Law Technology Now’s hosts discuss the mark the global pandemic will leave on law firms, legal education and the delivery of legal services.
Law Technology Now
THE ORRICK YEARS Ralph served as Chairman & CEO of Orrick for nearly a quarter century, leading...
Daniel W. Linna Jr. has a joint appointment at Northwestern Pritzker School of Law and McCormick School...
Daniel B. Rodriguez is the Harold Washington Professor at Northwestern University Pritzker School of Law. He served...
While legions are hopeful for a return to normalcy as soon as possible, the pandemic’s legacy will be felt for decades. The impact is already sure to prompt change from tech adoption to what defines an entity’s business hub.
Ralph Baxter, Daniel Rodriguez, and Dan Linna use their final episode as hosts of LTNow to discuss life before and during the pandemic, and what they predict is next in their respective fields of expertise.
Linna references disruptive innovation theorist Clayton Christensen in considering a different way for law firms to think, plan and talk about technology. Instead of choosing between prioritizing disruptive tech vs operational innovation, Linna says firms need to balance both to keep pace with an evolving industry.
Rodriguez reviews the pandemic’s impact on law schools, already struggling with decreased enrollment, law school finances, and student debt. He discusses regulation of law schools, the shift to all online early in the pandemic, grading changes, and how remote and hybrid learning is creating opportunities for improving teaching during precious hours in person and via technology while remote.
For law firms, Ralph Baxter expects the pandemic will have game-changing ramifications. Specifically, he believes the disruption shared globally created a gateway for change for an industry on the precipice of progress. Years of talking gave way to sudden action by necessity.
Baxter predicts changes and improvements beyond travel and space, down to the fundamental concept of how the workplace hub is defined. A brick-and-mortar space was the hub of activity pre-pandemic. But the new hub is information and the technology that connects people and processes to that information.
Ralph Baxter served as Chairman & CEO of Orrick for nearly a quarter-century and is a member of Intapp’s board of directors.
Daniel W. Linna Jr. has a joint appointment at Northwestern Pritzker School of Law and McCormick School of Engineering as the Director of Law and Technology Initiatives and a Senior Lecturer.
Former dean Daniel B. Rodriguez is the Harold Washington Professor at Northwestern University Pritzker School of Law.
Law Technology Now
Redefining the Hub
Ralph Baxter: Welcome to a special episode of Law Technology Now. I’m Ralph Baxter and I’m joined today by the two other co-hosts of the show throughout the year 2020, Dan Rodriguez and Dan Linna. This episode is special in three ways, really. First, we’re all here together. All three co-hosts for the first time together on an episode. Second, this is a year-end-review episode in which we’re going to reflect on the year that is just concluded and its ramifications for law. And finally, this is our final episode on the show. We, all three of us, have greatly enjoyed working together and working with the Legal Talk Network all year long.
We are especially grateful for the support of the team especially Laurence Colletti, and Adam Camras. But it’s time for us to move on. We love podcasting, we love working together, we’re going to continue to do that and look for an announcement from us early in 2021 about the next chapter of our adventure.
So, as we focus today on the year 2020, we’re going to emphasize three different settings drawing on our respective perspectives on law and how it works. Dan Linna is going to start and lead us in a conversation about legal technology and how to measure the effectiveness of legal service. Dan Rodriguez will then lead us in a discussion about deriving from legal education and then I will close out with a discussion concerning law firms in the year 2020.
So, before we get started, I want to thank our sponsors. Thanks to Acumass, patent and trademark renewal payments made easy. Find out how accumass.com can take the stress out of annuities and save you money on European patent validations today. Thanks also to Logikcull. Instant discovery software for modern legal teams. Logikcull offers perfectly predictable pricing at just $250 per matter per month. Create your free account anytime at logickull.com/ltn. That’s logic with a K-C-U-L-L.com/ltn.
So, Dan Linna, I’ll turn it over to you.
Dan Linna: Thanks, Ralph. Really excited to join you and Dan Rodriguez to do this year-end recap and talk about some of the episodes that we recorded this last year. I wanted to maybe mention even a couple that are recorded before that. I wanted to also mention how much I enjoyed working with Monica Bay when I first joined the program, Law Technology Now, and she interviewed me and I had a chance to work with her in a couple of other episodes early on. And just looking back on the great guests I’ve had during the period of this time, I mean I started with — Connie Brent was the first person I spoke to and from the beginning, I really tried to aim to put together a set of speakers who could help deliver what I would think of as a master class in innovation and technology. That was my goal, at least, and I certainly have had some great guests that have come along to try to contribute to that. But I think to me, one of the things that brings in the question is when we talk about law technology, how do we measure that? What are we talking about? What is innovation? What is technology? And you and I, Ralph, have had some discussions about that in the context of legal services delivery in law firms and legal departments. Dan Rodriguez, you and I have talked about that in thinking about what should a law school curriculum look like? What sort of research should universities be doing? And I guess, just to get us started, what I’d like to do is share some of my thoughts on what we should be thinking about in innovation and technology. I think there’s a lot of potential frameworks but one of the way I’ve been trying to describe it lately is talking about — it’s just going to Clayton Christensen’s book on disruptive innovation and thinking about sustaining innovation and disruptive innovation and seeing us as needing to be kind of on two tracks in law.
Sometimes, when I hear people talk about innovation technology, it’s like, “Wait, what are you talking about AI, Dan? Let’s just get back to the basics and talk about operations and project management and process improvement and basic data.” And that, I would call that sustaining innovation, right? The kind of things that we should be doing just to keep improving things. I think there’s a long way to go in the legal industry around that. In most other industries, they’ve been doing that for the last 20, 30, 40 plus years. In law, we don’t have a history of engaging and sustaining innovation in a disciplined systematic way. But we also can’t ignore disruptive innovation and the impact that technology is having and what I believe will be the tremendous impact, the disruptive impact technology will actually have legal services delivery over the long haul.
You know, like Ralph, I know — I’ll mention you first as we’ve had some interesting debates about, well, is it modernization, how do we properly frame this? And so, I think that’s a really interesting conversation to have.
