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Information Inspirations
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[00:00:00] Greg Lambert: And now for some Mariah Carey. All I want for Christmas.
[00:00:05] Marlene Gebauer: I mean, if I could actually do her little arias, it’s like I would try to do that, but I’m, it would be horrendous.
[00:00:13] Greg Lambert: No, please don’t.
[00:00:22] Marlene Gebauer: Welcome to The Geek in Review, the podcast designed to cover the legal information profession with a slant toward technology and management. I’m Marlene Gebauer.
[00:00:31] Greg Lambert: And I’m Greg Lambert.
[00:00:32] Marlene Gebauer: Well, we have a hot off the press interview today with Professor Benjamin Barton from the University of Tennessee. Literally, Ben has a brand new book that just released this week called Fixing Law Schools from Collapse to the Trump Bump and Beyond. There’s been a bit of buzz about this book on Twitter, Greg. People are asking if anybody knows about it and, you know, should they get it? You know, we at The Geek in Review are very happy to deliver an overview from the author himself.
[00:00:59] Greg Lambert: So wait a minute, you called it da Twitter?
[00:01:02] Marlene Gebauer: Da Twitter. And Greg, we should note that to the listeners that Ben’s a prolific writer. His other books are The Lawyer-Judge Bias in the American Legal System, Glass Half Full, The Decline and Rebirth of the Legal Profession, and Rebooting Justice with Stephanos Bibas. So listeners, you have a cycle of Ben Barton books to peruse, just in time for the holidays.
[00:01:25] Greg Lambert: Absolutely. A potential gift for any of your legal nerd friends out there, Marlene.
[00:01:30] Marlene Gebauer: And speaking of nerd friends and nerdy things, it’s time for this week’s Information Inspirations.
[00:01:42] Greg Lambert: Now, we’re only doing one inspiration each this week because both of us still have to go shopping and I have a road trip to plan and more on that next episode. Yep. So this is the short and sweet holiday version of the inspirations.
[00:01:57] Marlene Gebauer: Very good. I read something and I really hope we get some feedback on this. The question posed in the article written by Sean Dexter is whether wireframes are still relevant. Not the glasses, Greg, you hipster, but the outline or skeleton of a web page. You’ve seen these, usually black and white with boxes, signifying content sets, very lo-fi in terms of design. And a lot of lorium ipsum written all over the place. Now, wireframes have been used to show stakeholders how a website would function and be used. Why? Well, you know, they’re easy and quick to produce and they pretty much eliminate design elements so that they don’t distract from the usability discussion. What Sean argues is that using wireframes up front is basically old school now, given the rise of agile product development and lean UX. And you thought lean was just for project management.
[00:02:54] Greg Lambert: I did.
[00:02:57] Marlene Gebauer: And also some of the tech solutions that are out there now, which can quickly approximate high fidelity visuals, which I think makes a lot of sense. If you can sit with a stakeholder and quickly assess usability requirements and modify visual design elements on the fly, it eliminates a lot of steps and allows you to deal with stakeholder feedback up front. Now, Sean does note in some instances that wireframes still make a lot of sense. For example, a mobile game that’s visually complex and that you need to work out the interaction independent of a very long art process. But again, as tech and process improve, they impact how we interact when designing. And Greg, he referenced some of these products like ThinkSketch and Figma, and they seem pretty cool.
[00:03:49] Greg Lambert: Interesting. Yeah, I think a lot of times you have to give, especially attorneys, something visual to see.
[00:03:56] Marlene Gebauer: Indeed.
[00:03:57] Greg Lambert: All right. Well, Marlene, my information inspiration is, well, you know, it’s that time of the decade where we all look back as well as make a few predictions of what’s to come. Adirant compiled its third annual Legal Tech and Business of Law Predictions and pulled together 25 thought leaders and their predictions of what 2020 has to offer. The overall theme I found on the predictions was that it was time to stop talking the talk and start walking the walk. Even our fellow geek, Toby Brown, got in on the action and mentioned that it is time to narrow our innovative ideas and focus on actually implementing and accomplishing something innovative. So imagine that. I think there has been a lot of talk over the past two or three years and not a lot of results. And so almost every one of the 25 predictions was like, OK, stop and do something.
[00:05:00] Marlene Gebauer: You know, I always wonder because, you know, how much, you know, is there innovation? Are we just talking about innovation? Are, you know, organizations really innovating and just sort of not telling anybody to get a competitive advantage? You know, I wonder.
[00:05:15] Greg Lambert: Yeah, well, I’ve I’ve heard some of the talk of innovation is the cross street between PR and BS. So so there’s a number of great ideas on the list of 25, so go check it out. But I wanted to add number 26 to the list.
[00:05:33] Marlene Gebauer: So, I mean, you have one of your own.
[00:05:35] Greg Lambert: They didn’t ask me, but, you know, that’s never stopped me.
[00:05:38] Marlene Gebauer: No, that’s true.
