Widener Dean Not Working in Hypotheticals Anymore; NY Bar President Living in Reality As Well

First, I can't believe I hadn't yet posted on this, but Widener professor Lawrence Connell, who, as I noted previously, got into trouble for what seemed to be a routine law school hypothetical, has now actually brought a lawsuit against the dean for her statements in the post-incident administration hearings.

Lawrence Connell contends that dean Linda Ammons falsely characterized him as racist and sexist in administrative proceedings when she sought to oust him from his job of 26 years after he used a hypothetical involving her murder, reports the Philadelphia Inquirer.

The complaint was filed last week in Sussex County Superior Court, in Delaware. Connell, who is white, and his lawyer, Thomas Neuberger, contend that Ammons, who is black, targeted him because of his conservative beliefs, according to the Associated Press.

I'm frankly surprised that this came back up, because usually when people threaten lawsuits, they're just blowing smoke out their butt, but this is interesting to say the least.

For what it's worth, Dean Linda Ammons spent five years as a television personality and worked in public relations for four years. I wonder if it ever crossed her mind that bringing formal proceedings against a long-tenured professor was the best step for Widener's reputation.

Also, after law school, it appears she went directly into administrative service (and after six months jumped into the governor's service - anyone could do that, right?) and never really worked as a lawyer. Not that I think that's a requirement, but aside from her administrative position with the state public defender, I don't see anything that actually requires bar passage.

Definitely a story to watch. In one corner, a long-tenured male conservative. In the other corner, a black female ladder-climbing administrator transplant from Ohio. Race, gender, politics, career trajectories - this is so scripted it seems like a law school hypothetical for teaching kids about libel or academic freedom, or maybe a final exam question.

In happier news, I encourage readers to check out this report from the New York State Bar Association president. It basically points out four areas (firm structure, training, work-life balance, and legal technology) and how those areas will change and it's spot-on on pretty much everything. Aside from a few dumb ideas (e.g. requiring public service), there's some good stuff in there:

The Task Force recommends that the State Bar Association examine potential licensing reforms, such as . . . sequential licensing, which would permit limited practice for new attorneys pending further training and examination; [and] adjusting an applicant's score on the bar exam to reflect the successful completion of skills courses. . . .

As the economy recovers, it is apparent to many observers that the legal profession will not return to business as usual. Competition for legal work will be intense. Law firms that do not understand and address these changes will have difficulty competing in the emerging marketplace.

Yup. Hopefully other state bar associations continue to catch on to the "new normal" and they can spearhead the changes necessary to meet tomorrow's demands of this "profession" before it loses all marks of an actual profession.

On Legal Technology and Conservatism

I'm back from my brief vacation, and today I'd like to first point out an informative, yet somewhat repetitive, article from Texas Lawyer about trends in the legal industry. What really caught my eye is this tidbit on lawyer technology:

E-Discovery Costs: The annual litigation survey published by Fulbright & Jaworski reports that nearly 40 percent of the respondents expressed the need to increase spending on electronic discovery. This concerns them, given the already high cost. As one possible solution, a few firms are partnering with e-discovery vendors because they believe it is cost-effective for both the client and the firm.

Keep that in mind. Next, I'd like to point out this tidbit from a recent article on legal research, entitled "Legal research moves from the print library to expensive digital databases:"

This same generation is now leading the legal industry's leap to the Web -- a revolution with major implications for clients, bringing more firepower to those who can afford it and more headaches to those who can't.

"Today, virtually 100 percent of practitioners use online research," said David Dilenschneider, who oversees content development for LexisNexis. "You really cannot practice in books these days. It isn't doable because of the risk of missing information."

LexisNexis and Westlaw provide massive databases of statutes and judicial opinions, plus proprietary goodies like analyses and explanations.

It's that proprietary content, along with advanced search algorithms and other fancy tools, that make the two services the most effective in the industry -- and the most expensive.