Ralph Baxter: It’s more important than ever right now. And I think that it is a very important conversation. What are we trying to do here? To me as, as you just suggested, I think the best operative word is modernization. Making the most of contemporary tools, contemporary processes, to make, in our case, law, work better. And often, when people focus on innovation, just as you’re suggesting, they confuse the concepts and they — sometimes, people think innovation is like a thing you buy. “Let’s go buy an innovation thing and plug it in and then we’ll all be better.” And it isn’t like that. It’s a comprehensive approach to doing what we do better taking advantage of tools and processes that are now available that weren’t available when I started practicing law 46 years ago or when you started practicing law, much more recently than that.
Dan Linna: The only thing I worry about sometimes if we talk in terms of just modernization is it might allow some to be complacent, right, and that thinking, “Well, we just need to modernize a bit, right?” And it’s like, “Well, okay. Maybe that’s part of it.” But what about these other technologies? What about the way data is being used for prediction, AI, and other technology tools? I don’t know. I’m curious, too. Like from Dan Rodriguez, how do you what and in your experience as a dean, you also speak to people in law firms and legal departments and stuff, too. I mean, how do you kind of — because we also hear from people, innovation — stop using that word. How do we describe what it is that we’re aiming to do in legal education, in law firms, legal services delivery generally?
Dan Rodriguez: So, I’m going to talk about legal education writ large a little bit later but just to respond to your query directly, one of the privileges I had, it really was a privilege in in my 13 plus years as a law dean at two law schools over a long period of time was talking to working with — yes, sometimes asking for financial support from alumni which brought me into contact with many segments of the legal profession in the last few years in my tour of duty at Northwestern with folks in so-called Big Law. I think maybe disproportionately, and to me, it’s sort of a tale of two reactions, by and large. Law firms and leaders in law firms, whether they were you know Uber leaders like Ralph was in his role or they participated in the kind of management, would certainly talk the talk. Everyone wants to be seen as innovation-minded and want their firms to be seen as innovation-minded and whether it’s interviewing second-year students and saying, “Well, our firm’s different than the rest or it’s talking to others. They speak about innovation.
Now, you can see where I’m going with that. I’ve come to be a bit cynical, not entirely so, which is on the walk-the-walk side, that is the willingness of firms to manifest innovation in a way that we, in legal education, would notice. For example, in the hiring of our students in the mentoring and all of that, I’ve been over the years from mildly disappointed to gravely disappointed in how slow the progress has been in firms certainly from the vantage point which you know, I guess it’s been my focal point in how they hire students and how they train students. So, hope springs eternal, but I think the progress has been quite slow.
Dan Linna: Yeah. Well, I think that’s a constant debate. I mean, I was just part of a Twitter conversation recently where folks were saying that well the firms haven’t changed the way they hire and it’s fine. You can run these innovation and tech programs in law school but it doesn’t move the needle. And I said, “Well wait. Hold on a second. We need better data about actually how hiring is changing and how those skills are benefiting students.” But I’ve got a pretty long list of anecdotes from you know people in our networks but then also, students I worked with at Michigan State and students at Northwestern for whom innovation in tech has really made a difference in their career and I’m hearing from students more and more, more than ever this year, about the — I had a full class, 25 students in my AI and legal reasoning class this fall and they’re having conversations with law firms and they’re very interested. What did you learn in that class? What were you talking about? Oh, we’re talking about this, too. Like, this would be great. And it’s like that’s exactly what I want to hear. That the law firm partners are saying “we’re having these discussions. This is a conversation you can be a part of and help us think about these things.”
It’s one piece of it. It’s client-centric. It’s thinking about this is the longer arc of things and getting focused just on — the clients are asking a lot of questions about this. That’s really the driver of it. You need to know how to respond to that and talk to the client about how you’re using these tools.
Ralph Baxter: You’re right about that and what you just said brings into the conversation some misapprehensions people have. So, we lament as Dan Rodriguez just said that the pace of change is slower than it should be, but it’s not as though there’s no change. There is change. It’s not as though the law firms or the lawyers are against change. They’re not. It’s not how it is and one thing for sure that a myth that I keep hearing people say, it’s not as though the lawyers can’t or won’t use technology or can’t or won’t use new processes. Lawyers are very creative and adaptable in terms of how they do their work. The problem is way more complicated than that.
In fact, this all brings me back to the whole question of what word do we use. The problem with any single word to describe the progress we need is that it simplifies in a way that can be misleading or can understate the nature of the issue. It’s not — nothing is that simple. We’re in a complex web of issues and participants and we need to lead them all to a better day and do it without sacrificing the things that we want to preserve which we do want to preserve. We want to preserve the quality. We want to preserve trust and confidentiality. You know there are more good things, more things right about legal service than wrong. We just want to make it better and that has lots of moving parts and some of the solution, some elements of the solution are simple and they make a little progress. Some are profound and they make big progress, but it’s all a complex web.
Dan Linna: Yeah. Well, I don’t disagree with anything that you said there, Ralph. I do think that Clayton Christensen’s framework, the sustaining innovation and disruptive innovation is a nice way — one way, one nice way to model it and think about it in those terms. You talked about quality. That’s a topic that’s near and dear to my heart and I think that there’s not enough being done to measure the quality of legal services and then legal technology is a piece of that. If we can actually evaluate the delivery of legal services, then how are we going to evaluate these legal technology tools? And we’ve got a growing number of people who are trying to measure the value produced from legal services and legal tech. I think those are all very important initiatives. this brings me to a couple of the podcasts that I did recently that I’d love to highlight that — where we talked about some of these things. The most recent one was with Maura Grossman. The good housekeeping seal of approval for AI and we got into Maura and Gordon Cormack did really groundbreaking research on technologies as review tools for e-discovery and I remember very well when these came along and there was a lot of talk among lawyers. It’s going to take decades before practitioners and judges accept these tools.
It didn’t. Took very short period of time. Because Maura and some other serious researchers did the work to show that when humans did the review of documents, it wasn’t perfect so that was no longer the bar. And then, when you compare to the technology, the technology could actually do better than what humans were doing. Now of course, electronic discovery review of documents is different than say drafting a contract. There are some differences but we still have the same problem when we talk about contracts that you know, Ralph, you draft the contract, Dan Rodriguez, you draft something that you know, draw a contract and I draft one and all three of us can argue that it is state-of-the-art gold-plated contract but we don’t really have a standard way of assessing that. The quality and the value produced by those contracts.
