A couple of episodes ago, we had Richard Hsu discuss the need to eventually bring as many of our lawyers back to a physical office in order to have a successful working environment. Stephen Embry of LegalTech Crossroads Blog reached out to us after listening and wanted to argue that while he understood Richard’s argument that in order for there to be a level playing field for all lawyers in the firm, that there were actually ways to create a successful environment where lawyers could continue to work remotely. In fact, that with the right strategy, training, support, and flexibility, that it would actually attract better talent and lead to better satisfaction from not just the firm’s own lawyers, but also from the firm’s clients as well.
Halloween is the weekend, and like any good legal nerd, you’ll want to know where to find some law review articles on the topic. Our friends at the Ohio State University Law Library have curated a list just for you.
While our guest today talks about the value of online depositions, Above the Law recently wrote about one lawyer’s desire to get back to the good old days. Which we will probably never see. But, he can keep wishing.
Dalhousie University Law School in Halifax, Nova Scotia is working to help startups in Eastern Canada work through some of their basic legal needs. This subscription-based service is designed to get the startups some help, but at the same time, not actually compete with law firms. Read more about the initio Technology and Innovation Law Clinic and its Director, Jacqueline Walsh.
Is the US Supreme Court forever going to be surrounded by the political whims of the other two branches of government? Probably. But, under the right circumstances, it may not need to be.
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Marlene Gebauer: Welcome to the Geek In Review. The podcast focused on innovative and creative ideas in the legal industry. I’m Marlene Gebauer.
Greg Lambert: And I’m Greg Lambert. So this week we revisit the issue of going back to the office. This time, however, we talked with an old friend of the podcast, Steven Embry, and Steve takes the approach that we really shouldn’t be all that anxious about rushing people back into a physical workspace. Listeners may recall a couple of weeks ago when Richard Hsu joined us, and he stressed that getting as many people back into the office once it’s safe, is going to be critical. So Steve’s going to give us a few counter arguments to Richards perspectives.
Marlene Gebauer: because we love a good counter argument.
Greg Lambert: That’s when it gets interesting. Yes. All right. Well, let’s jump into this week’s information inspirations.
Greg Lambert: Alright, Marlene, I know I told you that we were only going to do one inspiration each this week, but I lied. So I actually brought two.
Marlene Gebauer: Of course you did.
Greg Lambert: But one of the really super short so I’ll just jump in. And I saw it today. So it is relevant because Halloween is coming up this weekend is ran in were illegal podcast. So combine both of those. Ohio State University’s Law Library blog has some what they call hauntingly good law review articles. And they point out some articles that anyone who wants to find out how the law and All Hallows Eve coincide. They should check these out. I actually went to one of the articles and read where there’s a Mississippi County that they really don’t like people dressing up as clowns. And so I think apparently the sheriff has a clown phobia. So if you’re in this county dress up as anything but a clown.
Marlene Gebauer: Well, I’m down with that again, you know, what a big fan… Not… I am of IT. And it’s like, yeah,
Greg Lambert: okay, you’re a huge fan of clowns, I know.
Marlene Gebauer: Huge fan. So I confess that since you’ve had two inspirations, I also have two. And the first is actually I got this from our interviewee today, Steven Embry. It’s about litigation practice during COVID, which Greg, you know, has gotten my attention, since I’ve been hearing a lot of war stories about it from practitioners. And what struck me about this article is that the author’s focus is really all about the author. You know, it’s about how it would be easier for him if we went back to the good old days of attorneys bantering in the hall and in person sidebars. You know, there’s no discussion about how it’s impacting other participants, or that maybe it’s less expensive for clients and courts to conduct And also that it’s much more convenient for all of the parties. You know, I’ve heard very mixed reactions regarding the coaching of witnesses online. You know, some say it’s not really a problem at all. And others say that the courts and attorneys have agreed upon protocols ahead of time to prevent it from becoming an issue. You know, what I say is let’s just accept that we aren’t going back to the old way soon, if at all, and embrace the positive aspects of the transformation at hand.
Greg Lambert: Yeah. All right. Well, Marlene my unauthorized second inspiration is from north of the border, where Dalhousie and I hope I said that right, University Law School has a great program to help startups with some of their basic legal needs. And they call it the initio technology and innovation Law Clinic. And it’s run by Jacqueline Walsh, who’s the director of the Law Clinic there. The clinic is available in the beautiful Nova Scotia Province only. But it didn’t, but at some point, they’re hoping that they can expand at least across the Canadian Atlantic seaboard. Now, this is a subscription based service that they’re setting up for about 100 bucks a month, and that’s Canadian dollars. And, and one of the reason they’re, they’re doing a subscription based service for legal services is because that’s something that the startups are familiar with is doing this. And the idea is to help startups with again, some of their basic legal needs like contracts and incorporations. Walsh says that they’re not trying to compete directly with law firms and in fact, they’re not apparently not even taking money from law firms on this project. But the work that they’re doing is much more low level and helping the small or the very new startups only. And at the startups has raised money, then they’re sent to a more traditional law firm to seek help. I love this idea. And I think I think at some point, we need to get Jacqueline Walsh on the show and see how this thing is going.
