Mark Cohen: Legal Insights and Industry Commentary
Our #LegalMosaic series collects insights from the brilliant mind of HPC Contributor & Advisory Board member, Mark Cohen. These pieces can also be found at legalmosaic.com.
Law schools and firms have long had a symbiotic relationship. It’s not surprising, then, that they are are confronting similar challenges — an outdated model; entrenched stakeholders that oppose change; declining demand; high cost; failure to deploy technology and process/project management to promote more efficient delivery of services; high customer dissatisfaction; and customers ‘voting with their feet.’ Their challenges are the inevitable result of a failure to adapt to a changed marketplace. Most law schools and law firms—apart from a handful of elites—have two options: differentiate or die.
Law schools will better serve students, society, and their own viability by restructuring. This does not mean that ‘one size fits all’—quite the contrary. It does require that they differentiate themselves by filling a market niche. Translation: not all law schools are Harvard. Their curricula, faculty, and price should reflect that. Law schools should specialize and focus on training students for a particular market segment. Yale does not produce many solo practitioners and Valparaiso is not a feeder of Supreme Court Justices and Clerks. Yet both schools operate as if they were preparing students for similar careers.
The legal Academy cannot chart its own course entirely, because the American Bar Association (ABA) oversees accreditation while state Bars proscribe licensure and practice requirements. The ABA has an interest in promoting the health of law schools and is not oblivious to the pain they are experiencing—not to mention their students. Within the past year, the ABA has mandated that law schools require students to complete a (small) number of experiential learning/competency based courses. And while law school curricula are still dominated by ‘traditional’ doctrinal courses, the new ABA requirement is a step in the right direction. Additional curriculum restructuring must follow.
The ABA and law schools would be wise to examine and adopt significant portions of the UK’s recent legal educational reform. The Solicitors Regulatory Authority (SRA), an independent regulatory body overseeing, inter alia, the legal industry in England and Wales, determined that re-regulation of legal education was necessary. There were two principal reasons—both equally applicable on this side of the pond: (1) the public is not well served by current legal education that produces graduates unfit to practice; and (2) legal education is too costly. By providing different paths to licensure, the SRA’s re-regulation promotes a more diverse legal profession. This is timely since the rule of law is being challenged in democracies around the globe, and a more diverse legal community would help.
There Are Three Areas Key Aspects of Law School Restructuring: Curriculum Reform, Collaboration, and Cost Reduction
There are three areas that law schools must address: (1) curriculum reform; (2) collaboration and (3) cost reduction. It will not be easy or popular, and many Deans will lack the stomach even to attempt serious restructuring. Entrenched interests—principally underperforming tenured faculty, administration (have you ever noticed how many ‘Deans’ most law schools have these days?), and staff will fight like hell. But, as someone once told me, ‘As between bad and worse, always choose bad.’ For law schools, restructuring is bad and stasis is worse. The Academy should note that it enjoys not-for-profit status because of its eleemosynary purpose.
Here are some recommendations for each element.
Law school pedagogy is anachronistic and in dire need of updating. Certainly, all lawyers must have a grasp of basic legal precepts. But those core courses can be delivered in a more integrated way. For example, cases typically involve the interplay of several doctrinal areas. Law schools generally teach each– contracts, torts, civil procedure, etc.– as stand-alone areas. Why not merge, for example, litigation with civil procedure, contracts, employment, and legal ethics to afford students a better understanding of the realities of an age discrimination case? This issue and problem-solving approach better prepares students for what they will confront in practice.
Law schools should provide required courses on the basics of legal practice: client interviews; draft pleadings; conduct discovery and settlement negotiations; and draft contracts. The pedagogy should build on the ABA’s recent experiential learning requirement that combines three elements: lecture; supervised, hands-on student exercises; and reflection (lessons learned). This teaching method should also be extended to a suite of ‘contemporarily relevant’ courses that include: project management, technology as it is deployed in the delivery of legal services; cyber security; marketing; basic business skills/finance fluency; and collaboration. There should also be a required course on the current legal marketplace—what’s driving it, what new models are in play, and where are the opportunities? Students must have a basic grasp of the marketplace–and customer expectations–that they are entering. Few do presently.