And so, I think that’s something that we’ve got to overcome. We need to figure out how to better evaluate these things. Legal departments are doing more and more work around that that brings me to another podcast I was going to mention — with Catherine Krow, and the work that she’s doing on using billing data to better assess the way that matters are handled and sometimes, this is dismissed as like “well, that’s just pricing and number crunching on the back end.” No, it’s getting closer and closer to substantive practice because people are evaluating like how do you put that team together? What are the results you produce? How do you make sure the work is equitably allocated on those teams? This is a diversity inclusion issue. How do we make sure people are trained properly and clients care about that? Not just because of diversity inclusion but also, they want to — if they’re going to invest in your firm, they’re going to hire your firm, they want to see you developing people so they can continue to develop — those individuals continue to develop, will be the attorneys you rely on in the future. So, those are all really important questions.
Dan Rodriguez: Dan, can I ask you a question? You know, I hope if you don’t mention it, let me mention it. You’re pioneering work in connection with developing and working on an innovation index. There’s more to that than just the index right, but the development of metrics to assess quality and assess innovation and all of that. So, let me throw out a little bit of a provocation. One of the issues that I think has been really vexing in the evaluation of quality whether you’re talking about quality of legal services, quality of legal education, etc., is the viability or the veracity of surveys.
Is it helpful and how helpful is it to make as part of the assessment ask folks, were you satisfied? Were you satisfied with your lawyer? Whether you’re talking about a big Fortune 100 client or you’re talking about an underserved member of the community or you’re interviewing law graduates? Sort of satisfaction indices. From your experience doing and working on assessment and talking to other assessment leaders, do you think there is a value added — significant value added or not with respect to these surveys?
Dan Linna: I think the simple answer is yes. They add value but they’re far from sufficient to understand the actual quality of services and this is a problem I think from the client perspective. It’s also a problem from the lawyer perspective right because as a litigator, we may say frequently, and I’m sure you’ve been there before, Ralph, like I did everything right but we still lost the case and the client will never hire me again because we lost the case. But now, they may get to an objective evaluation and say, “Well, we did everything right here. There were high quality briefs. The depositions were done well.” This becomes a problem in training inside of — and Ralph, you just spoke with David Wilkins. You did a great podcast with him about the low numbers of black attorneys in law firms, partners especially. I was just reading his 1986 law review article on the topic and this is a problem there as well, right? I mean if something goes wrong, we don’t have a good way of understanding if it was a failing by the lawyer or if it was just the stars aligned in the wrong way and that was the outcome that we got.
So, I think we need more empirical work, we need more than just — I mean it’s good to know if you’re the outside law firm that the client is satisfied and happy with the things you’re doing. But if you don’t really understand the quality of the underlying work that’s being done or the ways in which it actually adds value and it’s more than just surveying them, I think that’s a big shortcoming the things we do. I’ll use this to connect with one last thing I wanted to mention in my portion and that was the podcast that I did with Chief Justice Bridget McCormick a couple of months ago. And she’s doing amazing work in the State of Michigan with different reforms and she wrote an essay where she talked about that we need to move beyond our technology that’s from the last century and in our processes, which are predate that from the prior century. There’s so much we need to do to improve courts and there’s a lot of concern about due process when we talk about doing hearings on Zoom, for example. And she talked about some very valuable survey data they’ve gotten back that people — the default rates have been lower. She’s getting a lot of feedback that it’s equalizing that when you have a hearing and especially for children is one of the things they found, that they find it easier to open up and share versus going into a courtroom and the judge is up on this podium and everything it can — it’s not — it’s a power dynamic at play there, right?
And so, there are some benefits and they’re doing some surveys to learn actually and using some hard data to learn but there’s a lot more work that really needs to be done — empirical work to have a better understanding and you know, this fits with the work — I’m doing. some work with Catherine Krow. She’s been doing some work and she’s presented it for a while and I’m looking forward to further developing that with her about analyzing the allocation of work in law firms and is it equitably allocated. And I think a lot of the survey work that we’re doing really helps us understand the nature of the problem in people’s — but a lot of it is backward-looking and I’d love to get to a place where we have real-time analytics that help us understand better, how is work being allocated, how are people performing, how is that performance being used to help people improve, get them training that they need, get them the experience they need to improve as attorneys. So, there’s that can be done beyond and in addition the survey work that’s being done already.
Ralph Baxter: Okay. Let’s move now to Dean, Professor, and rock star, Dan Rodriguez.
Dan Rodriguez: Not true but thank you. Let me echo the thanks that Ralph and Dan gave and just on my own — when I came late to this picnic, was invited by Ralph and Dan to join them and I have enjoyed what I’ve been able to do in working with the two of them in these podcasts but it wasn’t my first trip down the LTN road. I had the great opportunity to work on the Planet Lex podcast which was organized through a partnership between LTN and Northwestern. And I have enjoyed working with these folks for quite some time.
I want to turn to legal education. This is a year-end review so rather than opine about the good, bad and the ugly about legal education generally, although there will be some of that, let me focus in and drill down on the year-end review. Now, when we talk about the academic year, we cheat a little bit because the academic year begins last fall and continues through the end of the spring.
And so, I’m reading the Tempest now so I’m thinking very much of storms out in the oceans. So, let me strain this metaphor by saying it wasn’t like everything was smooth sailing and then the pandemic hit. That would be a mischaracterization of sort of where we were. As we were beginning the academic year, what seems like a lifetime ago way back in the fall, we were ringing our hands in legal education and rightly so about some dilemmas, some predicaments, some failures, some rooms for improvement, that we, as a collective, and as our individual schools really needed to work on, we had to continue to think internally but also externally about how we could deal with what we had seen over the course of the last several years, a significant downturn in law school enrollment. Less of a demand for our product to put it crudely. And while there had been somewhat of a slight upswing, some described it as perhaps a trump bump, to use a phrase — not my phrase but others — suggesting that there was some greater interest in students coming to law school. Quite frankly, we had seen some real challenges and for some schools, some existential challenges to their ability to function with their current economic model. So, we have the question of law school finances.
