Image [cc] Shane Trueblood

Jordan Furlong and I need to take our show on the road. In our usual “Dan & Jane” fashion, we inadvertently tackled another topic. My original post threw down the gauntlet and Jordan, in his always well-stated fashion, answered the call. Below is his response – with a promise of more to come.

 Thanks Jordan!

Update 11-4-13: Jordan provides a more complete response on his blog here.

Toby, you ignorant — oh, wait, we already did that.

As usual, we agree on a couple of points. One is that law firm associates should not universally and presumptively be considered future partners. But we should also be clear about one thing: that very presumption has long been part and parcel of the underlying (and mostly unstated) promise law firms make when they offer lawyers the position of associate. 

Fundamentally, “associate” status represents full-time law firm employment in a salaried capacity. But there’s always been something more: it’s also a Golden Ticket for possible admission to law firm partnership. The beauty of this system, from the law firm’s perspective, has long been that “associate” status carries the potential of ascendance to a higher level, with no guarantee that such ascendance will ever happen. It deliberately confuses possibility with likelihood. Will every associate be a partner someday? Of course not. But could any associate be a partner someday? Yes. That’s the promise, the lure, the ticket — that’s what gives the title “associate” an extra shine. 

That’s one of the reasons Greenberg’s shift is noteworthy: by taking away the word “associate” from most non-partner lawyers (if that is in fact the outcome), the firm is essentially tearing up the Golden Ticket. It is making clear: you will never be a partner at this firm. Insofar as that makes explicit the implicit truth that we all know — that many are called to partnership, but few are chosen — that’s actually a good thing.

Our second point of agreement is that law firms should indeed be hiring talented lawyers to be valued, potentially long-term, non-owning employees. Where we might disagree is over what we mean by “hiring.” 

A major problem in law firms, as you suggest, is that firms are hiring and paying these lawyers to work stupidly. Well over 90% of the value firms compensate in their partners lies in developing business and billing hours. For lawyers who aren’t partners and don’t aspire to be, that eliminates the first category and leaves 100% of their value in producing billable hours. 

As I said in my post: if all you want out of a lawyer is the permanent ongoing production of work that can be billed to a client, that’s fine. But why would you hire someone as a full-time employee to do that? From the point of view of client value, which is what we’re discussing now, that work can be sourced from a temp lawyer, an LPO, an expert system, or elsewhere — and none of these sources are nearly as expensive to the client (or as traditionally profitable to the law firm) as a full-time associate.

So that’s our common ground, and as usual, it’s pretty sizeable. 🙂 Because this comment is so long, though, I need to make the rest of it a separate entry.

 I think our fundamental disagreement may be whether there’s really much purpose anymore in having associate lawyers in a law firm who aren’t destined for ownership. I don’t think there is, whereas I think you may. 

“Many associates ‘just want to practice law’ and not be under pressure to become an owner,” is how you describe it — and I’m sure that’s true. I’m happy for any associates if that’s what they want. I’d like a pony, too, but nobody’s going to give me one anytime soon. If someone is a lawyer in a law firm and doesn’t want to be a partner (and the firm agrees), then that person is simply an employee — indistinguishable from secretaries, law clerks and IT people. But being an employee in the 21st century is a position with little stability and almost no leverage. Employees can expect to be paid relatively poorly and to be considered largely fungible. And that’s exactly where many “law firm associates” who don’t want to be partners are headed, in a hurry.

If it were up to me, the title of “associate” would be reserved for a lawyer in a law firm who is universally expected to become an owner at a specified point in the future. I like the word “associate” — it has history, power, and gravitas. Law firms have cheapened it, however, over the past few decades by giving the title to people with no desire or expectation of partnership. An “associate” ought to mean “future firm leader.” If a lawyer does not want that designation and the responsibilities it carries, he or she should not expect the rewards and security that come with it.

