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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

“American lawyers are a hardy bunch”

Benjamin Barton

http://mnbenchbar.com/wp-content/uploads/2015/06/Benjamin-Barton-731x1024.jpg 731w, http://mnbenchbar.com/wp-content/uploads/2015/06/Benjamin-Barton.jpg 900w" sizes="(max-width: 214px) 100vw, 214px" /> Glass Half Full author Benjamin Barton

Glass Half Full author Benjamin Barton talks about the changes buffeting the legal profession—and the grounds for his abiding optimism about its future

The narrative arc of Ben Barton’s Glass Half Full: The Decline and Rebirth of the Legal Profession describes a tough balancing act: The book is a daunting catalog of the many  challenges sweeping the industry, wrought by technology and changing practice economics; yet it is also steadfast in its optimism that the profession will emerge from this storm stronger and more versatile than before. (Read Bench & Bar’s excerpt of the book here.)

Barton talked with B&B about the book via email from Slovenia, where he has spent the past semester teaching.

Bench & Bar: What inspired you to tackle this subject?

Benjamin Barton: I am a little bit of a strange law professor. I clerked for a year with Diana Gribbon Motz on the Fourth Circuit Court of Appeals in Baltimore. I then worked for a few years as an associate at Morgan, Lewis & Bockius in their Princeton office doing mostly corporate litigation. I followed up those experiences by teaching for 12 years as a clinical law professor, representing indigent clients (both on my own and with students) in a wide variety of criminal courts, administrative hearings, and civil courts. I was also the director of clinical programs for four years. For the last few years I’ve just been a stand-up teacher. Working in all of these different jobs and spending time in every type of court from Federal Appeals Court to eviction court in Knoxville, Tennessee gives me a somewhat unique perspective on the different facets of legal practice in the United States.

After 2008 I felt like all of the coverage of the legal profession was focused on Big Law, and there was a much more interesting story to be told about small firm and solo practitioners. I am also fascinated by the intersection of law and technology, so the topic was a natural for me. I have made a career of writing about what interests me, and this most recent topic has been my favorite yet. So much is happening right now! We do indeed live in interesting times.

B&B: Where do you think the practicing bar in the United States stands now with respect to understanding the array of changes occurring in technology, client expectations, and the evolving economics of legal practice? And does the level of understanding differ across generational lines?

Barton: In my opinion the bulk of the practicing bar is way behind on technology, and while it is worse in older generations, it is bad throughout. Some of this is the fault of law schools, which teach basically the same skills as they did in 1880 or 1980.

Even clinical programs (which are near and dear to my heart) tend to focus on one-on-one, paper-intensive representation of clients. This type of work will always be the bread and butter of legal practice, so that makes sense, but there is room for some more focus on more advanced technologies. Some of it is the fault of lawyers themselves, who are (in my opinion) by nature small-c conservative and technophobic. Some of it is the fault of the judiciary, which is possibly the most technophobic group of professionals in America.

Regardless of the fault, though, I think it is true that many lawyers in America are hoping to ride out the current wave of changes with relatively small alterations to their own mode of practice. That has not worked out great historically for other bespoke occupations challenged by mechanization and I worry it will also prove challenging for the legal profession.

B&B: The consulting firm Altman-Weil did a survey last year in which they asked big law firms about the changes in the practice of law that are on the horizon. Generally the leadership seemed cognizant of the changes – but indicated they weren’t doing much about them. Here’s a quote from the introduction: “Most firms are not making current investments in a future they acknowledge will be different – and different in seemingly predictable ways.” Why the seeming disjunction, do you think? (The survey report is posted here, if you care to take a look.)

Barton: First, I love the Altman-Weil surveys, and the multiple other recent reports about the state of legal practice. The sheer amount of information available makes my job so much easier and more fun. This is just another example of how the internet gives and takes away. Information of all kinds is so much more available for public consumption, for good and for bad.

Second, I talk about this a bunch in the book. Big Law is a classic example of Clayton Christensen’s theory of how legacy businesses deal with low-cost, technologically advanced competition. Computerization, outsourcing, and insourcing are all so much cheaper than traditional, hourly Big Law services that law firms really don’t want to compete in that market. If they got really good at it, they would probably change some of their most profitable work into relatively low margin work. Who wants to cannibalize their own business?

They also would probably be bad at it. Big Law is excellent at what they do (if you doubt it, consider that American law firms are the envy of the world in size, revenues, and profitability), but not so flexible at trying new models. And there is still a lot of the high-end, super-profitable business (think bet-the-company litigation or large mergers), so at least at the top of the market, things seem to be going as well as ever. The problem is that more routine work will continue to drift to lower-cost providers, and that will inevitably squeeze the law firms that are not at the very top of the food chain.

But again, ask yourself which is easier: 1) shrinking the number of equity partners, trying to draw laterals, increasing leverage (the number of associates to the number of partners), lowering overhead by firing staff and shrinking offices, but basically staying the course; or 2) fundamentally changing the way you do business and undercutting the very profitable business you still have, by offering services in an utterly unfamiliar manner? Number one seems like the easier, and maybe even safer, choice.

And of course law professors have been predicting doom for Big Law since the 1960s, often in hilariously wrong ways, so take my opinion with a grain of salt, for sure.

B&B: Glass Half Full doesn’t address directly the future of bar associations. Any thoughts on the prognosis for them, and the role(s) they can or should play going forward?

Barton: My main concern is that bar associations [should] not try to stem the tide of technology and outsourcing via more aggressive policing of the Unauthorized Practice of Law (UPL). I know that may not be a popular opinion with your readers! But it is my opinion—and there is a bunch of empirical evidence to support this opinion—that [pursuing UPL claims] is mostly for protection of lawyers’ turf, not protection of the public. I also think that trying to ban LegalZoom or outsourcing in any individual state would be a PR disaster and would probably fail long term, after causing a lot of damage to the bar and to lawyer self-regulation. Again, though, I could be wrong about that.

Otherwise, I think bar associations would do well to educate their members about a) technology that can help streamline their practices; and b) where the challenges and competition are coming from. At the end of my book I note that the American legal profession is hardly filled with shrinking violets, and that the profession has faced worse existential crises in the past (notably Jacksonian democracy in the 19th century and the Great Depression in the 20th) and come roaring back. American lawyers are a hardy bunch, so I would never count them out.

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