Then, we have the issue of student debt and have — I shouldn’t say had as though it’s past tense, and that is the extraordinarily high expense of legal education and everything that came along with that. Students graduating with 100, 200,000 dollars or even more in student debt. The impact that that had on their ability to prosper in the workplace, to buy a home, to raise a family, the access to justice issue, sort of what we were going to do as a collective in legal education to deal with student debt. And third and last, and this is of course a menu of issues but I’ll put it under one heading, is the curriculum. How is what we are doing within the law school in the programs, in the coursework, in the clinical work serving or not serving the objective in practice of graduating students are — I hate this phrase — practice-ready. I prefer to use the phrase “practice proficiencies”. But how were we effective or ineffective at addressing these issues in the real world?
So, here we were continuing to drill down on those issues and then the pandemic hit in the middle part of the spring — early in the spring but really hit in earnest in the spring and we can actually date it pretty well. It’s about the second or third week of March when law schools made — all law schools very quickly made the completely responsible decision in the face of this growing pandemic and that is to protect the health and safety of our students and our faculty and move instantaneously to entirely remote learning. I think it’s a little of a misnomer to call it “distance education” since that’s a much more aspirational method of educational delivery. It was remote. And so, we turned on our Zoom cameras or other platforms but it was mostly through Zoom, and then we limped along, I think is the frank way to put it, through the course of the spring. Some faculty were more adept at different schools at moving to this transition, some students — but by and large, we were we were desperate times called for desperate measures.
And so, we continued through the spring with remote learning. To the best of my knowledge, nearly every law school in the country, I say nearly only because I haven’t surveyed all of them, changed their grading system on a dime and basically evaluated our students on a pass-fail basis. So, to say there was a great amount of anxiety would understate it, just to focus on the student side for 2 L’s and some 1 L’s, they were enormously anxious about their summer jobs and not without reason, right? There was a challenge and both Ralph and Dan know a good amount about this, about how firms were going to adapt in their hiring, in their summer programs. And so, students were encountering those real serious questions in March and April and into the summer.
For our graduates, and I hope we’ll have time to say a little bit about it, not to treat it comprehensively, is they had a looming bar examination and I won’t because this is a PG-13 recording use — choice adult language words to describe what the bar exam became but let’s just say it was highly problematic from the vantage point of the students. So, let me bring it to the present since the spring again is — spring semester of this past year is now very much in our rearview mirror. The core challenge that was pandemic-related, although I will bring it to the question of where we go next. The core challenges as we were moving from the spring, into the summer, into the beginning of this next academic year that we are now halfway through —
— is how to adapt to the continuing pandemic, how to think systematically and strategically about how to adapt our pedagogy, our structure of education for our incoming students and continuing students, through mostly, although in most instances, not entirely remote learning, and how to think about not only the delivery of legal education, but our strategic objectives as law schools. And let’s be clear about it.
The ABA regulates law schools. It credits law schools, but there’s not an Uber regulator that reaches down from on high and says, “Here’s what 200 American law schools need to do to deal with the pandemic.” All schools were answering this question on their own initiative. Working collectively, collaboratively as much as possible but making decisions that they thought were most warranted by their needs and by the way, we’re doing so almost all law schools nested in a university, that were making decisions, of course, that best protected the health and also the economic circumstances of their universities. So, what did they do? Well, focusing on let’s say the most highly-branded schools. Harvard law school and Berkeley. Use two examples. Very early on said “We’re going to be 100% remote. We’re not going to presume to bring our students onto campus so we are going to require of our faculty that all of the courses offered t students from the first year throughout would be entirely on a remote platform.”
Most schools did not make that same decision although at the time, I should say I made a prediction that proved to be erroneous, so did some others, in suggesting that that would be the judgment made by most law schools. But that didn’t prove to be the case. For the vast majority of schools, they looked, we looked to devise somewhat more hybrid systems. As in the case of my own law school, Northwestern, Dan’s law school, principally remote, principally remote education and we developed modalities of teaching and strategies and collectively worked on — upping our technology game to a great extent so that we could provide a delivery of our courses as my courses and Dan’s courses were through a remote platform.
Nonetheless, a number of schools looked to develop and did develop more hybrid methods, permitting some students to come in and have courses that were in person, with social distancing, with professors wearing masks and students wearing masks, configuring not only the technology but the infrastructure of the law school to enable this to function, sometimes — and I’m going to build my own view on this in a somewhat MacGyver-like way trying to do hybrid by teaching students who are coming in remote while teaching students in person.
Dan Linna: I wanted to ask you a quick question, Dan. I mean, I was just talking to a student this morning. I think student responses to moving classes online has been pretty good, right? And I think everyone has kind of come to a conclusion like, “That went better than we thought it would.” And I’m wondering from your perspective — I mean, maybe there are some people who are just pining to go back to the way it was but I’m really excited to see the way that this allows us to kind of accelerate some of the changes in the way we’ve been delivering legal education. Like how much of this you think will stick?
Ralph Baxter: Yeah. Let me toss in one other observation along the same lines. I wanted to probe Dan on this as well. My impression is that the reviews are mixed, distinctly mixed, about how online education went, and my lens for seeing it are the third-year law student daughter of mine last year, but the other question I want to put on the table for Dan is part of what Dan Linna has raised, I had always thought that online education had the potential to be the great democratizer because if education is going to be dispensed in a way that is a lecture in its format, then the online version enables every law student in the country to hear Dan Rodriguez give a lecture, to hear Dan Linna give a lecture, not just the students at Northwestern, but all the students in the country. And I was surprised at the negative reactions and there were a lot of them about the quality education and I wonder this part — my subpart of Dan Linna’s question, whether it isn’t about how well the professors, those who were leading the education stepped up and learned to use the new tool.
Dan Rodriguez: So, there’s a lot there. Ket me first try to suggest there’s not a lot of daylight in the assessment part between what Dan said and Ralph said. So, let me try this. I think that the reviews were mixed. Again, it’s a tale of two times. The reviews of what happened in the spring, I think were one thing as faculty members at most law schools were scrambling to figure out how to — and I used the term “limp through the semester.” Remember, we were two-thirds in by that time. There was much progress made.
