The Futurists are Coming! The Futurists are Coming!

Last week I attended a program at Suffolk University Law School titled: “Tomorrow’s Lawyers with Richard Susskind.  And what I observed shocked me: violent, unmitigated agreement among legal futurists, firms, educators, and in-house legal departments about where our industry is heading.

The event marked the launch of Suffolk’s new Institute on Law Practice Technology and Innovation and included a presentation by Susskind, the dean of legal futurists, followed by a panel discussion with Prof. Andrew Perlman (a Suffolk law professor), Jordan Furlong (an influential law firm consultant and blogger), Regina Pisa (Chairperson and former Managing Partner of Goodwin Procter LLP), and Krish Gupta (SVP and Deputy GC at EMC).

Anticipated Discord

Susskind’s presentation was terrific – his metaphors, arguments, anecdotes, predictions all compelling and familiar to those who have read his books, yet offered with greater style and humor than his writing tends to convey.

But as good as he was, I confess I didn’t go to the event to hear Susskind. I’ve already bought in. To some degree, by setting aside my commercial litigation practice to try to “skate to where the puck is going” with Mootus, I’ve staked my own legal future on the changes that Susskind and others predict. I didn’t need to hear what he had to say.

I actually went for the panel that followed Susskind’s remarks. What interests me, as a lawyer who practiced for 10 years, is whether, when and how the everyday participants in the legal industry – educators, private lawyers and in-house legal departments chief among them – will embrace change and, yes, “disruption.”

This particular panel intrigued me because it reflected a diversity of real-world perspectives on the legal industry: law professor (and Chief Reporter of the ABA 20/20 Commission); law firm leader; senior in-house lawyer; law firm consultant. Not a collection of idle bystanders all chugging the same Kool-Aid. And so I thought I’d hear some smart rebuttals, or at least some mild pushback to what Susskind was selling.

Unexpected Harmony

But to my dismay, the panel uniformly agreed with Susskind’s views. More than that, they all talked about the concrete steps they and their organizations had taken to embrace Susskind’s brand of change.

Prof. Andrew Perlman (Suffolk University Law School)

The panel began with the moderator, Prof. Perlman, who is a Suffolk law professor and also was the Chief Reporter on the ABA’s 20/20 Ethics Compassion. Just minutes before, Susskind had skewered the Commission’s recent refusal to propose changes to the rules prohibiting non-lawyer ownership of law firms, calling that inaction a “deep, deep error.” I wasn’t sure how Prof. Perlman would react to this criticism, but I certainly didn’t expect him to agree:

Perhaps I shouldn’t have been surprised. Prof. Perlman is hardly a stranger to new technology. Among other things, he’s the director of the new Institute, which has impressed me with its commitment to talking about and actively practicing innovation. And with the Institute and a course titled “Lawyering in an Age of Smart Machines,” Suffolk University Law School (led by Dean Camille Nelson) is proving its dedication to helping students become “tomorrow’s lawyers.”

Regina Pisa (Goodwin Procter LLP)

My next hope for a little bit of dissent on the panel was Regina Pisa, the long-time leader of Goodwin Procter LLP, a 100-year old Boston stalwart where I spent my formative years as a litigation associate.  Truth be told, when I worked there, words like “innovation,” “collaboration,” “disruption” and “multi-sourcing” weren’t exactly rolling off the partners’ tongues. But when Ms. Pisa was asked her view of Susskind’s remarks, she responded:

“Not bold enough!” What? A joke perhaps, but the fact is Goodwin Procter is doing things a bit differently these days, and the results are impressive. Exhibit A is the Founders Workbench, a powerful resource for new companies, which includes a free DIY tool for creating founding documents. Goodwin Procter also has partnered with HBS to develop training modules on law firm economics, leadership, product management, and other topics. As Ms. Pisa further explained:

That’s an unusual perspective, but one I think law firms of all sizes should internalize to help them cope with the upheaval wrought by new technologies, business models and social norms. Over at MyShingle, Carolyn Elefant nailed this idea a few months ago with a great post urging new lawyers to lead their legal elders into the 21st century. The lesson (for students, new lawyers and firm leaders) is that associates are not just “bodies,” as I’ve heard some partners say. They have unique knowledge and skills and are far more valuable than the sum of their billable hours.

Krish Gupta (EMC)

My last chance for well-reasoned skepticism was Krish Gupta, SVP and Deputy General Counsel at EMC, where he leads a 100-lawyer legal department, and his boss, EMC’s EVP and General Counsel Paul Dacier, is the incoming President of the Boston Bar Association, the oldest bar association in the country. Surely Mr. Gupta would throw some cold realism on the room.

