The Future of Law: The Cavity Analogy

Another life rule: Never pass up an opportunity to quote George Santayana.

Those who do not remember the past are condemned to repeat it.

The legal bubble burst in 2007, when talk of New York Biglaw to $190,000 changed to will Biglaw survive? Since then, things haven’t recovered back to 2007 levels, so the Future of Reinvent the New Normal of Law crowd have indulged in a laundry list of changes supported by empty rhetoric, prognostications of flying cars with ABS (the brakes, not the Alternative Business Structures used to conceal the unlawful practice of law), and people with no institutional memory deciding that it all makes sense to them.

At the Wall Street Journal Law Blog, however, Jacob Gershman was struck by the analogy between what happened with dentists and what has been happening with lawyers over the past six years.

Sagging demand for services, an industry buffeted by technological change, an overcrowded job market, plummeting enrollment and school closures. These are all symptoms of a crisis that a dentist can appreciate. It was about a generation ago when dental education had its own bubble that burst. In the 1980s, dozens of dental schools were forced to shrink their class sizes and several shut down.

What?  Lawyers aren’t the only professionals to have gone through tough times? But, but, but, we’re so very special.  Well, we are, but we’re not.  Gershman follows up with a bit of a test:

Can you guess whether the following quotes from news articles are people from the 1980s talking about the future of dental schools, or are they people from today talking about the plight of law schools?

1) “People see that they can make more money in computers or on Wall Street, without the debt and years of added education,” said an associate dean.

2) “[F]inancially, there is no question that it is not worth it,” said a 33-year-old in private practice.

3) “Registration was dropping and the school thought we could better use our resources … to train specialists,” said a school spokeswoman.

4) “There is a lot of competition,” said a student. “But if you really want to work and are good at what you do, you’ll always be busy.”

5) “Ten or 15 years from now, things will be just fine,” said an employed graduate.

6) “If you keep the schools open, you can always contract the number of students or expand,” said a government labor researcher.

7) “There is just not the funding base that can keep this school alive and produce the quality product we have in the past,” said a university executive vice president.

8) “We continued to learn more. It comes down to the number of [qualified] students we can get. We really need 150 [in the first-year class]. Now we’re down to 137. Next fall it’s projected at about 120. And in the future that number will dwindle to less than 100. There’s no question that we were looking at a financial disaster,” said the same administrator.

If you haven’t already guessed, these were all said by and about dentists.  So that must mean there are no more dentists, right? Except there are, obviously.  And to take the analogy a bit farther, everybody needs dental work, but not everybody can afford it.  In fact, there are a whole lot of people who do not receive the dental care they need, and they suffer for it.

The dental profession went through technological change, with the introduction of fluoride treatments that substantially reduced cavities for children whose parents could afford dental care. High speed drills and widespread use of novacaine made dental treatment far quicker, easier, less expensive and more palatable than when I was a kid, and reduced the need for more severe and expensive treatments.  Yet, they were cranking out dentists like no tomorrow.

But they didn’t swing open the doors to barbers to drill cavities (and do a little open heart surgery while the patient was in the chair).  They didn’t invent robot dentists to replace breathing ones.

They did come up with things like 1-800-Dentists, which remains modestly pointless except for those people who know absolutely no one they can ask for the name of a good dentist.  And they came up with large group practices, where the costs (and they’re much higher for dentists than lawyers) could be spread among a wider group of professionals.  Some are low-priced, high volume mills, some are clinics, which are capable of providing lower priced services, though they are generally poorly received and of dubious quality.

So what was the disruption?  There were too many dentists trying to find too few teeth to fill, so economics forced profit center dental schools to become unprofitable and close. Yet, this eludes both lawyers and the ABA, which continues to approve new law schools because there aren’t enough hungry, debt-laden kids. And because any fool can go to law school, whereas a dental student needed to be able to do math and science, the demand for law school hasn’t plummeted as fast as dental school.

In 2007, law was in a bubble. Biglaw pissed away money like nobody’s business, and since corporations were flush, nobody paid too much attention to the bills. When times got tighter, clients figured out they were getting ripped off and put their foot down. This wasn’t always the way law was practiced, and lawyers just got greedy and lazy.

Successful small firms and solos always ran tight practices. Every penny they wasted came out of their own pockets, and there was no point in going to work in the morning to hemorrhage money to vendors.  Today, the same kids who suffer from brutal debt will buy every new iToy that comes out under the absurd guise that it will make them more efficient. And you can’t be a lawyer without a logo, right?  They complain that law schools don’t teach them business, because they need a class to explain the basic equation: profit = revenue – expenses.

What dentists figured out is now a mystery to lawyers. Futurists with magical powers convince otherwise thoughtful lawyers that all manner of voodoo is happening that will change everything.  There is only a certain amount of legal work for paying clients around, and producing more lawyers than is needed to handle that work will undermine the economic viability of the profession.  Ignore the man behind the curtain, it’s just not that hard to figure out.

But what about “access to justice,” the large number of people who cannot afford lawyers? First, we need to define this group, as it now consists of people who are indigent as well as people who can afford counsel but don’t feel like taking money from more pleasant things they would purchase and giving it to lawyers. This may seem harsh, but their lack of access is self-imposed.  They choose to allocate resources elsewhere, which is fine, but then they can’t complain about lack of access to affordable legal representation.

Since society isn’t prepared to give lawyers free education, free offices, free computers and free vente mocha frappuccinos, lawyers can’t survive without earning a living. That people want free legal services is completely understandable, but economics works both ways. There is no futurist device that changes this most basic of concepts.

As for those who are truly indigent, it’s a societal problem, not a legal problem. Keep making laws that require people who can’t afford lawyers to need lawyers and you exacerbate the problem.

As much as lawyers are most concerned about them, because we’re the ones who hold their hands and explain to them that as much as we would like to dedicate our lives to their worthy causes, we need to eat too, it’s time to put our foot down and let the whole of society shoulder its own problem.

Dentists. Who woulda thunk?  And lawyers could figure this out too, if only we were as smart as dentists.

5 comments on “The Future of Law: The Cavity Analogy

  1. Bruce Coulson

    Santayana was an optimist; I prefer Hegel.

    “Governments have never learned anything from history, or acted on principles deducted from it.”

    The same can be said for any large organization/group; dentists, accountants….lawyers. Each group is special, unique, and not subject to the same problems others may face. Just ask any of them.

  2. LTMG

    Dentists have coped in different ways, including accepting reduced incomes. Some dentists perform procedures that weren’t widely available 30 years ago, like treating TMJ disorders. One dentist I know gives Botox injections, and does this within the scope of his license. What practices on the periphery of the classical practice of law can struggling attorneys ethically take on to improve their incomes?

    1. SHG Post author

      Median income for dentists has risen substantially. There are always outliers, but talking about “one dentist [you] know” is like my talking about the dentist I know who makes half a mil working 4 days a week, utterly meaningless to the profession as a whole. On the whole, dentists are doing pretty well these days.

      And the point is that lawyers won’t be struggling if their numbers didn’t grossly exceed demand by paying clients.

      By the way, it’s never a good idea to reach a non-sequitur question built on a flawed premise.

      1. Eric L. Mayer

        I’m now offering Botox, and I’m considering offering a laser hair removal service. Though, I won’t do the whole Brazillian thing unless I get really desperate. I have standards, you know.

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