginning of the novel, Dr. Manson, an idealistic and principled young medical school graduate, arrives in a remote Welsh mining town for his first job.

Andrew Manson works to heal the struggling, proud coal miners and their families.  He gets challenging diagnostic cases and he is brilliant at solving them.  He encounters public health problems – typhoid from a leaking sewer, lung disease from anthracite dust – and he works hard to understand the root causes and solve them, even to the point of taking radical action.  In a memorable scene, he and a friend clandestinely blow up a leaking sewer to force the authorities to fix it.  He is hampered by bureaucratic indifference, and by the ignorance and outdated approaches of some of his fellow doctors.  He doesn’t make much money.  He’s also a bit of a hothead and a prig.  Cronin was too good a writer to make his protagonist an insufferable saint.

Later in the novel, Andrew is seduced by opportunities to make more money and live like his more prosperous doctor friends, who find rich patients and charge them silly money for largely useless treatments.  He becomes, in conventional terms, successful. Cronin portrays this change as a loss of his soul.  And what happens next … you’ll have to read it to find out.

There were many points in the novel that had a new kind of resonance for me, reading it again after years in the legal profession and teaching law.

For example:

  • When Andrew first goes out to practice and work on real cases, the things he learned in the lecture hall at medical school seem like they are from another world.
  • His professional choices are dominated by the tension between personal success and prosperity, on the one hand, and the ideals of his profession and his idealistic desire to serve the public good, on the other. Cronin depicted Andrew’s attraction to material success as a kind of ethical failure, but he didn’t mean it as an indictment of his protagonist as an individual.  He saw the medical system of his time as inevitably (systemically) producing such moral failure.  He said of The Citadel: “I have written … all I feel about the medical profession, its injustices, its hide-bound unscientific stubbornness, its humbug … This is not an attack against individuals, but against a system.”
  • Andrew has virtually no power and no route to dealing with what causes patients to be ill – malnourishment, bad sanitation, dangerous working conditions. All he and other doctors can do is patch things up when people become ill.  They are ambulances at the bottom of the cliff, not a fence at the top of the cliff.

The Citadel was written before there was a National Health Service in the UK.  All doctors were, essentially, small businessmen (they were indeed mostly men).  Every decision about taking a patient necessarily involved a calculation about profit and financial viability, and could not be based solely on the patient’s need or the complexity of the case.

One thing that is fascinating to me about The Citadel, a twentieth-century book, is that these dilemmas are so similar to the ones faced by medical characters in nineteenth-century literature. There are great fictional doctors of previous generations caught in the same conflict between idealism and material success, like George Eliot’s Dr. Lydgate (one of my favourite fictional characters of all time).  I don’t think the central dilemmas for doctors, or their fictional representations, are typically like that now.  But … they still kind of are for lawyers.

The National Health Service was created after the Second World War, in 1948.  The Citadel’s powerful indictment of the ethics of profit-driven medicine is thought to have helped lay the foundation for the creation of the NHS.

This is a fascinating tale for lawyers going through self-examination about their role as professionals, and reflecting on the systemic strengths and weaknesses of our profession.  I recommend it to any L21C partners who have a bit of time for novel-reading after exams are over.  The gender and racial attitudes are … no better than you’d expect from a book published in the 1930s.  But if you can overlook a handful of cringe-making moments of that sort, it’s a book full of humanity and insight, especially for twenty-first century professionals in the process of shaping their professional identities.  It has a lot to say to us.

JD, Ryerson?

Ryerson University in Toronto is developing a proposal to create a new JD program “that focuses on innovation in legal education for the benefit of graduates, their communities, and the broader society.”  That quotation comes from Ryerson’s Letter of Intent, available here.  It makes fascinating reading.  Compared to the traditional law curriculum, it is a profound re-think of what training lawyers is all about, with emphasis on producing “graduates who possess the initiative to respond to unmet legal needs, who exhibit a commitment to social engagement and community leadership, who are able to envision new applications of their education.”  Obviously I like these ideas; in a smaller way, the same ones are reflected in L21C.  (On the other hand, I’ve seen the LOI described as “buzzword bingo” – I don’t really agree but I still think it’s funny.)

We’ve had an interesting debate on our internal course site (Mattermost) about this.  With the permission of those who contributed, I’ve moved it here so that it can be read more widely.

I hope others, in L21C and beyond, will add their thoughts.