Marlene Gebauer: Yeah, I think that’s a great idea, because I know that they’re, you know, we’ve actually since you’ve since you found this, we’ve talked to some others who have similar types of models. So I think that would be a good, that would be a good episode. All right. So Greg, before I get into my second inspiration, I wanted to share with you and with our listeners that I had a bet with my eldest child, that if we hit a certain bench benchmark on the podcast, that he would bake us a cake, and we’re getting a cake. All right. We’re getting a cake after all this time, we are getting a cake and we’re getting Tres Leches cake. So yeah, it’s gonna be it’s gonna be delicious. All right. My second inspiration is concerning the Supreme Court. So as you know, Amy Coney Barrett was confirmed to the Supreme Court of the United States this week, and there is considerable stir over the new six to three conservative majority on the court, and what impact that will have on jurisprudence. Well, it turns out that it could be a lot or not that much. So I listened to an episode of the new podcast Innovation Hub about whether the supreme court can be reinvented. Turns out, it can under some circumstances, the court numbers could be increased and could even be made to an even number. The president could look beyond the Federal Court of Appeals for appointees to get a larger and maybe more representative pool of the country’s views. and Europe also offers another model to consider a supermajority of the legislature there is required to confirm, so the entire legislative body has to get behind an appointee. And the judges, they’re either they’re required to or you know, they just take it upon themselves to come to a single consensus decision, which is representative of all views. So if you have a more balanced appointment process, and a more balanced court, decision making will also likely be more balanced. It’s a really good podcast, and I encourage anyone with an interest in the Supreme Court to listen.
Greg Lambert: Yeah, I think in it, we’re gonna have to get out of this current political environment before any of those ideas to float. But we’ll see.
Marlene Gebauer: Did you Did you notice? Did you notice my very sly, very subtle, very subtle?
Greg Lambert: under the right circumstances?
Marlene Gebauer: under the right circumstances?
Greg Lambert: Yes, yes.
Marlene Gebauer: So you know, get out of the vote.
Greg Lambert: Yes, yes, definitely get out and vote.
Marlene Gebauer: Yes. And Greg, that wraps up this week’s information inspirations.
Greg Lambert: Eventually, we’ll come out of this pandemic.
Marlene Gebauer: Eventually.
Greg Lambert: And for many of us, we may think that that’s the time where we get back to our regular routine of going back into work being around our fellow workers. Yeah. And while that may be comforting to some, it’s probably not going to be anything like that. Once we get back to work, and it’s not going to look anything like what it was in March.
Marlene Gebauer: It’s no magical thinking here on this podcast.
Greg Lambert: It is not. Today’s guest gives us his perspective on what he thinks the workplace is going to look like, once we do have the option of going back to a physical office.
Greg Lambert: We’d like to welcome Steven Embry, lawyer and writer with the tech law Crossroads blog back to the show.
Marlene Gebauer: Steven is great to have you back. It’s been a while.
Stephen Embry: Wow, it’s good. Good to be here. Yeah, I think it was. Well, Greg reminded me before we started, I think it was April a year ago that was on the show. It was right after we were in San Francisco.
Greg Lambert: That was like, 20 years ago now.
Stephen Embry: Yeah, it was. Yeah, it was back when wife was was fun. You guys know, Adriana Linares is and I was listening to something she was doing the other day. And she phrased it pretty well. She said, Yeah, the virus it took away everything that was fun, just left us with the with the bad stuff. But all the fun that took away.
Marlene Gebauer: Well, since the last time you’ve been on the podcast, we understand you become vice chair of the ABA law practice division. And you’re in line to chair that division in a couple of years. So tell us about that experience and how it happened?
Stephen Embry: Well, you know, it’s really interesting app, I’ve been part of that organization for maybe 10 years, something like that I was introduced at that tech show, which the law practice division is every year. This year is going to be virtual, or next year, it’s going to be virtual. And so I got involved in leadership, I got involved in some strategic planning for the for the division. And last year I was secretary this year, I will be vice chair. Next year, if things progressives they normally do, I will be chair elect. And then the following year, I will be I will be chair. That’s assuming of course having behaved myself,
Greg Lambert: I can say that’s a big assumption
Marlene Gebauer: Yeah a big assumption. Because we know you a little.
Stephen Embry: But just a short plug, if you don’t mind for the division, we now have over 20,000 members, we put out a huge amount of content, from webinars to podcasts. We have a Master’s law practice management series that’s going on now. Two magazines, one of which is an E magazine, the legal technology Resource Center, which does the ABA survey tech survey every years is under the division. We have book publishing, we have all of our technology blog. And of course, we run tech show every year. It’s a challenge. But a lot of smart people, a lot of people working hard, and I’m honored to be part of it. Even though we now do a lot more things virtually than we ever did before. But we’re used to it. So it’s a it’s fun.
Greg Lambert: So Steve, a couple of weeks ago, we had Richard Hsu on the podcast, where he talked about some of the issues that he saw with returning to work after such a long time of working from home. And you and I talked right after that episode, and you had a couple of different views on that situation. So would you mind giving us your overview on what you think’s going to happen once we start heading back to the office?
