Posted July 13, 2018, 7:05 am CDT
Last month, I wrote here about some potential changes to legal training in the United States, based on my own experience and conversations within and outside both the industry and country. The response was overwhelmingly positive from those who understood that I am trying to improve our profession for lawyers and clients alike.
I did receive some negative comments that were disappointing because I believe they were both personal and displayed the very self-centered and protectionist attitude that I believe is harmful to our profession.
As I mentioned last month, I am exploring some changes to law school curriculum that would benefit clients and attorneys alike while improving access to justice. Thank you to Gina Alexandris, senior director of the law practice program at Ryerson University; and Cat Moon, director of innovation design for the Program in Law and Innovation at Vanderbilt University Law School, for speaking with me about this important issue.
THE BUSINESS OF LEGAL
In 2018, there are approximately 1.34 million lawyers in the U.S. according to ABA statistics and approximately 32,000 law students will graduate this year. Approximately 3 percent of lawyers were in the judiciary as of 2005 per this ABA report. More importantly, about half of the 75 percent of lawyers in private practice are solos, meaning more than 650,000 attorneys are running their own firms. And after deducting those solo firms, the other attorneys practice in one of the approximate 48,000 firms in the U.S.; 89 percent of lawyers work in firms under 10 attorneys; and 76 percent have two to five lawyers. Therefore, it’s more important for lawyers to understand how to run a business rather than sit on the bench. A few law schools are creating classes on business, like Suffolk University Law School’s program. However, that is a separate certificate from the J.D. program, rather than a mandatory class.
Every law student needs to become financially literate and understand the business aspect of running a firm, which today includes the use of technology for efficient and effective legal services delivery. Additionally, with 8 percent of lawyers working in-house, the business and technology of legal is invaluable knowledge. Finally, clients are demanding legal services with technology, and we ignore them at our own peril.
Another example is Canada’s Ryerson University, where a new law school is launching in 2020 that includes the following classes in the third and fourth semesters:
- • The Business of Lawyering
- • Social Innovation and the Law
- • Legal Innovation
- • Advocacy and ADR (Alternative Dispute Resolution)
MANDATORY ADR FOR LAW STUDENTS
Law students should be expected to take classes in alternative dispute methods to avoid lengthy and costly trials. According to the National Center for State Courts, there were 84.2 million new cases filed in state courts in 2016, a decline from a peak of 106.1 million cases prior to the Great Recession in 2008. Meanwhile, federal courts reported an increase in civil filings in 2017 by 6 percent compared to the previous year, while criminal cases dropped 5 percent. Most of those cases will never even go to trial but languish on a judge’s docket for months, if not years. For those who can afford a lawyer, they might not be able to afford much else after their case ultimately settles. The NCSC reported in 2013 that the median cost for a malpractice claim was $122,000 while the median cost for an employment dispute was $88,000. In addition to the costs, the courts are clogged with pro se litigants who slow down the entire process as identified in the Utah and Oregon Futures Reports.
ADR can take the form of a negotiated settlement, mediation, or arbitration. One of the main advantages of ADR is that disputes can often be resolved sooner because of the court backlogs. There is anecdotal evidence that the cost of a mediator or negotiator pales in comparison to the figures above. For example, in family law, mediation is often used to come to agreement rather than waiting months to go to court and spend thousands on an attorney.
In 2008, my 1L classes focused exclusively on doctrinal material, and while there were options to take ADR classes at my law school, it was not mandatory. Ryerson’s curriculum incorporates ADR in year two as a required class. It’s interesting, because Australia has now included an ADR course into their first year of law studies. In addition, I believe that online dispute resolution should be included as part of the mandatory ADR topics.
BORROW FROM MEDICAL
As I mentioned previously, clinical or experiential learning should be part of law school. In 2010, my last year of law school, I participated in the then-Technology Ventures Clinic with real clients. Clinics allow students to use legal knowledge but develop client service skills that cannot be learned from the Socratic method.
This summer, in my negotiation masters class, we took on roles for simulated scenarios and did not deal with actual clients. This role-playing or acting is sufficient training, definitely superior to theoretical lectures or reading. However, perhaps law schools could explore using actors, like medical, in the place of real clients where clinics are not feasible.
The above are some ideas to consider, mainly from Canada, and I will provide more examples, particularly for ADR, in future articles. I spoke with Cat Moon at VLS about how and what should be done to change the law school experience.
Cat provided this quote from The Future is Already Here blog post by Dan Hunter, founding dean of Swinburne Law School in Australia: “We must collectively learn how to think about what to do next, not what to do next.” She comments on her approach to redesigning the VLS law school experience as follows:
After almost 20 years in practice, I now have the opportunity explore this very idea at my alma mater. Named the director of innovation design for VLS earlier this year, I get to work with colleagues to create modern, relevant, and innovative content for the VLS curriculum—and for practicing legal professionals. So I’m constantly thinking and talking about how we can design a new vision for law school, and running experiments to see what works (and what doesn’t). To really move the needle? We must focus on the how, to Dan’s point. I suggest the process and mindsets of human-centered design offer a valuable heuristic for the very wicked problem we face in redesigning law school. We’ve got to dig deep into the roots of the many problems existing in the traditional law school model, and walk in the shoes of the myriad stakeholders law schools must serve. All of this is the how, and must be done before we start prescribing the what. And the how must focus not just on law school curricular content but also on how we teach law students. Pedagogical methods largely go ignored across most law schools (with some important exceptions, such as the many stellar clinical programs). Excellent pedagogy in law school must become the rule, not the exception.
To remain relevant for the millions of Americans who need access to justice, it’s imperative to consider change. I am excited to continue the conversation with Cat and dive deeper into Ryerson’s proposal and ADR projects in future articles. As I set out last month, anyone interested in being interviewed on this topic, whether you have ideas or are implementing change at your law school or in the broader legal profession, please reach out to me on Twitter @maryjuetten.
Mary E. Juetten, Esq. CA, CPA, is founder and CEO of Traklight and of counsel for Nimbus Legal. In 2015, Mary co-founded Evolve Law, an organization for change and technology adoption in the law, which she sold to Above the Law in 2018. She was named to the ABA’s Legal Technology Resource Center 2016 Women in Legal Tech list and the Fastcase 50 Class of 2016. She is the author of Small Law Firm KPIs: How to Measure Your Way to Greater Profits. She is always looking or success stories where technology has been used to bridge the justice gap, from pro-bono through low-bono to nontraditional legal services delivery.