Me: this is the letter of intent outlining Ryerson’s proposal to open a law school. I’d be very interested to know what you think of this. I expect that many of you will share the views of skeptics who have pointed out the shortage of articling positions in Ontario (and generally), and questioned whether Toronto needs another law school. Personally, I’m very persuaded by the argument that there is a need in society for a different kind of law school, one that uses innovative approaches to build skills and provide hands-on experience, focused on the needs of the users of legal services. I think it will be challenging to turn that aspiration into real results, but Ryerson has already shown real leadership in legal training, and they might just pull it off. Chris Bentley is one of our guest speakers, so you will have a chance to talk to him about it.

Lorna: The job market being what it is, they’d only be doing their students a disservice to start running a program and graduating people out into the employment void. If it is the case that they will provide the kind of training that’ll comes from articling, and where a good part of the curriculum is aimed toward alternative careers in law, then it could be quite promising.

Me: think they have thought very carefully about the argument that Ontario doesn’t need another law school and that they will be adding more people to a saturated job market. Those are serious concerns. In my opinion the proposal has serious, convincing answers to them. One of the answers – and I find this very compelling – is that there is clearly a huge need for more lawyers, if you look at it not from the point of view of law firm hiring stats but at social need. Ontario’s population has doubled in the last 30 years, but only one new law school has been added in that time. Most people who experience legal problems don’t get help from a lawyer because they can’t afford it. If something is too expensive for those who need it to access it, that suggests an undersupply, not an oversupply. Of course it does nothing to fix this problem if you create another law school like all the others that trains lawyers in a way that fails to bridge the gap. But I think Ryerson has genuinely considered how to do that and has come up with a well designed, well considered plan. A couple of other points mentioned in the report: there are high numbers of Canadian students training in law schools overseas (US, UK, Australia) who come back into the market here, and would train in this country if there were places for them, so to that extent opening a new school doesn’t increase the supply of law graduates. And, last point, as Omar Ha-Redeye says in this Slaw post, Ryerson aims to prepare law graduates who will create the jobs for graduates of other law schools.

Anita: I think it is a great idea but only if the program satisfies the articling requirement and if the tuition is not too high. I feel that one of the greatest barriers to new graduates who may want to practice differently from the traditional models is that there are very few articling positions with firms who don’t run with the traditional model and so if we do find an articling position, it will most likely be one with a traditional model. Articling with a firm steeped in the traditional mode of practice arguably instills that model in the articling student. Furthermore, a heavy debt load after graduation would prevent a recent graduate from taking riskier paths for fear of unpredictable financial returns. At least that is how I feel when looking for ways to practice law differently in my own career.

 

See also:

Omar Ha-Redeye’s post in Slaw

Discussion on Lawstudents.ca

Blog post on Legal Feeds, including comments from Chris Bentley

Article in the Ryersonian, which I just had to include because, um … that’s not Osgoode Hall Law School!

The End, and Future, of the Rural Lawyer.

rural

The end of the rural lawyer is, thankfully, in sight.

I should start by saying that it is not from any personal prejudice against those who practice in rural areas that I use “thankfully”. Rather, it is an expression of the relief law students must feel as the idea of practicing in a rural area is, apparently, unappealing to the vast majority of law students. Indeed, it seems to have been for some time now. A quick search finds numerous articles lamenting the lack of enthusiasm amongst potential articling students from  2012, 2014 and even to this day in 2016. As an increasing number of rural lawyers reach the age of retirement, the lack of replacements for them spells a slow end to the rural lawyer.

Yet there is still a pressing need for rural law.

It is self evident that geographical location does not eliminate the legal issues that arise for an individual. So what replaces the future rural lawyer?

Imagine sitting in your office in Tofino, BC – a town of 1,900 –  waiting for your client. They arrive promptly, and you greet them warmly. Offering them a seat, you walk them through your intake forms, deal with their questions, provide reassurance about their concerns and then see them to the door with a friendly smile and a handshake. As they leave, you take a moment to collect yourself before returning to your desk. A desk which is physically located in downtown Victoria.

A wistful dream, or a future closer than you might imagine?

Two recent trends provide good reason for hope for the provision of legal services to rural communities, and neither relies on reversing the trend of students preference for larger cities.

First, the ever increasing rise of rural internet connectivity. More and more small towns are opting to become their own Internet Service Providers. These towns install fibre-optic connections for their entire population. For $57 a month, they can receive speeds of 1,000 megabits. By comparison, Kamloops currently tops out at 150 megabits for $80 a month. The capacity of these networks to allow for increasingly large videos and images to be transferred is just barely beginning to be utilized. Even those that don’t are benefiting from Government initiatives aimed at providing high speed internet to rural communities.

