The Future?

What does it look like?

The problems of the current system are myriad, and we have heard them enough in class and seen them in our readings to know what they are. Clients are demanding lower fees, and firms are continuing to expand. Globalization is providing companies with access to legal resources at lower rates and making the U.S. market less competitive. Technology is speeding up this process. But where do I fit into all of this? What kind of lawyer can I be?

I don't know what kind of lawyer I'm becoming. I don't know what kind I am becoming because I don't know what my options are. I understand what people mean when they say that the current system is unsustainable. I understand why it is unsustainable. I just have trouble figuring out what that post-white-shoe world looks like. Will attorneys become free lancers? Will they be subcontractors hired for a single matter, bidding with a prime? Will lawyers break apart into smaller boutique firms, only to begin the process of merging and creating megafirms again in a couple of decades?

Or, maybe instead of thinking about what it is going to look like, maybe I should be thinking about what it could look like? Somewhere out there, someone has at least a vague vision of these alternatives, right? Here is one guy's take on the future. He compiled a set of seven characteristics he believes will be common among successful legal careers in the future, including having multiple clients, greater specialization, an increased focus on preventing problems instead of litigating them, and "a high degree of connectedness."

I think this is a pretty good start. You can see a good deal, by standing on this not-so-giant's shoulders and using your own telescope.

What can we do differently?

Mentorships

As far as first-years are concerned, I think there are steps we could take and questions we could ask that will make the future at least fathomable. Simple things, like mentorships, could do this for us.

"Mentorship" is the name of a relation, I suppose, like "friendship." But if we have to make a neologism out of "mentor,"—which denotes not a relationship, but a person, like "teacher," or "friend,"—we're probably better off following the modern tendency to make verbs out of nouns, reflecting the compression of being into activity under discipline of time that is modernity. In that case, we would make "mentoring," which is an activity, like "teaching" or "collaborating." In fact, mentoring is teaching through collaboration. Clinical legal instruction is mentoring, while celestial legal instruction is not. Hence my increasing unwillingness to practice celestial legal instruction, in which I was trained.

But mentoring also traditionally implies small ratios of proteges to mentors. Even generals and judges have small staffs, let alone PhD supervisors. And law professors do not operate at small student-faculty ratios, except clinicians, who are not regarded by celestials as equals entitled to full political rights.

So the question is how to provide more mentoring, if we want to, given the realities of the political economy. My Software Freedom Law Center, a non-profit legal services organization acting as a mentoring structure for students and young lawyers, a school to work system, is one sort of answer. Use of the techniques of collaboration now common in the world, like wikis, to improve the productivity of legal education not in order to have massive online courses (which are very useful in some other disciplines) but in order to have higher quality mentoring available in higher quantity, should be a no-brainer. But celestials do not want to mentor, having in general little training in, or enthusiasm for, creative legal practice that would be useful as a mentoring basis in which to collaborate with students.

Mentorship is a tremendously underrated resource. We should look to those with greater experience, who can teach us the skills (and help us to meet the people) we need to succeed in whatever arena we choose. Someone out there has knowledge that will be valuable to you. Why reinvent the wheel when someone else can hand you their experience and let you build upon it? This makes sense from an employer's perspective, as well. Instead of having employers invest hundreds of thousands of dollars in training us during the first few years as associates, law schools should provide students with real life opportunities to engage in solving real world problems. Maybe if we entered the world as profit-centers, as opposed to costly drains on resources, firms wouldn't have so much trouble getting clients to pay for our work.

Correct. But once you are a "profit center" (which we could define in a less inscrutable fashion as "once you have a self-sustaining practice") the terms on which you would "associate" yourself with such an entity would have to be different, too. Your self-sustaining practice has equity. If you associate with a larger practice, it must purchase that equity. In the negotiation over the sale of the equity, you are also negotiating the degree of your power of independent operation. None of this is unprecedented in any way: law practices in every legal system (except at the level of dinosaur scale and adaptability that has been fashionable as an employment destination of Columbia students for the last little while) have been growing and shrinking by this means since forever.

Think about the Client

We are also learning more about the world as it was than the world as it will be. I found that just thinking a little more about what we have said in class about clients, and what they will look like in a few years, helped me get a clearer image of what the practice will look like, too.