First, the "proprietary content" is available for free in brick-and-mortar libraries if you already know directly where to look, and you can find it in about 30 seconds. The advantage of the online services is mostly speed and volume, being able to search thousands of cases and documents at once for key phrases. The most valuable "proprietary" services are probably the ones that tell you if something has been overruled or not, and maybe the notifications on new cases in a particular area, but neither of these is impossible to the layman without the services.

Second, it's a really odd time to complain about the expense of Lexis and Westlaw. Why? Well, because both are facing significant competition from free sources and have had to take measures to keep traffic up. Westlaw has introduced WestlawNext, which is dramatically cheaper and provides more services, not necessarily because old Westlaw was bad, but rather because they feared losing customers to free sources. Lexis decided to start a free service, called LexisOne, that's basically a large archive of caselaw.

Contrary to the implication of both of these articles, technology is a cost-saver over the long term. The cost "raises" in both legal research and in discovery is because the technology was fundamentally abused, or used not as a tool of efficiency.

In legal research, both Westlaw and Lexis used the technology more or less as an excuse to jack prices. While sets of books under the old system of expansive law libraries were not cheap, it was a one-time expense to purchase the book and there was something of a secondary market that could exist for the volumes (from law offices closing or law libraries updating their collections) and for those resourceful enough to go to a law library, there was very little access cost. The existence of the internet changed that by letting Westlaw and Lexis charge for mere access to the materials and not just ownership.

Of course with the internet and what are, ultimately, readily-available materials for the resourceful, that set-up can't last, and it didn't, and that's why both services are desperate to retain customers now in a dwindling marketplace.

The same basic idea applies to discovery abuses. I know less about complex litigation than legal research, but it seems to me that the advent of the internet did not make discovery more expensive aside from broadening what discovery could include. The most obvious example of this, to me, is e-mail. Previously, 99% of what is sent over e-mail would have been phone conversations without record or would have never been sent or would have been used and discarded. Now there's terabytes of data storage of useless shit that plaintiffs want to get at for that microscopically small fraction that may be useful. That's not technology making a process more expensive, it's the people using it changing their behavior.

In theory, computerized technology should lower costs and it should be fairly straightforward if basic ethical principles are plainly laid out, but it hasn't immediately been readily adopted or accurately priced in the legal profession, and there seem to be no shortage of seminars or symposiums or verbal sewage about the implications of technology, as if the legal profession is run by antediluvian buffoons.

Because largely, it seems, it is. From the first article I cited:

Social Media: Issues are arising. Clients are increasingly asking for counsel on employees' use, and the management, of social media. Firms are now recognizing the need to develop electronic and social media policies for themselves.There are ethics considerations. There are challenges for lawyers in maintaining the confidentiality of client information. And there are many issues with respect to the use of social media in litigation. One report may have summed it all up: "The law has significantly lagged behind social networking."

Really, there aren't "many issues" unless you start making them up. How hard is it to tell people not to post something on facebook about a client? Or to develop a social media policy? It's really no different than telling employees not to gossip about clients at the coffeehouse, is it? Basic ethical principles applied to a new setting; this is not new.

And who is "the law?" It isn't students, ground-level working attorneys, or the like. It's the regulators, the wizened old men who like to spout platitudes with no substance, and, ultimately, the bar associations run by "seasoned veterans." Together, they implant a very conservative, retrogressive way of doing business, where new technologies are hostile because they all bring major ethical crises (real or fictional) and concocted expenses.

If the legal profession were really concerned with justice, it would welcome new technologies and the cost-savings associated with them. Furthermore, you virtually never hear any of the legal talking heads suggest that technology make actually improve ethics considerations even though, in some cases, it becomes easier to comply with ethical mandates as technology advances.

But the legal profession really isn't concerned with access to justice or cost savings or ethics; it, like every other profession, is concerned with keeping the kings of the hill at its profitable apex. Any tectonic shift may shake them from their place, and it's better to keep litigation costs artificially high. Because those in the business have an incentive to keep the status quo, the market was slow to respond to the need for cheaper research tools and cheaper e-discovery mechanisms.