[00:05:39] Greg Lambert: So I think there’s a big push coming for collaborative software that focuses on the communication needs of the teams that we have in law firms. And that could be whether this is the overall practice area team. It could be a client team, a matter team, the administrative team. You know, the list goes on. So new products are entering the market and you see things from Microsoft like Teams, appropriately named. There’s another product that I have looked at called WorkStorm that I think would help fill this need. And what we do is we need to take the silos that we have from emails and voice messages and text and instant messaging and file folders and all these communication tools and create a single user platform that makes it easier to collaborate, to communicate and to store this information in a way that makes sense to the overall team members. And I think this is going to be the big breakthrough in the legal market in 2020 and beyond. So as the guy from Men’s Warehouse says, I guarantee it. All right. Well, that wraps up this week’s holiday version of Information Inspiration. Well, Marlene, this decade has been what our guests called the lost decade for law schools in the U.S. Ben Barton from the University of Tennessee Law School discusses what happened to law schools over the past 10 years or so and what he thinks needs to happen over the next decade to put law schools back on track and reestablish itself into the fabric of American society. Yeah, Ben has some really interesting ideas.
[00:07:22] Marlene Gebauer: And I do hope that this sparks some discussion, you know, whether it’s Collins or whether it’s on Twitter, because I think the topic is ripe for that.
[00:07:35] Greg Lambert: We are joined today by Professor Ben Barton from the University of Tennessee School of Law. Hey, Ben. Good to have you on the show.
[00:07:43] Marlene Gebauer: Yeah, Ben.
[00:07:43] Ben Barton: Thanks for having me.
[00:07:44] Greg Lambert: So, Ben, you’re a prolific writer and you have a new book that is literally hot off the presses. We wanted to talk to you about this book. But before we get started, I did want to note something about the titles of your books. And that is that, man, they’re kind of depressing. So let me just let me just read read them out and get your feedback on them.
[00:08:11] Marlene Gebauer: So there’s a lead in right there.
[00:08:13] Greg Lambert: Yeah. So you have three other books. You have the lawyer judge bias in the American legal system. You have the glass half full, the decline and rebirth of the legal profession. And you have Rebooting Justice, which you did with Stephanos Bibas. Is that right?
[00:08:32] Ben Barton: Yep, that’s how you pronounce it. Yep.
[00:08:33] Greg Lambert: And now your latest book is Fixing Law Schools from Collapse to Trump Bump and Beyond. So I just really want to start off. Are there no happy tales in the genre of the American legal system?
[00:08:47] Ben Barton: So first, I’m a law professor and I grade on a curve. I feel like you’re being ungenerous. It’s called Glass Half Full. There’s something in the glass.
[00:08:56] Marlene Gebauer: Well, please.
[00:08:57] Ben Barton: And we’ve got the word bump there, right? You know, like there’s at least something to look at. You squint a little bit. You can see.
[00:09:04] Greg Lambert: There you go.
[00:09:04] Ben Barton: No, but I’ll say I will say if you’ve been carefully watching what’s going on in the legal profession and or in law school since 2008, you know, it’s hard. If you’ve written a cheerful book over that period, then you’re probably not watching too carefully.
[00:09:17] Greg Lambert: And it might be fiction.
[00:09:20] Marlene Gebauer: But seriously, your latest book, Fixing Law Schools, is something that seems to be coming out at just the right moment.
[00:09:27] Greg Lambert: Yeah. In fact, I was talking with Marlene earlier today and she referred to you as the Richard Susskind of legal education. So timing is everything.
[00:09:38] Marlene Gebauer: I did. So, like, if you could wave a magic wand, what would be the first thing that you would fix in terms of how today’s law schools operate?
[00:09:48] Ben Barton: Yeah. So the book has got three big categorical suggestions. And I tried to limit myself to ones that are sort of at least theoretically possible. So the first is and this is the most. Important and if there’s a single takeaway from the book, it’s that law school cannot continue to grow more expensive year after year, more expensive than inflation.
[00:10:11] Marlene Gebauer: So law school has to become cheaper and the students have to have less debt.
[00:10:17] Ben Barton: And the book goes into great detail in the last 10 years. But for that story, you really need to go back all the way into the 80s. I mean, relentlessly, year after year, law school tuition has grown faster than tuition. And if something can’t go on forever, it will not go on forever.
[00:10:34] Marlene Gebauer: I have to say, as a victim of that, it is absolutely true.
[00:10:39] Ben Barton: Yeah, well, I mean, unless you graduated this year, you’re better off than the people who are still coming in now. Like, it’s just continued on. It continued on in the teeth of a collapse in applications and continued on in the worst market for law grads in at least since the 90s. And there just has not been any slowdown in it. So that’s the first and most important takeaway from it. Second, I would really like to see law schools do a better job with technology. No, I’m not suggesting that law school should become coding schools and we’re not equipped to do that. And there’s nobody in the building who knows how to do that. And of course, no one’s going to hire a lawyer to code anyways. But what I do think is super important is that law schools and law students work together and gain an understanding of how technology can streamline the practice of law. Can routinize certain practices and basically make the practice of law easier. Can streamline the practice of law, can routinize certain practices, and basically make the practice of law easier, simpler, and cheaper for the clients and the people, people at large. simpler and cheaper for the clients and the people, people at large. And then the last is the regulation of law schools. So historically, the ABA and state supreme courts have regulated law schools in the fancy term is what you call input regulations. So they’ve said, you know, what size faculty you have to have and what kind of work they have to do and what the law library is like and like a checklist of things that they think makes a good law school, the inputs that go into it. And the new regulation is moving towards outputs. Basically, do your students get jobs? Do your students graduate and do your students pass the bar? And so I am super enthusiastic about output regulations. That’s the way we should be headed. And that’s absolutely, positively the most important thing that will let a thousand flowers bloom. And all schools can try different approaches to reach the things that the students who are paying this exorbitant tuition really, really care about.
