Legal Education for the Future

Volume 1 • Issue 5 • July/August 2015
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Questions Lawyers Must Answer

Martha Minow, Harvard Law School

On a slow news day, journalists (a dwindling group) write about the crisis in the legal profession. And if it’s a really slow day, they write about the crisis in law schools. This is certainly a time of disruption, financial challenges, and fast-paced change for lawyers and law schools. But many large firms have posted record earnings. General counsels have never had more significant roles to play. New legal services providers are creating forms of work that combine new technologies and work schedules, often offering participating staff lower pay but more predictability. Uncertainty has spooked college students, though, and declining applications in turn challenge law schools both to scale back and also to invest in innovative curricular offerings and engaging experiential learning. The downturn in 2008 simply exacerbated and accelerated larger trends and issues.

As dean of a law school, vice chair of the Legal Services Corporation (LSC), and an Oprah Winfrey wannabe, I have seized the chance over the past few years to talk with people in this country and around the world who are generous enough to talk with me about this moment in law and law schools. I ask people: What difference do lawyers make in the world? Do you think there is a crisis in the legal profession? What do you predict will happen in the next decade?

Lawyers can make all the difference to those who risk the loss of life’s necessities—a home, one’s children, liberty from incarceration, a job.

I have learned a great deal from conversations with leaders of countries, heads of banks, law firms, venture firms, hedge funds, startups, legal aid offices, deans of law schools and presidents of universities, legislators, prosecutors, defense attorneys, heads of corporations, judges, released prisoners, policymakers, prospective students, and people who would like to find but cannot afford a lawyer. Admittedly unscientific and impressionistic, I glean from these conversations four major questions.

1. Are legal services too expensive?

Legal services in the United States and much of the world are increasingly priced beyond the reach of most individuals, and challenging for businesses of all sizes. Even large corporate clients find that legal expenses are too high, and most have worked very hard to try to control legal costs. This helps to explain the rise of the in-house counsel as among the most powerful legal players in the corporate world.

The cost of lawyers is especially harsh for the poor and for individuals of modest means. Lawyers can make all the difference to those who risk the loss of life’s necessities—a home, one’s children, liberty from incarceration, a job. Not having a lawyer in these circumstances is devastating. It is also destructive of law itself. Because law is not self-executing, it needs advocacy to be realized.

We have failed to devise funding sources and compensation to meet the needs of clients with low and moderate incomes and the staff seeking to serve them.

President Richard Nixon signed into law federal provision for civil legal assistance. At the time, the nation enacted legal assistance as a fundamental commitment, embraced by both political parties. In 1976, the fledgling LSC was allocated—in inflation-adjusted terms—more than $468 million, rising three years later to its all-time high of what in today’s dollar would be $880 million. In 2015 the federal allocation is $375 million, less than half of that, even though the population eligible for assistance has grown to an all-time record high. Nearly one in three Americans qualified for LSC-funded services based on their low income in 2013. That means $14,000 a year or less for an individual and $29,000 or less for a family. At the same time, attorneys who want to provide these services have trouble receiving sufficient compensation to allow them to provide for their own families.

We have failed to devise funding sources and compensation to meet the needs of clients with low and moderate incomes and the staff seeking to serve them. In fact, the cost of legal services is a problem across the board. It is a problem for the wealthiest corporations as well as for poor people.

2. How does globalization change needed expertise?

Bill Lee of WilmerHale and Terry Fisher, my Harvard colleague, ran a fascinating program here a couple of years ago presenting a hypothetical intellectual property case to four judges from four different countries who applied their own countries’ laws—and, after deliberation, they came up with four different answers.

How do you practice law when you are simultaneously practicing in multiple national jurisdictions? How do you give advice? How can lawyers develop the expertise to navigate contrasting rules from different nations that govern the same transaction—or build the requisite collaborations to do so?

Globalization also increases potential competition for business, competition over who will provide legal services. The competition is not solely among lawyers, as some countries come to permit legal service provision by accounting firms; others develop specialized companies to deliver services ranging from document production to advice.

Differences in labor costs invite global firms to do arbitrage when finding legal help—differences in ethical standards, regulation of corruption, and cultural differences. These are increasing challenges for corporate lawyers, human rights lawyers, labor lawyers, public health lawyers, and family law lawyers, as well as intellectual property lawyers, not to mention clients all over the world.

3. What challenges and opportunities come with new technologies?

Great opportunities arise as digital tools, artificial intelligence, and other innovations move into law. But there are great dangers as well.

Innovation is happening, and it is good that those outside of law sometimes push lawyers to find new ways to harness technology to give more people access to law. But people with legal training should at least be at the table or, better yet, take the lead.