Thanks to the enormous work and you know unsung heroes across many law schools ranging from deans to law faculty members of various generations to I.T. folks to really give us the tools not just the technological tools but the strategies to improve our way of delivering legal education remote, and so I, think the reviews were mixed and still are mixed. Dan is right though I think that many of our students have been surprised, pleasantly surprised and by and large satisfied that the one reason why intrinsically the reviews will be mixed will be — there’s something lost by not having in-person gatherings, by being able to network, by doing all the things that we of course learned as law students. No chance to really repair that.
So, let me make this pivot because both of your questions are pushing this. What does this mean in the future? I think that we’ve learned a lot about the capacity of distance education and remote learning that will be a way of taking us into the future as another aspects of legal practice, so I don’t think for the most of us — there are exceptions, but I don’t think most of us aspire to just going back to the way things were in 2021. Now, the ABA will have something to say about this and other organizations about how much of our courses can be developed through other kinds of kinds of models. But I think we now see the potential and the capacity of more imaginative ways of delivery and I would put at the top of that list, the notion of a flipped classroom is using conversations in an online remote setting not just do another lecture. As frankly, some faculty members did in the spring, so they just turned on their camera and did what they were going to do standing in front of the class. We now realize that’s not a good strategy, right? And so, developing a different way of using precious class time has been enabled by this pandemic and our movement toward more remote learning.
Ralph Baxter: That sounds exactly right and what you just said brings it — goes right back to what you said at the beginning. These issues didn’t just spring up in the pandemic. They’ve been with us and so in every facet, all the things Dan Linna talked about and I will talk about too. I was a public school teacher as you, I know you two know before I went to law school. And I got to the classroom and I had these children, I taught the sixth grade in Washington, D.C. who every single one of them was at a different level of readiness for the standard curriculum of the sixth-grade back, you know in the 1960s when I was doing it. So, I had to figure out a way to get this done and if I had just relied on the conventional textbooks and methods, some of those kids were not going to learn anything, either would have been over their heads or you know beneath them, they wouldn’t have been motivated, and I saw, in the sixth grade, the need to innovate the idea of a flipped classroom and getting the students to participate, that content digestion doesn’t have to be in a classroom for goodness sakes. You can get it on YouTube, you can get — you can read it.
The classroom should be for something else including especially and this is one of the things you just said. The interaction with your peers — some of the greatest moments of learning come from your discussion with those other bright ambitious young people who are learning along with you.
Dan Linna: One of the things I wanted to just mention about this too is that, yeah, the idea that we could just give YouTube lectures or YouTube videos and substitute. I think that — sure some classes may be delivered that way, but I think that what we’re finding is to really deliver — and no one is saying that we’ve reached the apex of what you can do with online learning, right? I mean this has kind of been triage, we’re doing the best we can, there was a lot of effort expended at many schools all across the country during the summer to try to prepare for the classes this fall, and do a better job, but it will have even longer to prepare in the future, and doing it in this true flipped classroom model, Chris Hammond and I teach a class called the innovation lab. The pandemic hit right in the middle of it, and that’s a class where we have computer science students with law students with master science law students working in teams. They do some outside work, right? But then they have to work as teams in this online environment and it ended up going very well right having them work together and the class — one of the couple of things that I introduced in some of my classes, tools like Perusall — this online collaborative reading platform. So, instead of doing the reading on your own, you’re reading on this platform, you highlight, you see other comments, there’s actual interaction.
We get together in a class, I brought in some great outside people, they give a talk, we have breakout rooms, there’s interaction, it’s like — so it’s, I think we’ll find more and more ways to mix these mediums. I think this is something everyone’s struggling with even if you’re inside of a law firm. How do we run meetings well? It turns out the in-person meetings weren’t always run very well either. People are looking at their iPhone and you know waiting, dying to get out of there conferences. All these things are pushing us to think how do we get people better engaged. How do we actually — people’s attention is the most precious thing in the world even in the classroom and in in the law firms, everywhere. How do we really make the best use of that attention when we get it from them?
Dan Rodriguez: So, two quick points and I know we’re coming up on a break and there’s much more to talk about, but let me make two more points about the pedagogy and the work of the faculty. Number one is in route this really echoes just what you were saying — I firmly believe and I’ve been teaching for many many years that the work on developing remote learning and distance ed as a consequence of the pandemic has made me a much more effective teacher in both modalities, not only more effective than learning more about how to deliver legal education in an online format, but I’m confident that when God willing, we will be returning shortly to education the majority of which will be in person for all the obvious reasons. I’ll be more effective in utilizing those skills in the classroom. And the second point I want to make in that is I have learned an enormous amount — gratifying amount about the selflessness of law faculty colleagues, at my law school and other law schools. I don’t want to exaggerate it — that’s not doesn’t describe a hundred percent. You can’t really describe any aspect of law faculty with a hundred percent accuracy. But the enormous amount of time that — and the energy and effort that law faculty members of different shapes and sizes, different schools, deans, administrators they have devoted to student learning, to improving the ability of students to learn during this pandemic. Gives me as a grizzled veteran, an enormous amount of great — greater confidence in the ability and the willingness of our law teachers and the professorial to really put students first and put student learning at the squarely at the front of what they ought to be doing.
Let me with that Ralph give it back to you to take us to the break and I know we’ll have a lot to discuss in addition to your comments coming up.
Ralph Baxter: All right. Let me just comment on that last thing you said because I think one of the defining characteristics of the pandemic was that we got in touch with what merely matters to each of us and we could see who we all are and what you just described, you learned about your fellow members of the faculty and who they were, their sincere dedication in the way that you just described it in the setting of the pandemic. One final thought from Dan Linna then we’ll go to break.
Dan Linna: Well, I just wanted to mention too that the students through this have been amazing as well right and I just really impressed with the way they’ve pushed through this and really have worked with us to make this a great experience as well and that’s important part of it of course.
Ralph Baxter: All right, we will take a break now and hear from our sponsors who support this program financially, and then we’ll be back.