This system also snakes its way into law school corridors. Properly using technology could result in major cost savings in legal education. For example, textbooks are now archaic fossils no longer necessary; all the materials needed for a legal education can be found by plugging into the internet and bringing a moderately-priced laptop to class. And yet, the thick >$100 volumes persist, a tremendous waste of resources, time, and energy. Worse, some people have the audacity to suggest that technological advances are making a legal education more expensive. That's out-and-out bullshit and a lousy justification for the rampant tuition increases of the last 15 years.

While it's not the biggest of the profession's problems, the fact that crusty Luddites seem to disproportionately work as lawyers compared to other professions seems to cause more problems than it solves.

Yes, Sally, the Mechanization of White Collar Jobs Can Be Easier than that of Blue Collar Jobs

From Paul Krugman's article today on education in the New York Times:

Computers, they pointed out, excel at routine tasks, “cognitive and manual tasks that can be accomplished by following explicit rules.” Therefore, any routine task — a category that includes many white-collar, nonmanual jobs — is in the firing line. Conversely, jobs that can’t be carried out by following explicit rules — a category that includes many kinds of manual labor, from truck drivers to janitors — will tend to grow even in the face of technological progress.

And here’s the thing: Most of the manual labor still being done in our economy seems to be of the kind that’s hard to automate....

And research by my Princeton colleagues Alan Blinder and Alan Krueger suggests that high-wage jobs performed by highly educated workers are, if anything, more “offshorable” than jobs done by low-paid, less-educated workers.

This makes intuitive sense, doesn't it? Most white-collar jobs have historically been premised on knowledge. Anyone can move boxes around a warehouse or change the oil in a car, but only a select few could navigate a personal injury claim or handle accounting books because of the specialized intellectual abilities involved. But computers are better at storing and retrieving knowledge than they are at making physical environmental adjustments.

A few months ago, I got into an argument with someone who claimed that the answer to the U.S.'s future was more intensive education, to essentially out-school the Chinese, Indians, etc., by promoting math and sciences education. I asked him point-blank what he would do if he were starting out at 18 today rather than at 58. Without hesitation, he said "engineering, just as I did back then."

The problem, of course, is that economies change and what "worked" 40 years ago doesn't necessarily work today. Although engineers seem better off than young lawyers, I know many an engineering grad my own age who was told to get a master's after believing a B.S. would land them a set-for-life job. And given that much of engineering is following explicit rules to produce well-designed products, I imagine we'll see computerized engineers long before we see computerized janitors.

Education is a fantastic normative goal, but we have to collectively realize that it has finite (and shrinking) returns economically. Because it benefits our democracy to have educated and hard-worked people, even if they can't all have jobs that require education, we also have to take steps to prevent citizens from being penalized for their intelligence or education, but that, I believe, is a much larger issue deserving of another entry entirely.

Pure Speculation on Robo-Lawyering and the Future

So the New York Times published an article yesterday on E-discovery/document review software that has the potential to reduce the need for "armies" of attorneys. Other blogs (see JJD and LSTB) have covered this already and I really don't want to discuss the article so much as just share some non-expert thoughts on the long-term future.

Basically, although I see this as a tool that will sharply decrease entry-level and document review work in the near-term future, in the long-run I see this type of technology as a major threat to the current legal order, specifically to the "BigLaw" business model.

Let me start with a wider lens. I'm no Marxist in the political sense, but sometimes it's difficult to discard Karl Marx's material way of viewing the world, at least its basic sociological principles. For example, it's hard to completely discredit his focus on materialism as a historical determinant, e.g.:

In acquiring new productive forces men change their mode of production; and in changing their mode of production, in changing the way of earning their living, they change all their social relations. The hand-mill gives you society with the feudal lord; the steam-mill, society with the industrial capitalist.