Second, with the launch of Virtual Reality (“VR”) hardware. The recent launch of the consumer models of the Oculus Rift and HTC Vive have brought a high quality experience to the early adopter market. Currently, video games make the most use of these VR devices but the exploitation of VR is just beginning. At Virginia Tech they have created a virtual reality room [worth the watch!], which can be shared between several individuals. Each sees the exact same thing, and can see each other. Within the room, there is virtually no limit to what they may experience together.

The rural lawyer of the future? Well, they need not be rural at all.

With the right amount of bandwidth, this room could be shared with any other room (and any other participant) at any range. So not only can that office in Tofino be used by a lawyer in Victoria, but also one from Vancouver, Calgary or Toronto. Indeed, multiple lawyers could share (at different times) the same office in a small town, bringing a diverse range of experience and knowledge to small towns throughout Canada. Furthermore, the VR room is able to replicate any setting. So your client meetings could happen in a professional office, a farmhouse kitchen or on the beaches of Bali! You could tailor the office to each client, and locale, without any additional cost. Even if cost prevents the implementation of a VR room in every single small town in Canada to begin with, the VR rooms could easily become enough in local hub communities so as to improve access to professionals (such as lawyers, doctors or engineers) for hundreds of thousands of rural clients.

So in short, rejoice – the demise of the rural lawyer is nigh and the as for the future? Well it has never been brighter for rural law.

Artificial Intelligence and the Law

Who is “ROSS” and why is he going to take my job?

As you may have heard mentioned in class (maybe once or twice) the legal profession is changing due to a number of influences, one of which is the pervasive development within the information technology sector, particularly in the area of artificial intelligence (SURPRISE!).

Maybe you’ve heard of “Watson” or “ROSS”, maybe not. But let’s just clarify a few things regarding who these troublemakers are, what they are about, and why your job is definitely threatened by both of them—but arguably not for another 10 years at least (whew!)

Who? What?

Watson: Watson is a technology platform developed by IBM, named after the company’s founder Thomas J. Watson. Watson uses language processing, machine learning and cognitive computing to reveal insights and answer questions from inputted information. He has been successful at analyzing data and providing solutions based on supporting evidence in a variety of areas including the medical field and the law.

Fun Fact:

In 2011,Watson competed against two of Jeopardy’s greatest human champions in a match. Watson won earning $77,147 –Rutter brought in only $21,000 and Jennings $24,000.

ROSS:

Initially ROSS was a submission in an international tech competition where IBM challenged universities to come up with commercial uses for their Watson platform. ROSS is an artificially intelligent “lawyer” developed by U of T students as a legal research tool. ROSS allegedly eliminates the monotonous task of legal research so that lawyers can spend their time focusing on what is important—clients. Because legal research is patterned and repetitive, that is the best recipe for computer automation and hence, the development of ROSS. Intended to be a platform for lawyer use, you can ask it any form of legal question in natural language and ROSS has access to a vast legal databank and sifts through the information to find relevant and accurate legal answers.

Will … or rather when will Ross replace lawyers?

How quick and easy is it to employ ROSS? Besides ROSS platform itself, all you need is an Internet connection and, voila! According to rossintelligence.com he arguably eliminates time “wasted” on training sessions. “Let Ross help you accomplish more than you ever thought humanly possible.”

Now this is a claim I take issue with. Training sessions are important and ROSS is not about to eliminate the need to complete CLEs (they are inherently important in and of themselves, but that is a discussion for another blog). There is value in keeping your industry and case knowledge updated.  No matter how wonderful and useful ROSS may be there are some barriers to overcome…

a) It’s going to take time to learn how to work with ROSS

b) What happens when the Internet cuts out? What happens if there’s a glitch? (Technology is great and useful, when it works)

But most importantly…

c) What about the articling students?

That brings me to my next question: so when will he take your job?

Arguably he already has. ROSS has been bringing in a number of subscription fees and the system is already being used by several law firms including sole practitioners and big law names like Dentons, Latham & Watkins as well as BakerHostetler. The fact that ROSS doesn’t need breaks or sleep (like most articling students) and has the ability to research and work around the clock gives firms a competitive edge —catch: ROSS doesn’t burn out!

But “old law” as we know it places importance on legal research skills and that is primarily what most articling students spend their time doing. Hypothetically, let’s say as time passes, technology further advances, and ROSS becomes more affordable to the point where he is employed by almost every firm in Canada. How are articling students going to learn the ropes? Will there be a need for articling students at all?

