It hardly seems possible, but, God willing, by the middle of this year I will have practiced law for 30 years. Given this milestone, I offer a few thoughts on how the profession has changed since 1982.
In many ways, the practice of law and the legal system have not changed very much. The law is, in many ways, a conservative and evolutionary profession. The legal system still resolves disputes in the same adversarial manner. Lawyers still represent their clients as advocates and file motions, write briefs, and, if necessary, try the case.
The thought process lawyers use to analyze legal issues has not changed. The substance of writing legal briefs and memoranda has not changed. I pass on the same tips and techniques to younger lawyers that partners at Hansell & Post, my first firm, passed on to me almost thirty years ago because they still work.
Last year, a former colleague from those days cleaned out some old files and found a copy of a legal memorandum I had written as a first year lawyer. Other than the fact it was written on legal-sized paper, which is hardly used anymore, it was exactly the type of treatment a young lawyer might write for me today.
That said, there have been many changes in the profession. I will reflect on those changes in this post. Although the substance of analyzing legal issues has not changed, and although the law itself has not changed that much, the process of practicing law has changed considerably.
Although we can debate whether the changes are good or bad, lawyers will need to continue to adapt or risk becoming, for lack of a better word, dinosaurs. As someone who hopes to keep practicing for years to come, this is a good "reminder to self," that will hopefully also be useful to others.
Technology Has Changed Everything About How We Practice
The most significant changes have been driven by technology. When I began practicing, lawyers did not have computers in their offices, although our legal assistants had computers at their desks. Most composing was done either by dictation or even by long hand on a legal pad. Legal research was done primarily in a law library by using digests and annotations. Although there were legal research databases, they required dedicated terminals and were more of a secondary means of research.
Now all of that has changed. Just about every lawyer I know composes on a computer. Law firms have largely phased out their law libraries. Westlaw and Lexis/Nexis are primary research tools, and can be accessed on any computer with an Internet connection. Although the courts have been agonizingly slow in adopting technology, almost all filing in the federal court system is done electronically, and the state courts are not far behind.
Technology has also transformed in many respects the discovery process, which is the process for exchanging information in lawsuits. Emails and other electronically stored information are now a routine part of discovery. E-discovery, however, remains somewhat controversial because it often adds a substantial layer of cost to an already expensive process.
The way we communicate as lawyers has also changed dramatically. In 1982, we did not have email (I'm not sure that Al Gore had even invented the Internet yet!). Faxes came into widespread use a few years later. By the 1990s, email had become ubiquitous. Today, with iPhones, Droids, and Blackberries, we are always instantly connected. Sending a document simultaneously to Europe and Asia can be done with the touch of a button. That certainly was not true in 1982. Faxes, once seen as a wonder of instantaneous communication, are now largely viewed as an obsolete technology.
The technology changes continue. Social networking now seems like a part of everyday life, but it is a very recent phenomenon, having truly taken off only in the last five years. From a lawyer's perspective, blogging, LinkedIn, Facebook and other sites not only provide new means to communicate with clients, potential clients, and other lawyers, but also provide new opportunities for investigation and discovery.
Although technology has dramatically increased our capabilities in many respects, it has not been without its negative consequences. First, although email and instant communication has dramatically increased the speed and quantity of communication, it has not improved the quality of communication. Email is not a good tool for collaboration, nor is it a good tool for building relationships. One of the most interesting observations in Walter Isaacson's biography of Steve Jobs is that Jobs was a fanatic about meetings. Jobs believed in the power of face to face communications.
The fact that one of the true geniuses and icons of technology believed in the power of meetings and human interaction should serve as a cautionary tale for all of us, but particularly for those of us in the law practice. Human interaction is important for solving legal problems and is also important for building the personal relationships that allow us to succeed. This is why I am always telling younger lawyers to pick up the phone instead of sending an email. Sending an email does not mean that you have communicated with someone.
Another negative effect of technology is that it has deprived younger lawyers of the opportunity to get time in court. Clients often are surprised to learn that many judges do not hear oral argument on motions, but just rule on the papers. As a result, there are many litigation lawyers who have practiced at prestigious firms for five years or more who have literally never had to stand up in court and make an argument. This is of course not good for the next generation of lawyers, but I think it also tends to isolate the bench from the bar, which is probably not a good thing. Ironically, I'm not sure that considering motions only on paper is very efficient. Having a hearing tends to force a judge to make a decision instead of postponing it to another day. If it were up to me, we would re-think this whole issue.
A final arguably negative effect of technology is to shrink the need for support staff, which in turn leads to fewer well-paying white collar jobs. When I started practicing, it was common for a partner and associate to share an assistant (and sharing was a fairly new development then). Today, ratios of at least three to one or higher are common. The reason is that most lawyers do things today (such as type their own letters and briefs) that assistants did in the "old days."
In addition, and although I do not have any statistics on this, there seem to be many fewer paralegals today than in the past. The use of paralegals seemed to crest in the late 1980s and early 1990s. Much of the work that they formerly did (such as organizing and managing document productions) is now outsourced to vendors. Whether this is good or bad is debatable, but I have not encouraged anyone to go to paralegal school for over a decade. The long-term opportunities just do not seem to be there.