Law firms still need lawyers (and others) to produce work that delivers client value and can be billed accordingly. I don’t see this ever changing. What will change is where these lawyers (and others) are located, how they work, what they’re paid, what benefits they receive, how much job security they have, and so forth — these will all be different, and often less attractive, for most of these lawyers than in the past. Full-time salaried positions in law firms will be scarce and will be reserved for lawyers who are or will soon become core members of the firm.

In that regard, I actually think Greenberg’s approach is sound — if that’s where they’re headed. The problem, and it’s a major one, is that it provides law firms with an excuse to stop providing “training” to all their new lawyers. One of the major benefits of the traditional system was that every law firm associate, even the ones who clearly were short-term entities, received in-firm experience, exposure and training for as long as they were there. That training may not have been all that great, in most cases, but it was assuredly better than nothing. And “nothing” is what thousands of new lawyers are potentially poised to get under a system like the one described above. 

If and as we move towards a system of fewer law firm associates, a massive training/experience shortfall is going to manifest itself for the legal profession, and this will cause problems for all these law firms sooner or later. That’s the topic I hope to tackle next at Law21.

Image [cc] Grand Canyon NPS

My posts have subsided a bit lately as I felt an echo chamber growing and started questioning a lot of stuff I was reading as either echoes or reiterations of prior statements. Some of these echoes are new angles on old subjects, but they merely restate the basic premise: BigLaw is broken and doomed. I feel lately, the echos are drowning out critical thinking.

And now I shall unfairly pick on my good friend Jordan Furlong.*

His recent post on “The decline of the associate and the rise of the employee lawyer” struck a nerve with me. It started with this phrase:

We’re now on the verge of entire associate classes whose only purpose and value is to generate leveraged work. They are not meant to be future partners: they are temporary employees meant to sustain the practices of current partners for as long as those partners need them.

The unstated presumption here is that the proper purpose of an associate class is being on a path to partnership. From my point of view the presumption that all workers should be on a path to ownership is nuts. Which is not to say that generating profit is the workers’ “only purpose”. Quite the contrary, I think their purpose should be providing value to clients. But that effort needs to be profitable or a firm will soon go out of business.

What is wrong with hiring talented lawyers to be valued, potentially long-term employees and not future owners? True – firms need to nurture future owners, but doing it under a false pretense that every associate could or should some day be an owner is part of the problem. The history of this approach has shown that not many make it to that level. And it appears that even fewer may make it in the future. But is that bad?

I don’t think so. With any business, some talent is suited for working and some is suited for business development. Do we pick at clients for hiring in-house lawyers as employees who are “generating leveraged work?” I think not. I recently heard about one BigLaw firm that created a non-partner track for associates, thinking they would have to go outside to fill this track. So far they have not. What this tells me is that many associates “just want to practice law” and not be under pressure to become an owner. This up-or-out pressure turns a lot of excellent lawyers out or away from law firms. Why can’t a talented lawyer become a world expert on a legal subject without aspiring to be an owner?

Another echo chamber comment I read recently had to do with how bad the billable hour is – since it encourages associates to bill time. Say what? Last time I checked, most employers encourage their workers to … work. And the more they work, the better the employer likes it. Some employers even pay bonuses for putting in extra effort. It’s not the billable hour, but instead the lack of management oversight reigning in effort that doesn’t deliver value to clients that is the problem.  Bashing BigLaw for rewarding extra effort seems misplaced to me. But it is very easy to do. I think it is more appropriate to bash BigLaw for rewarding poor effort. If associates are bringing value with every hour they work – I don’t see a problem in rewarding that effort.

And now back to the Echo …

* We have a history of trading barbs.

AALL President, Steven P. Anderson is looking for ways that law libraries and law librarians can communicate the value they bring to their institutions and communities. Anderson’s idea is to go beyond simply talking about the value, and actually create a report that presents the values through metrics and outcomes. Having sat with Steve over the past few years on the AALL Executive Board, I can tell you that this is something that he passionately believes is needed in the profession, and that AALL is the right association to commission the research needed to create the report. Anderson is putting his passion to practice and has issued an RFP to the research community to turn this idea into a report. Responses to the RFP are due by December 11, 2013 and a selection is to be made by AALL later in December.

