#ReinventLaw: A Caricature Debates A Strawman

Soon after #ReinventLaw’s dog and pony show, I suggested that it was sad and pathetic that the gurus of the Future of Law couldn’t bear the thought of scrutiny.  They adored themselves so much that they threw parties to celebrate their fabulosity, but the only people invited were those who loved them as much. It’s what Marco Randazza liked to call a circle jerk.

So I made an offer. If they truly believed they had the goods, then I would be willing to give of my time to provide balance to their hallelujah choir. If their ideas were sound, they would withstand scrutiny.  If not, then, well, not.

In a few weeks, the #ReinventLaw dog and pony show comes to New York City.  As it happens, that’s where I am. Opportunity knocks, right? So I waited by the mailbox for my invitation to speak.  And I waited. I’m waiting still.

You see, the unpleasant sound of a voice not in harmony would ruin their gathering. I would be the skunk at their garden party, stinking up the place when all they want is applause and adoration.  The big guy, brit Richard Susskind, has assumed god-like status with futurists, and no heathen is allowed to question the existence of god.

But apparently, they’ve come up with a way to blunt the questions raised by non-believers.  While an actual debate would be totally out of the question, why not throw a pretend debate!  And so legal rebel Casey Flaherty engages “Fake Susskind” at the ABA Journal’s New Normal under the challenging title, Here’s to these lawyer-heroes of the New Normal: the system builders

Controversy has a way of driving traffic. Thus, in advance of attending ReInvent Law NYC with Paul Lippe, Patrick Lamb and other rebellious luminaries, let me take an unprovoked jab at one of our fellow speakers, the esteemed Richard Susskind. Disagreeing with Richard Susskind is not something I do often or lightly. But I am comforted by the fact that the Susskind I am about to debate is merely a caricature, a vital but injudicious doomsayer who left the question mark off the end of the title to The End of Lawyers? The real Susskind is a deep, textured thinker.

Given that he’s already decided to call the opposition “lawyer-heroes,” it’s possible that his claimed “disagreement” might be a bit tepid.  First comes Flaherty’s challenge to the Faith:

Bespoke legal work is what “real” lawyers do. It is the careful crafting of precise, novel arguments; the construction of perfectly calibrated contracts to envelop the world’s most important transactions; the virtuoso courtroom performance needed to emerge victorious in a bet-the-company litigation. Commoditized legal work is for drones. It is rote. It can be handled by young lawyers who didn’t get a “real” legal job, or foreigners (legal process outsourcing), or, more and more, computers. Where the bespoke lawyer is an artisan, the commodity lawyer is a fungible factory worker.

No strawman here, right? Okay, maybe a bit hyperbolic, but close enough to create plausible deniability. And then Fake Susskind’s view:

Fake Susskind tells anyone who will listen that commoditization has not gone far enough; that we are stuck in Old World ways of treating every legal issue like a precious snowflake when we should get on with it and embrace a New Normal in which we can use technology/outsourcing to leverage the skills of the 14 or so genuinely good lawyers (Patrick, Mark Herrmann, David Boies, etc.) to satisfy all the demand for legal services.

Fourteen? That many?  And then Flaherty, standing on the pedestal as the voice of reason, renders his verdict.

Despite the hyperbole, there is something to the above. But that something gets obscured in the vitriolic debates about what legal work can and cannot be commoditized. Civilized discussion becomes unlikely once you tell a well-educated, well-compensated, well-respected professional that your thesis is that they and their similarly situated colleagues can be replaced by a motherboard and some paralegals based in the Philippines. Understandably, these incumbent stakeholders get defensive and fall back on bulwarks that have served them well: precedent (things should be as they have been) and distinguishing (what you say may has some merit in a different context but does not apply to me).

As this “debate” shows, it’s a lot more fun to argue a point when you argue with yourself. I suspect Randazza would call that mental masturbation.  You see, this is the vitriol of which Flaherty speaks, where those who not only don’t inherently agree with the fans of commoditization but who say words that harsh their self-esteem are dismissed as “vitriolic.”

The problem with the notion of civilized discussion is that it’s a two-way street.  It’s not about one side throwing meaningless jargon crafted into feel-good slogans against the wall, and demanding the other side disprove them.