Alternative Dispute Resolution Has Changed Everything
Thirty years ago, litigators resolved cases either by settling cases (which happened most of the time) or trying them. Mediation was virtually unknown. That started to change around 1990. When mediation came into vogue, I originally thought it was a complete waste of time, and just another layer added to an already inefficient process. And, frankly, when I was 30, I viewed mediation as being pushed by retired judges and older lawyers as a way to supplement their retirement.
That view quickly changed after I saw good mediators resolve cases that previously seemed incapable of settlement. Mediation is now a staple and is used in most cases and often mandated by courts. It has become an important and necessary tool in resolving civil disputes. Having started out as a skeptic, I am now an unabashed fan, and have even become a registered mediator myself. (For more thoughts on mediation, you can visit my mediation website).
Arbitration has also become more prevalent. Arbitration is a particularly good choice for international companies that are unfamiliar with the jury system or simply do not trust it. One phenomenon that has accompanied the rise in the use of arbitration is that, at least in the U.S., it has come to resemble a civil court proceeding, with full blown discovery, depositions, and pre-hearing procedures. This is something we, as a profession, need to review critically.
I am proud to be part of a recent effort to make Atlanta a venue for international arbitration. With the world's busiest airport and easy connections to all parts of the world, a sophisticated bar, and an arbitration-friendly environment, Atlanta is an excellent choice. For more about the Atlanta International Arbitration Society and this effort, click here.
Specialization Has Become Rampant
When I began practicing, being a litigator was enough of a specialty. We were the guys who handled lawsuits, wrote briefs, tried cases, handled appeals, and even on occasion handled an arbitration. The subject matter of the dispute did not matter so much. We handled injury cases, contract cases, securities cases, real estate cases, and trust and estate cases.
We assumed that if we were handling a case involving a type of business with which we were unfamiliar, we simply would learn about the business in the process of working the case. That was, frankly, part of what made practicing law fun and interesting.
I thank my lucky stars that I came up in this environment, and also in a firm that would let associates take as much on as they were willing to handle. In my first four years of practicing, I had taken hundreds of depositions, argued many motions, and had participated in trying several cases. In the process, I learned about banking, accounting, railroads, the natural gas industry, and many other businesses. I also learned about many areas of law, both procedurally and substantively, including class actions, arbitration, product liability, contract law, real estate law, trade secret law, and business torts.
Over the years, particularly at larger firms, we have become more and more specialized. Today, most of my litigation practice focuses on insurance coverage, although I still handle trade secret, banking and other matters. The remainder of my practice focuses on representing international companies in doing business in the U.S.
I recognize that clients do not want to pay for re-inventing the wheel, and, in that respect, specialization is probably good. On the other hand, I think a broad base of experience in many areas of the law is also a good thing, particularly for clients looking for a lawyer to serve as their general counsel or regular outside counsel. I do not believe you can get that experience base if you are a pure specialist, and fear that, after the next 10 to 15 years, finding lawyers with a broad experience base will become very difficult.
The Business Aspects of Law Are Very Different
When I started practicing, we never seemed to worry about where the work was coming from or that there would not be enough work. Litigators, in particular, were not seen as "rainmakers," nor were they expected to develop business. Maybe my perspective is skewed by the fact that I was then a brand new associate, or perhaps it is due to the fact that I was working for the largest law firm at the time in Atlanta, a law firm with many long-established client relationships. On the other hand, when I left that firm in 1986 to join another firm, I had the opportunity to bring a couple of clients with me. I was discouraged from doing so and thus did not follow up on it. In retrospect, this was a big mistake, both on the part of the second firm and myself.
Today, relationships are everything, both in terms of keeping existing clients happy and in finding new clients. Lawyers frequently move from firm to firm, and clients frequently move their work from firm to firm or lawyer to lawyer. More clients spread their work among a number of firms and lawyers. The old days of a bank or other large client being irrevocably tied to one law firm seem, for the most part, to be long gone.
Clients are expecting and demanding good service, and, for the most part, I think they are receiving it. Lawyers are more likely to agree to alternative billing arrangements that provide the firm and the client with the possibility of a "win/win" resolution. For example, we are willing to quote defined corporate work on a flat fee basis, and, for certain cases, will consider capped fees with a partial contingency, or other fee arrangements. That said, the traditional billable hour engagement remains most common.
Some developments that have, in my view, been negative include the common use of third-party bill review services. These services, in my opinion, place an adversarial third party (and typically an unaccountable third party) in between the lawyer and the client. Do not misunderstand me: A client has a perfect right to review a bill closely, to question a bill, and, if appropriate, to request an adjustment. However, I want that discussion to be between me and the client for whom the services were performed, not some faceless intermediary. Nevertheless, I am afraid clients will continue to use these services.
It has been an interesting 30 years (well, almost 30 years). The analytical skills that made a good lawyer in 1982 are the same today. The law itself has not changed that much. Sure, there have been major cases and developments, but, by and large, the substance is not that much different.
The way we practice law has changed dramatically. If someone had told me in 1982 about the tools widely available now, I'm not sure I would have believed it.
The law remains a demanding and interesting profession. I hope to keep it up for many years to come.