Stephen Embry: Sure. And you know, Richard’s a smart guy. I know, Richard, I respect him, I think a lot of him. And I think you know, the difference of opinion that we have maybe one degree in sort of, as opposed to you know, you know, he’s on he’s a conservative and have a liberal kind of thing. Where nothing I say is right, and nothing he says is right. But a couple of things. One, I think a lot of lawyers over value, this notion of face time and office time, particularly when they compete when it’s compared to the alternative. Yeah, I mean, it’s good to chit chat around the office. But yeah, I mean it, you have to, you have to evaluate the good and the bad of both sides of it. And I think there’s a lot of good that that comes out of doing things virtually, without evaluating those tradeoffs. It’s very easy to say, well, the virtual world stinks. I wrote an article about virtual trials, right virtual jury trials, at the beginning of the pandemic, you know, there was this huge and cry. Yeah, that sucks. That’ll never happen. Well, so. Now, you know, six months later, we’ve got courts that haven’t had any trials for six months, and horrendously backed up. And you’ve got businesses and criminal defendants and all these people who want to have their day in court, they need an answer. Yes, it’s like a frequently say, most businesses, particularly America, they can deal with hardship and loss, provided they know what it is provided. It’s clear. I mean, if you’re going to lose a case for a million dollars, I don’t want to do that if I’m a business, but if I know it’s going to happen, I can plan for it and deal with it. Being in limbo is not a good place. So there’s a lot of defendants out there, but plaintiffs out there who would say, jury, maybe won’t be as good Mr. Lawyer, but it’ll give me an answer, and it’ll give me an answer quick. So that’s the kind of tradeoffs that we have to kind of make. The other thing is that that I think is important is sort of this, this notion that once this ends, we’ll all go back to normal. And again, this is this is based on this sort of old world view that the normal that we had before was better, right? Again, it’s a tradeoff, we have to look at which is better, which is worse. And the longer we go, without going back to normal, the more you know, this, this inline online world is going to become the normal. Remember, one of the things Richard said was, well, you could have this hybrid situation where some lawyers would be in the office, and some members of the team would be on one and virtually, and those guys that are online are going to be sort of disadvantaged for that. Well, that there’s a fundamental assumption in that, right, the fundamental assumption is that the most important person in the room is going to be physically present. That may not be true, most important person in the room may be the person that’s online, as as we get further down to things. So we can’t just sort of have this assumption that what’s all go back to normal just be a matter of time. And there was so much better we I think we have to say, No, I mean, let’s, let’s run with the good. Let’s adopt the good, let’s embrace the good and let’s quit stewing so much about I can’t get together for trial, I can’t do an in person deposition, you know, particularly when it comes to the trial settings. Think about the jurors, and think about the witnesses how disruptive it is to these people to be on a jury and I’ve been on, I’ve been called for jury duty four or five times. It’s horrendous, right? You and You waste days, right? And you sit there and think, What is wrong with arson, my business doesn’t run away, like this. You know, it’s those kind of concepts, I think we have to understand and embrace that online is here to stay and it’s gonna continue and let’s make it the best road we can and celebrate it.
Marlene Gebauer: So tell us a bit about your background and experiences with remote working in the virtual world.
Stephen Embry: Okay. Well, I was fortunate enough in the 90s, I was a partner at the time in a firm that the eat what you kill kind of compensation formula. So I had a good book of business. And I always remember I was I was traveling to Florida with my family, my wife and two young kids. And I was working on a brief and I had papers every place and was scattered and trying to get this brief done. And I took a break. And I read this article about Fred Bartlett of Bartlett and Beck, who was in big into technology. And he was he was saying, Yeah, I’m working on a brief, his firm was in Chicago. And he said, I’m working on a brief from my condo out in Aspen, looking at the mountains, and I’m looking at all this paper going, wait a minute, there’s got to be a better way than this. And that got me involved. And I’ve been a mass tort lawyer for 30 plus years. And you can imagine being a mass tort lawyer in Louisville, Kentucky means most of your clients are out of town, most of your work is out of town. So I became very accustomed to working with people remotely and formed teams with lawyers that were not in the same office I was in. And so I got very used to doing that. Not to say that we didn’t ever meet, but we did a lot of things by telephone. And the funny part about that was is it enabled me to get the really the best people for the job, irrespective of place. Then at one point, I was National Council in a series of construction cases. And we we switched from hourly billing to an alternative flat fee billing. And that opened my eyes to a lot of other possibilities about what to do remotely what to do online. What we didn’t need to travel and do in person. So yeah, I was able to work from home back in the 90s.
Greg Lambert: What year was it that you started doing the alternative fees?
Stephen Embry: That was a 98, 99. Something like that
Marlene Gebauer: Trend setter.
Greg Lambert: You were well ahead of the curve, then.
Stephen Embry: Yeah, it was it was ahead of the curve. And it was it was quite cutting edge at the time it was an insurance company, believe it or not, what you’re usually not known for it. And so yeah, I was able to work from home and a lot of days, I’d meet my kids at the bus stop. And the other thing I learned from that, which may now appear obvious is I didn’t have to work eight to five, eight to six, Monday through Friday. I could work when I needed to work. That might be a weekend, that might be a night. That gave me flexibility to do things with my family that I didn’t have before. I didn’t have to commute. And it was fortunate because a lot of my partners were probably wondering, is this dude really work and what was he doing? But because I had so much business and plugging away so many hours of what much anybody could say at that at the time, so It was a, it was a great experience. And it made me see a lot of advantages to remote work. And since I’ve left the firm and of course, publishing the blog, I work at home. And so the pandemic’s stay at home orders really didn’t affect me that much. Other than I do still miss going to Starbucks and working from Starbucks, but kind of edging my way back there. And at least in the nice weather.