But no, apparently Mr. Gupta and his innovative colleagues at EMC have been living in the future for years. There’s EMC “University” for new lawyers, ungrudging acceptance of the responsibility to control legal costs and open-mindedness to the potential benefits of liberalization:

Jordan Furlong (Law21.ca)

I knew not to expect dissent from Jordan Furlong. After all, his blog’s subtitle is “Dispatches from a legal profession on the brink,” and he is one of the most prolific, insightful and provocative writers on the planet when it comes to the future of the legal industry.

But what Furlong did do was put the changing legal industry in context by talking about how the work of Clayton Christensen (author of The Innovator’s Dilemma, among other influential books) applies to law. As Furlong explained, Christensen distinguishes between “sustaining innovations,” which enable improved performance of existing products and services, and “disruptive innovations,” which introduce totally new value propositions and typically begin as inferior products targeting underserved, undesirable segments of a market. Furlong goes into greater detail on this topic in a recent post called “What Disruption Really Means.”

Furlong’s remarks took direct aim at the notion of lawyer exceptionalism. While law is different in some very important respects, it still is a business characterized by the delivery of valuable products and services to customers in exchange for compensation, and its survival depends on the ability of lawyers to generate profits. As such, there’s no reason to believe that the legal industry can (or should) avoid the kinds of disruptive innovation observed in other industries.

So Far, So Good…So What?

That question was posed before in a much different context for sure, but it fits here too. What are we to make of this apparent harmony?

Not Everyone Agrees

First, “harmony” is probably too strong a word. While this panel was fully on board, there are plenty of loud and credible skeptics out there. The best of these critics have long, distinguished track records of representing real clients (often criminal suspects) in matters in which personalized, consultative lawyering and advocacy is essential. My own view is that the only innovations we should embrace in these practice areas are those that (a) make good lawyers more accessible and effective and (b) help people avoid trouble in the first place. Perhaps I’ll be proven wrong some day, but I think DIY criminal defense is a bad idea that should never happen.

If You Aren’t Embracing Change, You’re Losing to Your Competition

Second, that caveat aside, the agreement on display at this event should be a wake-up call for law schools, law firms and legal departments everywhere. If organizations like Suffolk Law School, Goodwin Procter, and EMC have embraced these changes already and, indeed, are well down the path of implementation, and you’re still in exploratory mode or haven’t even read Susskind’s books, then you’re in trouble. You are behind, and your competition is ten steps ahead of you.

An Uncertain Future for Solos and Small Firm Lawyers

Third, to my mind, the most important unanswered question from the event was: what does the future hold for solo practitioners and small firm lawyers? Unfortunately, the panel didn’t include someone who could speak personally from that perspective, but the panelists did offer some interesting views.

Jordan Furlong expressed both pessimism and hope, reflecting the harsh reality that software is eating the worlds of business formation, simple wills, tax preparation, and small dispute resolution but also the opportunities available to those who choose to “adapt and co-opt” technology rather than reject it. Krish Gupta sang the praises of small firm and solo specialists, who offer valuable subject matter expertise at reasonable cost.

I spent five years as an associate and partner at a fantastic 10-lawyer litigation boutique in Boston. We routinely won business from major, sophisticated clients, and we frequently prevailed against big firms, all while delivering unrivaled service at a fraction of the cost clients would have paid elsewhere. Growing up in Louisiana, where my father was a long-time solo practitioner, I saw first-hand how solos can build niche expertise and form unbreakable personal relationships with their clients and communities. As a result, I’m a big believer in the capabilities of small firms and solo practitioners, and I generally view technology as something that can help level the playing field between big law and small law.

But the best analysis I’ve read of this question comes (again) from Carolyn Elefant at MyShingle, who talked several years ago about the implications of Susskind’s last book “The End of Lawyers?” for small firm lawyers and solo practitioners. Her comments continue to ring true today, and they align well with the observations offered by Furlong and Gupta at last week’s panel.

So for small firms and solos, I think this all boils down to a short (but not easy) prescription for surviving and thriving in the legal industry of the future:

  1. Build your substantive expertise, because the days of the generalists are over.
  2. Embrace technology that helps you work better, faster, smarter and cheaper.
  3. Nurture your relationships, because as long as the clients are real people, great service will always be a competitive advantage.

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Our thanks and congratulations to Suffolk Law School and the Institute for hosting this dynamic event. We hope this is only the first of many great events.


