Richard Susskind + Mark Cohen on Educating + Skills for Legal Professionals
This is a live blog post of a 75-minutes video discussion with Richard Susskind and Mark Cohen about “UK vs US – the next decade” and “Skills and education for legal professionals in the 2020s”. It is hosted by Legal Geek and sponsored by Thomson Reuters, UnitedLex, and iManage.
This is the third of a four-part discussion, The Uncertain Decade, “Richard Susskind and Mark Cohen debate the future of the legal industry”. The topic today is “UK vs US – the next decade” and “Skills and education for legal professionals in the 2020s” (Prior posts: Session 1 and Session 2).
This is a live blog post. I publish it as the session finishes. Please forgive typos and misunderstandings of meaning.
Mark Opens on Legal Education and Skills
Skills: “Legal knowledge will become a skill, not a practice.” Until recently, lawyers focused on one thing: legal expertise and knowledge. Today, however, that has become table stakes as technology and process have grown in importance in serving clients. The practice of law has, over the last five years, has shrunk. What had been thought of as law practice is now work done by other professionals or technology. The UK lawyer regulators recognize this and now regulate only six “reserved” activities.
Deloitte predicts that by the end of this decade, 40% of legal tasks will be automated. That is good news because it will free up lawyers from more rote work. But lawyers will need to learn new skills: business, analytics, tech, and a range of soft skills. This is the start of the legal industry geared to a digital era. Law firms will no longer be the sole provider of legal services
In parallel with these changes, the role of law schools will shift. “Most law schools are detached from reality.” We need to view education as a process, not a place, and a life-long activity, not a one-time one.
Lawyers and law will increasingly overlap with other disciplines such as engineering, science, and analytics. The culture of lawyers will have to recognize that it is part of a diverse ecosystem. It will have to become more open and accepting of new business and operating models. One implication is a move from “everything is bespoke” to “we need to scale and be efficient”. As well, lawyers will have to be more customer and client -focused, more agile, more focused on value, and constantly upskilling themselves.
Richard Susskind on the Future of Education and Lawyers
The fundamental Q: what are we training our young lawyers to become? Is it to produce 1-2-1 advisors focused on bespoke advice? Yes. Or should they be commercially astute, business thinkers, with multiples skills? Yes, but we are far from that. A decade ago, lawyers were barely prepared for the reality of practice; today the gap has only grown.
Young lawyers and law student grads want to gain a set of skills that will serve them well deep into the 21st Century. They are not getting this from law schools today. Our mistake: defining lawyers as evolution of what a lawyer is today. Instead, we should focus on what clients need and train to that. That would lead to different training, including learning 21st C skills such as process improvement and knowledge management. In sum, we continue to produced 20th Century lawyers 20 years into the 21st Century.
Richard asks whether we can learn from other professions. Citing medicine, he sees a much closer connection between teaching, practicing, and research. In law, there is little connection between academics and lawyers in practice. “Academics do not work hard enough to find out what is going on in practice.” [RF comment: in my view, it’s not about work, it’s about a lack of interest or, worse, thinking that being practical would somehow sully themselves.]
Mark cites that during law school, he clerked for a judge for three years. He reports learning way more from that clerkship than from classes in law school. In medicine, the educators most be highly skilled in medicine, good teachers, and hands-on practitioners. Law is the opposite – law professors avoid any outside engagement, not even taking advantage of affiliated business and STEM programs at their universities. Law schools resist, saying “we are not technical schools, all those other things are not integral to lawyers”. Mark: “They are wrong”.
News Jobs: Conversation shifts to new jobs based on an audience poll…
Richard is often asked by friends if their kids should study law. If you believe that machines will take on more and more tasks, which he does, and you factor in the accelerating effects of COVID, then we can see a future where many legal tasks are handled by machines. That means, we should focus more education on designing legal systems. Instead of training lawyers to compete against systems with traditional lawyering, train them to design the systems of the future, which will deliver an increasing share of solutions people need. (They won’t win against the systems.)
Mark largely agrees with Richard and also hears the same question regularly. Mark still views law as a noble profession with some still dedicated to social justice and serving the under-served. But even they will need to rely on data and technology. The broader implication is that there are more diverse paths to training lawyers for the future – and more diverse careers for lawyers.
Richard agrees. Serving the under-served will not continue to be a handcrafted undertaking. You can do that but it does not scale. In contrast, an app that advised clients would enable that same lawyer to serve many more people. The issue of access to the internet and devices is diminishing over time so that should not hold back automation. Mark: lawyers can help app developers guide what the app does. Focusing on delivery at scale with tech will serve many more people.
The implications for law schools: they can move to more virtual experiences and be less wed to physical space. We have many examples of online training work in lieu of formal lectures. Law schools need to follow this trend except where the lecturer is world class – and even there, get the best person in the world, record it, and then make it widely available. Learning from lectures need not be done as a communal activity.
Richard tees ups the next topic: compare the US and UK with respect to which country is best prepared for this new decade. There are four change drivers: drive for value, new providers, technology, and the ongoing accelerator of COVID. Richard will compare eight aspects:
Elite law firms: In the 1990s, the big US firms were ahead of UK firms. The US led the way in using tech. But in this century, the leading UK firms have pulled ahead. The reason: the UK market is smaller and more competitive. There is an arms race among the leading UK firms. Cites Linklaters releasing Blue Flag in late 1990s, early embrace of UK firms of Blackberries and virtual deal rooms.
General Counsels: Neither country is obvioulsy ahead. They are conservative about change. Richard thought that would demand more change. They are unhappy with the status quo but are too busy to do anything about it.