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Ralph Baxter: So, we’re back and we’re talking about 2020 in review and ramifications of what we experienced. I want to just start by observing something that’s implicit in what Dan Linna, Dan Rodriguez have been have said. This really was a year like no other. Most of the time when you say something is unique, it’s unusual at most, but this one really was a year like no other and it was so for the entire world and for all of humankind defined by the unique coronavirus, the pandemic, and then all of the consequences that followed from that. And we’re talking today about one piece, the impact on law and that’s our world and it’s vital to — for all the reasons law is vital, but it’s only one piece of a much more profound and truly global drama. For law firms, there were a number of game-changing ramifications of this pandemic.
To me, the fundamental, the core ramification I think is that it created a gateway for change and I feel quite confident that when we look back in 5 years or 10 years on what happened in 2020, we will see that it opened the doors to the progress that all of us have been talking about that we were on the verge of that we needed. Everyone thinks change is coming. I think this experience during the pandemic will facilitate, will accelerate the changes that we have needed the predate of the pandemic. Just as Dan Rodriguez said about legal education. These issues that need to be attended to didn’t get created in the pandemic, they preceded it and so too in the delivery of legal service. What happened as Dan Rodriguez said about the sudden move to remote learning. That’s what happened in the delivery of legal service in law firms and anybody delivering legal service — suddenly really literally suddenly it’s helpful to go back and remember what it felt like in mid-March. All of a sudden, we were compelled to operate differently in the form of being remote. We couldn’t go to that place in which we previously had practiced law or otherwise delivered legal service. As one of the leaders of one of the law firms said in an advisory board meeting, I moderated, it was — as though someone had pulled the fire alarm and everybody left the building, and then they didn’t come back. And that’s what we’ve been living through to this very moment throughout the rest of 2020.
What we learned from that experienced is that other models work. That thing that we’ve needed to convince people of in making progress in legal service, we didn’t have any choice. We were in a different model and it worked, and you know Dan Rodriguez talked about the anxiety we felt at the beginning. For good reason, we felt anxiety. It’s really helpful, I think. Think back to how you felt in the middle of March of 2020. Starting with the health crisis, we didn’t know exactly what this unique new virus was. We didn’t know how lethal it was. We knew it was lethal. We didn’t know any of that. We didn’t know what it meant for careers as Dan Linna said. We didn’t know what it meant for the financial performance of law firms. We didn’t know what it meant about getting legal service to the people who needed it, the corporates and the consumer clients. It was a moment of great uncertainty and then voila, yet all worked. And we delivered quality, we delivered responsiveness, we continued to have careers for people more than we had feared, and even the firms made in the end financial results that were better than they had feared they would be, and that was because new ways of doing things and tools we were using but not using as much as we could have, came to the rescue.
Obviously, video communication, Zoom and other video technologies helped. Obviously, information technology helped. But there was much more than that. To me, one of the central learnings of the pandemic was how enterprising creative responsible our people are. Our people I say that with the voice of someone who was in a law firm so long, it’s hard for me to forget my role in a law firm, but they were enterprising. In fact, the business professionals in the law firms, not just the partners, not just the lawyers. All of the people in the law firms stood up and did what needed to be done to make things work. Even to something we were talking about in the law school setting and missing the socialization facet of the experience of law school. In the business professionals created social events to replace the socialization they had enjoyed and valued of when we were in person, they did it over Zoom.
Dan Rodriguez: Ralph, I’m curious whether managing partners — whatever the leadership role is the leaders of the firms we’re communicating actively with one another at other firms, you know one thing we saw in legal education was so many deans communicating with others and other stakeholders in legal education from the ABA to Association American Law Schools, but really it was school to school contacts and hoping to gain the benefit not only the wisdom of the crowds, but sort of focused collaboration. In an otherwise, very competitive marketplace in which there’s all the incentive to keep information private. That’s certainly the case in modern law firms too. As best you were aware were the managing partners talking to other managing partners at other —
Ralph Baxter: Right, they were. I mean this is something that maybe is not known broadly in the world but law firm leaders talk to each other commonly and pretty much without limitation, they don’t obviously reveal anything that would betray client confidences and proprietary information. But they do talk to each other when they have the chance to do it. You have your own personal bubble of other law firm leaders you know and with whom you’re familiar and you pick up the phone or get on the Zoom and talk to people, but law firm leaders do have settings in which they can get together as groups and share their experiences, their ideas. I presided over numbers of such meetings over the course of the year. In fact, in the course of 2020, I had more conversations with law firm leaders and a broader array of law firm leaders than I ever had had in any year prior because there was an appetite and a hunger for that, so at NTAP, where I’m on the board, we conducted advisory board meetings of law firm leaders and we had more interest in those meetings, greater show up, and more frequent participation than we’d had pre pandemic because there was a hunger for exchanging ideas as we proceeded through this. And one of the ways I learned about how it really was still day in and day out in the law firms was talking to the CMOs and the CEOs and the managing partners and the CIOs of law firms and it was helpful to people.
People really benefit from hearing each other in law firm leadership as well as they do in Academia and elsewhere in the world. So, I think this is — as I say, it’s a gateway. We learned this at Orrick. When Orrick in 2001, when Orrick opened its global operations center in Wheeling, West Virginia, that was a hard choice and it took real leadership within the firm to get everybody on board and we did it, and that was a big change. Consolidating all of the services that supported the lawyers that had been in the in the office locations into one place in a small town far from any place that we practiced law, that was a big decision, and it was one that created great trepidation. Can we really do this? Will it really work? And then it did and from then on, it was easier at Orrick to make other changes because our confidence level was up and our fear, our resistance, how will this affect quality. How will it affect responsiveness? How will it affect all of the things that that we don’t want to sacrifice that trepidation was reduced because we had seen that a new model worked.
Obviously, schedules are going to change. We’re not going to go back. I don’t think any law firm is going to go back to the idea that every lawyer has to be in the building from 9:00 to 5:00 and well beyond 5:00 but you know on a regular basis, I don’t think law firms are going to go back to traveling in the way that they did before. I think law firms are going to change the way they use space. Those are the obvious examples, but I think it’s going to go way deeper and way broader than that. Once we are liberated, I think we can go much further and I’ll give you some examples in a minute but Dan Linna.
