Best Lawyers Peer Into Their Crystal Ball,
See Firms and Schools Need to Retool

By Meredith Hobbs
Daily Report
New York Lawyer
April 28, 2009

ATLANTA - Seismic changes in the legal profession engaged the concern of seasoned attorneys at a conference held last week by the Best Lawyers of America.

Senior lawyers from all over the U.S. gathered in Atlanta for the conference marking the 25th anniversary of the Best Lawyers ratings organization. All have been voted "Best Lawyers" by their peers for each of the past 25 years.

At Friday's panels on the future of legal education and the legal profession, the tenor of questions showed a lively concern for where the profession is headed.

The practice of law has changed radically in 25 years. As businesses have grown in size, their matters have become larger, more expensive and more complex. So have the firms that serve them. When times were good, the tensions provoked by the shift from law as a profession to a business were masked by the growing demand for legal services. Now, as lawyers face shrinking demand for their services and layoffs, firms and law schools are scrambling to adjust.

"I've never seen so many lawyers jettisoned and needing career help. Not just those straight out of school but also after two decades of practice," said Richard A. Matasar, the dean of New York Law School, who spoke at the first panel on changes in legal education.

The two other law school deans on the panel concurred.

"We are working with those [3Ls] who are finding their jobs pulled or delayed for six months. We are receiving an unprecedented number of calls from alums in this situation," said Emory University Law School's dean, David F. Partlett.

"We're getting calls from partners who've been laid off who are alums," said Northwestern University Law School's dean, David E. Van Zandt.

Law schools must retool legal education, the deans agreed, but exactly how still is not clear.

"You're producing a product that very few people want. Firms have hiring freezes. Why not stop producing the product—or create new markets for what you're producing?" one lawyer challenged the deans. "You're like the auto manufacturers who produce a product for which there is no demand."

Matasar replied that some law schools likely will go out of business while those that survive will have to provide a legal education at a lower cost.

Shortening the time spent in law school would make it cheaper for students, which would mean firms could pay them a lower starting salary, Matasar pointed out, adding that in Europe, a legal education is an undergraduate degree.

Offering courses online and increasing credit for externships are two ways that law schools could offer degrees more quickly and cheaply, he said.

But Matasar said law schools are hamstrung by requirements of the American Bar Association, which accredits them. For example, law students must have college degrees and must accumulate a certain number of classroom credits to graduate.

"Some of the ABA rules do not have an educational reason," Matasar said. Instead, they exist to keep law professors employed, he said. "It's guild protection for the union of law professors of America."

Organizational behavior and product management skills plus strategic business thinking are important competencies for lawyers at firms handling today's giant matters, said the deans. But they said the current criteria for law school admission—college grades and LSAT scores—do not assess these competencies.

Matasar challenged lawyers who think legal education is out of step with the demands of the market to "go back to your place that manufactured you and put pressure on them. You have the power of the pocketbook."

Another lawyer in the audience objected to the idea that legal education should merely supply product to private firms and companies. "We're not talking about cars. We're talking about minds. … This is supposed to be a profession," he protested.

Massive discovery demands have shifted legal work away from thinking and analysis to product management, said another attorney. "When we were in law school, discovery meant two or three banker boxes of documents. Now it means two or three hundred boxes. That demands widgets—not thinking," he said.

Discovery gone wild

Members of the panel on the future of the profession agreed that the vastly expanded scale of electronic discovery has transformed legal work.

The panel's moderator, Philip K. Howard of Covington & Burling, pointed to another fundamental change: the increase in the number and complexity of laws.

"Layers of law have accumulated like concrete. Some is productive. So much of it is not. Congress never goes back and revises," said Howard, who addresses this issue in his latest book, "Life Without Lawyers: Liberating Americans From Too Much Law."

He said the scale, complexity and globalization of legal matters means the need for good lawyers is greater than ever.

Howard predicted the end of the billable hour, which pits a firm's financial interests against those of its client. This prediction has been made as long as the Best Lawyers group has existed, but Howard thinks the time could finally be right.

He advocated fixed-price billing with room to negotiate if the scale of the matter expands or contracts, and pointed out that clients and their counsel must trust each other for such deals to work. Such billing arrangements could swing the pendulum back to law as more of a profession, he suggested.

Howard and the three panelists—Daniel Cooperman, the general counsel of Apple; plaintiff's attorney Robert A. Clifford; and white-collar defense attorney Charles A. Stillman—agreed that lawyers are frustrated with where their profession is headed.

Cooperman pointed out that hordes of private firm lawyers are seeking in-house jobs these days. Firms have traditionally been the place where able attorneys could make lots of money doing challenging work. But the sophistication of in-house work and salaries have increased, he noted, making large in-house law departments more like a law firm serving a single client—but with no billable hours requirements.

Companies today use an array of outside firms for specialized work instead of relying on a single trusted outside counsel, he noted. In-house lawyers are closer to their client and often more involved in business decisions, he said.

"In-house lawyers have supplanted outside counsel in being the trusted adviser to C-level executives," said Cooperman. That makes these jobs attractive to firm lawyers weary of demands to bill more hours to clients who have grown cost-sensitive and fickle.

"It's not just younger lawyers. Many partners are searching for alternatives to the daily grind of their practice," said Cooperman.

Cooperman cited two major problems for corporate clients: discovery battles and lawyers who write business agreements without meeting the actual person running the division.

Both are outgrowths of the increased size of corporations, their matters and the firms that serve them—an increase in scale made possible by technology.

Technology has also accelerated the pace of legal work, Cooperman pointed out. The "BlackBerry syndrome" means "clients expect an instantaneous response," he said. "Anything less is considered sluggish."

"That has imposed enormous demands on in-house counsel and even more on outside counsel," said Cooperman.

The vanishing trial

Clifford, a member of plaintiff's firm the Clifford Law Offices in Chicago, cited gargantuan discovery requirements as one of the culprits for the disappearing jury trial.

The scale of litigation discourages companies from going to trial—and from filing suit in the first place, he said. The risks have become too great.

Instead, he said, alternative dispute resolution has become the norm—and frequently results in confidential settlements.

The shift from open jury trials to settlements that gag participants is "corrupting the civil justice system," Clifford warned.

"We can't evaluate the performance of the system because of confidentiality agreements," he said. "We don't have good data on outcomes."

Stillman, the panel's white-collar criminal practitioner, said federal sentencing guidelines also have chilled jury trials. Defendants prefer to cut a sentencing deal rather than take their chances in court.

Stillman is a founder of Stillman, Friedman & Shechtman and a former federal prosecutor.

He warned of a new development—the government's increasing use of private firms to handle internal investigations of companies.. Subcontracting investigations to firms is another shift in power from public law enforcement agencies to the private sector, said Stillman. "So lawyers are increasingly viewed as an arm of government. This is a very serious challenge to our profession, which I find quite scary," he said.