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Ben Barton

Professor Ben Barton is the author of “Glass Half Full: The Decline and Rebirth of the Legal Profession” and...

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Sam Glover

Sam Glover is the founder and Editor in Chief of Lawyerist.com. Sam helps lawyers understand the economic, demographic, and...

Aaron Street

Aaron Street is the co-founder and CEO of Lawyerist.com. In addition to his work growing Lawyerist’s community of small firm...

In this episode we speak with the co-author of “Rebooting Justice,” Ben Barton, about how making legal technology and innovation a priority in law schools can help shape a market that benefits both lawyers and their potential clients.

Professor Ben Barton is also the author of “Glass Half Full: The Decline and Rebirth of the Legal Profession” (Cambridge) and “The Lawyer-Judge Bias in the American Courts” (Cambridge) and a Professor of Law at the University of Tennessee.

 

Transcript

Speaker 1: Welcome to the Lawyerist Podcast with Sam Glover and Aaron Street. Each week, Lawyerist brings you advise and interviews to help you build a more successful law practice in today’s challenging and constantly changing legal market. Now, here are Sam and Aaron.

Sam Glover: Hi, I’m Sam Glover.

Aaron Street: I’m Aaron Street and this is episode 148 of the Lawyerist Podcast, part of the Legal Talk Network. Today we’re talking with law professor Ben Burton about the subject of his book, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law.

Sam Glover: Dun, dun, dun.

Aaron Street: Ooh, Robots.

Sam Glover: Today’s podcast is sponsored by Clio Legal Practice Management Software. Clio makes running your law firm easier. Try it for free today at Clio.com.

Aaron Street: Today’s podcast is also sponsored by Ruby Receptionists and its smart, charming receptionists who are perfect for small firms. Visit callruby.com/lawyerist to get a risk-free trial with Ruby. So Sam, today, you and professor Burton, Ben or professor Burton?

Sam Glover: I think Ben works.

Aaron Street: Ben?

Sam Glover: Yeah.

Aaron Street: Okay, we’ll go casual now that we’re done with law school. Are going to talk about kind of some longterm future trends in justice and courts and I thought it might be a useful opportunity for us to talk about longterm thinking for small law firms too.

Sam Glover: Yeah. I think, as always, as this gets scary for lawyers when you include things like fewer lawyers in the title of your book.

Aaron Street: Yeah, that is very provocative. I assume he did that on purpose.

Sam Glover: Yeah, but I mean, he’s probably right on that.

Aaron Street: Inevitably given the demographics of the legal profession, there will be fewer lawyers without anyone being devastated.

Sam Glover: Potentially, yeah. Okay, so before we get to what you were started talking about, I think there are potentially two possibilities, right? One is fewer lawyers because we can leverage technology to have fewer lawyers. The other possibility is that technology allows us to have much more complicated legal relationships in which case we actually need more lawyers to help us program and manage all those systems. So I’m not sure.

Aaron Street: Okay, so you’re going to challenge Ben/professor Burton in [inaudible 00: 02: 03].

Sam Glover: Yeah, what does he know. He’s just a law professor.

Aaron Street: Wow, ouch. Anyway, we’ll be talking about some longterm trends and I thought this would be a good opportunity for us to also talk about longterm thinking for small law firms. We’ve got a giveaway on Lawyerist for the start here HQ practice model canvas which is a business model canvass worksheet that lawyers can work through to figure out kind of their longterm strategy for target clients, different ways of providing services and pricing, how they go about marketing their firm and it’s a really useful tool for thinking big picture about the direction of your firm as it relates to the future.

Sam Glover: Yeah, and so I guess this is a good opportunity for me to introduce a little bit of new stuff on Lawyerist so that you can get that. If you go to our website, lawyerist.com and you look on the nav menu, the red nav menu, there’s a new item called library. If you pull that down, you’ll go to the insider library and that’s where you’ll find the start here practice model canvas which comes from another podcast with Alex Devendra. You’ll find lots of other stuff and you’ll note that you need to register and account as an insider in order to do that. That’s what we’re doing now. We can give you lots of free stuff and all we ask is that you register an account then you can comment on the site. You can leave ratings on products and we’re going to try and make your subscription more valuable over time. So visit lawyerist.com/library and you can find it there.

Aaron Street: Yeah, and it’s not just a way to get free stuff. It’s also the entry point to joining the tribe of similarly different minds. Is that what we’re saying?

Sam Glover: Yes.