None of these questions can be answered for certain but ROSS and other AI that promotes industry efficiency is certainly not going away. The articling process and the value of articling jobs (insofar as the scope remains to complete legal research) are going to diminish and it is very likely that if there are any articling jobs left that whole program is going to experience a radical shift from the way things were done in the “good old days”, involving copious amounts of memo writing and legal research. ROSS is learning how to do that too!

But let’s face the facts here. The legal profession is comparatively one of the most conservative professions there are and the partnership pyramid scheme (dare I say) is still in full force today – and no senior partner in a bigwig firm is going to give up their passive income from all the hours their junior associates are billing overnight. No, this isn’t going to happen the day after tomorrow either. But the market forces are creating tension, clients are becoming better informed, globalization is alive and well, and the call for change in the profession has been happening for some time. Though it will not happen overnight, change is already happening and law students need to prepare themselves for the changing profession appropriately. Flexibility and adaptability are paramount.  Within our career span, tools like ROSS and other AI platforms will be integrated into our everyday practice and will become the norm– that is for certain.

Riding the Technology Wave

The Technology Wave and the Solo Practitioner

Friday’s meeting introduced us to the brave new world of technology changing law firms as we know them. It was both fascinating and a little fear inducing. There certainly seems to be a wave of technological advances pushing out the “old law”. Corporate law is changing. Big law is changing. While it was interesting, the focus on corporate law left me wondering about solo practitioners and small law firms. Much of the software discussed at the meeting was not affordable nor tailored towards solo practitioners. How is technology affecting them? What technology is available to help to them?

I decided to do make a list of a few different programs available out there that might help solo practitioners or smaller firms. They are not all legal based, but then running a law firm is a business as much as it is a law practice.

  1. Accounting software

It’s important to stay on top of your accounting as a small business. You don’t want to be that person making a frantic run to your accountant with a shoe box full of receipts at the year end. Using Cloud-based software such as Toronto’s Wave, or Mint (now owned by intuit), it’s easy to update your records from your laptop, tablet or even your phone when you have some free time. Wave is geared towards companies with 9 or less employees, and it’s free to use. Mint supports all Canadian banks and is user-friendly.

  1. SEO (search engine optimization) software

You’ve made a sleek, modern, professional website for your firm! It cost a pretty penny (okay, a few hundred thousand now obsolete pennies) but it was worth it. Proudly you type your company name into Google. Nothing. You search frantically, page after page, but nope, Google doesn’t seem to know your beautiful website exists. That’s where SEO software comes in.

SEO is a massive industry. So don’t be afraid to hire someone to do this for you (which will also cost many obsolete pennies). However, if you are feeling brave (or cheap), here are some Cloud-based SEO products that may help: Moz.com can give you a simple action plan with steps to help you rank, position, and building your search rating on Google. SEMRush takes a different approach. They let you see what your competitors are spending adwords to help you stay in the top advertising spots.

  1. Clio

Yes, Clio has its own category. This product isn’t just for larger firms. They have packages as cheap as $39/month. Time tracking, billing, and lots of other goodies make Clio a useful product for almost any firm.

  1. Other niche software

There are lots of programs out there for specific legal areas. DivorceMate is a software product aimed at family law. It streamlines child support guidelines and spousal support guidelines, among other things. They have a Cloud-based version as well as a desktop version. You can choose to pay for a $500/subscription or $55 per file option. Do Process Software has several different specialized software for real estate, wills, estates, and others. The costs vary on the product you choose.

 

Hopefully this list helps you think of the different ways technology can help solo practitioners and small firms. The technology wave is coming for everyone, not just big law. We should all learn to ride and embrace the wave.

Transitions

Let me give you an image of me as a starting-out lawyer.  I’m on the phone with a client – a terrifying proposition in itself.  Client is talking about something incomprehensible (some Wall Street acronym or something) and assuming I not only know what it is but have an informed and expert opinion about the thing as it relates to the client.  I am googling this thing while on the phone, hoping the client can’t hear me typing.

Transitioning to law school to practice was like that.

One of the reasons L21C exists is that I wanted to try to fill what I think is a gap in legal education in preparing students for this transition, from law student to professional.  Law school does not provide students with much understanding of or information about the practicalities of practice, or about what the ecosystem of the legal services world is like.  It’s a big chasm indeed from pondering the significance of peppercorns to billing, spreadsheets, attempting to tame clients, navigating the internal politics and ego-bruises of working in multiple teams, and googling financial jargon as quietly as possible.