Marlene Gebauer: it’s that pumpkin spice I know, I know.
Stephen Embry: Something, this is kind of a ritual, you know, and it’s something that when you mess with that, then then it becomes hard.
Greg Lambert: So the concept of remote work is nothing really new to you?
Stephen Embry: No, I mean, remote work, I think. Yeah, I’ve been, it’s been interesting, because I see people have taken to a lot of people say much quicker than anybody thought. But on the other hand, as I recall, when I made the transition, even back in the 90s, when tech technology wasn’t what it is today, it didn’t seem to be that much of a transition, really, you know, it required some flexibility and some nimbleness and it required thinking of things in a different way. And of course, I was aided by that, when we went to the alternative fee. And so I begin to look at things a lot differently than it had before. And I think there’s some real advantages to the online world. And I think people are starting to start to see it and recognize and it’s gonna be interesting to see where it takes us.
Marlene Gebauer: But what about training? Isn’t that better done by, you know, by observing someone, you know, in a face to face situation and being able to exchange that way, as Richard Hsu suggests?
Stephen Embry: Yeah, you know, Richard made some interesting comments on that and I disagree with him, probably in terms of the extent. First of all, you have to back up and sort of say, well, we have this apprenticeship notion for lawyers, right, you are going to apprentice at the, the heels of the partner, and therefore you will, you will gain this wisdom from on high. And that will make you a better lawyer. And so, you know, even though we all agree that law schools don’t train you to be a lawyer, most law firms are like, yeah, that’s how we’re going to do it. And we have no training program. Why do we need a training program? It’s just takes away from billable hours, right. But what happens when you do that is you have no systematic training, where you say, okay, these are the attributes of a good, a good and successful lawyer, and this is what we’re going to train for. And then you leave it completely to happenstance, right. I mean, I was fortunate enough to have Well, maybe fortunate enough, I was fortunate enough to have a very good mentor, when I was coming up in the mass tort field. And, you know, I developed into a reasonably successful lawyer, I might add, that also picked up some really bad habits from this particular lawyer. So but the problem is that we have in sort of latching on to this system, this apprenticeship notion that we have to sit at the, at the heels of the partner, we’ve abandoned any sort of formal training program, that would lead to everybody getting good training, not just happenstance training to be with a good mentor, a bad mentor. But everybody gets a core basic training.
Marlene Gebauer: That’s a lot of work, though, right? I mean, that’s a lot of thought and design, you know, but you have to be very good about it.
Stephen Embry: But what’s the alternative, right? I mean, the problem that that warriors have had with it is, Oh, my God, we can’t we can’t abandon that many billable hours. So a couple things ended up happening, right, clients begin saying, we’re not paying for this stuff. Forget it, you’re not taking an Associates into a deposition to watch you do it, forget it. Not gonna happen anymore. And so, you know, now we have all this talent that a wall firm has invested in it, which we pay a lot of money for, who are not getting trained. And for litigators. It’s a particular problem, because there’s no trials to speak of, even before the pandemic, the number of trials has gone down considerably. And so you’ve got all these people that you’ve invested in, but yet, they’re not getting trained in a systematic way. It’s not necessary so much that you can do training virtually, although I think you can do some training virtually. It’s more than sort of the philosophical idea that, that we have to be physically present with one another to train because this is an apprenticeship business. And it then leads to this other concept, which is, you know, that’s the only way to really do it because we’re lawyers. Were special.
Greg Lambert: We’ve figured it out.
Stephen Embry: And I was listening to speaker at the ILTA networking thing today and he went into the spiel about, well, you know, we do really complex things. And, you know, it takes a long time to learn how to do these things. And there’s a lot of skill involved. It’s like, well, so is that airplane pilot, right? So is a brain surgeon right? And so is I might add an insurance adjuster, which, which is really a kind of an interesting idea, right? Because most today, most insurance adjusters are legally trained, they are making monumental decisions with people’s lives, they have to know the law. They have to they have to be experienced. And yet, most of them for 10 years have been working remotely in a paperless environment. Right. So so that the idea that what they do is somehow not as valuable as what I do, because I happen to be in a law firm is really kind of an arrogant sort of, you know, only I can do this and Sorry, guys, you can’t. Club’s closed. And by the way, the only way you can get into the club is you apprentice for me, my special small snowflake. Now, what does that lead to? Right? Here’s what here’s the and this is an Embry hypothesis, okay? Not I don’t have any empirical data. But when most people select a mentee or somebody to work with them, younger person to work with them on the team, they tend to select somebody that looks like them. And acts like them.
Marlene Gebauer: And that’s comfortable, right?