[00:12:29] Greg Lambert: Yeah, so the Maoist version of law schools.
[00:12:34] Ben Barton: Yeah, although I added a second caveat to that, which is don’t be evil.
[00:12:38] Greg Lambert: Don’t be evil.
[00:12:39] Ben Barton: There are law schools, and it’s not every law school, but there’s been predatory behavior by a number of law schools. And you can see it just in terms of the bar passage and the job placement rates. They are letting people into school who are not going to succeed in law school or ever become lawyers. And so if you’re going to have output regulations, you have to have teeth with them and you have to really look out for them.
[00:13:02] Greg Lambert: I wanted to pull back just a little bit. So you mentioned the three things that you would like to see happen. You also mentioned that there were originally three different styles of legal education over the years. And there was this apprenticeship model. There was a proprietary law schools, which were relatively very inexpensive. And then there was the Harvard model of scientific study of the law. And I think we know who won. So what, if anything, do you see as the flaw in teaching all of the legal education that we get in the U.S. based on this Harvard model?
[00:13:44] Ben Barton: Well, yeah. So let me start backwards just for a second. So at the dawn of the country, when we’re first founded, everybody becomes a lawyer through apprenticeship. And in the mid-19th century, you have Jacksonian democracy and you had an attack on American elites and you had a downgrading of American elites. And as you’re experiencing right now in America, when you attack elites, lawyers are in the front row. Right. So Jacksonian democracy was actually like, if it wasn’t their biggest success, it’s one of their top five successes, was they basically deregulated the legal profession. By the time the Civil War starts, two-thirds of states have no formal entry into the legal profession. And as you’re experiencing right now in America, when you attack elites, lawyers are in the front row. So Jacksonian democracy was actually like if it wasn’t their biggest success, that’s one of their top five successes was they basically deregulated the legal profession. By the time the Civil War starts, two thirds of states have no formal entry into the legal profession. And there’s a bunch of states where anybody who’s literate and a citizen can appear as a lawyer in court. So the Industrial Revolution comes and there’s a ramp back up amongst lawyers and they decide now that they want to have entry into the profession and they want to reprofessionalize. So there’s the old model of the apprenticeship model. And actually, weirdly, that would have been the easiest thing to do. Right. Because that’s what everybody already understood. But at the same time, you have this sort of growth in the scientific study of things. You have this German university model. And so the elites who were pushing this were like, you know, we should do is we should go ahead and push for scientific study of law. So that’s the Harvard model there. But as you can imagine, and if you’ve been to an American law school, there’s a little bit of fat in the budget. And so the proprietary law school sprung up basically to get people through the bar as quickly as possible. And the original model for it was the YMCA night school. And so just picture if you’ve been to a YMCA gym, just put a bunch of folding chairs in there and then put an adjunct professor at the front. And that’s the school. And you can see that if you’ve got one or two permanent employees, that’s a very inexpensive model. So there’s basically this sort of three-way death cage match between these three different models. And it’s the Harvard model that I’m picturing this right now. Yeah, I know for sure.
[00:15:47] Greg Lambert: Three models enter the octagon. Only one survives.
[00:15:51] Ben Barton: Yeah, no, absolutely. Yeah. And basically what happened was actually in the 20s, it looked like the proprietary law schools were going to win. There’s a huge growth in that area and limited growth in the sort of ALS slash Harvard model. But the Depression changed everything. In the Depression, all of a sudden there’s much more interest in having fewer lawyers, basically. And there’s also more interest in having better trained lawyers, etc., etc. And so state Supreme Courts come on board and the ABA gets involved and they just adopt the ABA accreditation standard. And basically by the time World War II ends, that’s the model they’ve won. And that’s where that’s what, you know, like a whole bunch of law schools closed between the Depression and the beginning of World War II and almost all of them were the proprietary night schools. Oh, yeah. So and so what’s the problem with that model? Yeah, it’s a little bit like why can’t every car be a Rolls Royce? There’s really not a need to have 204, 203 law schools with faculties where full time faculty could spend a bunch of time doing research and large law libraries and basically the type of build out that we have here. And so, yeah, that’s my main concern for it is that And this is one of the points that the book makes, which I think is sort of fun, is it’s always been the case that law school in the Harvard model has been too academic and not practical enough. But that’s not a mistake. That’s the point of the model. The way the Harvard model won was by being more academic. So it’s not like it’s a side effect of an otherwise neutral thing. That’s the entire purpose of the Harvard model.
[00:17:28] Marlene Gebauer: So given that, is there a model that you’d like to see return to the education fold to become more popular?
