I interrupt our regularly scheduled programming—the continuing series on value storytelling—with a rant inspired by my pending Continuing Legal Education deadline.
Despite the temptation to satisfy everyone’s daily outrage quota by taking on a soft target, I consider our collective (and my personal) annoyance with CLE a minor symptom of a major problem. Our culture of learning is broken. This has all manner of downside implications, including for innovation.
But, first, a little rantastic fun. Can you spot what’s missing from this ad I received in the mail?
I am getting CLE right now. While typing these words, a CLE audio file is playing in the background on mute. I felt compelled to acquire hard evidence before launching into a tirade.
What’s missing from the advertisement is any suggestion I might learn. No mention of quality or relevance. Rather, the repeated, bolded promise of “no final exam” struck me as an assurance there would be no requirement I pay attention—i.e., I could avoid learning anything at all. A promise made; a promise kept.
The offering is both better and worse than expected. Worse because the courses are simply someone reading aloud freely available law-review articles, including all the citations in the footnotes to stretch out the timer (yes, really). Better because Ethical Cannabis Lawyering in California is genuinely interesting (I read it) and therefore more substantive than anticipated. Of course, the quality of the content is entirely beside the point. As advertised, this is a pure box-checking exercise.
CLE being terrible is common knowledge. The distinguishing characteristic of common knowledge is not that everyone knows something—technically, that is mutual knowledge. Rather, common knowledge requires (i) everyone knows and (ii) everyone knows that everyone knows, and (iii) everyone knows that everyone know that everyone knows (ad infinitum).
My tweet above about CLE having a 100% disapproval rating is the culmination of a conversation I started in a fit of pique (the fuel on which Twitter runs). My prompt elicited all manner of humorous anecdotes—that become less funny the more you think about them.
For example, my partner Joe Borstein, then at Kasowitz, established a “refugee camp” of double-barred NYC/NJ attorneys who would bring their pillows to sleep through all-day, in-person weekend CLEs in New Jersey. He was following sage, intergenerational advice from his lawyer mother, who considered CLE “a great time to nap.” While David Lat, now of Original Jurisdiction (I subscribe!), did a course on “Animal Law” during a mad dash to meet his CLE deadline while an associate at Wachtell (click the link for David’s updated thoughts on remote learning, flipped classrooms, etc.).
Joe’s and David’s stories were largely representative. Worthless content and the stratagems for ignoring it—videos, on mute, increased to 4x speed with timers set to toggle back to circumvent ‘still here’ controls. A pointless but painful exercise we mostly treat as a dumb game we’re forced to play.
But there were other stories, too. I heard from presenters who delivered worthwhile content only to be conspicuously ignored by their in-person audience (headphones, newspapers, etc.). I heard from eager learners denied CLE credit for useful content they scrupulously consumed (Lean training; substantive legal material disregarded due to lack of reciprocity between states).
It was a lively, multi-faceted discussion that was missing one key ingredient: change agents. We seem resigned to a pitiful status quo.
In defense of the theory of CLE. Three premises. Two should be uncontroversial. One merits debate.
- New lawyers are not practice ready
- Lawyers must keep current
- Mandates are necessary?
New lawyers are not practice ready. From clients not paying for first years to partners griping about useless junior associates (95% of hiring partners judge new lawyers not ready) to memelords like Alex Su triggering everyone’s PTSD of being thrown into the deep end totally unprepared, my impression is we have a consensus with respect to new-lawyer readiness. Whatever your normative position on the current state of law schools and the bar exam, the empirical reality is today’s new lawyers require various forms of effective supplementary training to be equipped to competently meet client needs. This is not new lawyers’ fault. And no one is more painfully aware of this deficit than new lawyers themselves.