Stephen Embry: In law firm today, all right, and law firms today. And I mean, the ABA surveys that came out a year or so ago, is along with a number of others are sad evidence of it. Most of those people in those training positions are white males. So, you know, question or query, as they used to say, in law school, is this notion that we have to apprentice to somebody, you know, for years, and not going to do a formal training, not make sure everybody has a core skill set of training, so that we all start from the same base, we may all know end up but we all start from the same base is that diminishing women? People of color? Who are not being selected to work on the with the ace partner, the number one partner gap, you know, the cat, right, he’s always a guy right? The Rainmaker, who, of course, is not skilled at training, right? He’s skilled at being a lawyer, and more often than not at making money. So now you have this sort of system, we’ve got happenstance, you know, hit or miss training, you’ve got the potential for it to injure certain segments of the population that we need to have practicing law that we need in our law firms. And the quality of the training is sort of hit or miss it’s unknown, because we never take the time to sit down and say, here’s what a good lawyer being a good lawyer means. And here’s, here’s the attributes, the skill sets that we want to make sure they try, they need to have. And I can, I can assure you one of those skill sets is not sitting in, like when I was an associate, and not so much anymore, sitting in a dusty warehouse reading reams of paper and thinking to myself, I could have done this, when I was a Junior in high school. That’s I’m doing this for you be trained for this? So it’s not so much that I objected to what Richard said about, you know, the need to be together for training, as much as the system that we have the sort of the the apprenticeship sort of notion is not has not worked well. It’s terribly, terribly inefficient. clients don’t want to pay for it anymore. Which means the law firm has to do one or two things either not train, or if they’re going to have an associate, observe, right. They have to pay for it. And we all know how that works out. For the most part.
Stephen Embry: it’s it’s interesting, because, you know, if you’re saying there’s a more formalized training, I bet you a lot of the parts of that could be delivered in a remote environment a lot more easily than, say, this apprentice model.
Stephen Embry: Well, and here’s the thing about this. So. So let’s think about what a typical law firm is today that I come from from a bigger law firm, right? So I have, you know, AmLaw 200, law firm, so I can’t speak to a solo or small shop but So, today, when I was practicing law, I would come into the office and as somebody I think Richard Dingell said this on a podcast not long ago, law firms quiet places. I mean, they really are quiet places. You come in. Your hang your coat up, you get your coffee, you close your door, and you work. And you might come out of that, that little cubby hole and get and use the restroom and get more coffee. But then you go back and you work. So you know. So that’s what happens every everybody’s working. Associates are all working. So now if you want to have a training program, yes, you can have a training program. But let’s refocus that a little bit. Let’s do what we can online. And then instead of having associates that have kids and have a family, come to the office eight to seven every day, so they can go sit in their cubby hole, close the door to work and don’t see anybody. Let’s have them work from home and do all this stuff they would do in the office with the door closed, sort of on their timeframe, and then have them come in for the training that we say is critical, to be face to face, come in one day, cram it, put it all in one day, have them come in one day, do what they need to do meet with whatever teams they need to meet with, and go home and then work from home the rest of the time. It saves the commute, it saves their family life that gives them some ability to do something besides sitting to either sit in the car or sit in office all the time. You know, a lot of people say, Well, we miss these watercooler conversations, right? That’s another sort of, I would say red herring and all this mix. Well.
Marlene Gebauer: There is a thing called chat, you know?
Stephen Embry: Yeah. When I was in law school and work for a small firm, maybe we had some of that. But I had to tell you, and I worked at a law firm. I didn’t have any of that. Very rarely, if I needed to talk to somebody about a problem, I call them up, like, do now, except now do it by video. But in terms of bumping into somebody at the watercooler and saying you got a minute? I probably get not right now I’m busy, right? And the fact that you know, you don’t matter funny story, like a lot of law firms, we would let sort of older partners, retired partners be of counsel and they could come in and, you know, have a small office and you know, do whatever they want to do. So we had one lawyer who he was very successful lawyer and everybody liked him and you know, a good storyteller. And so he when he made this transition, he would come in and years went by, if you saw him in the hall, he would light up because he wanted to tell you a story. So people would duck into an empty office, or run someplace to get away from me because I got to bill time. And you know, law firms are, that said that time is money. That’s how they make money better or worse by the hour. And, you know, chitchat, particularly for younger lawyers, right. And I remember making this calculation in my head. You know, if I’ve go in my office and closed the door, shut the door and work really hard. I can get out of here a little early every minute always talking to you know, Greg in the hallway? Well, that’s an hour.
Marlene Gebauer: I don’t think that’s just associates. I think that’s kind of everybody. That’s in the billable process. they all are kind of thinking like, okay, you know, I work through lunch. And you know, and I sort of, you know, keep things going, and I’ll get done early enough that, you know, I can go home at a reasonable hour.
Stephen Embry: Yeah.
Greg Lambert: Well, what about the client, their side of things? What’s going to be the client’s expectations going forward?
Stephen Embry: Well, I think you probably saw in the news and Microsoft is they’re not going back to work, at least for another year, Facebook isn’t going to back maybe ever, Twitter may never go back to work. I can’t tell you how many times particularly in the later years of my practice, I dealt with general counsel that were not only in not in the same town I was in, they weren’t even in the same town as their company headquarters, right? They were working from home, right? So their expectations are going to be you better be able to do things online. You know, if you want to represent me, you know, you better be able to handle things online. And you better be able to take a virtual deposition and or virtual trial, the rest of the world is doing things online, I’m not willing to pay you to travel six hours to California for a 30 minute hearing and then travel six hours back, I’m not gonna do it, particularly when everybody else is online doing it. And I think we’re going to see more and more that kind of mindset of clients who themselves are very adapted working online. Most businesses run that way. And they sort of look at this. Now I always like to call special snowflakes. They sort of look at this, as this is special snowflakes and just sort of giggle like, what? Yeah. Go meet with my CFO every day to talk about all the legal expenses that are over budget. Yeah, you didn’t tell me you’re a special snowflake, right.