[00:17:36] Ben Barton: Well, first, I mean, the output regulation rather than input regulation should really encourage this if you’re just measuring on whether people graduate. encourage this. If you’re just measuring on whether people graduate, get jobs and pass the bar, then you can remix things and do things in a very different style. And I am all for that. As far as I’m concerned, if you can hit those three benchmarks, then I’m open minded to however you can do it. That being said, it’s sort of obvious that you would want to do more to prepare people for practice. And the irony of it is actually that we’re doing better at that now at ABA schools than we ever have with experiential requirement and the growth of clinical programs, the growth of externship programs. Like we’re actually on the right track with that. I just think that we are not done. Like that journey needs to continue.
[00:18:20] Marlene Gebauer: What do you think about the idea of if we’re looking at jobs and graduates getting jobs, are we are we also looking at where and what types of jobs are out there that that aren’t being filled? And should that help dictate what type of model? Like maybe the more practical model, because, you know, we hear we hear so much about, OK, we have all of this opportunity in terms of access to justice and all of these people need representation. But yet, if you’re, you know, if you’re going to a law school with this Harvard model, you’re you’re not getting the practical experience. And, you know, you’re also paying quite a bit of money that perhaps, you know, you can’t
[00:19:02] Ben Barton: pay back doing more of these these practical types of roles. I love that question. The last book, Rebooting Justice, is an access to justice book. And part of that book is this really, really puzzling like dilemma at the heart of law schools and the access to justice crisis. How is it possible that basically one third of American law school graduates from 1990 to now are not working as lawyers? And roughly a third of law school graduates from that period weren’t able to get a job as a lawyer at graduation. Some of those folks went to law school and decided they didn’t want to be lawyers. That’s like the data shows. That’s not the case for the majority of those folks. Most people go to law school because they want to be lawyers and are disappointed if they don’t get a job as a lawyer. So there’s this like weird underemployment gap. And so you would think that there would be all these lawyers anxious to serve this unmet need. So you’re like, well, that doesn’t make a lot of sense. Well, the reason why is that law schools teach the students to handle each case as like a little snowflake, as an individual project that has to be handled individually, which is the fancy word is a bespoke model. is the fancy word is a bespoke model. It’s like as if you’re teaching people to tailor individualized suits rather than make a line of clothing.
[00:20:21] Greg Lambert: See, we’ve already, we’ve already entered the Richard Susskind’s.
[00:20:27] Ben Barton: No, so that’s a really, really, really expensive model, and that’s the only model that we’re teaching them. And so basically, there’s all this unmet need, but the folks who have this need can’t afford to spend $10,000 for a contested divorce, or $15,000 for a DUI defense, or even $1,000 for a will. People who are in the middle class or in the lower middle class working poor folks don’t have a bunch of money sitting around paying for really desperately needed legal services. So the answer to this is we just need to teach the law schools not all, I mean, it’s fine to teach the individualized model and it’s fine to teach the most complicated law. That’s the most lucrative law. I understand that. That being said, not all law has to be handled individually. Some of it can be broken apart in a simpler manner and done much more cheaply for many more people.
[00:21:20] Greg Lambert: And so that’s the, like my passion for access to justice and for legal education comes together on that point. And that’s the technology point too.
[00:21:29] Ben Barton: All three of those together form a world where we’re training lawyers to serve more people for less money and make better money overall. Like there’s a world where it works out to be a win-win-win for everybody.
[00:21:44] Greg Lambert: I’m trying to think of things like the, I believe there was the Appalachian Law School. There was a pitch for a university or a law school in Tennessee that was supposed to help with serving the rural community. And as far as I remember, the ABA kind of shot both of those down.
[00:22:05] Ben Barton: No, the Appalachian law school made it and was accredited and has failed as a business model. And I don’t have it in front of me, but the tuition there is not reflective of that mission, in my opinion. I’m not trying to single them out. And also the model is not reflective of that opinion. You can’t bring people in and have them borrow between, like you can’t even have them borrow 25 grand. but you certainly can have them borrow 100 grand, 150 grand, and then go out and serve a population where you say, I’m happy to help you.
[00:22:32] Greg Lambert: a population where you say, I’m happy to help you.
[00:22:36] Ben Barton: I mean, like the average lawyer charges around 225 bucks an hour. But even at 100 bucks an hour, right, they’re charging less than half of what the average lawyer charges. Like that’s just a brutal amount of money to ask somebody to do. And if you’ve been to law school or worked as a lawyer, 10 hours of legal work is just really not very much legal work. You’re not going to be able to get much done for that cost. And that’s $1,000 bucks. That’s a lot of money to regular folks.
[00:23:02] Greg Lambert: Even so, I have friends who are solo attorneys that in a good year, they don’t make $80,000 a year.
[00:23:12] Ben Barton: I know.
[00:23:13] Greg Lambert: And so, there’s this disconnect. I just don’t understand it.
[00:23:18] Ben Barton: Yeah, no, for sure. And there’s a great study about how much time solos are able to actually bill out. And it’s a really low number. It’s like two or three hours a day. And the crazy thing is I’m with you, man. I work at University of Tennessee. I know a ton of graduates who are solos or working in small firms, what I call sort of the main street lawyers. And I promise you, they’re not golfing six hours a day. It’s a brutal, dog-eat-dog, super competitive market. The reason they’re not able to bill out more time is because they just spend a lot of time meeting with folks and saying, you can’t afford me, you can’t afford me. And that’s a problem that we have to get over. Like technology and law schools and these lawyers can work together to where they’re reaching more folks.
