Among the folks who have hitched their wagon to the cottage industry of persuading lawyers that anything new and shiny is good, Jordan Furlong is considered one of the brightest. While most aim low, appealing to the emotion and desperation of those for whom thinking is viewed as a symptom of a terminal disease (it makes their head hurt), Jordan presented well-reasoned, well-supported arguments for change.
It looks like the well has run dry.
In a post whose title is itself an ad hominem, The confidence of the Dinosaurs, the emptiness of the argument for mindless change is revealed.
You’ve seen the same signs I have. The volume of pro se litigation continues to set new records every year, most notably in family law. Do-it-yourself websites for contracts, wills and divorces keep flourishing, with non-lawyer providers like LegalZoom and Rocket Lawyer boasting millions of customers and millions of dollars in venture capital investment. Foreign professionals and sophisticated software are surging onto lawyers’ traditional business turf. These trends and others show every indication of continuing throughout this coming decade.
The overall legal market, despite what you might conclude from all that data, is actually strong and growing.
The set up of the first paragraph is no stretch, but a fair description of what any lawyer who pays attention to such things will invariably see. But the first sentence of the next paragraph is the pay off, the salvation after the recitation of hopelessness. What’s the basis for this assertion that flies in the face of every known fact?
Jordan says so. That’s it. Nothing more. Jordan sneaks in the line and prays that no one notices that there is absolutely no foundation for it. Here’s the balance of the second paragraph:
But as Toby Brown has noted, it’s growing with only minimal involvement by or financial gain for lawyers. Market growth is passing us by. Law firms of every size and description, in every jurisdiction, are experiencing flat or declining revenue or profit. This is mainly because lawyers and law firms have proven to be less accessible, more expensive, and less responsive than clients are increasingly willing or able to tolerate, and because those clients are now test-driving alternative options for legal services.
The assumption is that no one will bother to read what “Toby Brown has noted,” which is that the cottage industry leeching off the law is growing. So a $100 billion industry has shrunken in half, and start-up ancillary services have gone from zero to paying their bills in 90 days. Strong and growing? It makes my head hurt.
Jordan asks why lawyers are stuck doing what we’ve always done (which I guess would be practicing law) while the people who set up vendor booths at conferences, usually unemployed young lawyers, have seen their salaries climb from nonexistent to poverty level. Why aren’t lawyer jumping on board, he asks?
The only reason I can think of to explain this is the serene confidence of incumbency. Lawyers still own this market, and we’ve owned it for longer than anyone can remember, a happy fact that we ascribe to our natural superiority. We feel a deep and untroubled assurance of our continued dominance over legal services.
Well, this is a bad time to be an incumbent in the legal marketplace.
I can think of a different reason. Because we’re lawyers, who have sworn an oath to zealously represent our clients within our ethical constraints and the bounds of the law. Because we don’t have the option of playing the game like laundry detergent, offering “new and improved” services while delivering deception. Because the moment we stop conducting ourselves as lawyers, we become laundry detergent sellers.
Jordan’s point, aside from making it abundantly clear that lawyers who persist in such old-school beliefs as competence and ethics is a dinosaur, is that the environment is changing.
What will you do when that environment changes?
- If your entire business model is premised on pricing your services and paying your lawyers according to time spent on tasks, what do you do when clients stop dealing in that currency and demand a new one?
- If your sole stock in trade is students who spend three years receiving basic law primers, what do you when both your inventory and its purchasers require a radically different product?
- If your core purpose is to resolve private disputes, what do you do when new providers deliver the same outcomes much faster and much more cheaply than you could hope to manage?
Questions are easy. The problem is finding solutions that not only address problems, but do so within the context of what lawyers do. The adage is that people want cheap, fast and good, but they can only have two. Jordan presents the strawman view that the legal profession must meet the desires of our clientele or…what? They will go pro se? That will save them money, but the outcome is usually disaster. Potential law students will become dental hygienists instead? This might be a good thing for all involved, though there will still be a few who take to the law, as long as Harvard Law School has seats available.
Clients want good legal services for a lower price? This isn’t an environmental change. This has always been the case. Does any lawyer know a client who begged him to charge more?
Jordan devolves to the straight dinosaur analogy, even mentioning the Mesozoic Era (I told you he was the smartest of his ilk), so we get the image of pending death in our heads, and then asks:
What do you suppose is going to happen next in the law?
Since he asked, here’s what I suppose: there will be a core group of new lawyers who are dedicated to the zealous representation of their clients; who put competence, honesty and integrity above deceptive marketing and “low, low prices.” There will be new lawyers who don’t hand out flyers in front of the courthouse offering $20 wills and $100 DUI defense (Special today, will and defense, $110!!!),
The economy sucks, and the people in need of legal services either can’t afford them at all, or want as much value as they can get. They won’t be helped by lawyers walking the boulevard in hotpants. They won’t be helped by lawyers who forsake what makes us lawyers.
So Jordan calls lawyers who believe in being honest and competent, and zealously representing their clients dinosaurs. At least dinosaurs don’t wear hotpants, and have the capacity to use logic to realize that just because something is new and shiny doesn’t make it better or mean it works.
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I’m curious about how many hot-pantsed newbie lawyers have had their first epic smackdown by a judge so far (other than that one guy who shall not be named, of course). I’m barely ten years out of law school, and my generation (and I personally) bear much of the blame for the Shiny Things Syndrome, but it seems likely that much of this guy’s philosophy would not survive more than one or two hearings in front of a dinosaur judge. It will suck for that lawyer, and even more so for his client, but the smackdown part might amuse me.
That’s a good question, but since most don’t make the Washington Post, it’s hard to say. One of the points I’ve made often to lawprofs who have a deep concern for their students’ self-esteem (reflected in their reluctance to tell law students that their answers in class are blitheringly stupid) is that judges aren’t nearly as concerned about lawyers’ feelings. If they can’t learn to take a good, hard smack in school, how are they going to deal with it in real life?
My argument, of course, has largely fallen upon deaf ears.
The lawprofs know that most of their students will never see a judge.
Maybe that’s part of their grand scheme and explains why they don’t bother teaching them how to practice law?
I hate consultants.
My opinion is that your stance seems to be that of a legal Luddite, albeit more passively than actively aggressive, as the genuine Luddites were quite aggressive and action oriented.
A fundamental belief I have is as follows:
“To invent or contribute to impactful and long-lasting positive change in this world, one must intellectually ignore the neighing naysayers. This is based on a simple truth: stakeholders with any stock in the current system will, with great likelihood, resist all change that threatens their position, power, or resources. They will say and do most anything to maintain the status quo. They are true believers and vested in the system as it exists. You must be confident in the fundamental beneficial nature of your ideas, actions, and goals; just forge ahead, damn the torpedoes and avoid stepping in the never-believers’ caca doo-dle-doo (rooster dung if you’re playing at home).”
In the long run, the fate of the entire legal profession as you know it is certain to be similar to that of the Luddites themselves. You can quibble with and disparage Jordan Furlong’s arguments and approach but, unfortunately, such quibbles will not change the underlying facts on which he is basing his observations. Maybe it would be more helpful to look at it this way – you and your ilk booked a voyage on the RMS Titanic, expecting a pleasant and amazing adventure. However, in the end, the trip was something very different than you or anyone else thought they bargained for. There are now only two choices: 1) spend your remaining hours rearranging the deck chairs; or maybe better still 2) save the women and children first (actually, there is another option, but I won’t mention it as it is unspeakable). . .
Meh. You apparently missed the part about the lack of underlying facts supporting Jordan’s assertions, which means I’ve already wasted more time responding to your comment than it deserved.