Law Students and New Lawyers: Master Your [Legal] Domain

As a law firm senior associate and then as a partner, I often was asked by new and aspiring lawyers what I looked for when interviewing job candidates. My answer may have surprised them, because aside from the obvious (the “table stakes”) — intelligence, good work ethic, reliability, team-first attitude, good writing skills — what I always looked for was substantive domain expertise.

That’s perhaps counterintuitive. A lot of law students and new lawyers think domain expertise is something you develop after you get a job. Isn’t that why it’s called “practicing” law? Wrong.

Experience vs. Expertise

Experience is what you typically develop on the job. Negotiating a deal, counseling a troubled client, handling aggressive opposing counsel, managing teams of paralegals and junior lawyers – you get better at these important skills only by doing them. Moot court, mock trials, clinics, co-ops and other forms of experiential learning can help, but the key to this kind of learning is doing.

Expertise, on the other hand, is something you can and should start developing on your own, even before you set foot in a law office.

Educate Yourself

As a law firm partner in Boston, I specialized in post-acquisition disputes, unfair competition litigation and accounting-related litigation, as did others in my 10-lawyer firm. Given our focus, it would drive me crazy when polished, smart, very well-credentialed candidates would show up for an interview knowing absolutely nothing about the Massachusetts unfair competition statute (M.G.L c. 93A), the Suffolk County Business Litigation Sectionearnout disputes or GAAP.

To me that was inexcusable. Not only did it reflect a lack of interest and research in my firm and what we did, it also revealed a lack of intellectual curiosity and motivation. In our connected world, it’s incredibly easy to build substantive knowledge about anything, especially the law. When you’re trying to land a job working in a particular area of the law, there’s no excuse for not educating yourself.

Lawyers Exist to Apply Knowledge, Not to Acquire It

It’s no longer acceptable for lawyers to expect to learn the law on-the-job, on the client’s dime. Clients won’t pay for new lawyers to learn, and law firms are interested mainly in maximizing your billable hours, not your substantive knowledge. Richard Susskind often cites the KPMG mission statement: “to turn our knowledge into value for the benefit of our clients.” That mission statement should apply to every law firm and lawyer. Clients hire us not to acquire knowledge but to apply our knowledge for their benefit.

Domain Mastery for Law Students and New Lawyers

So how do new and aspiring lawyers become masters of their legal domains? Here’s our advice:

  1. Identify your domains. What are your legal interests? What kind of practice do you want to have? What kinds of clients do you want? Where do you want to work? The answers to those questions will tell you what substantive areas should be your focus.
  2. Learn the basics. Once you’ve focused on particular substantive areas, then educate yourself on the basics. Wikipedia is fantastic for this level of learning, as are many single-volume legal treatises. Your goal should be to get a good grasp on the sources of law in this area, the key decisions, statutes and regulations, the governing bodies, and the overall legal framework for issues that arise in this area.
  3. Find and follow current resources. These days, nearly every area of law has a couple influential blogs, which catalogue important cases and highlight emerging issues. Bookmark or subscribe to these blogs and scan them frequently to keep informed.
  4. Build your knowledge base. You can’t keep everything in your head, so you need a system to help you manage the knowledge you’re acquiring. Law firm KM systems are great, if you’re already employed and your firm has one, but they belong to your firm, not you, and they’re generally for work-product, not self-education. You need something else. Evernote, Google Docs and Dropbox all can be useful for this, but they’re not designed for legal information, and you have to take the time to create and save the files you want. We’re partial to Mootus, not surprisingly, which is free, lets you conveniently “follow” issues posted and answered by others, and gives you a personalized “my issues” dashboard through which you can access any of the issues you’ve followed, posted or answered.

There are many other ways for new and aspiring lawyers to develop domain expertise. Do what works for you. But the key is to embrace the challenge of continuous, proactive, self-directed learning rather than wait for someone to teach you what you need to know. In this job market, you can distinguish yourself by building your own substantive expertise and showing employers and clients that you’re ready to apply that expertise from day one.


Issue of the Day: Myriad and the Patentability of Human Genes

Today, the Supreme Court will hear oral argument in Assoc. for Molecular Pathology v. Myriad Genetics, Inc., which asks the simple yet astoundingly complex question:  are human genes patentable?

The ACLU represents the petitioners, a group of medical professionals who oppose patent limitations on genetic testing, and is framing the issue as “The Fight to Take Back our Genes.

Myriad, the respondent, is a publicly traded biotech company that specializes in molecular diagnostics, including genetics testing and “personalized medicine testing.” Jones Day represents Myriad, which frames the issue as a fight to preserve the patent protections that incentivize companies and investors to risk billions on R&D.

Read the briefs on Scotusblog, and join the interactive legal debate on Mootus.


