Bill Henderson

Promising answers to questions nobody is asking, the Buzzfeed-style personality quiz is the most virulent force in social media. Which Ryan Gosling Character Is Your Soulmate? What Type Of Chicken Tender Is Right For You? Are You Turning Into Your Mom? The silly online personality quizzes are sort of the idiot stepchildren of the Myers-Briggs Type Indicator, that test designed to distill human personality into abstract terms. (For some background on Myers-Briggs, see here.)

The MBTI and its progeny have long been used by government agencies and educational institutions, but it truly has a foothold in corporate America. The MBTI supposedly helps employers to identify potentially successful employees and job candidates to identify their strengths. From the employer’s perspective, these tools offer a chance to identify potential successful hires based on something more objective than hiring managers’ hunches and first impressions.

A recent New York Times Magazine piece detailed an ongoing movement to “revolutionize the human capital resource allocation market” through Moneyball-style, Big Data empiricism. Apparently, employers are becoming more cautious and deliberate in their interviewing processes (the average length of the interviewing period had doubled over the past five years), while at the same time employing work-force-analytics software that can make the process cheaper and more efficient. All in all, around 80% of the Fortune 500 companies practice data-driven assessment in their hiring processes.

Which brings us to the legal industry, an outlier in this “revolutionary,” data-driven recruitment landscape…

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“The future is already here — it is just not evenly distributed.” If this William Gibson aphorism is true, then there was an extra heavy concentration of the future of the legal profession in Tribeca last Wednesday at the inaugural meeting of a new organization, the Forum on Legal Evolution. (The Forum is spearheaded by some names familiar to ATL readers, Bill Henderson (Indiana-Maurer/Lawyer Metrics), Bruce MacEwen (Adam Smith Esq/JDMatch), and Dan Katz (Michigan State Law/ReInvent Law).

While the rest of the business world has embraced off-shoring, Six Sigma, right-sizing, and what-have-you in pursuit of efficiencies and greater productivity, we are still waiting for the long-promised technology-driven transformation of the legal profession. When compared to other industries, actual changes thus far amount to so much fiddling around the margins. The Forum is premised on the idea that a way must be found to propel earlier and wider adoption of innovations.

The invitation-only Forum is intended as both a high-level networking community and as a resource for briefings on new technologies and trends. Think TED talks, but for senior in-house lawyers, law firm leaders, tech entrepreneurs, and academics. In other words, the entire legal supply chain. Without identifying them, we can confirm the room was sprinkled with the legal world’s equivalent of bold-faced names, including current and former Biglaw managing partners and Fortune 100 corporate counsel.

For such a forward-looking gathering, it was a little surprising then that it began by harkening back to Iowa cornfields during the Great Depression…

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As discussed last week, I agreed to answer some questions from Professor Bill Henderson of Indiana University’s Maurer School of law in exchange for his kind agreement to be interviewed (parts 1 and 2 of that interview available here and here) for this column. This week, I conclude our exchange by answering his final three questions. In so doing, another year of writing for ATL will come to a close, and I wanted to take the opportunity to thank everyone who interacts with this column, whether as reader, commenter, interview subject, or editor. May 2014 be a year of success, health, and growth for us all.

BH: You have chided your fellow lawyers to give back to the next generation of lawyers. I certainly agree. However, between moral exhortation to do the right thing, or changing incentives within law firms, where should we focus our efforts?

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For the past two weeks, readers of this column have benefited from the insights of Professor William (Bill) Henderson of Indiana University’s Maurer School of Law regarding the current state of Biglaw. When Professor Henderson kindly acceded to being interviewed, he made a request that was both unexpected and welcome: he asked that I commit to answering a number of his questions in return.

I agreed and am pleased to present our exchange. I found his questions probing, and I have tried to answer them from a broad perspective, despite the fact that they call for some personal viewpoints that are by their nature unique to my outlook and experiences. I have answered the questions in the order presented, and have not altered them in any way. Now, I get my turn in the interviewee’s chair….

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Last week, part 1 of my written interview with Professor William (Bill) Henderson of Indiana University’s Maurer School of Law was published here. Again, I’d like to thank Professor Henderson for agreeing to this interview and for all the important work he is carrying out. As with my prior interviews, the commentary below Professor Henderson’s answers is mine alone.

AP: What current Biglaw practice do you find most disturbing?

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One of the most important voices in the academic legal community, particularly on the topic of the business of law, and Biglaw in general, is Professor William (Bill) Henderson of Indiana University’s Maurer School of Law. I personally have long admired his work, and I was very pleased when he reached out to me after he had read my column on Biglaw’s “sticky seniors” problem.

At that point, I asked him if he was willing to do a written interview, and he graciously agreed, on the condition that he later have the opportunity to ask me questions. I look forward to doing so, and in the meantime I hope you find his answers to my questions as informative as I did. I’d like to thank Professor Henderson for agreeing to this interview, and for all the important work he is carrying out. As with my prior interviews, the commentary below Professor Henderson’s answers is mine alone.

AP: You got in touch with me regarding my column on Biglaw’s issues with senior partners. What are your thoughts on the issue?

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Musical Chairs

Is lateral partner hiring a game of musical chairs that law firms can’t win? Anecdotes about unsuccessful lateral hires abound. You hear stories about high-profile partners moving from Firm A to Firm B, often lured by huge guarantees, only to leave Firm B a few years later, after failing to integrate or deliver the expected business.

