Professor Ken Grady of Michigan State University College of Law published a compelling article this morning about the decline of excellence in the craft of lawyering. In it, he asks a series of questions that lawyers and legal educators alike should consider:
What does it take to become a lawyer who excels at what he or she does? What type of commitment is involved? What sacrifices must that lawyer make? What are the consequences of not excelling at the craft? Why aren’t the lawyers at the other firms, all of whom charge premium fees for their services, excelling at their craft?
Underlying all of these questions is another, even bigger one: what is excellence?
Attempting to define what it means to be an excellent lawyer reveals many of the anxieties of modern legal practice. An attorney may work hard, bill the requisite number of hours, win a few cases, and still lie awake at night wondering, “am I excellent?” Or in other words, am I thriving in my field, or just surviving?
Excellence, then, means more than just working hard and billing hours. Prof. Grady’s article explicitly recognizes this. He identifies effective legal writing, knowledge of clients’ businesses, and the development of deep expertise in novel areas such as quantitative analysis as paramount.
How can law schools inculcate excellence?
The next obvious question is what law schools can do to prepare students to become excellent attorneys. Prof. Grady does this, actively, by teaching courses geared toward legal tech and supporting the LegalRND program at Michigan State, which I hear is truly excellent.
The first step for law schools is to be frank about the realities facing the profession.
Graduating law students must be savvy about the limits and pitfalls of traditional legal practice—including the billable hour model. Recently, Thomson Reuters’ Legal Executive Institute declared the billable hour model “effectively dead.” By 2020, alternative fee arrangements will play a key role in the attorney-client relationship, with serious implications for the profession as a whole. Even in commercial litigation, firms are increasingly being asked to share in the risk of failure. Internally, firms have adopted systems to calculate the value of legal services being delivered. Over 90% of firms with more than 250 attorneys have already adopted such practices, and a trickle-down effect is likely as the profession moves into the third decade of the twenty-first century. Meanwhile, law schools operate under a Langdellian model of legal education developed by Harvard in the 1800s. To the degree that law schools have attempted to emphasize practical skills, many do so using a model that caters to what BigLaw looked like twenty years ago. We can, and should, do better.
Pursuing excellence requires a mindset shift, one that isn’t bolstered by attending a traditional law school. You see, the real enemy of excellence isn’t mediocrity—nobody wants to be mediocre—but fear. Fear tells us to follow the safest path, that already trod by others. Fear tells us we aren’t good enough to be different, or that if we try, we might fail. Law school does nothing to abate, and much to validate, this sort of fearful thinking that precludes excellence. Keeping up with one’s peers becomes a fear of falling behind. Excessive debt acts as a disincentive to taking professional risks. It’s no wonder that legal education has been criticized for stymieing creativity. If you want to pursue excellence, give up on perfectionism.
Similarly, lawyers at firms large and small aren’t shirking from excellence because they’re lazy. As Prof. Grady notes in his article, it’s more frequently because they’re simply too busy, or think they’re too busy, to learn about data or their clients’ businesses. These activities aren’t billable, so they don’t matter. I’ve been lucky enough to work in environments where this attitude is changing, but it’s certainly fairly pervasive among practicing attorneys. Law schools can play a role in reversing the trend.
The legal field is weeding out mediocre lawyers; at the same time, the paths to achieving excellence as an attorney are multiplying. The profession is becoming increasingly multipolar as the hegemonic influence of BigLaw declines, with multiple actors in the legal system positioning themselves such that they are better-suited to take on tasks traditionally done by associates at large firms. This may result in a lot of fear among the powers-that-be. Ultimately, we need to seriously consider what excellence looks like — as attorneys, and to our clients — while at the same time we seek to cultivate it. It’s going to take a major wake-up call for many lawyers.
But for those of us just entering the field, the times couldn’t be more exciting! What it means to be a lawyer, an excellent one, will change more in the next twenty years than the past two hundred. Personally, I can’t wait to see what the future holds.