I often hear that it’s not an appropriate goal for law school to prepare students to be “practice-ready,” that there is no substitute for real-world experience and hands-on training.   As far as it goes, I think this is true, even just obvious.  It doesn’t follow, though, that law school can’t do more to prepare students for the transition to practice.  We can, and we should.

That’s the aspiration of L21C: to make students, if not “practice-ready,” at least a bit more ready for the challenges, surprises and mysteries of the coming transition to practice.  To demystify the mysteries, make at least some of the surprises less surprising, and, I hope, stir up some excitement about the challenges.

L21C is also transitioning this year.  Last year it was a completely brand-new course, still a prototype really, and I really was not sure what to expect.  This year is … well, honestly not that different, but it’s no longer completely brand new and I have a little bit more idea what to expect.  Last year’s class was a fantastic group who did some truly inspirational work.  Therefore, my expectations are very high.  I’m looking forward to equally great things from this year’s group, possibly even greater.  Go on, challenge yourselves!

The design of the course is substantially the same as it was last year, but there are some modifications.  The first few weeks are more structured, with fewer guest speakers and more lectures and activities that I planned.  In the later weeks we have many really amazing guest speakers, a panel, a field trip to Kamloops Innovation Centre, and plenty of time built in for teams to work on their LawHacks projects.  The idea is that in the first part of the semester students will get a solid understanding, from the lectures, readings and class activities, of the themes we are covering, and in the later part of the semester the group will be very well equipped to engage with the wonderful leaders and thinkers who are joining us as guests.

Of course I can’t end a post about transitions without mentioning the central focus of this course, the Big Transition: what’s happening to the profession itself.

Richard and Daniel Susskind, the authors of one of our course books (The Future of the Professions), say that the legal world “will change more radically over the next two decades than over the last two centuries” and the legal profession is “on the brink of unprecedented upheaval” (pp. 66-67, internal citations omitted).

Jordan Furlong, writing in the Canadian Bar Association Legal Futures Initiative publication Do Law Differently: Futures for Young Lawyers – another of our course texts – says “[a]lmost everything about career choices and employment options for new lawyers is in flux,” and that the generation of lawyers entering practice now “has both an obligation and an opportunity that its predecessors never experienced.”

David Scott, the co-chair of Borden Ladner Gervais, has said that the lack of access to justice for ordinary people is the legal profession’s equivalent of global warming.

These are the big, systemic transitions that we are going to learn, think and share ideas about in the course.  I hope that the discussion will carry on outside class – and will engage the wider community.  That’s what the blog is for, and I’m really excited to read posts and comments by our new class of L21C partners, as well as everyone else who wants to join the conversation.

This time of year people often say that September, not January is the real new year.  It’s a time of transitions.  Here we go!

Artificial Intelligence: Shaping the Future of Law

I very much enjoy Sci-Fi movies about artificial intelligence, but I am not particularly keen on being replaced by a machine that can spew out better legal arguments in a milli-second based on an algorithm. The majority of our class discussions have focused primarily on technological innovations in the legal field. Artificial intellegence has been hailed as the future of law. It’s all very exciting, until the foreboding feeling sets in and you’re reminded that not only do you have to compete with 4.0 Bobby for a job, but with a machine as well. According to Michael Cross in his article, Role of Artificial Intelligence in Law, “ a computer is as fresh and alert at 2 am as it was at nine o’ clock the previous morning.” Yeah, well, no arguments there. Computers will always be faster, more efficient and accurate at any given time of the day.

The abstracts from the 14th International Conference on Artificial Intelligence & Law sum up the relationship between law and artificial intelligence eloquently. Both fields are involved in the process of creation. AI systems are built, experiments are designed and paradigms are replaced. In law, legislation is drafted, precedents are set and beliefs are balanced. Both fields struggle with the complexity of modeling human behaviour. AI aims to recreate human behaviour, while the law intends to drive human behaviour. The meeting of law with AI was inevitable. But where does that leave the plethora of graduating law students and lawyers?

Throughout this class, we have all been reminded of the concept of the “legal sherpa” and helping the ordinary lay person navigate the convoluted path of the law. A more refined role for AI in law is to provide strategic legal guidance. Programs such as ROSS a digital legal expert, built on IBM Watson helps attorneys with their legal research based on plain word searches. This serves as a valuable tool to help guide lawyers in their everyday research. In the end this will make legal profesisonals more effective because they will be able to complete their tasks more efficiently therefore charging the client less for services.