The press release is below with more information.

                                         
 PRESS RELEASE For Immediate Release
Contact: Kate Hagan
312-205-8016 or Khagan@aall.org
 

AALL Issues Request for Law Library Value Report Proposals

Chicago 10/28/2013—The American Association of Law Libraries (AALL) today issued a request for proposal to commission a research-based report on the important role law libraries play in today’s legal community. 

When complete, the report should offer law librarians and the institutions and businesses they serve important metrics that can help them calculate the return on investment law libraries provide. 

“The objective of this project is to  produce a comprehensive study of the return on investment and the consequent value proposition that law libraries provide, while also equipping them with methodologies and best practices to employ to communicate this value to the appropriate people or entities within their institution,” said AALL President Steven P. Anderson.

The last several years have brought fundamental changes to the legal profession and business of law. These changes have served as an impetus for law libraries to transform their operations and services in varied and profound ways—and it is now imperative that law libraries demonstrate the value they bring in concise, measurable ways.

Specifically, the report research will identify key implications for all types of law libraries and:

·     Include quantitative and qualitative methods used to demonstrate law libraries’ value
·     Define value in terms of the institution’s goals, not the library’s goals.
·     Identify best practices for demonstrating value

The response deadline is Dec. 11, 2013. A provider will be selected by Dec. 20, with a contract start date of Jan. 1, 2014. For more on candidate qualifications, submission guidelines and other information, please visit http://www.aallnet.org/Documents/Leadership-Governance/Committees/roi-rfp.pdf.

About AALL

The American Association of Law Libraries was founded in 1906 to promote law libraries’ value to the legal and public communities; foster the law librarianship profession and provide leadership in the legal information field. With nearly 5,000 members, AALL represents law librarians and related professionals who are affiliated with law firms; law schools; corporate legal departments; courts; and local, state and federal government agencies. For more information, visit AALLNET.org.
 
Paper
Image [cc] pearlsareanuisance

I got a note from Peter Martin, the Jane M.G. Foster Professor of Law, Emeritus, and former dean, Cornell Law School, letting me know that he was starting a blog as a result of the work he was doing with the annual revision of Introduction to Basic Legal Citation. Peter, along with Tom Bruce, founded Cornell’s Legal Information Institute (LII) way back in 1992, and has been a staunch advocate of access to legal information, as well as promoting the consistency, accuracy, and non-vendor bias of legal citation.

Peter Martin’s new blog, Citing Legally, begins with a post on how States have claimed copyright on their codified and published works, and walks the reader through an example of how the State of Mississippi has used copyright claims to allow a private legal publisher to control the “official” statutes while attempting to shut out another publisher using “unofficial” compilations.

According to the Scope and Purpose of Citing Legally, the blog will cover the interesting issues that Peter Martin has uncovered while working on the annual revision. In his own words:

The aim will be to draw attention to important differences in practice among jurisdictions and distinctive approaches – from the commendable to the lamentable, the new and novel to the archaic. Like the reference from which it springs the focus here will be on how judges and lawyers cite legal authority rather than law journal norms.

I’m looking forward to reading more from Peter Martin on the issues he finds on legal citation and all the nuances and peculiarities that come along with the topic. Go check out Citing Legally and follow along with me.

 

If you ever want to have some fun at the expense of a law firm librarian, just go up to them and “I have some lawyers that want us to buy a firm wide subscription to Law360… is there anything I should know before doing it?” Then step back and watch them spit fire as they talk about all the things they hate about Law360’s business practices and subscription increases. Once you got them red in the face and dropping a few inappropriate phrases, smile and say “I was just kidding.” Then step back out of punching range.