[00:24:03] Marlene Gebauer: So I wonder if some of the reason, and I’m probably going to get in trouble here, if some of the reason is, again, sort of based on this Harvard model. And there’s, I don’t know, a sense of elitism that we don’t handle things like that. That’s not what we were trained to do.
[00:24:24] Ben Barton: Yeah, I think that’s right. And I think part of it is, remember, so most of the professors at the schools, even the schools that are lower ranked or less prestigious, come from pretty prestigious backgrounds. So they have practice experience. A lot of them have practice experience in big firms, or they have practice experience. at relatively high level government work. And so you’re completely right, like they’re not really interested in talking about run-of-the-mill cases. And then, in defense of them, they would say, well, the more complex cases, the less run-of-the-mill cases, we teach only cases, and they’re more interesting, right? They’re more interesting, and also, that’s like the lawyers who work in those cases make more money. But that being said, not everybody can work in that area. You know what I mean? Not everyone’s going to be an antitrust lawyer or even like a high- level tort lawyer. Lots of people are just going to do run-of-the-mill med-mal cases. And so we have to work on educating those folks too.
[00:25:20] Greg Lambert: Let me take the other side of that is, you know, my friends who are solos that an 80K year is a great year for them. They are also one of the first I see to fight the technology or the uniform or having the bar association come out with standardized forms that people can use because they’re in fear that that’s somehow taking lots of business away from them. So I think your whole thing about it doesn’t have to be, not everything’s a snowflake, I just don’t think that people understand that.
[00:25:55] Ben Barton: Oh no, so you’ve got that completely right. To note, basically we’re in a time of change and we’re in a time of royal, and there are winners and losers that come through that for sure. And so I do not mean to downgrade that at all. That being said, I give a talk on technology the entire first year class every year for the last five years here at Tennessee. And I just go ahead and tell them, it’s my opinion. that the lawyers of the future who are going to make it are the ones who are really able to grasp this idea of simplification, routinization, and using technology to streamline things. And the folks who don’t do that are really going to swim upstream. But then I note for the students the good news on that. Who’s in better shape to do that? Somebody my age, somebody my dad’s age, or somebody their age? Like they’re super fluent with technology. And again, we’re not asking them to do any heavy lifting or programming. We’re really just asking them like, you know, don’t have an office, consider having fewer employees. And then the way that you do it, consider setting it up so that the clients interface with the machine as much or more than they interface with you. And so the whole point of it is that the lawyers do the hardest work, the work that only a human can do, the work they’re best at, and honestly, probably the work they went to law school to do, right? Appearing in court, talking to clients, building legal arguments. All of the other stuff that comes along with running a small business, which is what being a solo practitioner is, they need to automate that as quickly and as conveniently as possible. So that being said, I’m with you. And in particular, if I were a 50-year-old who was scared of technology, then I would definitely want to fight that. But again, it’s my opinion, they’re doing it exactly backwards. LegalZoom and Rocket Lawyer and other online companies have little to no use for existing lawyers. And they’re just working around the bar associations and these regulations every day. And so instead of like saying, oh, what we need to do is limit our ability to compete with them and just stick with the old way of doing it, that’s just, in my opinion, that’s not a successful strategy. And I don’t say that based on just studying the legal profession. I say that just look at the march of technology since the beginning of the Industrial Revolution. The folks who have been like, you know, if I try and regulate it, surely it’ll go away. That just hasn’t worked out for them, and it’s not a long-term survival mode. hasn’t worked out for them. And it’s not a long-term survival mode. So for example, the forms, we had a bunch of these fights in Tennessee, and in my opinion, again, they’ve got it backwards. The lawyers are allowed to use the forms, too. If there’s a bunch of forms that are helpful for divorce, then you can still have contested divorces that can’t be used for the forms. But for the folks who have a simpler divorce, lower your price, get more people in the door, and then do more divorces. There’s a version of this, again, where if you’re flexible and nimble, you can do better, I think.
[00:28:50] Greg Lambert: Well, let me play off of your first year talk on technology. And so we’ve had on the show here a number of law schools that are doing these innovative ideas, whether they’re the tech courses, integrating tech into the curriculum, practical skills training, innovation labs, those sorts of things. Are those actually making any type of an impact on the legal market as far as who’s recruiting or job opportunities that are available for the students?
[00:29:27] Ben Barton: Oh, that’s a great question. Yeah. So I’ll say two things about that. The first thing is I’m teaching a class, like I’m teaching an A2J lab here that’s basically a programming class. It’s the second year I’ve done it. And so in terms of the effect on those students, I think it’s still too soon to tell, because it’s a really nascent area, and we’re basically equipping these students with a whole different skill set, and it’s too soon to tell how that will play out early in their career, let alone as they go forward. In terms of the job placement, here’s what I can say. There are a handful of jobs in these legal tech companies, and there are a handful of people who go out and just start legal tech companies. Short of that, I honestly think that it has not had that big an impact on hiring, which, as you can imagine, is of great frustration to me and to the folks who are involved with this. It is frustrating to me, but extra not surprising to me, because in my experience, in my study of law school hiring, really not much that law schools do changes the behavior of employers. Employers really, really, really tend to hire based on the perceived prestige of the school and the perceived class rank within the school, and then some level of personal connection slash recommendations from folks on the faculty.