Marlene Gebauer: I want you’d mentioned about lawyers sort of going into their cubby hole and working and I wanted to parallel that because, you know, historically that’s how it’s been. How does working remotely kind of impact that model? I would, I would imagine not too much. I mean, because, you know, you’re sort of trading one cubby hole for another cubby hole.
Stephen Embry: And here’s the fundamental difference and is something that I discovered, okay. In the office cubbyhole, I’m expected to be there. 8:30, 6:30, you name the hours, right. And so that means whatever is going on, in my real life, with my wife, my kids, my health, doctor’s appointments, you know, all has to be structured around that chunk of time, right. But when I’m working remotely, I can, I can move that cubbyhole time, to the night to the weekend to the morning, to a time that lets me have greater flexibility. And in fact, I was fortunate enough to go to the netdoc’s virtual conferences, and they made a, a, a piece of data and they said, you know, our data shows that people are working more in the evenings and more on the weekends. It’s a pandemic. Now, your first reaction would be, oh, yeah, people just working harder. And which is, you know, that’s what I said, Everybody has worked harder, and said, well, we’re not sure that people are just working harder. They’re working at different times, that’s more convenient for them. So that’s the tradeoff. Now, of course, I don’t have younger kids anymore. I don’t have, you know, worry about, you know, having to homeschool kids and all that kind of jazz. That’s a complicating issue and factor. And I don’t mean to diminish that at all. But it’s also a complicating factor. If I had to do have small kids that had to learn online and had to go to the office every day, right? That’s, that’s a problem as well. So there’s always going to be kind of issues and problems and various ways of looking at things. To me, part of the problem I had with some of Richard’s conclusions were it was sort of an assumption that that doing things in person was better. It’s always better. And without saying, well, it may be different, but that doesn’t mean it’s always better. Right. And there’s a great quote from Joe Flom, the founder of Skadden, Arps way back, you know, whenever you founded it, you know, they he was asked one time, well, wasn’t the old, gentlemanly way of doing practicing law better, and Joe, he was a pretty rough around the edges guy kind of guy. And, you know, and he said, Well, was it better when, you know, your father ran the law firm and you succeeded with as opposed to who did the best job? What was so good about that? What was so good about only certain people get into clubs and get clients and other people were excluded? Or that women or Jewish lawyers or African American lawyers couldn’t even get a job at certain firms? what’s good about that? You know, what was so great that about your family background and being more important than what you could do? And then you got the end of all this? And then he said, and this is the part I think that’s really applicable here. Every change involves some loss. The question is whether you are better off or worse off with what you’ve lost and what you gained. And, you know, when you when you start, step back and say, Okay, what have we gained from this virtual world? I don’t see anything, I can’t see my friends. I can’t travel. Okay. But I went to the ILTA conference, sounds like all I do is go to conferences, right. But what I’ve discovered is, there are more people going to these conferences now that they’re virtual, and they’re hearing dynamite speakers. And my guess is that the people that are going that never went before are younger, or more energetic, or more diverse, and they’re going to come back, as I always do from any of these conferences, energized, right. They’re going to go to their firms, and they’re going to go to their jobs, they’re going to say, we want to make a change, we want to drive some change, and I heard Seth Godin talk, and I want to do something, right. And that’s great, right? That’s wonderful. Because these people, they never got to go see the same faces go to all these conferences and meetings, we all said the same things over and over again. And this other group couldn’t go because it cost too much. I was too disruptive and it was all the travel and blah, blah, blah, blah, blah. Then you step back and you say, okay, but there’s this training thing, right? How are younger lawyers going to observe me take a deposition without being there physically, well, think of it this way. Most depositions today are virtual right? And so I can’t I can’t charge my client to let a young lawyer go with me to a deposition but if a young lawyer doesn’t have to travel, if he doesn’t have to sit through the entire part of the deposition, that boring crap that anybody could do. And he gets to see just the critical part and how I do it. And not just one, five, ten, all could plug in and watch. Now you’re observing something, the same is true with going to court, you know, that the courthouse are now more and more hearings are virtual, there’s nothing to prevent us letting our associates observe more things versus less things, because we’re now in the virtual world. And so, yeah, it’s a tradeoff. I’d love to be sitting in a room with you guys, you know, talking, but on the other hand, you know,
Marlene Gebauer: What’s the likelihood that it would actually happen? you know, and here we have this ability to do this, you know, instantaneously at our leisure, right? I’m probably there’s definitely tradeoffs, but right, you know, there’s, there’s, there’s also benefits.
Stephen Embry: I’m part of a lunch group, you guys know, Ari Kaplan, he’s formed this virtual lunch group. And, you know, we get together people come in come out every day for an hour. And I’ve met 20, 25, 30 people and gotten to know them pretty well, because I see him now every day, as opposed to once a year maybe passing them in a hall at a conference with 5,000 other people. Right. And I mean, that’s a plus. Right? And so, yeah, there are tradeoffs. But there are good things about this world too. And,
Marlene Gebauer: you know, like the more sustained interaction, but also, you know, being able to see you like in your, in your natural environment, if you will, you know, all right. So, you know, given, you know, the client experience you’ve talked about, and given how the courts are sort of moving, you know, in a forward moving type of direction, what are some of the practical realities that you think will guide law firms and making decisions about how to reopen?