London firm Hodge Jones & Allen has pioneered a predictive model of personal injury case outcomes to assess the predictability of their current caseload. The program will assist the firm in determining which cases have a greater chance of success, therefore allowing the firm to direct their client towards either settling or proceeding with a claim. This is an example of a legal technological advancement in action and in the future personal injury firms and perhaps others as well, may greatly benefit from using such programs.

This new technology will not hinder or replace legal professionals at all. In fact, I see it helping to make the jobs of lawyers easier and more enjoyable. It will also help them bring a wider array of services to their clients in a quicker and more streamlined manner. These advancements will thrust lawyers into more advocacy-based roles because those types of positions cannot be fulfilled by AI, at least not for now. In conclusion, I do not believe that lawyers will ever fully be replaced by AI but it can serve as a useful tool that can better the practice of law.

Money Can’t Buy Me Happiness… But It Can Buy Me a Boat

If you were to play a game of phrase association with a group of lawyers (and law students for that matter) and give them the phrase “mental health”, I would posit that many of the answers would deal with clients. You would be likely to hear many things: not criminally responsible, fitness to stand trial, and other job related answers.

The troubling part of this thought experiment is that lawyers (and law students) have a strikingly high occurrence of mental health issues but would be very likely to point to the mental issues of others. As is pointed out in the New York Times article by Douglas Quenqua, lawyers are over three-and-a-half times more likely to suffer from depression. The reasons and causes for this are unknown but oft hypothesized. The fact that getting into law school (I would argue it starts even when trying to get into law school) results in an immediate spike in the likelihood of developing depression is a scary proposition. I’m sure that many students understand that they are getting into a difficult profession and one that involves a great deal of stress.

There is something to be said for the fact that lawyers are among the highest paid professions. There is an allure, a draw, and something to be said for the idea that lawyers get into the profession to make more money than they might in another field. This is possibly done at the expense of some personal relationships and free time. Most lawyers go into the job with open eyes and decide to do it despite the downsides.

Lawyers are often of a certain personality type, and I would argue that this personality type is also the reason why lawyers have a higher risk of depression. They are less likely to admit there may be a problem, less likely to seek treatment because of it, and more likely to continue trigger behaviours that exacerbate depression symptoms (read: stress out and drink). Too often depression is seen as a weakness instead of the chemical imbalance that it truly is. The chemical receptors in the brain that allow you to feel happiness do not connect as frequently in a person that suffers from depression.

Quenqua’s main thesis of his article was that lower paid lawyers reported being happier than the more well paid legal professionals. He states that lawyers in the public sector (public defenders and legal aid lawyers) were more likely to report being happy. The most likely rationale for this disparity between public and private is that private sector lawyers are far more likely to be working longer stressful hours. One aspect of public sector and in-house counsel legal work that is often touted as a recruitment tool is that of work-life balance. While not conclusive I believe this is because the expectations of both hours and “billable” work is reduced. As a corollary, the public service lawyers drank less than their higher income counterparts; as noted earlier, alcohol is a depressant. The alcohol may be a “chicken or the egg” argument; the higher-paid lawyers drink more, thus resulting in more unhappiness, or the unhappiness triggers more drinking.

I also take issue with the program at George Washington university, when attending law school many students are unsure of what sort of practice they will be in when they graduate. This is true of most students and speaks to the variety of legal work out there; however, the other major factor at work is the uncertainty of the job market. Many lawyers report finding a firm that they liked following graduation and the firm having an opening or a need in one field or another and “ended up doing x”. I would suggest that while giving students a taste for all the different opportunities is noble, it may also result in a student getting their heart set on one potential stream (abandoning a more broad course load), come out of school seeking only one type of opportunity, only exacerbating the problem of finding a job after law school.

The Future Of The Legal Education: Specialization Or Degradation Of The J.D.

As the legal field continues to expand, general practitioners are expected to know more in their respective fields to better assist their clients. A lawyer is expected to enhance their knowledge by keeping up with the evolution of the legal sector. Harry Arthurs recognizes the dangers that future lawyers may face in The Future of Legal Education: Three Visions and a Prediction.

He suggests a possible option where “The bar may one day recognize not just one class of members, but many. Members of each class would have different educational credentials…that general practitioners will one day be licensed to appear as advocates in certain tribunals and the lower courts, and to do routine real estate transactions, simple incorporations and uncontested divorces—but not undertake appellate litigation, patent applications or tax planning”.

