Innovation in law: are you one of us?

Debates about innovation in law can be a bit tribal. The Creative Destroyers decry the billable hour. They mock Big Law as a broken model and see law as a dusty rule book in need of big data and a scientific reinvention. Law is vastly complex and inefficient. More traditional folk point to the resilience of law, and law firms. They snigger, not always unfairly, at the self-serving evangelism of the new model insurgents. And they comfort themselves, unwisely I suspect, with any signs that the current crop of innovators are failing. The singularity may not be near, but that does not mean that it is far.

The extent to which these two tribes understand each other might be partly down to the narrow view of lawyers and legal education as well as practice’s (be it innovative or otherwise) narrow appreciation of what legal education and research is about. A step towards resolving that is being taken when the Centre for Ethics and Law hosts a debate on legal services innovation and education. You can book tickets here. In relation to that, I was struck by a passage from Gillian Hadfield’s excellent piece on the extent to which US regulation of lawyers inhibits innovation and is a drag on the US economy. She sets out her concerns about the way legal service providers are educated:

The homogeneity of legal thinkers stems from multiple sources. Those who can supply into legal markets go through the same educational filter and study a largely homogenous curriculum taught with largely homogeneous methods.

…unless they are in-house at a corporation, they interact almost exclusively with other lawyers with the same credentials and professional understanding of what the job requires

 

They must pass a standardized bar exam that is identical for all providers in a state and sometimes across several states and which looms large over even the elective curricular choices that law students have.120 In their day-to-day work environment, unless they are in-house at a corporation, they interact almost exclusively with other lawyers with the same credentials and professional understanding of what the job requires. The problems they see are often pre-identified and filtered into conventional legal categories: intellectual property rights, pension law, securities regulation, tax. When they do interact with other professionals (in accounting, finance, strategy and so on) or with the business managers who are their clients, particularly in the high-billable hour world, the nature of the interaction is highly focused on conventionally framed legal questions and the opportunity for unplanned discussions about apparently unrelated issues sharply curtailed. The extraordinary levels of confidentiality that characterize legal work mean that information exchanged about problems, solutions and practices is highly restricted, limiting the potential for outsiders to bring fresh insights to long-standing frameworks. The limitations on diversity in the client pool imposed by conflict-of-interest rules ensure further homogeneity of perspective. Moving outside of law firms, the producers of law in courts—judges and the lawyers who appear before them—are also drawn from this homogenous pool.

 

…Added to the enormous burden of generating high billable hours in most corporate law firms, few lawyers early in their careers have much opportunity to lift their heads out of the mounds of parcelled out detail to which they are assigned.

 

Lawyers are worked too hard to be innovative; they are educated too narrowly to be innovative; and they are far too isolated to be innovative is her essential line. I think the point is both true, and slightly overdone but I also think Lawyers and legal educators have to work out whether they want to be left alone, and perhaps become more marginalised, or whether they needs to be a significant broadening of how lawyers are educated. What is more, somehow they have to be found time to think beyond the purview of the next bill, class or 3/4* REF piece.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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10 Responses to Innovation in law: are you one of us?

  1. Andrew says:

    So if you want to qualify to practice in a particular jurisdiction you must pass an exam in the law of that jurisdiction and so must everyone else who is trying to qualify at the same time?

    Golly. And ursines do something essential and smelly where there are a lot of trees around.

  2. I think most lawyers are educated to be conservative in manner and thinking. I don’t think working too hard is a barrier. Indeed, it could be a stimulus to find a better, more efficient way. The ethos of professionalism can be somewhat stultifying at times.

    • Kelli Proia says:

      John,

      “working too hard…could be a stimulus to find a better, more efficient way”? You don’t understand the legal profession. At least in the US, the only thing that is measured in law is time, specifically in 6 minute increments. The more time you spend on a matter, the more money you make. There is no incentive to work efficiently. In fact you are penalized for it. Associates are rewarded based on the number of hours billed.

  3. Pingback: Innovation Being Set Back in Legal | Paul Valach.org

  4. Peter Ryder says:

    All this guff ignores the central reason for the existence of lawyers, which is, of course the Law. This is created primarily by legislators and in a secondary way (by being explained and interpreted) by judges.