The same men who establish their social relations in conformity with the material productivity, produce also principles, ideas, and categories, in conformity with their social relations.

Thus the ideas, these categories, are as little eternal as the relations they express. They are historical and transitory products. There is a continual movement of growth in productive forces, of destruction in social relations, of formation in ideas; the only immutable thing is the abstraction of movement – mors immortalis.

It's a gross over-simplification of complex society, but at the core there's some truth to it. Look no further than a basic and hackneyed evaluation of how people gained wealth and power over time. In the feudal ages in Europe, land ownership determined virtually everything. It was the one singular avenue to wealth. You either had land or, in one way or another, you leached off someone who did. But over time, technology brought other avenues of wealth. Security and improved transportation allowed a genuine merchant class to develop. With it came the roots of modern banking, whose centers sprang up along the most common routes of commerce. Then came the industrial revolution and suddenly there were at least four major ways to get to the top of the economic pyramid: land, commerce, production, and banking. And of course, the lawyer class developed along side all of this in order to sort out the quagmires that developed in post-feudal society.

Fast-forward to the 20th century and the possible routes to wealth increased exponentially. Advances in financial markets allowed people to earn entirely derivative wealth. The basic recording of audiovisual performances made what was once a temporal experience into intellectual property that made entire industries. Suddenly, knowledge, too, in the form biochemical reactions or software processes, became a billion-dollar, wealth-creating business.

I say all this only to suggest the following: technology, historically, has increased possible avenues to wealth, not taken them away, which is why it should not necessarily be feared here. Land still makes one money; it just doesn't give one the proportionate power it did 800 years ago; heck, ask the farmers who still somehow own their own land, it doesn't even give the power it did 100 years ago.

So, moving back to the topic at the outset, let's look at why BigLaw is the way it is today. A cursory view of the last fifty years or so suggests to me that BigLaw largely developed in response to ever-increasingly multinational corporations who preferred working with law firms who had offices in multiple major metropolitan areas. Large, multinational corporations more or less needed large, multinational law firms. The prestigious ones that got the choice corporate accounts merged when feasible to reduce economies of scale and - voila! - you had firms with hundreds of attorneys who raked in the top business and could charge prime rates precisely because there weren't many places that could offer the manpower of elite graduates, places like Jones Day or Skadden Arps or Winstron & Strawn.

There are, of course, other reasons the major corporations consistently go to the larger firms, prestige and experience being at the top of the list. But to Fortune 500 companies, cutting expenses to free up cash and improve profitability is a religion. I've heard from multiple sources that BigLaw has been under increased pressure the last few years to cut billing hours. I have no reason to doubt that.

And these corporations - with knowledgeable in-house counsel, many of whom sit on their boards and in their executive committee - will certainly have knowledge of this technology's existence. And since more than one company is currently developing this technology, there's no reason to think it won't be priced competitively, which will allow a broader range of firms access to the technology. Will Joe Schuck operating a sole proprietorship out of his basement be able to get it? Probably not, but firms with 25+ attorneys would find it advantageous to streamline their discovery process.

If the software can reduce what used to be done by 100 attorneys into manageable work for 2-3, the manpower advantages of the BigLaw model are dead on arrival. Because of the software, smaller firms can take on cases that resource restrictions would have prevented them from taking previously. Things like class actions can be handled by smaller and smaller firms.

Because the range of activities firms can take on will increase, real competition for legal business will increase with new entrants into the market. The result should be more robust price competition.

Of course, BigLaw will still have two key advantages, as noted above: its history of experience with large corporate matters and its prestige of being armored with "cream of the crop" lawyers. And of course, they can continue to charge more as a result of both of these competitive advantages, but the status quo cannot continue. Fortune 500 companies will simply not pay exorbitant rates if another lawyer down the street has the exact same technology and is charging a fraction of the hourly rate. Much of the prestige difference comes from the illusion of paying elite associates and staff attorneys to do the grunt work; if a computer is doing that grunt work, why would anyone pay the extra?