Aaron Street: Similarly different minded small firm lawyers from around the county. So going to it’s just lawyerist.com/library, right?

Sam Glover: It is, yeah.

Aaron Street: Cool. Lawyerist.com/library and you can get the practice model canvas and any other freebies you want.

Sam Glover: Once you register, we’ll invite you to join our private Facebook group for practicing lawyers who are insiders which is pretty cool and we’ve got some plans for that too. So get the practice model canvas and it will help you think through what your firm might need to look like going forward and you might want to listen to the podcast with Alex Devendra if you haven’t done that and actually understanding the shape of the legal market right now will be easier after this brief sponsored segment with Jack Newton from Clio and then we’ll hear from professor Burton.

Jack Newton: Here there, I’m Jack Newton. I’m the CEO and founder of Clio.

Sam Glover: Hi, Jack. It’s great to have you back on the podcast.

Jack Newton: Thanks for having me.

Sam Glover: So we wanted to touch base about the legal trends report that you launched at the last Clio cloud conference just recently. So what’s the headline from that report?

Jack Newton: There’s a few headlines from this year’s report. One is we continue to be concerned about the devastatingly low utilization rate we see in the legal profession which is on average around 25% which means that the average lawyer, if they’re working an average eight-hour workday is actually only getting around two and a quarter billable hours out the door everyday which just makes the economics of running a law firm very, very challenging. There’s a few other headlines I can talk about later in the podcast but that’s certainly one of the main takeaways that-

Sam Glover: That’s the big one, right? Lawyers aren’t getting paid for 75% of their day.

Jack Newton: That’s right. They’re not getting paid for 75% of their day and then when you look further down the funnel as we describe it. So if you think about the eight hours of a workable day at the top of the funnel or 10 hours or 12 hours, whatever your workday happens to be, the next step down in that funnel is your utilization rate which is how much billable time you’re actually generating. For the average lawyer, that’s only 2.3 hours. Then when you look at the realization rate which is the next step down the funnel, there’s an average of 1.9 hours actually ending up on the bill so that’s net of discounting and any rate downs you might apply. Then finally, there’s about 20% attrition rate when we go to the collection rate and look at what lawyers actually get paid when you net out bad debt and any other reasons that the clients might not pay the full bill for example.

So at the end of that funnel, you go from 2.3 hours utilized, 1.9 hours realized and only 1.6 hours collected. That’s a pretty devastating funnel and pretty devastating unit economics for a lawyer you’re trying to work with. But the highest point of leverage in our mind in the place that we as a company are focusing on is on the utilization rate where we look at that. We call it the missing six hours as a bit of a shorthand within Clio. What do we do to help lawyers make better use of that missing six hours and there’s really only two hypothesis around what’s going on with that missing six hours that make sense. Did lawyers not have enough clients to stay busier through the day or are they not productive enough, are they not able to focus on essentially billable tasks and they’re spending too much time on overhead related tasks and administrative tasks and we think there’s a real opportunity for Clio to help them with both of those things.

Sam Glover: So you didn’t just stop at finding a utilization rate and then gaping at it which is what I do. You actually tried to figure out where the missing six hours are going. So what did you do and what did your data show on that?

Jack Newton: That’s right. To be clear, our initial legal trends report in 2016 just left us gaping at that number and left us wanting to better understand what’s going on in the average law office to cause that utilization rate to be so low. So cut to the 2017 survey we did, a very intensive survey of legal professionals to try to understand where those missing six hours are and here’s the net of it. Around half of that missing six hours is spent on administrative tasks, things like office administration, generating and sending bills and doing collections, managing technology was in that list. So around three hours of missing, three hours is going into just pure administrative overhead and we think there’s obviously a massive opportunity to [inaudible 00: 08: 15] that down to … We would like to see it [inaudible 00: 08: 19] approach zero over time. We don’t think lawyers should be spending any of their day on that stuff. That should all be automated.

Then they’re spending around one and a half hours a day or 33% of that missing six hours on business development so essentially trying to find new clients. Again, we saw that as a real growth area and a place that we might be able to help lawyers maybe more efficiently acquire and convert clients.

Sam Glover: You’re using the legal trends report as sort of the guide post for where Clio’s development needs to go, right? You’re trying to develop Clio to solve these problems for lawyers.