He further elaborates “They might offer a skills-based one-year degree for paralegals, a stripped-down tow-year ‘basic’ degree for general practitioners, an enhanced four year degree for specialist practitioners, and conversion courses for those who want to upgrade their credentials”.

On the one hand, I can see this as a form of specialization in a specific area for law students. Those that know what area of law they want to practice can choose to study that, right from the beginning while avoiding all the unnecessary courses that they will never use for their chosen area of practice.

However, on the other hand I see this as undermining the value of legal education and hence a J.D. By creating this separation in the legal education, many of the basic competencies will be omitted from one’s legal education. On a basic level many of the different fields of law interact with each other, and competencies in all these areas are crucial for a practitioner to come up with the best solution for their clients.

There is obviously a wealth of knowledge available in studying law. In my opinion, due to the enhanced level of education required to sufficiently practice in each specific area of law, I think in the future, a LLM in the chosen area of practice will be mandatory after a JD, in order to obtain an articling position in the desired field.

With each area of law expanding everyday, I think it would be ridiculous to cut down on the legal education. The only way to keep up with the evolving nature of the legal sector is to increase the education required, and thus satisfying the necessary requirements of becoming a competent practitioner. Of course, this is just my view.  What do you think are some ways our legal education will evolve to better accommodate us in being competent in our areas of practice for the future?

 

 

A Road Trip Without a Map

As I write this, Labour Day weekend is winding down. The last long weekend of summer goes well with thinking about road trips. And I’m about to set off on one, metaphorically speaking – perhaps the riskiest and most rewarding kind, a road trip with no map. I don’t know where we’re going to end up or how we’re going to get there.

This metaphorical road trip is TRU Faculty of Law’s brand new course, Lawyering in the 21st Century. I am attempting to choreograph a course that is not exactly like anything that has been done in a Canadian law school before, although it is inspired by some innovative courses created by others – for example, Mitch Kowalski’s Law 2025. One distinctive aspect of this course is that I am encouraging students to think hard about the connection between the challenges that the established business model for law firms is facing and the access to justice crisis. How can it be that there are too many lawyers and not enough lawyers, both at once? Another unique design feature (at least, I think it is) is that the class is set up as a fictional law firm, in which all the students are partners. L21C is something we will create together.

So, fortunately for me, I am not alone on this unpredictable trip. I have collaborators and partners: the students, of course, and also the wonderful, brilliant people who have generously (and very enthusiastically!) agreed to share some of their valuable time and brainpower as guest speakers. This trip will probably be a bit chaotic, and it’s bound to have some unexpected twists and turns, but one thing I’m sure will happen is that we will learn a lot from one another.

It’s been quite challenging thinking up what to write about for this inaugural blog post. It is not really adequate, or interesting, to say I don’t know what’s going to happen next, even if it is honest!

I have found my thoughts keep returning to my experience as a new lawyer, many years ago, which started me thinking about the same questions I am still grappling with today in this course. So I decided to write about that, and here it is.

In 2004, I started as an associate at a big international law firm based in New York. I should say right from the start that in that job I had the privilege of working with some of the most brilliant and creative people I’ve ever known, and I learned a tremendous amount from them and from the experience, which is like nothing else on earth. But there were some things about it that were really bad, especially at the beginning.

When I started at the firm, many associates in their first couple of years of practice were being assigned to mind-bogglingly enormous projects of responding to SEC enforcement requests (the SEC is the US Securities and Exchange Commission, the agency that regulates and polices the capital markets). This involved reviewing e-mails – clients’ internal emails that the SEC had demanded to look at, for potential evidence of self-dealing or messing with the rules – before handing them over. We needed to check whether they were protected by solicitor-client privilege. We needed to check whether there was anything significant or problematic in them that we needed to know more about as the client’s lawyers, or that might affect the client’s strategy in dealing with the Commission. The e-mails were in the millions. A lawyer had to look at Every. Single. One.

What this translated to in real life was rooms full of sad junior associates in conference rooms staring at computer terminals while they (and by they I mean we) clicked on e-mails and organized them in different folders. Meanwhile, slightly more senior and equally sad associates managed the many moving parts of these massive, unwieldy operations.

What made us all unhappy about this was not just the long hours and pressure to work fast, but how mindless it was. A moderately intelligent high-school student could easily have done it. It is dispiriting, after many years of sophisticated higher education, to do nothing but work that doesn’t require that education. It’s also an extraordinary waste of talent and potential.