Now, go ask an attorney what he or she thinks of Law360 and you’ll get a completely different response. I usually get something along the line of “This is the only email that I actually read when it comes in with the daily updates.” That is actually a pretty impressive response from the attorneys, and it is one in which it is very difficult to then tell them that we need to cut the product.

What makes Law360 so valuable to the attorneys? Most of us know that the content is eventually available in other places. The writing isn’t always the most professional. Other products, like a CCH or BNA report tend to be much more thorough in their reporting and linking to relevant legal materials. So what is it about Law360 that is so attractive to the attorneys? Here’s my thoughts:

  1. It is written much like a tabloid. Nice, easy to read headlines with just enough information to invite the reader to click and want to read more.
  2. The practice topics are broken out into nice groups that make sense to the attorneys.
  3. Attorneys are often asked to write articles for Law360, and they know that peers will notice they are writing an article.
  4. Law360 knows what strokes the egos of lawyers, and at the same time, what piques their curiosity through placement of law firm and company names in articles, and inviting others in their firm to read articles the lawyer has written.

To me, number four is the key to success. Lawyers are typically insecure, especially those in BigLaw firms. That doesn’t mean that they are bad lawyers. In fact, they are the top lawyers in their fields, otherwise they wouldn’t be creating the PPP levels that BigLaw firms make (even during the “end of lawyers?” days.) They are insecure because they think that their peer at another firm knows something they don’t, or that they have a process or software or plan that gives them a competitive advantage over them, and they always want to know what the other firms are doing, who they are representing, and who is joining their team. Law360 understands this insecurity and leverages it to their advantage. In a way, it is pure brilliance.

My favorite tactic is when Law360 gets a lawyer from a firm to write an article, and then they place it in a section of the Law360 topics that the firm doesn’t subscribe. Then sends an email to attorneys within the firm giving them a teaser to the article, and a link that then asks them to sign into the platform. Lawyers see this, then call the librarian to get a copy of the article. Since Law360 has been very, very diligent on calling out people on listservs that ask for copies of the articles (because the licensing agreement restricts sending articles outside the firm), librarians then have to tell the attorneys that they cannot get a copy of it because of Law360’s licensing agreement forbids it. As you might guess, the next question from the attorney is “Well, how much does it cost to subscribe?” At that point, the librarian, who has been told not to order any new subscriptions by the ultimate powers-that-be, is now stuck in between a rock and a hard place. The options are to see if they can get this one article somewhere on the Black Market, tell the attorney “Hell No”, go to the powers-that-be and ask for an exemption, or attempt to sneak the subscription through and hope that no one notices the increase in the annual budget. None of these options are very appealing to the librarian, and the results are usually more bitterness directed at Law360.

Quite frankly, the Law360 model is pretty brilliant, even if it causes the average blood pressure of law librarians to increase 10% at the mere mention of their name. Get attorneys to write articles, charge them and their peers to read those articles, and then stroke their egos while simultaneously playing on their insecurities. I can’t think of a better business model. Factor in some of the outrageous price increases they have charged to law firms, and you’ve got something that Steve Jobs would have been proud of.

To be fair to Law360, and its now parent organization, LexisNexis, they do put out a very good product. I would bet that if you did a cost analysis of what you pay per article read by a lawyer, that the average cost per article for Law360 is significantly less than what you pay per read article from BNA or CCH. I don’t have hard stats on that, so I’m going with my gut and my previous experiences. I’ve heard many librarians say that they tell their attorneys that most of the articles (or at least the substance of those articles) they see in Law360 will show up in the next few days in other publications, so that they can wait until it shows up in either a free product or a subscription that the firm already owns. As many of us know, lawyers don’t usually like being told to wait a few days. In those few days all of their peers at other firms (who obviously already subscribe to Law360) will gain a competitive advantage over them and will steal all of their clients away because the peers know something that they don’t!! Wait?? If we wait, we lose!! We need to subscribe now!!!

Law360… you are brilliant!