And some of the most successful firms in all the land, places with immense prestige and sky-high profits, do very little lateral hiring. Their refusal to engage in the lateral market hasn’t seemed to hurt them.

When it comes to lateral hiring, should firms “just say no”? Well, that’s not what’s actually happening in the marketplace. Last year, lateral partner hiring climbed, suggesting that it must be working out — at least for some firms….

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A 3L in a ‘law-and-blank’ class yesterday.

“One of the well-known facts about law school is it never took three years to do what we are doing; it took maybe two years at most, maybe a year-and-a-half,” Larry Kramer, the former dean of Stanford Law, said in a 2010 speech. The continuing existence of the third year of law school is generally held to be one of the basic structural defects in our current legal education model, alongside the contracted job market and soaring tuition. There have been efforts to address the problem, the latest being NYU’s announced overhaul of its third year curriculum.

Yet these attempts to redefine what the 3L year means appear to many like half-measures at best, “lipstick on a pig” at worst. As we noted back in November, Professor Bill Henderson of Indiana/Maurer has made a sweeping proposal that calls for a special new program for 3Ls by a coalition of willing law schools. The 3Ls would embark on a skills-based, teamwork-heavy course of study in partnership with law firms who agree to employ the students, albeit at a reduced rate. Also, there is a proposal currently before the New York Bar that would allow students to take the bar exam after two years. These students would not obtain a J.D. unless they return for their third year, but would be eligible for a bar card.

In assessing the NYU proposal (basically an increase in study abroad and specialty courses), Professor Kenneth Anderson argues that law schools have allowed educational incentives (i.e., learning to how to be a lawyer) and credentialing incentives (i.e., becoming an attractive job candidate) to drift apart: “The problem lies in how very, very unattractive we’ve institutionally made [students’] incentives – and the price tag attached to what is essentially a bet rather than investment. It’s a bet with many more bad payoffs than good ones.”

All the discussion and debate about the three-year law school model focuses, understandably, on the utility of that third year. We thought it would be interesting to have a look at our survey data to get a sense of how the experience of law students changes over time. The ATL Insider Survey asks law students and alumni to rate their schools in academic instruction, career counseling, financial aid advising, practical/clinical training, and social life. We wondered how, if at all, these perceptions differ between 1Ls and 3Ls….

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This is the time of year, every year, where most of us pause and reflect a bit on the past year, the year ahead, and what really matters anyway (see, e.g., this guy). And with the horror and pain of last week still fresh, this need for reflection is bound to be more pronounced.

Many thoughtful people are urging serious reflection on the part of the legal industry about how to address its basic structural problems. Not to put too fine a point on it, but does anybody disbelieve that the industry — both its educational and professional wings — is facing a sort of existential crisis? As has been endlessly rehearsed here and elsewhere, the cost of legal education is, for most, completely, utterly out of whack with the potential ROI. And longstanding assumptions underlying the business model of law firms are being challenged by technological advances, commoditization, and the growth of LPOs.

One concept threading through any discussion of the legal industry is this nebulous thing called “prestige.” Generally speaking, lawyers as a group dislike uncertainty, and “prestige” serves as a sort of organizing principle, letting everyone know where they stand. For instance, the U.S. News “T14” shows no sign of ever being shaken up. And the Biglaw hive mind consistently orders firms in precise ways. The Vault rankings are remarkably stable from year to year, to such a degree unlikely to be attributable to some self-reinforcing cycle caused by the rankings themselves. An arbitrary and typical example: Schulte Roth, which came in at #77 overall in 2010, ranked 80, 77, 76, and 82 over the previous four years. Another: Alston & Bird, which came in at #55, ranked 57, 61, 59, and 57 over the same period.

But apart from its role as a social validator or organizer, this idea of “prestige” can be used as a dubious metric in driving some truly momentous decisions. Law students make hugely important career choices based on little else but the Vault and U.S. News rankings. Some law schools lie in order to game the U.S. News rankings. It is at least partially underlying Dewey & Leboeuf’s push to join the more rarefied ranks of the S&C’s and Cravath’s. (Meanwhile, the ATL commentariat goes beserk at the slightest whiff of “TTT” anywhere within its sights.)

After the jump, let’s hear from a couple disparate sources about the baleful effects of prestige-obsession on the legal industry, and then let’s have the Harvard guy defend it….

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Ed. note: This is the first in a new series, “Across the Desk,” from Bruce MacEwen and Janet Stanton of Adam Smith Esq. and JDMatch. “Across the Desk” will take a thoughtful look at recruiting, career paths, professional development, human capital and related issues. Some of these pieces will have previously appeared, in slightly different form, on AdamSmithEsq.com.

As noted in the American Lawyer recently, the lateral recruiting boom of recent years continues unabated. As the Am Law article points out, “At the same time [as they’re focused on hiring lateral partners], firms appear to be homing in on their poor performers. Nine out of 10 survey respondents said their firm has ‘unprofitable’ partners, and seven out of 10 said their firms have partners at risk of being deequitized or ‘put on performance plans.’ As one survey respondent put it: ‘There are too many partners without sufficient billable work.’”

Now, wouldn’t you think it would make sense — if firms are worried about underperformers — to pay some attention to associates as well as partners? After all, some of those associates should, speaking theoretically at least, be your future partners.

Yet there’s unrebutted evidence that firms look at the wrong criteria when hiring associates….

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