Richard Susskind has written a very interesting paper as part of the Legal Education and Training Review, Provocations And Perspectives. As a taster, I pick out one or two issues for highlighting and debate.
The broad thrust of the paper, naturally enough for Richard, is that the legal services market is in the process of being transformed partly by economic forces (pressure to provide “more for or less”) and partly by the incoming tide of information technology. I agree, broadly, with thrust of his argument here. I think there is a possibility that the “more for less” pressure is a temporary impact of the recession but this is unlikely. The recession’s extended and global nature will probably give sophisticated purchasers long enough to grow accustomed to greater control of cost for the temporary to become permanent. The key test will be, if/when there is an oversupply of ‘bet the farm’ work, which allows large firms to regain the upper hand.
This leads to my second point. Susskind makes some play of clients’ reluctance to pay for law firms to train young lawyers. The point is actually more nuanced than it appears. Clients will inevitably, in one form or another, pay for the training of those who they instruct. The money has to come from somewhere. A training system cannot miraculously support itself.
What the clients are really railing against is using costly individuals (trainee solicitors and young associates) to do jobs which can be done much more cheaply partly as a training opportunity and partly as a profit driver. It is not the training costs that clients should really object to but the exploitation of training as a profit opportunity using hourly billing. Indeed clients may see real value in firms investing in training and development in more general terms (think for a minute how Susskind’s point that Ernst & Young’s spend 10% of fee income on training and development goes down with clients; not at all badly, I would wager).
He makes a number of interesting points around e-learning and how genuine innovation may improve rather than cheapen educational process. Here there are two issues: one is does it really work? I am a long way from being a sceptic on this but innovators and traditionalists are both prone to hide the failings of their own approaches, not in any cynical way but because of natural bias created by one’s own enthusiasms. I firmly believe that legal educators should innovate and that this will inevitably lead to mistakes as well as real benefits. The second issue is in many ways more substantial. Whilst there are cultural and other barriers particularly in the traditional university sector to such change there will also be a need for substantial investment by brave University leaders if innovation is to be attempted properly. Universities risk being outflanked by commercial providers here. At this point in time, most academics would take the view: let us be outflanked.
There is an interesting debate about whether lawyers need just-in-case or just-in-time knowledge. It is a very interesting debate on which there is almost no proper evidence (although my own studies of professionally qualified generalists vs specialists non-solicitors suggests the benefits of just in case knowledge are overstated). I confess to having no settled view. One of course sees the efficiency benefits of just-in-time knowledge, and specialisation plainly works for the most apart to improve quality. Nevertheless, a major risk of that approach is someone without an appropriate breath of underlying basics doesn’t realise when they need to go find some knowledge “just-in-time”. It may also, ironically, inhibit innovation. We all know the importance of recognising the limits of our own competence but knowing what you do not know is not something you can be taught “just-in-time”.
That there are some very interesting passages on the need for greater engagement between academics and practitioners. I too agree this creates significant problems. Similarly Susskind’s belief that, “aspiring lawyers [new] engaged by the theoretical underpinnings of the law, by its history and origins, its structure and nature, and its impact on society more generally” is a vital guide to understanding what a liberal legal education should deliver and, as it happens, what properly professional lawyers need.
His holding up of the teaching hospital as a model of how legal education might be developed in the future is not a new idea of course. It is an interesting question as to how far out of reach it is. Indeed in some ways the development bespoke LPC programs could be seen as a stepping stone toward such a model. Similarly, the Bar, in particular, might benefit from this model, given its concerns about the number and funding of pupillages and BPTC places.
The bespoke LPC model shows how traditional universities may again be being outflanked by commercial providers. There are real problems with this: the commercial providers have shown little inclination to engage in serious research, whether of practical or intellectual import. The academy and the professions have a mutual interest in such research. Yet even where universities, especially in the United States, have sought to develop strong clinical models they have not tended to generate much first rate research which improves knowledge about legal services improves actual practice (honourable exceptions aside). To me, that is one prize the review should be seeking, professional legal education firmly founded on evidence of what works; and an undergraduate curriculum where there is a deeper, richer and more meaningful understanding of the role of lawyers and law in society and the economy. There are significant problems with the kind of commercial relationships that Susskind envisages; they may also be inevitable – that needs some serious thought.
The final point of Susskind’s is about the need for the Legal Education And Training Review not being seen as a one-off event. There needs to be, he says, some kind of process of ongoing review. What that means is not clear; but in broad terms I could nto agree more. What struck me at the inception of the Review was the impossibility of its task. The regulators cannot expect a one-off Review to address systematic lack of evidence about professions, professional services and legal education going back years. Nor can it expect a review to address the significantly different needs, priorities and assumptions of different constituencies as a one-off. Similarly, the process of genuine change, change which crucially needs to be properly informed by evidence, cannot lead to a significantly improved system if that process is not seen as a significant task in and of itself. You do not improve the World by pretending to know answers to questions to which you do not know the answers.