Dan Linna: Yeah, I just want — a quick question Ralph, I think we — we’ve heard a lot of talk about law firms that have been successful through this pandemic. They kind of just threw a switch and everything could work from home and everything worked great. I wonder how many firms struggled with this because I think there’s been a lot less discussion about that but I’m sure, I’m sure there are plenty of firms that have struggled. Now, hopefully that’s helped them build up their muscles and they’ll be more successful at doing these things but you know all along while we’ve been talking about innovation, one of my concerns has been there are too many firms kind of sitting back and thinking, will someday we’ll react when we have to and they haven’t been developing kind of those competencies. What do you think?
Ralph Baxter: Well, like everything else in the world. Everything else in human existence, there is a spectrum and as Professor Linna would say, if we had data, if we had perfect information, we would see a spectrum and we would be able to distill on this question. How did firms do really? That’s nice Ralph, all those things you’ve said but how did they really perform. What’s the granular reality. And if we had that information, we would see a range of — if you could have an index of how well, terrible. You could see people array on a spectrum and then you’d be able to distill by adding other data to your chart. You’d be able to distill factors that seem to correlate with doing better and doing worse. I have a clear, a deep belief about a couple of things. One is obvious. The stronger you were going into the pandemic, the better you were able to do in the pandemic, of course. Financially and you know morale and culture and all of that, that’s one thing, but that’s obvious. Leadership made a big difference, and not every leader approached this in the same way, and you can see it.
As you observe, as you have exposure to each data point, you can see the difference. I wrote a blog early in the — a blog post early in the pandemic on legal services today. My blog about leadership in the pandemic and distilled some issues that I think make up leadership in at least in a law firm setting. And looking back on it, the ones who really embraced what makes up leadership did better than those that didn’t. There’s a lot of factors but there is a range, but I will tell you my impression after talking to literally hundreds of law firm leaders about this. They took it seriously and they looked to find a solution and there are some — there are some, but almost none seem oriented to let’s go back as soon as we can, do business as usual.
Dan Rodriguez: One anecdote I just say from a very specific vantage point which is the summer associate programs for graduates is by and large the students who experienced that were, I wouldn’t say they were totally satisfied because it sucks to not be able to be there in the, you know, in the firm and all of that. But by and large, they were impressed by as I think the law schools were of how quickly firms pivoted to first of all, maintain the offers and their commitments to the students, right? That’s unsung heroes in that regard, and second to create as best as possible an experience that would enable the students to thrive and also would give the firms the ability to evaluate this incoming talent.
Ralph Baxter: So, let me go back — I was beginning to say, thank you for that and knows those observations are really helpful to this discussion. Tom doesn’t permit us to get into great detail but I want to make a couple of points about what else is going to change. Having said, it’s going to be much deeper, much broader than just the obvious travel in space and stuff like that. One of the issues will be professional development. The career building of lawyers within these institutions will do better in the future for reasons having to do with the people who select teams to work on engagements being able to do it based on information not just who’s down the hall from them, so too very importantly, diversity and inclusion will accelerate in the law firms by virtue of the lessons during the pandemic. One of which is diversity in a sort of fundamental sense. Diversifying the workforce of the law firm to have more input from people educated in places other than law school, who bring a perspective other than the law trained perspective to bring that to bear on delivering legal service, and the other is the issue we’re all struggling, were all the law firms are struggling with gender and race diversity as well.
The other thing I think you’ll see accelerate is real building of client relationships. Better listening by the law firms to the clients about what they really are solving for what, they’re trying to achieve, and a better partnership between the law firms and their clients. They relied on each other during this pandemic. The clients needed the law firms, the law firms needed the clients, and I think that’s going to bear important fruit going forward. One last thing about the future. One of the things that dawned on me is that the hub of the firm changed during the pandemic. Now, I never really thought about the firm having a hub when I was a new lawyer, but if somebody had asked me what is it, I would have said, the building. I worked in the Transamerica Pyramid when I first got to Orrick and when I left, we were at 405 Howard Street in San Francisco. I would have said that’s the hub. That’s where everybody goes, that’s where we all get together, that’s where we do our work.
In the pandemic, the hub was information and the technology that connects the people and the processes to the information and that was at the heart of why everything works so well because the technology, whether it was video technology or information technology connected everything together so that it could proceed. And really, the value of a law firm is embedded in its knowledge, in its experience, in its information, and I think as we go forward, we will see this clearly to be the hub of the law firms and that in and of itself will accelerate change because once you you’re on to that, and once you really engage with the information technology then you have so much more to work with from your reservoir of experience in every dimension. Not just your experience in how to try a case or how to do a deal.
Your experience with the client, your experience in the real world of business, and so on. So, the last thing I want to talk about is in — about 2020 is the great joy that I had as Dan Rodriguez and Dan Linna already have said they had in podcasting on the Legal Talk Network, on law technology now. It was an honor and a real privilege to be able over the course of this year to have discussions with the great people that joined us on our podcast in the way that Dan and Dan have said.
In my case, the first podcast of the year and the last podcast of the year sort of define how it went. Our first podcast, the first one I posted this year was with Richard Susskind, who in December of 19 had published a new book, On the Future of Justice and Online Courts. And you know, Richard is a visionary and he looks way to the future and it seemed like he was looking pretty far to the future in his book, and we had a wonderful discussion about what is — what does — what constitutes the rule of law? What is justice? What does it mean to have access to justice? And it was valuable, but then he talked about with modern technology and its power, its capability, its ubiquity. What it can do to make courts more effective in really facilitating the rule of law, facilitating access to justice. And then just about the time that episode aired in January, the pandemic was picking up steam and over the course of this year, we saw much of the ability of courts to use technology even with the current tools and current rules come into play.