[00:30:42] Greg Lambert: And this is where we play the sad music.
[00:30:48] Marlene Gebauer: But I’ll point out, statistically, none of that makes an impact on whether they’re going to be a successful lawyer. Statistics are showing that. And I’ll also mention, why don’t we flip that question around, and will it be the students who are taught these things and who are familiar with these things that will basically go in and kind of forge their own way with solutions that are ultimately needed? ultimately needed? As you’ve said, some of these other legal support organizations and companies, they don’t need lawyers. And is it really the students coming in as new practitioners that are really going to drive the innovation because they see the need in order to survive?
[00:31:32] Ben Barton: For sure. And that’s what I meant by it’s too soon to tell. We just don’t know the answer to that, to how that’s all going to work itself out. But yeah, no, I’m excited for that.
[00:31:47] Marlene Gebauer: Cool. I’m sure it would be oversimplistic to think that fixing law schools are going to fix all the problems with the legal system in the U.S. But I think we’re probably all in agreement that it’s a start. What, Ben, do you see as the biggest problem facing the legal system in the United States? And how do you think that changing legal education might help address the bigger issues that we face as a society? That’s a big question.
[00:32:18] Ben Barton: No, no, you’re fine. The first thing I’ll note is that law schools are a pinata and that whenever there’s a perceived problem in the profession, there’s a strong temptation by the bar regulators to be like, well, you know, instead of actually making current lawyers do it, what we should do is make the law schools do it. I mean, obviously you want to fix things that you’re seeing out in the profession that need to be fixed, but that’s not a be all and end all. The end result of all regulation should not just be yelling at the law schools. That being said, and I already talked about it a bunch, but it’s the access to justice crisis aspect to things. And in particular, I would note for years and years and years, I think people have perceived the access to justice crisis as just a problem for poor people. And that’s a deep misunderstanding of the crisis. class people and even upper middle class people can’t really afford much legal services. At the same time where we’re in this like law thick world, as Jillian Hadfield calls it, where basically there’s just law controls a lot of different aspects of our lives. And a lot of people, I mean, these are things like, you know, landlord tenant law or divorce law or child custody law or debt relief. I mean, these are things that are really, really, really important where you can’t afford a lawyer. And no, like weirdly in this situation, the working poor are way worse off than the like super poor. So for example, in Knoxville, Tennessee, if you work full time at McDonald’s, you’re too rich to qualify for a legal services corporation, and you’re too rich to get a public defender. And so from there all the way up into the middle class, people earn 50, 60, $70,000 a year. They just don’t have access to legal services. And law schools have to be a part of that solution. We have to help the current students who are graduating think of ways to better serve that population. And that not only makes better sense for the country, that makes better business sense. Like there’s no reason why we should cede huge swaths of legal need to non-lawyers at LegalZoom and Rocket Lawyer. Like we want those folks to come in and pay us to do that work. And we want to do that not because we force them to through unauthorized practice of law or licensing, but because we offer an awesome product that they want to purchase. Like that’s the actual answer to this. And law schools have to figure out how they can be part of that solution.
[00:34:43] Greg Lambert: So Ben, to finish up, I wanted to do just a quick round with you. And I’m going to throw out some concepts or some players within the legal industry. And just real quick, we’ll see how this
[00:34:56] Ben Barton: works out. Ask you to give a quick answer on how you think they could change or influence
[00:35:03] Greg Lambert: how the law schools operate. So I’m going to start with… It’s a lightning round. So I’m going to start with the big one, the American Bar Association. Okay, so hold on. I’m
[00:35:12] Ben Barton: going to be even more lightning roundy. All right. I have your list in front of me and I’m going to lump some together. Are you ready? Okay, I’m ready. Do it. ABA, state bars, federal, state,
[00:35:23] Greg Lambert: and local government. All right, go. The state Supreme Court in every state in the nation
[00:35:30] Ben Barton: is basically the government body that controls lawyer regulation. And it’s the state Supreme Court that has basically empowered both state bars and the ABA to be the regulators of the law schools. You can’t just pick the ABA because the actual bodies that are doing it are these individual government bodies. Now, it’s funny you’d put the ABA first because your impression would be like, oh, no, the ABA basically runs that. And that’s true. That’s because the state Supreme Courts have another job. They’re really busy. So they don’t have a lot of time to sort of like really deeply manage or keep track of that. But part of the idea would be to get all of those bodies on board. And in particular, to have all of those bodies on board with output regulations with real teeth. And that’s the combination of the two things that you just desperately need.
[00:36:22] Greg Lambert: All right. Now, big law firms. What can big law firms do to help with the legal education?
[00:36:28] Ben Barton: Yeah. And so this goes back to the hiring thing. I would just love to see more rational hiring because basically, if you’re just going to do hiring based on the ranking of the school and the ranking of the people within the school, it’s almost like what happens at the school is utterly meaningless. And that means that trying to change anything at the school is really hard. Because if you say, oh, we’re going to focus much more on experiential education, or we’re going to have required a clinical program, or we’re going to have to truly focus on having practice ready graduates, and then it doesn’t move the needle at all in terms of hiring and later we’ll get the law students or in terms of applications, then you’re like, why bother? You know what I mean? This is part of the reason why law schools heard so much is because there’s almost frequently not much upside to changing. And sometimes the schools that are more aggressive and changing are actually punished by it.