Flaherty, who both concedes his own hyperbole as well as 500 words of self-serving fluff, offers nothing that anyone but a cheerleader would find convincing.  But then, that was the role he was playing, pretend that #ReinventLaw was tough enough to withstand the questions and challenges posed to their general adoration of all things shiny and the particular challenge to their living-god, Susskind.  “Look,” law profs Dan Katz and Renee Knake, who are Susskind’s priests, can proclaim.  “We confronted those who think we’re full of it, and WE WON!!!”

Not this time, kids. It’s going to take more than a caricature debating a strawman to convince anyone of anything.  If anything, a stunt like this shows not only how vapid and indefensible your perspective is, but how much you fear real engagement with those who aren’t your adoring fans.  I’m still waiting by the mail box, but we both know that none of you have the guts to take on a real challenge.  Even from a lawyer who isn’t one of the “14 or so genuinely good lawyers.”



4 thoughts on “#ReinventLaw: A Caricature Debates A Strawman

  1. Carolyn Elefant

    To the extent that there are actually 14 good lawyers, Flaherty is certainly not in that category. Not even close. Honestly, I could not understand his 500-word essay at all until I read your CliffNotes edition. There was no insight, logic or even structure. Honestly, the only reason anyone gives Flaherty the time of day is because they hope that he’ll throw some scraps of corporate legal work their way. My guess is that despite all the lip-service paid to the new normal, that Flaherty still “hires IBM” for most of bet-the-company work.

    Flaherty’s views are internally inconsistent as well – though I suppose consistency doesn’t matter in the new normal either. On the one hand, as I described here [Ed. Note: link deleted per rules.], Flaherty argues that lawyers should know how to use excel spreadsheets and word processing templates, yet on the other, he advocates outsourcing. So, let’s see if I have this straight: Flaherty will hire David Boies to compile spreadsheets while outsourcing e-discovery and due diligence for deals to “lawyers who couldn’t find real jobs.” Apparently, my inability to understand this is why I didn’t get an invite to the “top 14” lawyer club.
    Of course, I am a practicing attorney – so what do I know? But even other in-house counsel don’t buy this logic. In a comment on Flaherty’s Tech Audit proposal at the ABA Journal, one of the lawyers – with 25 years of experience as GC for various international organizations was flummoxed as to why a corporation would want to hire lawyers for their spreadsheet ability – [Ed. Note: link deleted per rules.]
    Despite the fact that real, practicing GCs believe that the tech audit is ridiculous, Suffolk Law School is making the technology audit the center piece of its legal technology program: [Ed. Note: link deleted per rules.] And because professors don’t practice law, they don’t even understand that these skills aren’t even likely to be transferable. Just because Casey Flaherty likes Excel spreadsheets, doesn’t mean that other corporate clients do nor will it be around forever (once upon a time, Lotus Notes was all the rage).
    I have never been on hard on the FOL movement as you. I believe technology has improved the practice of law for better in a myriad of ways – from DNA testing on the CDL side to substantial reduction in cost of legal research to tools like email and the cloud that have enabled me to improve the quality of service that I provide to my clients. I know we don’t always see eye to eye on that. But this stuff does not even pass the pink face test. It is an utter embarrassment. It is like a chapter out of Ayn Rand novels where she makes up these hilarious fake systems and caricatures (like Ellsworth Toohey in the Fountainhead) that are designed to suffocate talent. (PS – see this Ted Talk on the problem with Ted talks – [Ed. Note: link deleted per rules.]

    1. SHG Post author

      I’m not against technology at all. I’m against blind adoration of technology, the embrace of inconsequential technology as if it’s the greatest thing since slice bread and the claims of “disruption” about technology that’s either a puny change or of dubious value. And I’m hard on technology that is shiny but adds nothing or actually impairs to our ability to accomplish our function.

  2. Jordan Rushie

    Here is a thought. With technology the new, um, everything, shouldn’t it then follow that you can actually differentiate yourself now by meeting with people in person instead of via email, and calling people instead of texting them?

    Because that is my simple business secret. I meet with clients in person at my office instead of texting them. I call clients instead of emailing them. We talk about stuff. In person, and often it goes beyond the case. Sometimes we even go out to dinner or lunch. And then (this will blow your mind) we sort of have a rapport if the case goes to court. The jury actually gets the sense that we have spoken to each other before the day of trial. Imagine that.

    Just don’t tell anyone, because my clients might run off and hire a virtual lawyer…

  3. Pingback: Right Problem, Wrong Solution | Simple Justice

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