Stephen Embry: Cost, costs, cost, cost.
Marlene Gebauer: It’s always money.
Stephen Embry: Real Estate, is the second highest cost for law firms. Right behind salaries, right? I mean, that’s where it is. And, and, and it’s not just real estate, it is prime real estate, right, downtown. Top floor.
Marlene Gebauer: We’re not in strip malls. We’re not talking about strip malls.
Stephen Embry: We’re not in strip malls. And, you know, if you if you look at the statistics, most businesses have a three to four times ratio of employees to offices, right? Lawyers is one to one, right? Or maybe one to two, some lawyers have two offices, right. So I mean, we got this huge amount of space, under the assumption that clients watch this, they don’t, because that’s not what they have.
Marlene Gebauer: Most of the time. They’re not ever they’re not even there, they’re not on there, they don’t drive to the office to visit. Lawyers go to them.
Stephen Embry: If you want to meet your client in town, they don’t want to drive downtown to do all this. So. So now you’ve got this huge amount of cost. And you’ve got offer management’s kind of scratching their head going, Oh, this, this working at home stuff is kind of working out. And we could save, like, some money here if we didn’t have the same amount of space. And then you’ve got another phenomenon, which is landlords are looking ahead, right? They’re not stupid. And they’re saying, Well, I’ll tell you what, law firm, We’ll restructure your lease, and you won’t have to take as much space provided that you extend the term lease, right? So that protects us and gives you a price break. So you’re starting to see these deals kind of be in cut so that existing leases are being reformulated. Now, what does all that mean? In the end, there may not be a place for us to all go back to right. We made the pandemic may in some day, and we say okay, we’re ready to go back to work and, and the managing partner is going to say, well, Marlene, you can come in three days. You come in two days a week and we have this this office over here for you. And the other two days. Greg is going to be using that office.
Marlene Gebauer: Yeah, so hoteling.
Greg Lambert: Yeah. Make sure you clean up your mess Marlene!
Stephen Embry: Cushman and Wakefield…
Marlene Gebauer: Get rid of all your tchotchkes Greg!
Stephen Embry: Cushman and Wakefield, which is a big real estate development company. They did a survey and not long ago when they ask all firms like when this is over. How many of you are going to go back just like it was and have the same kind of office configuration. How many people are me firms are going to say? 70% of them said we’re going to change we’re going to make changes to our workspace. We’re going to have more collaborative kind of spaces. We’re gonna have less offices there’s going to be hoteling in the in these offices. And so you know, the firm’s that aren’t willing to do that right are going to come under a lot of severe price, pressure. Because other firms are doing it, and they’re going to keep doing it. Now you also have this. The other countervailing, and the other pressure on him is with the talent that’s out there. People like working at home. Young lawyers like working at home. I like working at home. We all like working at home for the most part. We don’t like to get in the car and spend hours commuting and wasting time and not be able to work when we want all that kind of stuff. So the talent is going to start going toward the firm’s that are more flexible with their workspaces. And so this is sort of the thing that, that bothers me about, you know, some people’s attitude that this is all the online world is bad. Let’s just twiddle our thumbs and wait. And we’ll all go back to work here. When the vaccine comes, you know, not if but when? Yeah, right. Like, I haven’t seen it yet. But you know, there’s everybody’s talking like, it’s going to be here next week, or nobody’s got one yet. But truth of the matter is, the world is going to probably be changed when we go back. And if you sit back and twiddle your thumbs and think, oh, I don’t have to worry about that. It’ll be you know, I don’t have to worry about how to do all this online. I don’t have to worry about appearing well online, because it’s all gonna be over soon. Or how to make a good presentation online. That’s wrong. I mean, it’s, it’s, it’s going to change things. You know, I’m not one of those that that, like a lot of people in the legal tech field and say, Oh, well, everything’s now changed. The revolution is here. Hurray. You know, the revolution we’ve all been talking about for the last 25 years and never seems to come? I don’t think we’re there. You know, Bill, Bill Gates one time said, we tend to, to overestimate the immediate effects of technology, and underestimate the long term effects of technology. I don’t think that the remote work in virtual world is going to revolutionize the practice of law today. But I think if we look back from 10 years, like we look back on the iPhone, you know, and when it was introduced, we’re going to we’re going to be like, boy it that really did change things a lot. Wow. Didn’t never really thought about it. But looking back now, yeah, changed a lot of things. So. So yeah, Marlene, you’re right. I mean, I think you can do a lot of things online, I think we need to be prepared for that new world, and embrace it and run with it.
Greg Lambert: And you mentioned that it’s, we’re looking at this not as a an if but a when we have a vaccine, and when we get back into the office in some aspect. So pull out your, your crystal ball here and tell us what are what are your predictions about what will happen when we go back to whatever than the normal is?