And with a reduction in resource costs, many BigLaw attorneys will be less likely to stick around. If a BigLaw partner has a great relationship with two or three key clients, that partner is far more likely to splinter off and set up a new firm and take his clients with him if there is software that can reduce the manpower advantage of bigger firms.

I'll admit I'm no expert, but it just seems to me that with technology like this, an extra key to wealth has been created by allowing a whole new class of firm into the market for bigger and bigger clients. If they can offer similar services at half the cost, most companies will go with the discount provider. At the very least, the price pressures should end escalating relative salaries and bonuses because the pseudo-oligopoly over high-end legal services will be broken. If I were a BigLaw partner, I'd be concerned that more firms and attorneys could do what I do, that an army of elite attorneys may become as worthless and unnecessary as an army of elite barber college graduates, and that America's successful corporations will start shopping around if I don't slice rates, and my take-home profit.

Of course, thousands of young attorneys will suffer from a collapsing marketplace for their services. That's a major problem. But transformative technology doesn't just hit the lowly; it also opens up new avenues for others to achieve wealth. It shakes the top of the pyramid, too, and if more firms can take on complex litigation, it'll help them jump into higher levels of law and in the end it's better for all of us by increasing competition and cutting litigation costs for large American companies.

News Roundup: Technology and Burnout; Lawyers' Lack of Self-Awareness

This morning I have two sobering stories for your weekend.

The first is from the ABA Journal about a recent report that cited technology and the changing BigLaw model as sources of significant stress and burnout in the legal profession. Kids, if any of you still think the Perry Mason model of legal services is what is common, you need to read this:

“Electronic communication has fueled a culture in which clients want more legal information, answers on the spot, and lawyers who can interpret, rather than simply provide, information,” the report says.The result is more specialization and an emphasis on ability to deliver higher quality services at a lower cost and in less time.
...
“Work settings which do not address stressors of the modern practice of law will continue to produce a significant number of lawyers who are depressed, dissatisfied with the quality of their lives, spend too little time with their families and communities, continue to be isolated and show increased levels of depression and addictive behaviors,” the report says.

While the reaction of many who read this may be "no shit, Sherlock," the real question is whether the professional organizations who are supposed to regulate the attorney profession actually do anything about their industry slipping dangerously close to being the white-collar equivalent of a 19th-century textile mill.

Our second article today may point out why so many lawyers may be "depressed, dissatisfied with the quality of their lives, spend too little time with their families and communities, continue to be isolated and show increased levels of depression and addictive behaviors" and not wish to do a damn thing about it.

In his Sunday Reflection (published on a Friday), attorney Glenn Harlan Reynolds delves into the argument of whether America's problems are in having too many lawyers, or in just plain having too many laws. Although I find that a fascinating question (can you say "yes" to both?), what I found most interesting was his discussion of a new book, which I need to find, called "The Lawyer-Judge Bias in the American Legal System" by Ben Barton at Tennessee. This is interesting:

[Barton] notes that in America, pretty much all judges (except for a few justices of the Peace and such) are lawyers. And, after examining the work of judges in a number of different areas, he concludes that judges systematically rule in ways that favor lawyers, and that make the legal system more complex. (And legislators, mostly lawyers themselves, aren't much better).

Barton tells me that his thesis gets two very different reactions depending on the audience: Non-lawyers find it painfully obvious, while most lawyers and legal academics find it shocking and offensive.

"Shocking and offensive?"

Are lawyers - at least the type Barton interviewed - really that incapable of self-criticism? As a lawyer, you have to realize that your entire job is dependent on problem-solving being a byzantine endeavor out-of-reach for normal people who have better things to do than learn the intricacies of American law.