[00:37:20] Greg Lambert: Right. Rational hiring. That’s the name of my new punk band.
[00:37:24] Ben Barton: Yeah, I like it.
[00:37:26] Greg Lambert: All right. Did you want to lump the next ones or is there anything you want?
[00:37:30] Ben Barton: Yeah, man. Let’s do deans and professors together for sure.
[00:37:33] Greg Lambert: All right. So law school deans and law school professors, what can they be doing?
[00:37:37] Ben Barton: There’s a really funny Chronicle of Higher Ed article that I talk about in the book, and I think it’s like 2013 or 14. It’s right in the middle of the big crisis. It’s when first year applications are collapsing and there’s like 33% fewer people in the building, and what are they going to do for the funding? And I’m paraphrasing the headline, but the headline is law school deans find law school faculties puzzlingly resistant to change. Which made me laugh super hard. I was like, oh, I’m not puzzled by that at all. These people have not spent enough time at a law school faculty meeting. So yeah, and I’m not trying to speak only about my own institution, but my experience here and elsewhere is there’s no shortage of good ideas. In fact, where it’s like in terms of low hanging fruit, there’s like low hanging fruit, there’s fruit on the ground, we’re stepping on fruit, we’re surrounded by fruit. Everyone’s got a bunch of ideas about how to fix it, but what we need to do is have flexibility and the ability to work together with it. It’s a really crappy time to be a law school dean because it’s the tuition and budget model is still messed up. And then you have people like me who are like, oh, but you can’t, you have to make it cheaper. And they’re like, oh, I’ve just finished going through the last 10 years, which is really brutal. It’s a bad time to ask for more, but then that’s what we need to do. We need to have more in terms of cheaper schools, better schools, and the faculty has to get on board with that.
[00:39:08] Greg Lambert: I’m going to do just a quick little side note here, a side question. What about the problem that we’re hearing with overuse of adjunct faculty? Are you seeing any problems in that area?
[00:39:23] Ben Barton: So again, and this will be unpopular with some listeners, but I’m an output regulations guy. And so if the school is using a bunch of adjunct faculty, but people are graduating and they’re getting jobs and they’re passing the bar, then I’m a little confused about what the problem is. Those are the things that really, really matter to the students. And so in my opinion, that’s what should matter to the school. So that being said, this is what I mean by output regulations with teeth. Like if you’re replacing all of your current faculty with adjunct faculty and then people are failing to borrow on this and not able to get jobs, then that’s definitely not okay. And then people are failing the bar on this and not able to get jobs, then that’s definitely not okay.
[00:39:59] Greg Lambert: I was going to say, I’m going to lump the next two together. In fact, I’m going to add one.
[00:40:04] Ben Barton: Great.
[00:40:06] Greg Lambert: Law students, law school applicants, and then I’m going to add law school alumni.
[00:40:10] Ben Barton: Oh, I like this. Okay. So students and applicants, I would prefer to see applicants be savvier consumers. The studies show that law school applicants choose first and foremost based on the U.S. News ranking, and then a distant second to that is location and programmatic things. And so I would like the same way I’m sad about the way hiring is done out of law school, it’s how I feel about how the students choose. I feel like they should dig in deeper. And the ADA, to their credit, the amount of data that you can get on individual law schools is jaw-dropping. Like you can get a really, really in-depth, like granular description of bar passage and job placement down to the exact types of jobs that our people are getting out of the school and what their average earning is. So I would just prefer to see the students working hard to differentiate between the schools, because that would actually help the schools if the way that the schools are being chosen is based on U.S. News. And that’s all the schools are going to care about. And then the underlying data will only be jiggered to try and move up or down in U.S. News, which of course has not gotten us very far. And it is.
[00:41:23] Marlene Gebauer: Oh yeah, no, totally.
[00:41:24] Ben Barton: This is exactly what’s happening.
[00:41:25] Marlene Gebauer: Right, and that’s just a, that’s like, that’s the tail.
[00:41:26] Ben Barton: That’s not even the tail. It’s like some part of the tail wagging the entire rest of the dog. It’s a really bad situation. And again, you know, they’re like, they’re applicants, so I understand where they’re coming from, but that would be my hope.
[00:41:36] Greg Lambert: you know, they’re like they’re applicants, so I understand where they’re coming from, but that’s, that would be my hope. And what about alumni?
[00:41:42] Ben Barton: Yeah, I would hope that alumni would be supportive of the school going forward and making changes, basically. I would like to see alumni recognizing that technology is part of the solution, and also I would really like to see the alumni buck up on the tuition and the debt. It seems like the alumni as a whole, and I’m speaking generally, it’s not like I have a whole bunch of data to back this up, but it’s not my sense that there’s an alumni revolt on how things are going with tuition, and that’s a shame. In particular, at University of Tennessee, I ran into a guy, I gave a talk at Nashville yesterday, and asked the guy what his tuition was when he came here in the 80s and he was like $200 a quarter. I was like, I bet that’s working out for you. He was like, ha ha ha, sure did. And so I would really like to hear that guy call up the dean in sweater about our current tuition and not just here, our tuition. I mean, I’m not trying to pick on Tennessee, but I’m just saying all over the country, the alumni should be asking questions about that.