Just ‘knowing the law’ no longer cuts it for lawyers. Law schools are largely focused on that facet of legal delivery. But legal delivery is now a three-legged stool that involves legal; technological, and process/project expertise. Today’s law graduates must have a baseline understanding of all three.
Law schools should not only foster collaborative skills in their students, but they should also operate collaboratively themselves. They have operated as islands within the larger university and were fiercely independent in part because they were cash cows. That’s changed, and law schools have morphed from rainmakers to supplicants. Apart from the financial change of fortune, law schools fashioned themselves to be teachers of the law at a time when that was the sole element of legal delivery. That’s changed too—legal delivery now routinely intersects technology, process, business, and a host of other disciplines and skillsets. Law schools should take a page out of business schools that, for some time now, have collaborated with other professional schools within the university—medicine, engineering, computer science, communications, etc.
Law schools should also engage in extramural collaboration, partnering with in-house legal departments, law firms, legal service providers, technology companies, and diversified global service providers (e.g. The Big Four, Accenture, etc.). They should target and forge strategic partnerships in the marketplace to elevate their understanding of it and to insure students are trained for the jobs of the future, not the past.
The legal Academy should also collaborate with social service organizations to tackle societal challenges like the access to justice crisis. Law schools have an opportunity to train students in social legal entrepreneurship, enabling them to create new delivery models that reduce cost by effectively utilizing technology and appropriate human resources . There is a huge, underserved segment of the population that has a dire need for legal services but cannot afford them at current price levels. The cost of legal services can be lowered significantly, and there will be plenty of work for lawyers provided that they receive training in immigration, landlord/tenant, family law, and other ‘retail’ areas. Law schools–especially those whose students will not engage in the corporate segment of the market–should teach these practice areas. All law schools should offer courses on legal delivery models and innovation.
Cost Reduction—More For Less
It’s time that law schools be held accountable and provide ‘more for less.’ The cost of a legal education is prohibitive and is increasingly being viewed as a poor investment. Law schools are businesses– with stakeholders, not shareholders. They have customers—students and society, neither of whom they are presently serving particularly well. Law schools must be held accountable and do better. Cost reduction can be achieved, but not without structural change to the present legal education delivery model.
It’s hard to rationalize the nearly 400% increase in law school cost over the last 25 years. Unlike medical schools that require expensive, high-tech equipment and state-of-the-art labs, the physical plants of law schools are relatively inexpensive. Law schools—like firms–have lagged in the effective deployment of technology–both to reduce faculty, administrative, and staff cost, as well as to streamline internal operations. The cost of delivering core courses could be reduced dramatically by having many lecture courses delivered remotely by leading scholars (think MOOC but with smaller classes and more interactive). Law schools are already utilizing more adjunct professors instead of additional full-time faculty. This has two benefits: (1) more practitioners teaching ‘hands on’ courses; and (2) significant cost reduction. That trend should continue.
Most law schools have bloated administrations and staffs. Do law professors that teach between 6 and 8 hours a week six-months a year need secretaries? And is the substantial allocation of ‘legal research’ time justifiable for all law faculty members, especially at lower-tier schools? It defies logic that a lower-tier law school should have nearly the same tuition cost as a ‘T14’ one. All but a handful of elite law schools are fungible and lack meaningful brand differentiation. Kias and Mercedes are both cars, but they are designed and priced very differently and target different customers. Why don’t law schools operate this way?
Law schools, like law firms, must restructure their outdated delivery model. It is inefficient, costly, and out of sync with the marketplace. Most are receiving a failing grade. And the time to pull it up it is rapidly closing.