Jack Newton: Yeah. I think the roadmap is informed by two things. One would be the legal trends report which really lets us understand in a data driven way what we can do to help make lawyers more effective and more efficient and also to help us chart out where we think the profession needs to go to evolve into its next form. We all know I think that legal and the way legal is practiced, in the way services are delivered to consumers needs to radically change in the next decade and will radically change in the next decade and we want to be at the forefront of that wave of change in helping bring our customers along to what the future of the practice of law looks like. A great example of how this year’s legal trends report is helping inform our roadmap is if we look at the consumer research we did.

So in addition to the kind of inward facing, how are lawyers doing and how productive are our lawyers and where do they need help in in getting the most out of their day, this year, we also looked outward and did a consumer survey of over 2,000 consumers and tried to understand two things, from consumers of legal services. Number one, how do they find a lawyer and number two what criteria do they use to decide on a lawyer and what leaves them satisfied after interacting with a lawyer and I can-

Sam Glover: Yeah, give us the top couple.

Jack Newton: Sure. If we look at how consumers find a lawyer, what’s interesting is that the far and away the most common way that consumers find lawyers is through referrals. Either getting a referral from a friend and family or getting a referral from another lawyer. The second most common way that they find lawyers is using an online search engine. What was interesting is down at the bottom of the list with single digit percentages in terms of actual success with linking consumers with lawyers are some of the channels that a lot of lawyers think are still effective, whether that’s the yellow pages or TV ads or billboards or radio ads. These are really not how your average consumer finds a lawyer.

Sam Glover: Do we know anything about the nature of the referrals? I mean, when I think about asking my friends a question these days, I don’t always do it in person. Sometimes I do it online. Am I fighting the hypo or is that what we think might be meant by referrals?

Jack Newton: With referrals, the question we ask was really specifically getting a referral from a friend or family. So somebody that is relatively close in your network that you’re saying, “Hey, I need to get a will done. Who should I work with for that?” Looking within your network for a referral that is a known good lawyer or maybe you’re talking to your family lawyer and saying, “Look, I need help incorporating my business. Do you have a good lawyer I should talk to?” In referrals coming from another lawyer. Those were the nature of the referrals that we saw on the survey.

Sam Glover: So what did you find out about what consumers want from lawyers?

Jack Newton: So what they want, again, and I think it’s a major departure from what lawyers might think clients really care about, what topped out the list in terms of the most important things for consumers were being able to respond to the first call or email right away. Consumers expect more or less immediate response from the lawyers they’re reaching out to when they have a legal need. Consumers are measuring responsiveness on the order of minutes and when you talk to lawyers around what kind of SLAs they might have around responding to inbound inquiries and so on, a lot of law offices if they have SLAs at all talk about that timeline being on the order of days, like will get back within one day or two days and in the consumer universe, that’s just way too slow. Consumers also want free initial consultations. They want fixed fees. They want to be able to pay by credit card. They want to be able to exchange texts with their lawyer.

What’s way down on the list in terms of what consumers actually care about is what law school you went to or whether you graduated at the top of your class or how great looking your website is. They’re really looking for the on-demand effortless experience kind of behaviors from the lawyers they end up selecting. Those are a couple of things that are driving our future roadmap is really thinking about what tools can we give our lawyers, our client base, our customer base as a secret weapon essentially to deliver amazing customer experiences and to deliver the legal experiences that consumers are looking for and expectations have just changed a lot.

Consumer expectations have been shaped by the likes of Uber and Airbnb and Amazon in terms of what kind of experience they want. They want a mobile first experience. They don’t want to be coming to your big, expensive downtown law office to deal with you. They probably want to have a secure video chat with you from the comfort of their home. We think there’s a really exciting transformation about to happen in terms of how legal services are delivered and we think that Cloud and technology is going to be a really foundational aspect of that change.

Sam Glover: So we’ve just about scratched the surface of the legal trends report which is a really fascinating look into what lawyers are getting out of their practices, what might be holding them up and holding them back and what consumers want from lawyers. You can find it by Googling Clio legal trends report and you’ll get right to it. I really recommend taking a look. It’s a really fascinating and informative piece. Thanks for being with us today, Jack.

Jack Newton: Yeah, thanks for having me, Sam.

Ben Burton: Hey, so I’m Ben Burton. I’m a law professor at the University of Tennessee. I taught for about 10 years in our law school clinic. I appeared in court with indigent folks and supervised the students working with them. Now I teach torts and advocacy evidence. I’ve written a book called Rebooting Justice.

Sam Glover: I was just going to plug the book in case you didn’t get to it. Thanks for being with us today. So if you could sum up Rebooting Justice in kind of a pitch to a publisher, how would you … What’s that sort of nugget that you would give?