It is "painfully obvious" that one of our government's chief accomplishments over the last sixty years is to make law more needlessly complex; even though there's been minor movements to streamline and make uniform certain areas of the law (like the UCC), often the arrogance of each generation wanting to have its own voice has made multiple conflicting editions (why did we need a 3rd restatement of basic Tort law?) and the federal government's ability to (and stupidity in) drafting 2,000-page laws has created entire armies who do nothing but interpret ERISA or the tax code. And our Supreme Court, supposed to be the exemplars of the legal system, has cast aside brevity as a goal and turned the once-pragmatic exercise of jurisprudence into a labyrinthine exhaustion of bombast.

Lawyers find this "shocking and offensive?" What do you think you get paid for, except to untangle the massive knots? Could there be any less self-awareness than by grown professionals who have no idea why their field has more work than their French or Spanish peers? That don't understand why their profession has expanded exponentially over the last fifty years?

This doesn't make lawyer work any less "valuable," unless you take the absurd position that work has to have some innate value.

But self-awareness is the first step in correcting a problem, in being a contented human being at peace with himself and the world. If lawyers can't even recognize the most basic conditions and causes of their profession, how can they be expected to realize when their work lives resemble that of sweatshop workers? Will they continue to convince themselves that their 75-hour workweeks are more of a normative benefit to society than work that only exists because their predecessors made it for them?

Lawyers, like everyone else, are self-interested. They make more work for themselves and others; fundamentally, they're no different than auto mechanics who find new things wrong with every car that comes in. The only difference is that they do it on a much larger, more damaging scale. Until lawyers realize that fundamental truth about themselves and their peers, I don't see how it can ever be entrusted to self-regulate.

Oh, Stanley Fish, you never did change

I first encountered Stanley Fish's writing when I was a sophomore in college. I was on this silly kick of reading the "right" books, both in-class and outside of class, that would lead to my erudition, and as a result I found a list propagated by some Harvard professor who thought every well-read liberal arts-minded person should be conversant the items listed. There must have been 200-300 books on the list, and as I could only discuss maybe 10% of the books on the list at the time, I tried to remember the other titles and be on the look-out for them. (Note: like most 20-year olds, I was too stupid to see that this is not a good way to erudition).

Anyway, one of the books was Stanley Fish's Self-Consuming Artifacts. I never made it to that one, but I did happen to see a book of Fish writings in the library a while later. I picked it up and read five or six essays. One was this simplistic piece about how "free speech" was a myth. Another was this overly-convoluted exploration of interdisciplinary studies. One that sticks especially in my memory was this horribly-reasoned postmodern piece of garbage about how a scribbled shopping list, or a group of computer-generated words, could be a poem, all because they're capable of being interpreted as-if they were poems.

At the end of skimming through the book, I set it down and thought to myself "wow, this guy is intelligent, and he argues and writes like a fucking crackpot." Fast forward two years later and I was in a senior seminar that studied major authors. Like any good poser, one of my classmates name-dropped Stanley Fish in citing some bogus proposition and my instructor, without thinking about it, shook his head and said, "that guy is polemical for the sake of being polemical."

I say all this because Stanley Fish - the jack-of-all-stupid-arguments - has now written a defense of rising law school tuition fees based on - wait for it - technology. That's right, even though law schools are a veritable cash cow, the students generally supply their own computer equipment, and the only new technological expense is Westlaw and LexisNexis (both of which are more than happy to work with schools to get students hooked on using their systems), technology has driven cost increases outpacing the CPI by a ridiculous amount.

Not to short-change Fish, he also states that the inquiry should be a relative one; instead of saying "is tuition increasing?" we should ask "is the share of my income going to tuition increasing?" Although the tuition bubble is out-pacing the CPI by leaps and bounds, he somehow arrives at the opposite conclusion. For most people, justifying that statistical sleight-of-hand would be hard, but when you've spent your whole life bullshitting your way to fame, it's just another day in the office.

I refuse to post a direct link to this article and the rag that published it. Instead, I'll link to First Tier Toilet's excellent write-up and put-down.