[00:42:40] Greg Lambert: Yeah, that’s a, you know, and I think really what I hear is, I feel sorry for the people that are in there now, but hey, it’s their choice. So, but.
[00:42:51] Marlene Gebauer: I had to do it, so they have to do it.
[00:42:54] Greg Lambert: So the last one is what can we be doing more with the technology and innovation to fix law schools?
[00:43:02] Ben Barton: Yeah, so we talked a bunch about this, but the A2J lab class that I teach and that they’re teaching at a bunch of other law schools is based on a bunch of other law schools is based on this particular skill that American law schools are currently not very good at teaching. And so the skill is taking a legal problem and simplifying it, breaking it apart into constituent parts, putting it in the order that makes the most sense, and then asking a regular person questions, basically at like a second grade or third grade reading level to help them create either a legal document or a legal process. And if you just think about how that works, like to put like the learning the law and then breaking it apart and then regularizing it, we spend much, much more time on gray areas that that’s not, we’re not capable of doing that, but that’s, we need to do both of those things. We need to teach people about how to simplify the law and routinize it. And that’s a, like, that’s both a conceptual thing, but that’s also a technology thing because once you break it apart into constituent parts, then you can let technology do a bunch or all of the work for you.
[00:44:08] Greg Lambert: All right. Well, that’s the end of the lightning round.
[00:44:11] Ben Barton: Beautiful. I like it.
[00:44:13] Marlene Gebauer: Well, Ben, I want to tell our listeners that your book, Fixing Law Schools from Collapse to the Trump Bump and Beyond, is out now, right now, right now for a holiday present.
[00:44:26] Ben Barton: It actually physically was released yesterday. So you’ve got me on the right day.
[00:44:30] Marlene Gebauer: Yes. So it can be ordered through Amazon or other book outlets. And I believe the Kindle version is coming out next week. Is that right?
[00:44:38] Ben Barton: Yep, that’s right.
[00:44:39] Marlene Gebauer: Oh, good. So Ben, thank you so much for taking the time.
[00:44:43] Ben Barton: No, thank you all. It was a great conversation. I really appreciate it.
[00:44:45] Marlene Gebauer: Yeah, yeah. I think this was very informative and very thought provoking. So thank you.
[00:44:50] Greg Lambert: Absolutely. Yeah, thanks again, Ben.
[00:44:51] Ben Barton: All right, appreciate it.
[00:44:56] Marlene Gebauer: So it’s going to be interesting to see if Ben’s predictions about law schools are as successful as Richard Susskind’s have been regarding the legal field. I think he’s right that you need different models to satisfy different needs. And this complements an idea that we’ve discussed before, different courses or tracks of study, depending on what you want to do. I’d like Ben’s idea even more because an entire school could be devoted at the correct price point for particular tracks, whether the focus is on the more practical aspects of representation or legal tech support or something else. You could still support the Delta lawyer model this way too.
[00:45:38] Greg Lambert: Yeah, I just, the one thing that I worry about is whether or not the horse has left the barn, especially when it comes to price, because I don’t see the schools. getting back to a reasonable price. Maybe I’m wrong, but we’ll have to see how that plays out. But I really liked his concept of taking the legal process and breaking it into the natural processes, which happens in practicing law. And not everything is a special one-off, or as he called it, a snowflake. So find out what can be automated, what can be delegated, and what can maybe even be deleted in the processes. be able to do more, charge less, and end up making as much or more at the end of the day. So while law schools may still be the whipping boy for what is seen as wrong in our legal industry and culture, there are definitely pieces in which Professor Ben Barton points out that can be improved. It was great having him on the show, so go out and get that book as a Christmas gift for yourself or for your favorite legal professional out there who’s looking to make this industry a little bit better.
[00:46:49] Marlene Gebauer: Well, that wraps up our podcasting for 2019, and we look forward to seeing all of you in 2020. But before we go, we want to remind listeners to take the time to subscribe on Apple Podcasts, Spotify, or wherever you listen to podcasts. Rate and review us as well.
[00:47:05] Greg Lambert: Yeah, consider that your Christmas gift to us.
[00:47:08] Marlene Gebauer: Your holiday gift to us. There you go. If you have comments about today’s show or suggestions for a future show, you can reach us on Twitter at GabeauerM or at Glambert, or you can call the Geek and Review hotline at 713-487-7270. Or email us at GeekandReviewPodcast at gmail.com. And as always, the music you hear is from Jerry David DeSicca. Thank you, Jerry.
[00:47:35] Greg Lambert: Thanks, Jerry. All right, Marlene, safe travels over the holidays.
[00:47:39] Marlene Gebauer: Thank you. You too. Merry, merry. Hey, don’t take me away. I could walk home by the North Star, but I fail to notice that it’s still daylight.
[00:48:01] Ben Barton: And the devil’s back on the bar. The devil’s back on the bar. And the devil’s back on the bar.