This is the point at which the law librarian opens the side drawer on his desk and takes his blood pressure medication and counts the days to retirement.

I have spent the last two days at the ARK Knowledge Management in the Legal Profession conference in Midtown Manhattan.  It was a very good conference, as usual.  I very much enjoyed listening to and meeting with many brilliant and fascinating people to talk about KM in legal.  However, after this conference I have come to one inescapable conclusion.  Knowledge Management does not exist in the Legal Profession.

Now, before everyone I met tears up my business card, un-invites me from their LinkedIn network, and crosses me off their holiday party lists, let me clarify.  KM clearly exists, but I am no longer sure that it is A thing. The sessions were all over the map, touching on nearly every aspect of the practice of law.  We had a couple of master classes on the “new normal” business environment, we had an introduction to Lean, a CIO roundtable, discussions about change management and practice innovation, and a talk about what’s happening in law schools and how what we do affects them and vice versa.  There were a couple of people yammering on about Social Networking, some freak was showing slides of dissected brains, and this one guy was completely obsessed with pricing.  (It was like, ALL he could talk about. Leverage this. Utilization that. I was like, “Dude, enough already, go get your own conference!”)

I am pretty sure the words “forms and precedents” were only uttered once, in passing, on the first day, but I’m a little deaf and they may have actually said “worms for presidents”. (Although, that makes even less sense now that I’ve actually written it down, than it did in my head.) My point is, it’s becoming increasingly difficult to find anything in the legal profession that you can point to and say with any certainty, “THAT is NOT, in any way, shape, or form, KM related.”

I was reminded of the old story/myth/parable of a philosophy professor standing in front of his class with a large glass jar.  He fills the jar with golf balls and asks the class if the jar is full.  When they all agree it is, he pulls out a bag of pebbles or marbles and dumps them in the jar too.  He asks again, the students again agree it is now full, and he pulls out a bag of sand and repeats the process. After the students declare the jar finally, absolutely, 100% full, he opens a couple of beers and pours them in the jar. His point is something about filling up your life in the right order.  Maybe you should focus on golf balls, before beer?  (Questionable philosophy at best.)   But if we imagine the jar is a law firm and the golf balls are all of the people in the firm and the things that they do, then KM is the marbles, the sand, and the beer.  KM is expanding, branching out, and filling up all of the empty spaces in firms.  I think my new definition for Legal KM might be, “All of the things for which responsibility is not otherwise immediately clear, plus all the things that marketing doesn’t want to do.”

Which brings me to an open question for my fellow KMers: If you were building a taxonomy for your firm, would you put Marbles, Sand, and Beer beneath Knowledge Management, or would they each be their own top level categories?

One of the best member benefits of a State Bar Association is the ability to access Casemaker or Fastcase (or InCite for Pennsylvania). However, sometimes it is confusing to keep up with which product each state offers. Luckily, the kind folks at Duke University’s Law Library have mapped everything out for us. Many law librarians have been promoting these services to the lawyers that want good research functionality, but don’t want to either pay a high price for an individual subscription, or don’t want to pass any costs along to clients for firms that do cost recovery.

If you’re unfamiliar with any of these products, go sign in at your state bar association and find out more. In some states, even paralegals and law librarians can use these products without actually having to be a member of the state bar association.

Image [cc] fbpa.wayne

In the 19th century one of the big business revolutions was the adoption of a new technology called “Railroads.” Of course when railroads were first proposed, two things happened. The first was a general uprising from the establishment about why this was a bad idea. This push-back came from those you would expect – the ones with a financial interest in keeping things the same way.

Although the first railroads were successful, attempts to finance new ones originally failed as opposition was mounted by turnpike operators, canal companies, stagecoach companies and those who drove wagons.

The second reaction was an “irrational exuberance” over the potential profit to be made and the speed at which change would occur. Mass quantities of speculative dollars were thrown at building rail lines from here to there to everywhere. Which of course resulted in much lost money when change didn’t come that fast.