Lawyers must keep current. According to tech-pioneer-turned-educational-researcher John Seely Brown, the half-life of a learned skill used to be 30 years; today, it more like 5 years. Even if new lawyers graduated practice ready, continuous learning would be no less essential. Societies and economies evolve rapidly. Governments attempt to respond through laws, regulations, and administrative rules, which are changing, and accreting, at an accelerating pace. The legal market seeks to keep up, in part, through innovation in legal service delivery, including better use of technology, also accelerating and now part of the competence rules in 39 states. Again, I presume agreement. Veteran lawyers must devote deliberate attention—time is a poor proxy—to keeping their knowledge and skills current to meet client needs.
Mandates are necessary? Nothing concentrates the mind like the sight of the gallows. We are, unquestionably, deadline driven. Yet learning mandates dampen intrinsic motivation and fuel a box-checking mentality that tunes out even well-calibrated content. Several states do not have CLE requirements, presumably because they have no interest in forced futility.
My feelings are mixed. But, ultimately, I find myself sympathetic to learning mandates—with a strong bias towards accountability for learning outcomes. In part, because professionals are truly busy and requiring learning tends to be the only reliable method to drive most of us toward adequate prioritization. In part, because we often don’t know what we don’t know and are therefore poorly positioned to properly evaluate much of the learning that would deliver the greatest benefit.
I am open to differences of opinion on bar-imposed learning mandates—and recognize there remain critical conversations to be had as to how to structure these to avoid defaulting back to our ongoing obsession with wasted, worthless “hours.” But I am convinced our system, as currently constituted, is broken—and this has implications beyond CLE itself.
Quantity is lacking. While hours are a poor proxy for learning outcomes, they are crudely useful for understanding the scope of learning mandates.
Employees at The Container Store receive 263 paid training hours in their first year and 100 paid training hours their second year. That’s 363 hours in two years to work at an (admittedly awesome) storage and organization specialty retailer.
The average large company in the US has increased their average employee training to 103 hours per year.
By contrast, my state bar CLE requirements average out to 8.33 hours per year.
How many law firms or law departments are anywhere close to 300 hours devoted to getting new hires practice ready? How many law firms or law departments are anywhere close to 100 hours devoted to continuous learning? Most (not all) law firms and law department learning mandates can be measured in 10’s, not 100’s, of hours—often dwindling to single digits after the first year and then mostly focused on general compliance (e.g., sexual harassment, cybersecurity policies) and bar-mandated box checking (i.e., CLE).
While additional training is made available, legal employers are not organizationally committed to ensuring learning occurs. The reasoning is often couched in the language of surrender: the lawyers will only show up if they get CLE.
Quality is ignored. FULL DISCLOSURE: I have vested interests in training beyond meeting my own CLE requirements. Which is another way of saying I have passionately pursued making a difference.
With Procertas, I have spent years trying to convince lawyers, law firms, law departments, government entities, law schools, bar associations, and even one state supreme court to incorporate essential technology training (Word, PDF, Excel, PowerPoint) into core curriculums.
We’ve certainly had some success, which has turned my anecdotal observations into hard data: legal professional’s bare survival skills with the primary technology tools of their trade are woefully deficient. Yet Procertas’s penetration is nowhere near what is warranted by the ubiquity, severity, and materiality of what is a solvable problem. In trying to help the profession, I’ve listened to nonsense about those mythical digital natives and soothed discomfort over competency-based training (accountability for learning outcomes is surprisingly controversial). I’ve also endured lectures about the primacy of legal content.
Yet, now that I also have the privilege of working with Hotshot (LexFusion member), I have similar conversations with similar audiences and encounter similar levels of resistance—with an entirely different set of excuses, save one (guess!).
While totally biased, I am no less correct: Hotshot is the highest quality core legal training available.
Playing to our common knowledge—everyone knows that everyone knows that everyone knows that most CLE is worthless—Hotshot’s original tag line was “short videos designed for learning, not CLE.”
Hotshot found success because they adeptly address a genuine need. They fill in development gaps from junior through senior associates—with value for even the most seasoned attorneys exploring areas outside their existing expertise. Yet, like Procertas, Hotshot is not at the penetration levels merited by the ubiquity, severity, and materiality of the problems to which they are the best available solution.
