Future of Law

Michael Allen

Ed. note: This is the latest installment in a series of posts Lateral Link’s team of expert contributors. Michael Allen is Managing Principal at Lateral Link, focusing exclusively on partner placements with Am Law 200 clients.

The stories about Biglaw over the past five years have been grim, but a closer inspection shows that despite a cacophony of daily doomsday stories from The New Republic, the Wisconsin Law Review, The Atlantic and other publications of varying quality, the future of Biglaw looks promising.

The size of modern-day, Am Law 100 firms allows them to downsize or expand as the market conditions dictate, but as a profession of perception, firms have to handle RIFs with care. Partners and clients might go next door if they doubt the capabilities of the firm. I have worked with partners before who moved simply because the perception of their firm’s stability was questioned by their clients….

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David Bowie said it this way:

Ch-ch-ch-ch-Changes

(Turn and face the strain)

Ch-ch-Changes

I know you’ll be humming that song a couple hours from now (and thanking me for it). But, it underscores that clients are demanding ch-ch-ch-change from the legal profession on both sides of the border. We can’t ignore it any longer. We need to turn and face the strain head on. We need to meet the challenges of globalization and technological innovation and transform our industry.

It looks like Canadian lawyers are making an attempt to join the twentieth century — sorry, I mean the twenty-first century. The Canadian Bar Association recently released its Futures Initiative report that sprung from two years of consultations by lawyers and legal profession experts. The Futures Report makes twenty-two recommendations for helping the Canadian legal profession break away from its horse and buggy business model (developed by Gen A) to join a world where you can watch video of a horse online before purchasing it with Bitcoins…

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Looking into the crystal ball.

Last week, at Minnesota’s Strategic Solutions for Solo and Small Firms Conference, I shared a panel with Lawyerist’s Sam Glover and an innovational speaker, Matt Homann. The panel focused on the future of solo and small-firm practice over the next ten years. Although we all agreed that the solos and smalls — and, indeed, lawyers in general — will face challenges over the next decade, I still believe that opportunities remain for solos who understand these challenges and figure out ways to overcome them.

So, no great surprise there. But all of us on the panel agreed that technology is changing the face of law practice in a way that may expand access to justice but that may also take work from solos and smalls….

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First, thanks to Baker & McKenzie, DLA Piper, Latham & Watkins, and Ulmer & Berne, all of whom endured my “book talk” about The Curmudgeon’s Guide To Practicing Law when I was recently back in the States.

Second — and proof that my mind is navigating on its own — I recently paused to think about driverless cars.

I suppose that, if you lived (as I do) in a major city that may be road-testing driverless cars before January, you’d be curious about these vehicles, too. (You’d want to consider, for example, whether you should stay on the sidewalk, even if that means walking endlessly in a one-block circle for the rest of your life.)

And if you labored (as I do) in the insurance (or insurance brokerage) space, you’d be scratching your head about what might happen to your industry if billions of dollars of auto insurance premium vanished (or was spent by people other than drivers) overnight. Lawyers for insurers should be thinking about driverless cars.

So, too, should lawyers outside the insurance space. Do you do DWI defense work? Your practice area may not exist in ten years. Do you participate in automotive accident or product liability cases? The world may be about to shift under your feet.

And I’m just getting warmed up here. . . .

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There’s that old adage that if you say something enough times, you actually believe it to be true, even if it isn’t true. This is part of my issue with the “law futurists.” The mostly no longer-practicing or never practiced pound their keyboards daily trying to convince those of us that actually do have clients that we need to be scared, very scared. Everything around us is seemingly changing and as the phrase goes that inspired my bio below, if we don’t “get on board” immediately, it’s all over and we may tragically end up pounding keyboards daily telling practicing lawyers that the future is coming tomorrow and they better be prepared.

Canadian Jordan Furlong writes at Law21 and is someone I call a “law futurist.” His bio says the same thing, just in more words: Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises. Jordan is also a lawyer, although his bio reflects no actual current law practice.

I’ve never spoken with Jordan because I’m one of those people who doesn’t have good happy conversations with the cheerleading world of law futurists. I’m a mean troll bully buzzkill. I’m sure Jordan is a great guy, and I see people on the internet smiling at many of his thoughts, but I’m a bit of a skeptic when non-practicing lawyers try to convince those that “do” that we are doing it wrong and, for a fee, the answers are nearby…

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[I]n today’s environment, averages mislead more than ever. If anything is true about law firm performance in the post-Great Reset era, it’s that dispersion has never been wider. We have more highly outperforming winners and more poorly underperforming laggards.

But if you want to generalize? Out of ‘alive, well, and rich,’ the evidence seems to support one for three.