Two years ago, I received an angry phone call from someone attacking my school for creating a “phone app” in immigration and naturalization services. The very idea was news to me, and it turned out no one at our immigration and refugee clinic or our cyberclinic had heard about the app. I tracked it to the Innovation Lab at Harvard, where some business school students had designed the app. I actually serve on the board of the lab and questioned how such an app could be created with no input from lawyers or law students. The I-Lab team reminded me that it simply supports student work and does not vet or vouch for it. The business school students in turn communicated a message to this effect: “Look, you’re not doing it. We’re going do it. We’re going to come up with a digital navigation tool to help people find their way through a complex bureaucracy.” Unfortunately, the navigation tool that they came up with contained serious errors and omissions that would create even more legal problems for those they were trying to help. Yes, innovation is happening, and it is good that those outside of law sometimes push lawyers to find new ways to harness technology to give more people access to law. But people with legal training should at least be at the table or, better yet, take the lead.

Similarly, I asked one of our alumni who runs a very large global law firm, “How’s business?” And he said, “Which business? We are in five businesses.” They have created online data analytics businesses; state research businesses; a one-stop compliance tool; and other products they market in addition to conventional legal representation. Once again, these ancillary businesses have enormous potential to help law firms serve clients more effectively and efficiently, but they also create new risks for lawyers and clients that the legal profession will have to monitor carefully.

One more story. A student recently told me that he quit his summer law firm job, which is not a great idea in this market. When I asked him why, he said that the firm partners asked him to read many contracts and compare their terms. Because he had majored in computer science in college, he wrote a program to do it quite quickly. His employers were not happy and asked about billable hours. Hence he quit. I understand his decision to use his knowledge and talents another way. We have explored together how he can take his knowledge to build tools to help reduce the costs of legal services. Consider how law school and law practice can and will change as more people bring together legal knowledge and digital tools.

4. What are the dangers of and responses to distrust of established institutions?

My sense of the world was forged in the 1960s, when not trusting anyone over 30 was pervasive. I hope it is not just that I am well over 30 that I now understand the worries about widespread cynicism and distrust about established institutions. Many people do not trust the police. They don’t trust the courts. They don’t trust the law firms. They don’t trust the regulators. The distrust is often grounded in profound evidence and sometimes in misunderstanding. These are big problems in this country and often even bigger elsewhere in the world. My own work has taken me to postconflict societies, when the distrust of state authorities, the courts, and the police are the predicate for the next civil war. A society without a functioning legal system, respected by people who otherwise disagree, can have little possibility of anything else.

Whether its sources are corruption, or political violence, or growing inequalities (producing one legal system for the haves and another for the have-nots), distrust is corrosive of all else.

These four questions will require our serious attention if we are to begin to give them the answers they deserve. Fortunately, I have heard not only the questions but also hints of the opportunities that come with tackling them together.

Lawyers need to dig into their traditional skills in asking critical questions, persuading, and learning from different points of view—and getting to the bottom of knotty problems that entwine economics, politics, language, ethics, and psychology.

Innovations in technology and business models point toward blending online tools with in-person legal services, potentially reducing costs and facilitating access. For example, Stateside Legal is an interactive website that provides armed service members returning home and their families with easy access to the information about the legal issues that affect them. This and similar resources can also point individuals to lawyers when needed.

On building trust, there may be lessons to be learned from the collaborations underway across the globe by lawyers who need to find ways to build sufficient trust to work together. There are surely lessons to be learned from great lawyers themselves. My dad, at 89, is still actively engaged with his law firm, Sidley Austin. He often speaks to associates about the importance of trust. One young associate once came up to him and asked: “How do you give the appearance of trust?” My dad replied that it helps to start by being trustworthy. Woodrow Wilson once said: “At every crisis in one’s life, it is absolute salvation to have some sympathetic friend to whom you can talk to aloud without restraint or misgiving.” Recovering this essential element of lawyering should be a touchstone for all responses to contemporary challenges.

Are lawyers equipped to navigate the challenges within the profession itself?

To do so, we need to draw upon the traditional strengths of lawyers. Those strengths include navigating rules and regulations, crafting and revising laws and institutions, and organizing complex bodies of material and reorganizing them along different axes. Lawyers need to dig into their traditional skills in asking critical questions, persuading, and learning from different points of view—and getting to the bottom of knotty problems that entwine economics, politics, language, ethics, and psychology. We also need to work with others and build our own capacities to innovate, devise new compensation and delivery systems, comprehend and shape new technologies, and do the slow, hard work of building trust.

 


Martha Minow is the Morgan and Helen Chu Dean and Professor of Harvard Law School

Legal Education for the Future Volume 1 • Issue 5 • July/August 2015

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