Obviously railroads did not fail in general. I understand we still use them. But what did happen? It took about 50 years for railroads to fully embed in the US economy. From then on, this new way of doing business was considered business-as-usual. So instead of a quick revolution, change came about incrementally over a much longer period of time.

In the 20th century something similar happened with TV, only the commercial adoption was shortened to about 20 years. This highlights the accelerating rate at which new technologies are being adopted. For tablets, I think it was 3 years – although I just made that stat up.

The obvious conclusion, according to this history and everything I read about BigLaw, is that we have about 10 minutes left before BigLaw collapses and the Phoenix of the New Normal rises. By the time you come back from the bathroom, it will all be over.

For those of you who followed my suggestion and are now back, you will notice my predictions were proven false. Not much has changed.

As an alternative, I suggest the revolution in the delivery of legal services will take a bit longer to occur. Now I am not suggesting it will take 50 years. But I do suggest it will not come as fast as many might predict. We all know things need to change. And many see financial opportunities in that change, as they well should. However, I have been feeling a bit of irrational exuberance lately about how this will all play out.

So don’t look for BigLaw to collapse or for new-style providers to sweep through the market in short-order. Instead watch for steady, incremental changes in the way law firms function and deliver their services. Next generation providers will continue their growth, law firms will merge and things will generally keep changing. Much like the railroads, change will come, just not all at once.

59 cent coffee
Image [cc] sweetmandy

I got a LinkedIn email last week from someone that has taken a path very similar to the one I took twent-some years ago. Same Army M.O.S., same college, same law school, so far, not interested in the library portion. He’s a 3L and about to enter the workforce as an attorney, and he asked if I had some words of advice. Of course, you know I’m pretty easy when it comes to doling out my opinions, wrapped in the guise of advice.

The advice I gave isn’t very unique… in my humble opinion, it is really just common sense. I’m sure there are additional things that could be said (such as “be a good lawyer”), but I thought a few short words would be better than a five paragraph blog post. That said, I thought it would be easy to turn it into a blog post, so here it is:

My advise is to get you foot in the door and do good work. Take the time to build relationships with the folks you work with, and build good relationships with the folks that hire you to represent them.

Never eat lunch alone. Get involved in you community doing something you love, but that affects others at the same time in a positive way.

Don’t be afraid to step out and try something new. Don’t be afraid to ask others for help.

Treat everyone with respect and keep all of the staff members happy and engaged with the work you do.

It’s a tough market out there, but hard work, smart work, and good relationship building will help you succeed when others might not.

Best of luck.

Image [cc] Ozzie Davis

At the recent (and extremely successful) P3 Conference last week, a comment really stuck in my head. There was a panel on Show Me the Practice Innovation and the final question to the panel was to point out any true innovations in legal services over the past 25 years. The panel included three of the smartest people I know: Kingsley Martin, Keith Lipman and Michael Mills.

The consensus from these big brains: What innovation?

Michael Mills from Neota Logic said online legal research was one innovation, which he acknowledged did improve efficiencies some, but it didn’t really change the core delivery model.

So where am I going with this? Not where you might expect.

Many of the next-generation law firms (and non-law firms) hold themselves out as “innovative” and in fact win awards for said innovation. But when you peel back the covers, where is the innovation? Are they using next generation technologies like Neota and KM Standards? No. Are they building out process maps and reengineering how matters are managed and handled? Not that I can see. Are they employing project management people, principles and tools across the board? Well .. some are using them in document review, but otherwise – not so much.

What they appear to be doing is hiring BigLaw trained lawyers and utilizing significantly lower overhead. Some do it via onsite client secundments. Others do it with less expensive office space. All seem to do it with lower lawyer compensation. But this is merely doing it the same way – only cheaper.

Is this approach a smart idea? Absolutely. Many times I kick myself and Number 1 for not thinking of it first. But is this approach a real transformation to the way legal services are delivered?

Judge for yourself.