A Google Glass Challenge for the Legal Industry

Yesterday, Google Ventures and two VC titans announced the Glass Collective, an investment syndicate that “will provide financing and support to entrepreneurs shaping the future through Glass.” They view Google Glass as a game-changing platform, like the smartphone, and they want to encourage smart people to build innovative applications that run on Glass.

So here’s a thought: lets all of us law-types get creative and come up with some ideas for how Glass could be used to improve the legal world.

Before we all get bogged down in the innumerable liability risks, privacy concerns, and IP threats posed by glass – all very important and interesting – let’s try something different. For now, instead of asking “What legal problems does this new technology create?,” let’s all ask “What legal solutions could this new technology create?”

We’ve got some ideas, to kick things off:

  • How about legal research? A client asks you a legal question during a meeting, or an adversary makes a questionable claim, or a judge asks you to cite some authority, and Glass serves up the primary law. Maybe we’ll build a Mootus app for Glass, which leverages our database for these other purposes.
  • How about embedded codes and regulations? You look at a building, and Glass tells you what elements might not be to code. 
  • How about a new type of evidence – better than eyewitness testimony?
  • How about discretely alerting lawyers in court to potential evidentiary objections during trial?
  • How about an automated analysis of a contract, highlighting problematic provisions?
  • How about determining the copyright status of a work or identifying the patents implicated by an object?
  • How about an interactive learning and evaluation environment for law students, in which they’re guided through mock exercises?
  • How about remote collaboration by legal teams on negotiations, trials, appellate arguments or other projects?
  • How about reviewing exhibits while in court or a deposition? Document review? Due diligence?
  • How about automated timekeeping, where Glass determines the context of what you’re looking at and records the time for you?

We could go on and on, but hopefully others will add to this list. And by the way, we’re not alone in this little thought experiment. We’re not even a first-mover. Our friends at Suffolk University Law School and the new Institute for Law Practice Technology and Innovation are so far ahead of this curve that they actually won the right to be one of the earliest Google Glass users. So while the rest of us can only brainstorm for now, they get to do some real experiments.

Some of these ideas may prove foolish and unworkable, but the point is to set aside our natural skepticism for a moment and focus solely on what beneficial changes might be possible, given a totally new technology. There’ll be plenty of time for skepticism later.


Mocking Up the Practice of Law

Now that I’m spending my days building landing pages instead of drafting briefs, I’ve learned to appreciate the value of a mockup — described by Wikipedia as “a scale or full-size model of a design or device, used for teaching, demonstration, design evaluation, promotion, and other purposes.”

Mockups are damn useful, in general, and downright essential in manufacturing, design, computer software and many other fields. What about law? Do we use mockups in legal education and practice? Should we use them more? Should we use them differently?

We do use them, of course. Moot court and mock trial are two examples from law school. Some big law firms have deposition and trial training programs. Others have negotiation workshops, mediation training, and mock client counseling sessions. These are all pretty useful. They were important training experiences in my own career.

But I think we can do much more with mockups in legal education and training.

We need to do more mockups, and we need to make them smaller and more specific. Perhaps instead of “mock trial,” we should have mock “reluctant witness direct examination,” mock “pompous expert witness cross-examination,” mock “witness who contradicts her deposition testimony” and mock “get your key document admitted into evidence.” Instead of a massive, intensive moot court program focused on one very complicated constitutional issue, why not do several, short programs, where students have a couple of days to wrestle with more mundane legal problems and then have to stand in front of a mock judge and advocate for a weak position? What about giving students an hour to analyze a contract and then have them a counsel a mock client on the risks arising from the language?

Law firms should do the same thing. Create dozens of “mockups” of everyday lawyering experiences and encourage (require?) associates to confront those challenges repeatedly until they become second-nature.

The key is to give students and new lawyers lots of small, “mocked-up” opportunities to hone the skills they will need to become successful, marketable, billable attorneys. There will be failure, lots of it, but that’s a good thing. With real clients confronting real problems, failure is not acceptable. Ever. The beauty of a mockup is that it accelerates the process of failing and the learning and improvement that results from failure, all without adverse consequences.

One of the things we’re doing at Mootus is “mocking up” legal argument. We’re  giving law students and new lawyers abundant, free opportunities to engage actively with legal issues and to hone some of the skills needed to be successful lawyers. It’s not enough just to learn how to read cases passively. You need to learn how to use those cases to advocate for or against particular positions. The best way to learn is to do it, over and over and over again, and Mootus is designed to make that learning easier than it’s ever been. So give Mootus a try, and please let us know what you think.