Law Department COOs (Legal Ops): The US is ahead in creating communities of legal operations professionals. This may be because US law departments are significantly larger on average than in the UK. US legal ops may push US firms to change faster.
Courts: This is hard to compare given the multiple US jurisdictions. But UK government is way ahead with a major court reform program underway, backed by $1b in government funding. At minimum,the US is more patch. Richard cites difference in how Supreme Courts reacted. UK embraced tech faster and more fully.
Legal Regulations: The UK re-regulated in 2011, allowing private investment and ownership in law firms. With few exceptions, little has changed in the US lawyer regulatory scene. The unauthorized practice of law (UPL) remains alive and well in the US. Lawyers should survive because of the value they provide, not by building walls.
Alternative Legal Service Providers (ALSP): Thinks the Big Four in the UK are ahead, because they can practice law. But ALSP have a bigger presence, especially in eDiscovery, in the US. And leading companies like Elevate and UnitedLex seem to have a bigger presence in the US.
Legal Tech Start Ups: There is explosive growth in start-ups in both countries. In UK, Richard sees more focus on new service delivery. In contrast, US start-ups focus on tools for traditional lawyers.
Law Schools: Sees more activity in the US than UK.
Richard sees the net net as a draw between overall US and UK legal ecosystems.
Now to Mark..
Mark agrees that there is not a huge divide between the US and UK on balance. Despite differences – Mark would love to see alternative business structures in the US – but argues that we need a global approach and all jurisdictions should learn from each other.
By design, the practice of law is provincial but the overall opportunities for the legal profession transcends boundaries. There is global need to better serve clients.
Mark would add one dimension: capital. He sees the infusion of outside capital as a significant force in driving change. Cites the hundreds of millions of dollars raised by United Lex and Axiom. But with minor exceptions, law firms, even in the US, have not tapped significant outside capital.
Mark asks Richard why Magic Circle have not taken advantage of ability to raise capital. Richard: the old business model works very well for partners, so they have little incentive to change. They see no need for more capital. Richard believes, however, that the rise of new competitors, especially the Big Four, law firms will recognize that they have to change and move beyond the billable hour as the only model. This will drive some big plays by law firms using tech. Cites Margin Matrix at Allen & Overy as prime example.
Richard: it’s hard for lawyers to think about using capital because their mindset is so focused on billing hours. The idea that investing to build a system that makes money while they sleep is not in their mindset. Mark adds that the attempt to maximize partner profits each year short circuits thinking about longer term investment.
Impact of Legal Operations. Jeff Carr from audience asks about actual impact of legal operations professionals. Mark thinks impact will be limited until those roles have cultural parity with the practicing lawyers. Impact will also depend on moving beyond a focus on on hourly counseling, which is mindset of in=house lawyers at well as law firm lawyers.
Comparing US and UK Law Firms
Richard observes that US firms in London are more of threat to UK firms than vice versa. Mark asks why UK firms have not done better in the US. The answer turns on compensation… US firms pay more. And it is difficult for UK firms to break into the US firm. Richard sees that large US corporates have long-standing and tight relationships with US law firms. It has been easier for UK law firms to expand outside of the US.
Mark disagrees on this; he sees many changes by law departments in their selection of panel firms and their greater use of ALSP than in the UK. So does not see why UK firms cannot succeed. Richard observes that the UK firms have not been able to obtain the critical mass of experienced lawyers from US firms. The investment to obtain that critical mass of US lawyers is one that UK law firms are not willing to make.
Richard also observes that the profit motive is stronger in US firms than in UK firms. UK firms focus more on culture.
QUESTION & ANSWERS
What is the future of the billable hour generally as between the US and UK? Richard: it’s less about how lawyers charge and more about how they work. Lawyers talk about killing the billable hour but not enough about delegating work to lower cost resources. The debate should be about alternative delivery and not about how to charge. Mark agrees.
Is there a generational gap affecting the uptake of tech? Mark thinks yes with caveats. Some of the older lawyers want to coast out without learning it. Younger lawyers want to embrace. But attitudes, people, and market demand ultimately drives tech us. Richard: it’s not always the case that younger lawyers gravitate to tech. Many who study law are attracted to it because of the tradition. Young lawyers may be 2020 in their private lives but like, at work, to do things as they have always been done. [RF comment: I agree with Richard. At minimum, tech uptake by age is an empirical question. The anecdata I hear varies widely.]
How do we get in-house counsel to embrace new ways of working? Mark – this brings us back to the cultural issue. The in-house lawyers are the professions belle weather. They are closer to the businesses. Increasingly, C-suite is making new demands on the legal function. They need to create value, not just protect. Mark sees fast change coming to the in-house community (and sees ALSPs focused on this). Richard observes that many in-house lawyers say they are too busy chopping wood to sharpen their ax.
How can law firms find the talent they need given the poor law school training? Mark – firms must invest in intensive training. And answer depends on the talent sought? It’s one thing to get a top law school grad for traditional skill or a more broadly skilled person. Richard – law in UK is undergraduate so they are not fully educated. In contrast, in US with four years undergraduate, there is a broader educational foundation for lawyers. Richard would love to see law firms look at and hire people trained in disciplines outside of law
How does access to justice differ between the US and UK? Richard: met two who wanted to provide advice on services for special needs students. Their plan was thwarted in the US by lawyers who alleged unauthorized practice of law. (RF Comment: this in a microcosm of why the US must re-regulate.). Both agree that there are issues in both countries. Both countries need a more reasonable approach to regulation that balances protection and access.
[Final 5 minutes of questions not captured.]
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