Ed. note: This is the latest installment of The ATL Interrogatories, brought to you by Lateral Link. This recurring feature will give notable law firm partners an opportunity to share insights and experiences about the legal profession and careers in law, as well as about their firms and themselves.
Jay Edelson is the founder and managing partner of Edelson LLC, a national consumer class action firm. Edelson LLC focuses on consumer technology, privacy, and banking litigation, and has secured settlements valued at over $1 billion in the last five years. Jay also serves as an adjunct professor at Chicago-Kent College of Law, where he teaches class actions and negotiations. The American Bar Association has called him one of the “most creative minds in the legal profession” for his views on associate training and firm management.
1. What is the greatest challenge to the legal industry over the next 5 years?
Our greatest challenge is an internal one. The legal industry has demonstrated an inability to embrace (or even talk honestly about the need for) radical changes. Modern innovations in science and technology fuel a constantly and rapidly evolving marketplace. Forward-thinking companies and new entrants have successfully disrupted widely “accepted” ways of doing business. From novel brick-and-mortar storefronts (Apple), to payment processing (Square), or booking a private driver (Uber), these companies have proven how to leverage creativity and technology in solving conventional business problems. Yet our profession is reluctant to follow suit. We cling to rigid hierarchical work environments that stifle ingenuity, the free exchange of information, and job satisfaction. The billable hour continues to dictate fees (and associate pay), which results in having to perform the awkward dance of fostering and preserving relationships with clients while our financial interests remain misaligned. And, we refuse to let go of the notion that attorneys must be seasoned for years before they can meaningfully contribute.
The closest parallel that comes to mind–and it’s not an exact one–is the newspaper industry. Years ago, I listened to a roundtable of editors from some of the country’s leading newspapers. They understood that fewer people were buying papers, advertising revenues were down, and that the forecast looked bleak. Yet, in addition to offering no realistic solutions (“we should charge for internet content” was the most popular), they couldn’t come to terms with their changing industry, namely that (1) consumers had come to expect free content and (2) the wealth of free information on the internet meant readers were no longer reliant on traditional news sources. Fearful of remaining inactive, newspaper conglomerates focused on growth (i.e., acquiring other, smaller, newspaper publications) and cutting labor costs (i.e., layoffs, downsizing, etc.).
It feels like the legal industry is in a similar place. Traditional firms, unwilling to make real reforms but not wanting to sit on their hands either, gobble up other firms, lay off associates (and income partners), shrink their summer classes, and then return to step one. The main difference from the newspaper comparison above is that it’s significantly harder for outsiders to compete with traditional law firms, whereas anyone can set up a blog and instantly be in the media game. Because of strict laws prohibiting non-lawyer ownership of law firms, innovative companies (like LegalZoom) generally exist on the periphery and don’t pose much threat to Biglaw. These barriers to entry mean that change comes at a slower clip, but when it finally reaches us (it will), we won’t have Jeff Bezos to bail us out.
2. What has been the biggest positive change to the legal profession since the start of your career?
The democratization of knowledge, ushered in by the Internet era, has allowed the public greater access to the legal world. Now that court documents are available on the web (albeit sometimes for a small fee), folks can follow cases that interest them, or read editorials about them online. From SCOTUSblog, which demystifies cases of national importance, to Fight Copyright Trolls, which has a significantly narrower focus, members of the public no longer need to rely on lawyers (or the gloss of the national press corps, which often relies on establishment lawyers anyway) to understand how our legal system works. The results, though at times uncomfortable, have been by and large positive. More and more lawyers have embraced “plain language” contracts and briefs, eschewing traditional mind-numbing legalese. It is now easier for clients to understand (and learn about) their rights and, with that knowledge, keep their lawyers honest. Attorneys and judges alike know that their decisions are subject to instant and public scrutiny (thanks, AboveTheLaw!), which makes them more accountable. And when the conduct of large corporations impacts the rights of millions, it has become increasingly simple for individuals to learn about their rights and find a lawyer to protect their interests.