The mindlessness of the work was connected to another problem. The firm was charging clients for this at work the hourly rate of a first- or second-year associate, multiplied by a conference room full of associates, multiplied by months and months of very long days. That arrangement was highly profitable for the firm (since essentially the only cost to the firm was the fixed cost of our salaries). From the clients’ point of view, though, I think it would not be unfair to describe it as a rip-off. They were paying the rates of people with years of top-tier professional education for a job that a diligent teenager could have done. The clients were highly sophisticated international businesses. I think at least some of them must have noticed.

At the time, I thought this was an unsustainable business practice that was bound to change before long. And indeed it did. Within a couple of years, big document production projects like that were being done mainly by contract attorneys, rather than the firm’s own expensive permanent associates. That cut the cost to the clients and mitigated the problem of junior associates leaving in droves because they were miserable and weren’t getting any real professional experience.

But that was only an incremental change. The fundamentals of the business model were the same, with some tweaking of the dollar amounts. The firm hires a lawyer who costs X, puts that lawyer to work on a highly labour-intensive process, and charges the lawyer’s time to the client at an hourly rate of X plus a lot. The profits (X plus a lot, minus X, times loads and loads of hours) go to the partners.

Do you notice anything strange about this? What other businesses determine the price they charge for something by taking what it costs them to make the product and adding a markup? What happens to a business like that if a competitor offers the same thing at a cheaper price? What incentive does the firm have to make this process better, faster and/or cheaper? A computer could probably do what we were doing – very probably now, quite possibly even back then – faster, about as accurately (maybe more accurately), and at a much lower cost. But for a law firm to adopt the technology that could do that would be economically self-destructive.

I love the law and I love the legal profession. When I talk about things that aren’t working well in the legal industry I don’t mean to denigrate the smart, honourable and often very idealistic people who are part of it. This post is not a set-up for a lawyer joke. Also, it’s important to remember that all human institutions are imperfect, and none of them do everything they’re designed to do really well all the time.

And yet. The legal profession seems to be facing a critical moment in its sense of identity and purpose of which my e-discovery experience a decade ago was merely a symptom.

What really strikes me now about that situation is that it didn’t work for anyone. It was unfair to clients. It was soul-destroying for associates (and then for the contract attorneys). It wasn’t even working for the partners. Yes, they made profits from it, but I think they saw how different this was from the traditional way young associates used to come up and learn the craft of being a lawyer from their seniors, and they were uncomfortable about it.

Above all, the whole situation undermined the ideal of the lawyer as a learned professional providing carefully tailored expert counsel and representation. This reality was a lot more like working in a factory, or being plugged into the Matrix.

To paraphrase Lincoln, you can’t displease all the people all the time. At least, you can’t do that and expect to go on the same way for very long.

Later I learned that I wasn’t the only person to have noticed that something wasn’t working. There is extensive literature on (for want of a better umbrella term) disruptive innovation in the law. There are many brilliant people coming up with new models and using developments in technology to unlock new possibilities.

I have to acknowledge that some of the ideas out there about the future of our profession are a bit discouraging. Richard Susskind, in his brilliant book The End of Lawyers, speculated that one day lawyers could go the way of the old medieval guilds, like tallow chandlers. He could perhaps have added the obsolete legal para-professionals of the past, like scriveners. Maybe years from now future generations might have to ask museum tour guides and historians to explain what lawyers were.

But nobody knows the future. Lawyers might be in for a better future than the tallow chandlers and the scriveners. In fact, we may be on the verge of a very exciting time, when creative new ideas and new technologies could solve some of the problems that for years have undermined our profession’s effectiveness in living up to our ideals of public service, justice and equality.

We are probably looking at a future that’s a complex mixture of both – endings and losses entangled with opportunities and rich rewards.

Setting off into this unpredictable future is – like a road trip without a map – scary, but also exciting. What I hope this course will achieve is to equip the students, my partners, with some kind of road map for their futures. They may be maps with some empty bits marked with nothing but “here be dragons.” But it’s a start. And while I hope to create an environment that enables my student-partners to chart their course, the maps will be their own work, created by themselves, because no one else can do that.

On Labour Day weekend a few years ago, when I lived in Nova Scotia, I set off with a friend and a posse of dogs on an afternoon day trip to the beach – and then, spontaneously, that turned into an unplanned weekend-long road trip around the province. We had no idea what we were going or how we would get there. We did have GPS, though!  I suppose these days there’s no longer any such thing as a literal road trip without a map!

That was one of the best trips of my life. I hope this one turns out to be just as good.

Away we go!