The race against time to reinvent lawyers

Our legal education and licensing systems produce one kind of lawyer. The legal market of the near future will need another kind. If we can't close this gap fast, we'll have a very serious problem.

Filling out a survey doesn’t usually trigger existential dread for me, but these are not usual times. So when a legal think tank asked its advisory committee members (of whom I’m one) to reflect on how current and future trends will affect the knowledge and skills required of lawyers, I found myself staring out the window afterwards, thinking deep and uneasy thoughts.

Here are the questions I was posed, along with my lightly edited responses:

A. What trends, events, or changes have you observed within the legal profession over the past ten years that may impact the competencies required for lawyers?

1. Thanks to document automation and similar technology, many tasks previously performed by lawyers are now assigned to software instead. Ten years ago, knowing how to draft a contract was a core lawyer competence. Today, it’s knowing how to review a tech-generated contract for accuracy. Ten years from now, who knows? Technology is picking off lawyer competencies at an accelerating rate.

2. Complementary to that trend is the growing necessity that lawyers develop and demonstrate empathy and other human skills (e.g., leadership, judgment, conflict management, character, persuasion, and collaboration). As lawyers become less immersed in papers, documents, and transactional minutiae, they’ll be obliged to learn how best to forge strong human connections with clients and colleagues.

3. Throughout the 2010s, mobile work technology gradually undermined the traditional centralized law office model. Starting in March 2020, the pandemic blew up that model’s foundations. A consequent critical lawyer competence is communication and relational skills, enabling lawyers to work effectively and improve their performance within teams of people across distant and diverse working environments.

B. Are there specific trends, events, or changes that you expect to occur within the legal profession in the next ten years that may impact the competencies required for lawyers?

1. AI will have a transformative effect on lawyer work in the coming decade, and therefore on lawyer competence. It’s too early to tell exactly how this will come about or how long it will take. But we should feel confident that lawyers will carry out traditional activities much faster and less frequently, while interpersonal skills and attributes will become more essential to the value lawyers are expected to deliver.

2. The legal profession's framework of ethics and professional responsibility feels increasingly archaic. But even within that framework, many lawyers today have too little understanding and situational awareness regarding their professional responsibilities, without which the profession can’t hope to be considered legitimate by and relevant to the public. We need an ethics renaissance in the law.

3. Sociological, geopolitical, and technological forces have made the world much more complex and dangerous. Those forces will intensify in the decade to come. Foreign wars, civil disorder, economic crisis, and climate disaster are among the plausible events on their way. The core lawyer competence for these scenarios will be a clear understanding of why the rule of law matters, and a readiness to fight for it.

Not exactly the rosiest picture I could have drawn, is it? But these visions of tumult aren’t actually the source of my concern — those developments feel necessary, in their own way, to enable our transition through a period of historical convulsion and institutional renewal. Like an oncoming storm, we shouldn’t seek to avoid it so much as prepare to ride it out. (I’ll have more to say about the rule of law in a future article.)

No, what set off alarm bells for me, when writing these responses, was realizing just how wide is the chasm between our current lawyer formation system and our future lawyer competence needs. These impending challenges will call upon lawyer competencies that we simply aren’t developing. Incremental advances these past few years in legal education requirements and learning outcomes have been helpful. But I feel like we’ve passed the point where incrementalism is a workable approach. The fundamentals of lawyer formation have to change.

Look at it this way. The American model for developing lawyers puts recent university graduates through eight months of foundational instruction in basic law and legal reasoning, followed by 16 months of “Practice Area 101” coursework in a litigation context with occasional hands-on skill application — and then re-tests those learnings in a high-pressure written exam. The Canadian model is the same, but with an additional year-long, wildly uneven supervised-practice requirement.

At the end of this process, new lawyers are capable of crafting written analyses of hypothetical problems on a range of legal subjects — but not a whole lot else. They’re scarcely able to run a law practice and frankly unqualified to advise most clients. We’ve known for years that this preparation is inadequate for the practice of law. But now we have a new problem: Most of this preparation is going to be irrelevant to the practice of law.