Hotshot is from the team that built Practical Law, which I grew to adore during my in-house counsel days. Like Practical Law, Hotshot pays top dollar to top lawyers at top firms to create useful, targeted content. They then pay other top lawyers, also expert in the domain, to review and refine the content. Hotshot then spends real money (like only a scalable business would or should) on production. After months of work by multi-disciplinary teams of professionals, the output is substantively excellent bite-sized videos with high production values—ideal for just-in-time learning (for anyone thrown into the deep end) but also organized into full courses and bootcamps with training guides for blended learning (i.e., flipping the classroom to maximize the value of partner-led sessions that add gloss and secret sauce to Hotshot’s foundational content).
In my experience showcasing Hotshot, no one questions the quality (unassailable) or balks at the price (a rounding error to our audience). Rather, I have mostly encountered the line of reasoning I’ve grown most accustomed to through Procertas: our lawyers won’t do it unless they can get CLE.
But not everyone needs CLE. The ability to construct courses by assembling bite-sized videos also makes Hotshot ideal for creating tracks for allied professionals (e.g., legal operations, project managers, pricing, marketing) who often hail from diverse backgrounds and would benefit from some level of legal subject matter understanding geared towards working better with their lawyer colleagues. Yet few organizations do this—craft beneficial learning mandates for allied professionals—because: nonlawyers aren’t required to get CLE (which somehow translates into them not needing training in their chosen vertical).
CLE has completely warped our thinking about continuous learning. Checking the box takes precedence to the point of exclusion. Useless-yet-required crowds out needed-but-optional.
Recognizing this, Hotshot has modified their offering, as reflected in their new tagline: “Short videos made for learning, not CLE. Now with CLE.”
Hotshot sought and was awarded CLE credit last month. I recommend you listen at the link to Greg and Marlene’s The Geek in Review podcast with Reynen Court superstar “institutionalist” Sarah Glassmeyer, McDermott Will & Emery’s anti-boring Margaret Naughton, and Hotshot co-founder Ian Nelson.
We’re not actually that serious about continuous learning. Hotshot is now a no-brainer. That the content is good, relevant, and can be broken up into CLE-accredited bite-sized chunks for just-in-time learning also makes it likelier to capture lawyer, and allied professional, attention. But the bottom line remains: we still need to pay attention to learn. No matter how good or CLE accredited, Hotshot can only make learning better/easier, it cannot do the learning for us.
We want our learning to be like The Matrix’s upload chair. Except way easier. Instead of the brutal shocks Neo endured to mainline new knowledge and skills, we fantasize about information being uploaded while we sleep blissfully.
We forget this:
So we can skip right to this:
Since The Matrix chair is make believe, the operative hope seems to be that through some combination of osmosis and necessity, professionals will get themselves to whatever level required to be functional. This theory is not totally without merit. Most people will level up when necessary for survival—and stop there. The bare minimum is better than baseline, but not by much. This, in the narrowest possible sense, is sufficient, but it is far from optimal and should not be considered acceptable.
Again, this is common knowledge. There are widespread aspirations to develop broader, deeper, and better training curriculums. But these aspirations run into resource constraints—the primary constraint being lawyer attention.
We would like to learn but we don’t value learning. Early in my lawyering days, I had an important issue I needed to get in front of a high-ranking stakeholder. I emailed him (ignored). I requested meetings (ignored). I sent calendar invites (declined). I waited near his office and attempted some Sorkinesque walking/talking (he half listened and nodded). Eventually, events unfolded as predicted, and I was called onto the carpet to answer for not properly warning the stakeholder about foreseeable ramifications. I pointed to the emails and attempted meetings. Without hesitation, he responded, “Regardless, it was your job to get my attention and impress upon me the importance of the issue. You failed.” To this day, I have no clue what more I could have done beyond staging a sit-in or lighting myself on fire in his doorway. Accountability without authority is excruciating.