Ben Burton: Yeah, so the first half of the book is a description of the access to justice problem in both the civil courts and the criminal courts explaining how we’ve gotten there, explaining the solutions that we’ve tried and why they failed. Then the second half of the book are suggestions for things that we think, when I should say we, it’s content-written by myself and a professor of Penn named Stephanos Bibas. Suggestions that we think will turn the tide.

Sam Glover: So let’s maybe take each of those in turn. You call access to justice a crisis and it feels like access to justice is something that gets just thrown around now. It’s almost like a brand that you just slap on things to make it sound more palatable. But let’s break it out and maybe you can explain to us what is the actual nature of the crisis and where did it come from? I realize it’s a huge question so-

Ben Burton: No, no, no. That’s totally fine. Yeah, so it’s sort of like whether you choose the criminal courts or the civil courts, Americans from poor people all the way up to upper middle class people just cannot afford very much in the way of legal services. This is at the same time that the procedures and the laws that govern their lives have grown sort of more involved in their lives and also more complicated. So however you want to slice it, like if you slice it in terms of the cost of legal services and the amount of legal services people get or you use surveys of people, do you have a legal problem and have you been able to hire a lawyer to address it or go to court to address it or just the simplest way is the butts in seats pro se crisis. By all measures, pro se appearances in courts all over the country, including federal courts, are up and not up by a small percentage, like massively, massively up.

Sam Glover: Right, I think it’s like 75% of people in family court are pro se.

Ben Burton: Oh yeah.

Sam Glover: Or 75% of the cases at least one party is pro se.

Ben Burton: Yeah. I mean, on the civil side, we call those the pro se courts and there’s a bunch of them. It’s not just, I mean, bankruptcy court is like that. Landlord-tenant court is like that. Small claims court is like that. Collections court is like that. There’s just a heap of courts where the majority of folks in there are not represented by a lawyer.

Sam Glover: Which is a problem because I mean, you just mentioned two of my … The ones that are near and dear to me which is landlord-tenant and collections. In collections court, you have the courts garnishing one person’s wages after the next and then as soon as somebody comes in there with a defense attorney, you win the case. Landlord-tenant is very similar where if you have a lawyer, you win the vast majority, you evict somebody the vast majority of the time. If a tenant has a lawyer on their side, that gets cut to nothing. It’s a huge problem.

Ben Burton: Yeah. No. The hardest ones are the ones that there’s a lawyer on one side. But in opinion, like child support court, there’s usually a lawyer on either side and that’s still problematic especially since most of these courts still operate procedurally as if there were lawyers in the court which is like the worst possible combination of things.

Sam Glover: Yeah. I think I know how you’re going to answer this but I think this is such a crucial thing that I want to make sure and highlight it. So is the problem getting more people lawyers or is that a separate but related problem?

Ben Burton: Funny you should ask, Sam. Yeah, just to the book and the central nugget of it is what we call the more lawyers, more justice fallacy has failed in the past and will continue to fail future. It’s failed in criminal court for felonies and misdemeanors which is really the only placed we’ve tried it, right? So because of Gideon and the cases that follow it, if you’re going to spend any time in jail at all, you get assigned a free lawyer if you can’t afford one. Well, the firs thing is the can’t afford one part is quite problematic because if you’re a middle class person who picks up his DUI, you could spend 48 hours in jail but more importantly lose your license for a year and maybe even lose your vehicle. The fees for defending this pretty relatively simple DUI are super expensive. So right out of the gate, you got this swath of folks who would be screwed in criminal court.

But even the people who get free lawyers, they just don’t fund them very well. Believe me, I worked as a clinical professor and I’ve taught a bunch of people that went on to be public defenders and I love public defenders, bless their hearts. They’re doing everything they can with the resources they’re given but they just have too many cases and too much stuff to do to give everybody a realistic real defense in court. So that explains sort of the problem on the criminal side and then that to make it even more clear why you’re never going to have any help on the civil side. Legal aide, again, bless their hearts but they can’t possibly reach the need that they have for the people that are below the poverty line and of course they don’t reach anybody in the middle class.

Sam Glover: I mean, I think they’re reaching like 20% of the need.

Ben Burton: Oh yeah. No, totally. Even if you went to some sort of civil Gideon or some sort of guaranteed lawyer, what are the odds that that would be better funded than the lawyers that are public defenders. I mean, funding is not going to be there and there’s no political will to do it. So that, in our opinion, that solution has been tried and it’s just like groundhog day. We’re just trying that solution over and over again to continued failure.