What is both extremely exciting (and scary to some) is that the elimination of this information asymmetry has only just begun. Over the next decade, we can all expect that the knowledge gap between lawyers and the lay public will continue to narrow, which will make the judicial system significantly more open and with that, much more fair (and hopefully more efficient).
3. What has been the biggest negative change to the legal profession since the start of your career?
Our justice system, though imperfect, is the greatest ever created. But it can’t work without proper funding. Over the last few years, state and federal legislatures have failed to recognize this basic fact. Simply put, our courts don’t have the funding that they need. Nor do state Attorney General offices, public defenders, and prosecutors. It has gotten so bad that judicial concerns about the underfunded system are being acknowledged in court opinions. See, e.g., Burton v. Nationstar Mortgage LLC, No. 1:13-cv-00307-LJO-GSA, Dkt. 14 (May 29, 2013), Dkt. 29 (Sept. 3, 2013) (“The parties and counsel are encouraged to contact United States Senators Dianne Feinstein and Barbara Boxer to address this Court’s inability to accommodate the parties and this action.”). A lack of funding undermines the entire judicial process and disrespects already starved courts and public servants, stripping them of their ability to reliably offer the speed and certainty needed to enforce the rights of businesses, consumers, and all other litigants.
Another threat to the public’s ability to access the judicial system stems from the Supreme Court’s recent decisions endorsing the enforceability of certain forced arbitration clauses. If this trend continues, we risk developing two distinct systems of justice: corporations (and likely high-powered citizens) can use the public courts, while the average individual will be forced to vindicate their rights in a forum established for the benefit of businesses.
4. What is the greatest satisfaction of practicing law?
We’ve gotten extremely lucky to be at the forefront of many important consumer issues. The fact that many of our cases involve issues of first impression — from private rights of action to enforce home loan modifications to what “harm” means in the digital age — has given us a unique opportunity to have a voice in how consumer rights will be treated over the next 50 years. This is likely most pronounced in the electronic privacy arena. As a former philosophy student, it is especially gratifying to get to contribute to a field that did not even exist a decade ago and that involves so many competing (and subtle) interests. In short, it’s nice to be doing things that I find challenging and relevant.
5. What is the greatest frustration of practicing law?
Trying to get my tie the right length before going to court is a real pain.
6. What is your firm’s greatest strength?
Two come to mind. First, we approach every issue from first principles. This had led to us being able to clearly identify the core values of the firm, including eschewing short-term decision making, hyper-focusing on attorney growth, and never compromising our firm culture. It also means that we stick to our own (and admittedly very different) playbook when it comes to communicating with opposing counsel and courts, and how to litigate and resolve cases. This model has allowed us to experiment with different strategies while developing quickly as a firm. It also has helped create a firm with a unique identity.
Second, and this is a corollary of the first, we have cultivated an environment where people buy into — and are excited about — the idea that they’re working and advancing together as a team. At our firm, personal success flows from firm success (rather than the opposite), which fundamentally changes how people experience their professional lives.
7. What is the single most important personal characteristic for a successful lawyer in your field?
I tend to think of groupings of characteristics as opposed to characteristics in isolation. I also believe that different types of personalities can have success in my field. That being said, I tend to divide the world up in three ways. In no particular order, I think there is tremendous value in “idea generators.” These are the people who are curious and creative, yet can harness their creativity with a strong sense of pragmatism and strategic thinking. People who are very skilled in the role of a more traditional litigator are similarly valued; these people have a heightened sense of urgency, are decisive, possess strong interpersonal skills and have excellent judgment. Finally, analytical types can do very well in our field. These are people who can grasp extremely complicated ideas, synthesize them, and express them in simple terms, while strongly valuing perfectionism. Probably one of the most important characteristics not to have in this practice: risk aversion.
8. What is your favorite legally themed film or television show?
Legally Blonde II: Red, White and Blonde (affiliate link).
9. What is your favorite legally themed book (fiction or non-fiction)?
10. What would you have been if you weren’t a lawyer?
Running a start-up that some firm like mine would probably sue.
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