Stephen Embry: Well, you know, first of all, you know, lawyers are the slowest to go back so far. And there’s a lot of reasons for that. Not the least of which is they have the most premier real estate on the top for some buildings and cities, which all sounds well and good. But you know, you got to get on an elevator to get to the floor, like, Hey, man, there’s, you know, 65 other floors of people that may be trying to get on the elevator, and only two can go at a time, do you think you think a commute an hour or an hour and a half in a car was bad, they got another hour and a half waiting on the elevator. So they’re slow going back, and lawyers are resistant to change. So I think what we’re going to see is that because of the cost factor. And because of the need to reduce costs and reduce space, that’s going to push firms to be less, less rigid, in forcing people to go back, you’re going to see the talent, the talented people are going to flock to firms where they have more flexibility believe. And you’re going to see the clients and the judges adopting more and more online worlds. So yes, I mean, someday we’ll, we’ll start going back, there’ll be more online stuff. That doesn’t necessarily mean you know, as I said a while ago, it doesn’t necessarily mean that the revolution in legal in law is going to happen all at once. It won’t. But as we begin to make these strides in the virtual world, begin doing things more remotely, we begin seeing how easy it is to adopt a lot of this technology. And it’s fortunate By the way, that that the pandemic came at the stage of technology when it did, but otherwise it would have been probably harder, although, you know, looking back on it, it wasn’t that hard when I did it. We didn’t have Zoom but we have a lot more intuitive kind of technology now than we ever did. And that’s just going to keep getting better. You know, we haven’t solved the virtual happy hour yet, which likely between you and I think are kind of dreadful. right because, you know,
Greg Lambert: I’ve noticed a significant drop off in attendance. In the happy hour.
Stephen Embry: We haven’t solved that yet. But we will. I mean, we’ll come up with a way to make that better. Just like Ari Kaplan has made this virtual lunch, something that I look forward to going to every day, right? We may not have virtual happy hours, we may have, you know, virtual lunches with a group of people. But we’ll get there, we’ll get to that kind of thing. And, but we have to, as I told somebody the other day, all these conferences are, you know, they’re really like, what are we going to do with exhibitors and sponsors? They don’t like this new world, they don’t get people coming into and booths, all that kind of jazz. And well, that’s part of the problem is we’re trying to take an in person conference and cram it into online. Right? What we need to do is to rethink the whole kind of experience of what it means to be a sponsor, or exhibitor or have that kind of role, and how that fits into the online world. And we don’t get there by saying, you know, I really think it was better before and I just want to wait, ride it out, bide my time, keep my powder dry, and then I’ll get back to normal. So no, we get there by thinking, how can we reimagine this to make it something that we all want to be a part of? So Yeah, I think I think I think changes will come, I think there’ll be, even when we get closer back to normal, I still think there will be a lot of people that that will work from home because they want to and because it’s cheaper, it’s more convenient, it’s as productive. And you can do just about as many things particularly now online than you could before. I mean, you can try a case online, you can do a client pitch online, you can have a team meetings online with your team. Now, yes, there’s always going to be the situation where, because it’s so intense, because it’s so personal, that we have to have an in person conversation, there’s always going to be that deposition that is so critical that I have to take it in person, if I get a judge to let me do it. Right? Which is another issue. But there’s always going to be a place for that. But it’s going to get smaller and smaller, and we have to recognize it.
Greg Lambert: All right. Well, it’s been a pleasure. As always,
Marlene Gebauer: thank you so much for joining us
Stephen Embry: I say it’s been great fun being on the show again. It was a pleasure. Thank you for having me.
Greg Lambert: You bet.
Stephen Embry: Okay, take care now. So
Greg Lambert: Well, it’s always great to catch up with Steve Embry. And it was really nice of him, I think, to reach out to us and give us kind of a counter. But although a very polite and very cordial counter to what we had with Richard Hsu a couple of weeks ago,
Marlene Gebauer: Well you know, polite and cordial is a refreshing change from what we’ve been used to.
Greg Lambert: It sure the hell is.
Marlene Gebauer: Over the last couple of years exactly right so I also want to say thank you to Steven for reaching out. This was a really good conversation and you know, it’s really good to get opposing views on each thing, just to you know, to see where everybody stands.
Greg Lambert: Yeah, I will be happy just once we can kind of figure out what this this new regular work is going to look like once we go back.
Marlene Gebauer: I think a lot of people are looking forward to that because you know, right now, everything is very fluid and I know that that’s, you know, really troubling to some people and you know, I guess my thought on this is look you know you deal with what you can control and you know, if you can’t, then you just can’t you just have to sort of let that go. And for right now, we’re all trying to figure out the right way and what’s going to make sense. And you know, making these types of decisions is kind of a messy process. And we just have to we just have to be flexible and roll with it.
Greg Lambert: All right, well, everyone’s until we can get back everyone stay safe. And and yeah, hopefully that’ll help us get back a little quicker. So thanks again to Steven Embry for joining us on the pod today.
Marlene Gebauer: 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. If you have comments about today’s show, or suggestions for a future show, you can reach us on Twitter @gebauerm or @glambert or you can call the Geek in Review hotline at 713-487-7270 or email us a email@example.com. And as always, the music you hear is from Jerry David DeCicca. Thank you, Jerry.
Greg Lambert: Thanks, Jerry. Alright Marlene, get out and vote.
Marlene Gebauer: Done and done. I am going to supervise the making of cake