At the end, my final episode of the year before this one was with Professor David Wilkins from the Harvard Law School, and it was about why the great law firms continue to struggle with their very sincere intentions and strategies to provide greater opportunity and inclusion and participation for black lawyers. And we picked that topic. Black lawyers not diversity, more broadly to be able to really drill down and examine a particular facet of diversity and we did David, I don’t think anybody knows more about how this issue works in law firms than David, he’s been studying it and he learned it. He experienced it himself and then he has been studying it throughout his entire academic storied, academic career and so, we had an episode that really was insightful and it was pragmatic. If you listen to that episode, you learn some — why things work the way they do and then the window is open for you to fashion solutions that deal with that reality. But the learning from that was even broader because what that episode really dealt with is how processes in that case, the processes is to select lawyers to work on matters in order to deliver the best outcome to the client. How that neutrally principled process can have the unintended effect of benefiting some lawyers over others acting to the detriment of some lawyers instead of others. That wasn’t the intention, but it turns out to be the reality in a way that is what holds up progress in the way we deliver legal service. We are wedded to ways of doing things for good reason because they work and they produce good outcomes for the law firm or whatever the institution is that’s delivering legal service, but they have these unintended consequences of slowing progress, slowing innovation and we need to address that because we have just learned in the pandemic that you can do these things you want to do, you can address these issues, you want to address and preserve while adopting different methods that get to those things you want without those unintended consequences of slowing progress in the different ways.
Now, the last thing I’d like to say, I really — we had a wonderful year in podcasting and the experienced, and I just want to quickly go through how it went. We talked to the leaders of the Utah Bar from the Supreme Court, the bar, the advisors about this groundbreaking change Utah made in liberalizing who can deliver legal service under what circumstances that I think is going to lead the way for reform in the United States. Gillian Hadfield talked about quality.
You know, equality has come up and what Dan, both Dan Rodriguez and Dan Linna have said and she said you’ve got to understand quality to the client is helping it achieve its objectives, not doing it in just the way you want to do it because over the years, we’ve defined this is the right way to do it, but doing it in a way that gets the client to its outcome. Mary O’Carroll talked about clock and how the legal operations function is making law work better for major corporates. Mitch Zuckley gave a case study in how to lead back to what we were talking about leadership, how to lead a law firm through the pandemic. Margaret Hagan talked about process design and how that can make law work better. Judy Perry Martinez talked about how she was going to take her year at the ABA to make it work better. Bill Henderson talked about legal education and making it better. The folks at Hotshot talked about how to educate better new lawyers on the pragmatic knots and bolts of what it takes to practice law once you know the law. Heidi Gardner has talked about smart collaboration and Steve Brill, last but not the least, talked about the American Lawyer magazine and how the media awoke to covering law, which has led to a lot of the changes we have experienced.
It really was for me and I hope for our listeners a wonderful opportunity to talk to people all of whom are of goodwill and character talk about how we can make law work better for everyone. So, that brings us to the end of our episode in our discussions of the year. We’re going to each of us now have a couple of closing remarks, and then we’ll close it up. So, Dan Rodriguez?
Dan Rodriguez: Right back at you, Ralph. First, I would say I really appreciate the summary of the year again just invite our listeners to check out the podcasts that are up there. I’ll simply note more as a description of topics that we didn’t get to but are important since we were focused a lot on the pandemic, and I just simply say any attention to the year review has to be attentive to two circumstances that loom very large now currently into the future.
One is the economic meltdown or let’s call it the economic challenges, may be a better way to put it, that will continue even as we looked around the corner of the pandemic and that has enormous consequences on all the topics we’ve talked about, law firms, delivery of legal services, the assessment of the quality, legal education. We have our work cut out for us quite frankly right about how we in the legal services community and lawyers deal with these significant economic challenges and the distributional consequences on individuals that are particularly suffering as a result of the of the pandemic.
And the other is the election, right? The elephant in the room, which is the lead up to this election what it revealed in terms of our highly polarized world in which we live post-election, the role of lawyers in so many of these disputes and it raises some really significant questions about how we protect the rule of law and the guard rails of democracy in the face of these significant challenges. So, I simply put that out there as other issues to talk about. Hopefully, the three of us and others who are in the podcasting world will be able to drill down on those issues in the months to come and in the next year.
Ralph Baxter: Yeah. I fully agree and I look forward to discussing all of those issues with you and Dan and others. My final thoughts are these. This was a unique year as I said. Fundamentally, in so many ways, it was a tragic year. We lost over 300,000 American lives and millions around the world, and we will miss those we lost and all of the other hardship that occurred during the year for people was very real and, in that way, that defined the year. But, it was a year in which we got in touch with ourselves better. We learned more about who we are, what matters to us as we said earlier. And I think one of the things that we learned and I think this part is not unique. In times of stress, we learn about ourselves and one of the things I think we learned is that the human is resilient. Even lawyers are resilient, and we are determined. It’s in our character to address challenge when it presents itself, try to overcome it, try to do better, and I have a high level of confidence as we go into 2021 that we will do better and that it will be a better year.
Dan Rodriguez: Yeah. So, I think that COVID-19 has really forced us to focus on the here and now.
And as I hope we are coming out of this in this New Year, we’ll think about what the future needs to look like. And innovation and technology will transform the legal services, legal systems and the law itself, and I think we have to say that it must because if we look at the current state of when we talk about access to justice, when we talk about rule of law, we have problems. We have problems everywhere. I mean, when we talk about in the US, the richest country in the world, the 80% impoverished not having access to legal services, 50% of the middle class lacking access.
I mean, those are appalling numbers and this is an international problem. There’s a lot we can learn from building the international community here and working together. These problems are much more the same, and they are different around the world. I mean, there are problems with corporate clients even too about them not getting the things they need and the complexity in the legal system. So, things have to change and, sometimes, when we talk about them changing, we think about what’s the impact on us. What’s the impact on us as lawyers and we have to stop talking about what’s going to happen to us, and we have to define our mission and vision for the future and then make it happen. And so, that’s my challenge to lawyers. And to legal professionals, embrace innovation and technology, embrace a people process data and technology approach, define our mission and vision for the future, and make it happen.
Ralph Baxter: What a fitting way to close out this episode and, of course, a final thank you from all of us to all of you who listen to us this year on Law Technology Now and thank you for listening today to this episode. As always, if you like what you heard in this episode, please rate us on Apple or Spotify, Google, wherever you get, your podcasts and until next time. This is Ralph Baxter, Dan Rodriguez and Dan Lena for Law Technology Now.
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|Published:||January 20, 2021|
|Podcast:||Law Technology Now|
|Category:||Business Law , COVID-19|
Law Technology Now
Law Technology Now features key players, in the legal technology community, discussing the top trends and developments in the legal technology world.