Sam Glover: I suppose one of my soapboxes too is that cost isn’t the only problem here. We often treat it like it is. It certainly is for certain piece of the income spectrum. But at some point, you also run into people who don’t hire a lawyer because they either don’t know a lawyer can help them or they don’t want to or they don’t trust … There’s a variety of reasons of why but as ABA’s surveying has shown, there’s kind of a once people can start affording lawyers, they still don’t always hire them.

Ben Burton: Oh yeah. No, totally. They either misidentify their problem or in this is where I may disagree the ABA, they don’t think that hiring a lawyer is a solution for the reason you say. They’re scared to, they don’t know a lawyer, they think they can get by without one, all of those things.

Sam Glover: Finding a lawyer is actually really hard.

Ben Burton: Yeah, no. Although again like one of the things the book points out is that technology has made all of the stuff better and over time it can continue to make it better.

Sam Glover: Yeah. Okay. So most people don’t have lawyers for various reasons. So what? So what do we try to do with that? Let’s get into that second piece. So how should we start thinking about that when we think about the construction of the legal system and how to solve that problem?

Ben Burton: Yeah. So we work on several different fronts. But the first best place to start I think is to just think about the American court system. You start with the courts that we call the pro se courts. They’re the majority of the people, one side or the other, both don’t have a lawyer. There’s no reason whatsoever like any of those courts should be set up on the assumption that people have lawyers. So we should just start from the bottom and rethink those processes in those courts just to reflect the reality that’s on the ground. So instead of having pro se people and trying to work around their lack of knowledge of the rules of evidence or their lack of knowledge at the various levels of procedures you have to operate in that court, we’ve got that exactly backwards.

Those courts need to be radically simplified and set up so that individuals without a lawyer are the baseline. That’s the expectation and then it’s the people who have lawyers who have to adjust to it, not the other way around.

Sam Glover: This just popped into my head. When I was starting out in my own practice, people would want me in conciliation court. Conciliation court is not really built to have lawyers in there representing people. The referees or the judges who are in conciliation court, they’ll let you. There’s no structure there for cross examining witnesses and things. It’s the exception rather than the rule. It sounds like I mean, maybe conciliation court should not be the model, probably not but like it sounds like that kind of an attitude where lawyers are the exception rather than the rule which is in fact true is what courts needs to adopt and then start working with that.

Ben Burton: Yeah, no. People, particularly your listeners are going to be all lawyers so they’re going to think a radical suggestion. But there’s a couple of things we’ve point out in the book. First is that the inquisitorial system which this wouldn’t be full-on inquisitorial but it would be a modified version of it, two-thirds of the humans on earth live under that system and they survive.

Sam Glover: Say more about that. That’s the first time I’ve heard that phrase.

Ben Burton: Oh, inquisitorial is the civil law system. The original versions were in France and Germany but the civil law system is also in Japan and China. So you’ve got basically it’s where the judge is the person who ask the questions and the judge is the person who gathers the documents and the judge is the central mover of making things happen. Whereas in the adversarial system, most common law systems, it’s the lawyers that really do all that and the judge were to sit as a referee. So it’s a shift judicial role.

Sam Glover: Got you.

Ben Burton: But so at administrative courts and it sounds like the conciliation one works this way too. They tend to be more inquisitorial. So since I was a clinical law professor, I work in unemployment insurance referee courts and those are totally not set out to be run by lawyers. They’re set up for the judges doing the questioning and figuring things out.

Sam Glover: It sounds a bit like because in our landlord-tenant courts, after a while, the judges in Minneapolis, you have to be a licensed landlord in order to collect rent and so you needed to be licensed in order to evict somebody. It used to be that whether you were licensed or not, you’d go into court and you’d argue that this person hadn’t paid rent and if nobody brought up the fact that you didn’t have a license, you’d get your eviction. Eventually, the courts thought, “It’s probably not too unfair if we make landlords answer that question beforehand.” It sounds like that’s an example of the judge have a checklist of things that you need in order to bring this that go beyond your jurisdiction.

Ben Burton: Totally, yeah. Totally, right, no. I mean, when you talk to judges about the access to justice crisis, lots of times you’ll hear them say, “Oh, it’s terrible. These people come in without lawyers and they don’t know what evidence to present.”

Sam Glover: What do we do?