Lawyers will still need competencies like legal reasoning and analysis, statutory and contractual interpretation, and a range of basic legal knowledge. But it’s unhelpful to develop these skills through activities that lawyers won’t be performing much longer, while neglecting to provide them with other skills and prepare them for other situations that they will face. Our legal education and licensing systems are turning out lawyers whose competence profiles simply won’t match up with what people will need lawyers to do.

A good illustration of what I mean can be found in an excellent recent podcast from the Practising Law Institute, “Shaping the Law Firm Associate of the Future.” Over the course of the episode, moderator Jennifer Leonard of Creative Lawyers asked Professors Alice Armitage of UC Law San Francisco and Heidi K. Brown of New York Law School to identify some of the competencies that newly called lawyers and law firm associates are going to need in future. Here’s some of what they came up with:

• Agile, nimble, extrapolative thinking

• Collaborative, cross-disciplinary learning

• Entrepreneurial, end-user-focused mindsets

• Generative AI knowledge (“Their careers will be shaped by it”)

• Identifying your optimal individual workflow

• Iteration, learning by doing, and openness to failure

• Leadership and interpersonal communication skills

• Legal business know-how, including client standards and partner expectations

• Receiving and giving feedback to enhance effectiveness

There’s very little in the standard law school curriculum, bar exam, or bar admission program that touches on any of these competencies. Most law firm associate training is equally far removed.

The way we develop lawyers for licensure and practice belongs to a different, older world than the one we’re entering. As Alice says in the podcast, law school is designed to produce appellate advocates. Associate training is designed to produce billing drones. The legal sector of the near future won’t need these kinds of lawyers. But our lawyer formation institutions don’t know how to make anything else.

This isn’t something you can remedy with additional required coursework, or even a specialized “law practice stream.” You can’t retrofit a Chevy Impala assembly line to produce fleets of electric bikes. If you hope to meet a coming surge of demand for something new and better, then you need to build an entirely new kind of factory. We’re nowhere close to building new lawyer factories. We haven’t even broken ground yet.

I hate identifying problems without also raising potential solutions, but this time, I’m kind of at a loss. I just don’t see how to remake our lawyer formation systems and institutions on the scale required, and in the time allotted, to avoid a massive disruption to the lawyer development pipeline.

Or maybe we can’t avoid it, and that’s the point. Maybe, like the geopolitical storms heading our way, we need catastrophic external intervention to bring about the wholesale changes we can’t manage from the inside. But the repercussions of failing to adapt our lawyer formation systems could reverberate even further.

I keep coming back to an observation I read in an AI newsletter, Emergent Behavior, this past spring. In the context of a conversation about AI’s impact on law firms, the author wrote: “I suspect the actual skills lawyers do have — perseverance, adherence to text, rule-following, rule-bending, re-interpretation, etc. — will be greatly desired in the new AI era. The actual bar-licensed profession? That seems more tenuous.”

We are unaccustomed to a distinction between “lawyer skills” and “a lawyer license.” I think we’d better get accustomed, fast. Not only is lawyer licensing unready to inculcate the skills future lawyers will need, but the future “actual skills of a lawyer” — like those bulleted above — will not be unique to lawyers. Anyone can acquire those competencies. And that includes legal reasoning and analysis, statutory and contractual interpretation, and basic legal knowledge. You think only law schools can teach those? That only licensed lawyers can deploy them? That “the unauthorized practice of law” is going to save us?

I don’t believe the legal profession fully appreciates the risk posed by the rapid obsolescence of our lawyer formation systems. If lawyers don’t possess the legal skills clients need, but other people do, clients will hire the other ones. As between lawyer skills and a lawyer license, which will prove more important to someone’s ability to help solve legal problems while making a living? Will the difference matter enough for that person to spend seven years and $300,000 to get the law license?

I invite you to gaze out the nearest window and entertain deep and uneasy thoughts.