    Just so long as society wants to have an enforceable framework governing the activities of its members there will be people getting paid to tell individual and corporate members of society precisely what the framework is, what they can and can’t do, along with advising on ways of doing things which are on the boundaries of being permitted by the framework and, of course advising those who society accuse of transgressing the limits of the framework (i.e. alleged criminals).

    Innovation in the law is for the lawmakers, not the law advisers.

    The reason lawyers charge so much is similar to the reason bankers and others in the financial services arena earn so much, which is partly greed (but more so in financial services than the law) and partly demand coupled with the complexity of the subject matter. Drastically reduce the number of laws and you will make lawyers cheaper but at what cost to society.

    • Richard Moorhead says:

      Peter – thank you for your comment. I think it is important not to get too carried away with the ‘isn’t innovation brilliant’ line but also important not to have an overly simplistic view of what lawyers do (plenty of practitioners innovate with the law: think poison pills; new forms of financial structure; tax avoidance). Interestingly, given your point about complexity, we might form a more rounded judgment about the value of such activity (and complexity) than simply lawyers are worth it. There’s a more fundamental possibility that complexity can be counter-productive (in particular that law becomes less certain, fair, and enforceable). Law is also in danger of building its own obscelesence: if law becomes so complicated and expensive that no one, or very few, can afford to use it then you have to ask yourself what the cost to society is of not changing.

      • Peter Ryder says:

        I agree that the law is too complicated and that is, of course the reason we have so many lawyers. Lawyers as lawyers (rather than lawyers as legislators) can’t do anything about that complexity and, in a society where if someone stubs his toe someone else will be crying out for a law to prevent it happening again I can’t see the law getting less complex anytime soon, can you?

      • Richard Moorhead says:

        There are some attempts both in terms of legislative design and judicial practice, but they are at the margins. There’s a plausible case that lawyers lead to complexity not the other way round (I recommend reading Gillian Hadfield if you are interested). You can take comfort from a pragmatic nothing will change approach, but no one is served by it.

      • Peter Ryder says:

        I’m taking comfort in nothing. In my experience, where lawyers have taken the lead with change it more often than not results in increased complexity and/or the limitation of individual freedom. An example is the ‘new’ law of confidentiality developed by the judges over the last ten to fifteen years. They have tried to create a law of privacy whilst acknowledging that it is beyond their power to do so. As a result we have seen the development of legal notions originally intended to protect real things such as business secrets or very personal and intimate information between spouses into a general law which has allowed the court to issue super injunctions giving rise to the risk that those who pass on so called confidential information without knowing about the injunction feel at risk of imprisonment for contempt of court. In one instance the person at risk of breaching another’s confidential information may not even be able to discuss the matter with their own lawyer because the courts have warned lawyers that they themselves may be sued just for knowing what the information is.

        This is lawyers innovating where the job should be left to the legislators. If they get it wrong then the courts will usually expose the problem in time but when the court gets it wrong it may require the legislators to put it right.

  5. Peter Ryder says:

    As for innovation, after over 40 years as a lawyer I remain of the view that there are other occupations better suited to producing innovators of value. I’ve seen comments accusing lawyers of being innately conservative but it is and should remain in their nature to be so. Where innovation does happen it is almost certainly driven by the lawyer’s client rather than the lawyer him or her self. Clients come up with problems and ask lawyers to solve them. Innovation normally involves risk because it is a step into the hitherto unknown, and the first job of the lawyer is to stay firmly rooted to the ground and not get carried away. Once the lawyer becomes the innovator there is the danger that caution is abandoned and mistakes made. That danger is always present, of course but a lawyer thinking like a lawyer should always be looking for the unseen pitfalls. Perhaps our problem with lawyers is that some have moved away from their traditional role and are trespassing on the role of the risk takers. They will rarely be able to shed the caution which is a requirement of their chosen work and so whatever they come up with will be, at best, hedged in by that caution. Thus the net effect will be an increase in risk without the dynamic which the true entrepreneur brings to a situation.

    A bit less innovation and a bit more conservatism in the growth of the sub prime crisis wouldn’t have gone amiss, I suggest

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