A Quadecrennial^[1] Retrospective on Law

There are five insights gained over that time which I wish could be imparted to every law student. It would be fantastic to help them achieve the purposes which drew them into the legal profession with the least amount of friction and the greatest degree of professional success and personal satisfaction.

It has become almost axiomatic that the stereotypical personality of lawyers is fiercely competitive, independent, and argumentative.

Whether those are the traits that attracted us to law or the traits that the law generated in our professional personality can be debated (and we lawyers love to debate).

However, some empirical data exists to support that a stereotypical profile of our colleagues at the bar is neither surprising nor comforting to our “better selves.”

Larry Richards, J.D., Ph.D. is a lawyer and clinical psychologist who has studied the lawyer personality for many years. Thousands of personality assessments completed by lawyers reveal that as a group we are disproportionately high in terms of autonomy, skepticism, urgency, and abstract thinking. We are disproportionately low in resilience and sociability. In skepticism, we are in the top 10% and in sociability, we are in the bottom 10% compared to most people. See Herding Cats: The Lawyer Personality Revealed.

These extreme strengths empower our role as adversarial advocates, yet carry deep risks for personal health and collegial relationships. The personality challenges of our disproportionately low traits compound our difficulty with achieving and maintaining emotional intelligence and working well with others.

No one of us is likely to fit this profile perfectly. We will all be outliers to some degree. However, being self-aware means that in any extreme with which we identify, we can moderate the negative effects of our strengths and our weaknesses by cognitive attention to our impact on others (empathy).

Embracing a both/and perspective on the extremes of our personality tendencies promotes a healthy life balance and supports the emotional intelligence needed to thrive personally and professionally.

The billable hour narrative is replete with examples of excess in pricing, performance and personal self-interest. Whether fueled by imaginative billing practices or fraudulent intent, the current state of legal services pricing has promoted client distrust in “black box billing”. Transparency and predictability in legal costs will go a long way to restore the value of legal services from the client perspective.

Clients refuse to continue to support limitless legal budgets. The 2017 Georgetown Law Legal Executive Institute Report on the State of the Legal Market reveals a ten year trend of a shrinking legal market. The Altman Weil 2017 Law Firms in Transition Report indicates that billable hour alternatives are growing and client demand for fixed fee pricing will continue indefinitely. When the risk of budget overruns pass to the law firm (rather than absorbed by the client), profitability depends on productivity and efficiency.

More recently, the CLIO Legal Trends Report published September 26, 2017 portrays an inefficient and poorly performing profession clinging to a dying billable hour model. Clio reveals that of 50,000 attorneys covered by the report, they perform billable work only 29% of an 8 hour day, bill only 82% of billable time worked and collect only 86% of all the time invoiced. Using the national average billing rate of $260 per hour, the return on time spent is only $53 per hour worked (minus expenses of operation). 48% of clients expect lawyers to price their services on a fixed fee. This expectation grows annually and is unrelenting.

The current economic state of the legal profession is unsustainable.

A fundamental fallacy on which our adversarial system relies is grounded is the belief that the best argument will prevail. However, when changing minds is essential, coercion doesn’t work.

Neuroscience teaches that when a person’s (or group’s) position is challenged, the human mind only believes more firmly what it has already determined to be true.

Instead, people change their minds when they come to believe it is in their best interest to do so. Our best opportunity to effect change is by inviting people into their own thought processes. Declarations of truth are not effective. Authentically interested open ended questions (rather than judgmental accusatory questions) allow people to examine the foundations of their beliefs and attempt to articulate the rationale behind them. Most often, the inability to provide sound rationale will encourage a person to examine the foundations of their beliefs and adjust to newly discovered evidence.

Without authentic interest in another’s well being, influencing them to change their mind is mere manipulation which is easily detected and seldom effective.

Check it out. Even spellcheck knows better.

Our propensity to divide the world into our tribe and everyone else is narcissistic and ineffective. Just as there are no nonplumbers or nondoctors, the use of nonlawyer language conveys a sense of exclusivity that separates our profession from all those on whom we depend to “deliver legal services differently."

The authors of The Second Machine Age make a compelling argument that in the exponential age of technology advances and information explosion, we have moved into an era of abundance and collaboration, rather than scarcity and competition.

Artificial intelligence, the Internet of Things and blockchain technologies are changing the world around us in unimaginable ways. The pace and nature of commerce have created a level of complexity that requires lawyers to consult with and learn from many other professional disciplines. Computer scientists, data analysts, project managers, and numerous other experts will become common members of legal teams convened to engage in legal problem solving.

As we were reminded, first by Forrest Gump and more recently by Vee Basukala, “life is like a box of chocolates." The entire quote portrays life as a constant surprise. We never know what we are going to get.

Design thinking incorporates the above insights from forty years of practice into a flexible mindset useful for managing the many variables the legal profession. A strategic approach to professional career development incorporates many tools which design thinking promotes.

Trust in curiosity, creativity, empathy, ambiguity, optimistic iteration, and constantly learning from “failures” is a formula for success.

There is no script, no perfect path, no clear destination. Avoid dogmatic linear approaches and embrace the wonder of organic systems. Learn how to adjust to the changing forces that shape our profession. Don’t find yourself anchored to the next business model that replaces the last one.

As a sailor, I love the admonition known to all who navigate the seas.