You see that training in making intelligent predictions about social action and its consequences enables creative legal thinking, including creative thinking about the future of one's own law practice. This is the crucial insight.

Where will our clients come from? Chances are it will be someplace very distant. We will have meetings through computer screens, having coordinated our schedules based on far-off time zones. I think we must all begin to gain a better understanding of foreign legal systems and what it means to work transnationally. Rare will be the attorney who will never have a foreign client or have to argue about an asset in a foreign bank.

But when you have built a good network of collaborators, "foreign" doesn't mean anything anymore. I can help to prevent problems in Iceland, Korea, India, or the European Union just as easily, and by the same means, as I would in Utah or Concord, Mass. In all those places, I'm not going to do anything without talking to somebody local, someone who knows whatever terrain it is I must cross, and is able to help me in return for the help I have provided or will provide her. Moreover, HP, IBM, Oracle, Google, Mozilla, MIT, Creative Commons, are also "jurisdictions" in my world, where finding people who can help me make desirable things happen and prevent undesirable occurrences from eventuating is just as important. If you learn to think of what you need to get from your network, rather than somehow magically accumulating all within yourself or otherwise acquiring from a "firm" that owns all your time in return for fixed but unassured payment, you will be able to take three more steps forward.

What does the client want? Along with the desire to achieve speedy, cheap results, clients will be less inclined to engage in protracted litigation. Future attorneys should learn about alternative dispute resolution mechanisms.

How about dispute avoidance and conflict settlement mechanisms? Clients want people who can help them prevent trouble and defuse difficulties before they reach the stage of disputes requiring third-party resolution of any kind. Lawyers who do "counseling" (the most important subtype of law practice, and the one almost never mentioned in this law school) are problem preventers. Not all conflict can or should be prevented, so there are conflict managers, among whom litigators of all subtypes are the most prominent family. But their employment is not a desirable first resort except when attacked unexpectedly.

What can the client get? She will have the knowledge and the ability to select specialists from all over the world to deliver results at the lowest possible cost. That's why we really must find our niches. It won't help to just be a "commercial litigator"; the problems the world faces are too complex to rely on lawyers becoming six-month experts until the end of trial. Now, clients want the absolute best and can retain it with very little difficulty.

Why not consider these to be two different parts of a collaborating system? Conflict managers provide a set of services, based around the production of specific results in the litigation system. Counselors who are more expert in the business's needs provide other results, including the strategic advice that litigators (who are expert tacticians, not strategists) are not being retained to give.

What is she willing to pay? Forget timekeeping. The process of billing it, and getting it paid, is inefficient. Clients are tired of arguing about whether those three hours really were "prep" or "travel." As clients gain access to a trove of talent, most attorneys will need to streamline their work, provide clearer estimates of costs from the outset, and offer realistic predictions about the outcome (thank you, Justice Holmes).

Or bill for specific services on a tariff of specified prices, which is the way many of the world's lawyers have always gotten paid.

Is she the only one? Probably not, unless you are in-house counsel. If we are truly specialists, then many clients will only engage our services on a matter-by-matter basis. This is also just a smarter way to practice. If you have a huge client, on whom your practice becomes totally dependent, you also run the risk of becoming one of those small manufacturers K-Mart manages to hook and then squeeze dry when K-Mart is the sole remaining source of revenue for them.

Will she support you pro bono work? Of course, I can't predict anything regarding this, but it would be ideal to have a practice which generates sufficient revenue to support both money making endeavors and the public good (on a large scale). Having clients that knowingly and actively support this work makes that possible.

Lots of things make it possible. Strategy consists of choosing objectives and matching them with resources. Your practice will have a strategy, which will constantly evolve as your context changes. The important thing is that the practice and the strategy will be yours, which means that the objectives will be ones you have chosen. Trying to define your strategy in advance of the factual context is already a form of failure. When strategy stops evolving it only succeeds by accident.

How do you get her to hire you?

This, I confess, is the one question I can't seem to answer —and it's certainly the one I worry about most. Having a better understanding of who she is certainly helps, but if I don't know how to find her or make her my client, then I am lost. I think, though, it will be possible. The question now becomes: which comes first, the client or the niche?

This quandary results, as I mentioned above, from an insufficient respect for the importance of your network to your practice.

An excellent beginning. All that remains for the second draft is to take the analysis further along the road you've so well opened.