– Lawyer and law firm consultant Bruce MacEwen of Adam Smith, Esq., taking issue with the defense of Biglaw written by Robin Sparkman, editor in chief of the American Lawyer.

Today is Tisha B’Av (lit. the 9th day of the month of Av), the “heaviest” day on the Jewish calendar. It is a day of national mourning, observed through the adoption of Jewish mourning customs, such as not shaving or wearing leather shoes, among others. It is also a fast day, meaning no eating or drinking, and one that is similar to Yom Kippur in its 25-hour duration.

For Jews, the tragic national events underlying this day are unfortunately plentiful, from the destruction of the two ancient Jewish temples to the mass expulsion of Jews from the Iberian peninsula in 1492 — and more. In contrast to Jewish mourning customs upon the death of a person, where the severity of the mourning customs decreases as time passes from the burial of the deceased, the period immediately preceding Tisha B’av sees an increasing adoption of displays of grief, culminating in the observance of the day itself. In short, the mourning is experienced, as well as reflected on.

Interestingly, this sad and mournful day is also considered a holiday — suggesting there can be positive aspects to putting oneself “in the mood” by experiencing and reflecting on the message of the day. Many in Biglaw are familiar with the general contours of the Jewish holidays, considering the outsized presence of Jewish lawyers (of varying observance levels) at many firms, particularly in those cities with large Jewish populations. One way of categorizing those holidays is to relate them to different aspects of the human condition: Passover celebrates the human need for freedom, Yom Kippur the need for repentance and a fresh start, and so forth. Mourning is a universal human experience as well, and thus deserving of its own special day, to be visited on an annual basis. A holiday implies an active process for its celebrants, in contrast to simply recalling a tragic series of events.

The question becomes, what is the value in experiencing a “taste” of loss every year? Let us relate our discussion to Biglaw….

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This isn’t the first and it won’t be the last time we have to knock down this ridiculous argument. There’s simply a lot of money invested in making prospective law students believe it.

And it makes a certain kind of sense. We’ve extensively reported on the decrease in law schools applications. We’re at all-time historic lows. It’s a comforting and mathematically banal argument that the lack of applications now will lead to a dearth of law graduates in 2016, which will mean great times(!) for the class of 2016. More importantly, law schools want people to believe those brave enough to apply to the class of 2017 will benefit from an “undersupply” of new lawyers by the time they graduate. I promise you more than half of the class at Cooley actually believe this crap.

The problem, of course, is that it’s not true. It’s not true, and the people who say it’s true have no evidence that it’s true. Heck, there’s an “undersupply” of lawyers right now, if you look at poor and low-income clients. But that hasn’t actually resulted in a vibrant hiring market for new and recent graduates now, has it?

It’s a bad argument, but let’s walk through it so you have something to link to when you hear it from friends who don’t know how to use Google….

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Two factions of the legal profession seem louder than the others — those wallowing in the past, the ones spending their days blaming their law schools for forcing them to attend based on the promises of wealth and happiness, and those predicting the future of law who want you to believe that if you know now how the practice will be 10 or 20 or 500 years from now, it will help you today.

So tell me, which one has helped build your practice: whining about the past, or thinking about how things may be in the future?

I like to live in the present, while remembering the mistakes of my past and knowing that the future will eventually be here, and I may not.

But when I talk about the present, how I do things, how people I respect do things, I often hear that “those things don’t work anymore.” You haven’t tried “those things,” but because someone you don’t know seems to have the best crystal ball (at a reasonable price), they know better.

Most of you are looking to make money now, not in “the future of law,” and knowing that in reality, bitching about the past does nothing — even if you are delusional enough to think anyone cares….

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There is a great line in Spielberg’s Lincoln, when the President’s eldest son, Robert, is trying to persuade his father that his place (in what would be the final days of the Civil War) is in the Union army — and not in a Boston lecture hall. Robert tells his father (whom the movie shows peppering his speech to staff members with anecdotes from his time as a country lawyer) that he himself is not sure whether he wants to even be a lawyer. The President replies that law “is a sturdy profession.”

That’s a great line, and an apt description of what a lifetime of service as a lawyer should be. Lincoln was right, and remains right, particularly when lawyers act professionally — meaning that they do their utmost to address the needs and problems of their clients, prepared at any point to elevate their client’s interests above their own.

I know it is just a movie, and perhaps I am too swayed by sentimentality after watching it. But what is the purpose of observing the towering figures of history if not to learn from their inspired worldviews?

Can we say that today’s Biglaw is an exemplar of a “sturdy profession”? Unfortunately, brutal, rather than sturdy, is a more appropriate adjective….

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