Many lawyers have similar stories of screaming from the rooftop…into the void. As do compliance professionals, cybersecurity sentinels, privacy experts, etc. There are limits to what can be accomplished with stakeholders who simply aren’t interested, and over whom we have no authority. Attention is an essential condition, and only a few are in a position to command it.
Which is my long-winded way of saying that nothing herein is directed at learning-and-development professionals. I know many of them. I’ve had the good fortune of speaking with them at length about the delta between (i) their personal perspectives and (ii) what is possible in the environments in which they operate. They care deeply and, when given the opportunity, do great work. But they are circumscribed by resource constraints—again, the primary constraint being lawyer attention.
This is a systemic failure. The CLE system has failed us. It is learning kabuki. The only real requirement is paperwork. Even the putative hours targets are largely illusory.
This is an organizational failure. Regardless of the travesty that is CLE, law firms and law departments have a responsibility to properly train their lawyers and allied professionals. As employers, they have the authority to command attention. Even if every second of CLE was worthwhile, the modest hours requirements would still not meet our very real (and growing) learning needs. Well-run organizations make training a priority.
This is a personal failure. I am as guilty as anyone of not taking proper advantage of all the learning resources at my disposal. Most of us come up short in this regard. Most lawyers could, with a little effort, find CLE that was useful to them, and then pay attention to it. But even if CLE and our own organizations fail us, we have endless opportunities for self-improvement that would enable us to operate at the level our clients deserve, and we are duty-bound to provide. Most of us could be so much better. But few of us are willing to consistently sacrifice the necessary time and attention.
Valuing differs from wanting. Valuing is about the willingness to pay. Learning costs.
Innovation requires learning—that thing we don’t have time for. I reject the oddly common assumption that lawyers are actively anti-innovation with respect to service delivery (regulation is another story, which is one reason CLE does not get reformed) and this is somehow solely a byproduct of the billable hour (despite more lawyers working in-house than in BigLaw).
At worst, some lawyers are aggressively “pro getting sh%t done” and caustically dismissive of anything that distracts from the task at hand. This attitude, at least, is honest, if myopic.
The rest of us invoke innovation incessantly. Lawyers, law firms, law departments, and legal talking heads (it me) discuss “innovation” so frequently the word has mostly lost meaning. The ratio of words to action, however, is depressing and feeds an innovation illusion.
The constant chatter convinces those with their heads down that innovation is on rampage, elsewhere. But much of this noise comes from those new to innovation as they marvel out loud at the (theoretical) potential.
The experienced, by contrast, grumble about the prohibitive fuel costs of achieving escape velocity. Grizzled veterans are forever highlighting the importance of change management and storytelling in the service of driving adoption. Sadly, the road from realism to cynicism is short.
Indeed, the best way to appear pro-innovation and sophisticated while leaving the status quo undisturbed is to wax eloquent about adoption challenges. It can get pretentious, but, too often, proves portentous. Unfortunately, spreading doom and gloom about obstacles to adoption is the surest path to prescience—barriers to adoption are quite real and the prevalence of adoption failures has a severe dampening effect on our ability to innovate to meet the accelerating challenges of a law-thick society.
Undoubtedly, we need better products. Have you seen CoParse? Did I not just make a compelling case that Hotshot is better than what came before? Procertas has no real competitors in the competency-based training space and still has undergone a complete transformation since launch. Users deserve better.
The market should demand better products. But the La-Z-Boy version of The Matrix chair is not on anyone’s near-term product roadmap. “Everything & Effortless” is an impossible standard—and, simply put, an excuse for inaction in an environment where action is required. We’re already playing catch-up in the Red Queen’s race.
We need to be better users. We need to be better users of the process and tech we already have. We need to be better users of new processes and new tech that enable us to be effective at scale and pace. Yet if it is too much to ask for legal professionals to spend a few minutes to get decent with Word and absorb a few hours of quality content directly relevant to their practice area, how do we expect to overcome the inevitable implementation dip of the truly new and unfamiliar?
Being better users requires us to pay attention. Being better users requires us to learn. Unfortunately, our culture of learning is deeply broken. This is common knowledge.