Ben Burton: They don’t know the right questions to ask, right, right? They’re like, “Everyday I come in and I see them [inaudible 00: 25: 33] by their landlords and that’s really a shame.” I’m like, “Wouldn’t it be amazing if there were somebody in the court who had a law license who knew what to ask for? That would be crazy.” So yeah.

Sam Glover: Sorry judges.

Ben Burton: Right. Also, remember, Americans are used to seeing Judge Judy. Oftentimes, when they show up in landlord-tenant court or in small claims court, they’re confused by the way things are running because it’s not what they expect. So part of it is a change in … I mean, that would be clerks offices, that would be judges and that would be procedures along the way. Then the technology portion to it can handle a bunch of these problems too. So we’ve spent a lot of time in the book talking about online dispute resolution and ways to sort of slot that in along with court procedures, especially in these pro se courts to try and make it fairer and easier for folks.

Sam Glover: So say more about where … I hear online dispute resolution mentioned a bunch. I’ve had limited experience with it myself and my experience has not been great and that’s it. That’s basically all I have to go on. So say more about why that might be a part of a solution and who it might fit in.

Ben Burton: Okay, yeah. So I am not a stockholder in this company but there’s a company called Modria and in our opinion they’re sort of the grade A, top dog in the online dispute resolution space.

Sam Glover: Okay, but hold. Now I’m going to geek out for a second.

Ben Burton: Yeah, that’s fine.

Sam Glover: But they got bought by Tyler.

Ben Burton: Totally.

Sam Glover: Which makes the garbage eFiling software that we all have to use. Isn’t that the death now for Modria?

Ben Burton: Oh, I see, I think you’ve got that exactly backwards, that getting it bought by … I’m not going to say anything about Tyler [inaudible 00: 27: 09] their offerings because I’m not an expert in that.

Sam Glover: I’ll be happy to.

Ben Burton: That’s fine. But they do supply the majority of eFiling processes in the country and I think it’s something … You can find it on their website but it’s some number above 50% like 60% of Americans live in a county where Tyler does the courts.

Sam Glover: Oh, absolutely. That doesn’t surprise me at all.

Ben Burton: So they bought Modria and they’re now just pitching all of these courts that they’re going to give them the online dispute resolution aspect to it free along with the eFiling. So all of a sudden, the applications of Modria are going to explode around the country. Basically-

Sam Glover: So even if I think it’s bad software, it doesn’t matter. It’s going to be used.

Ben Burton: Again, I can’t comment on the Tyler technologies but the Modria software is super cool. I can’t remember. I listened to bunch but have you all done a podcast on Modria or not?

Sam Glover: No, we haven’t. I really am fairly ignorant about it actually.

Ben Burton: Oh, all right. Rock on. So there’s this guy named [Collin Rule 00: 28: 10] who totally coincidentally is a year below me in college and he is not a particularly strong computer programmer but what he is is he’s a crazy true believer in mediation. He and I went to this tiny Quaker college called Haverford College and he was on the honor council and then he went and got a piece in reconciliation degree from Harvard and he went and did the Peace Corps and then he got into online dispute resolution. He got into it not because he was looking to be a billionaire or because he’s good at coding. He got into it because he just believes so passionately in mediation. So his first big job was working for eBay. When eBay first started out, you can imagine the crazy explosive growth they had with the number of people buying and selling things on eBay.

Well, as a lawyer, you will not be surprised at all to hear when you have a lot of people buying and selling things, at least some percentage of them and eBay says it’s like below 1% but some percentage of them end up in disputes, right? I didn’t get the right thing-

Sam Glover: This is actually my limited experience with online dispute resolution is apparently Modria because of a BlackBerry that I bought on eBay.

Ben Burton: Oh, [inaudible 00: 29: 23] you can tell me the story. So anyhow, they hired him because originally they had humans doing the dispute resolution, right? So they had the equivalent of just a customer service department and if something screwed up, you’d call them and they would try and fix it. Well, even after about a year of operating eBay, they were like, “Good Lord, the entire company is going to customer relations. We just can’t have that many humans handling these many disputes. We’re selling too much stuff.” So they hired Collin to design the dispute resolution process and for eBay he’d set up this tiered dispute resolution. So the part one of it is you type in your complaints and the machine tries to figure out what type of complaint it is. There’s a bunch of complaints that the machine handles without ever contacting anybody.

So for example, my item has not arrived. The machine figures out what your order is. The machine looks at the tracking number and then if it’s still unprocessed, it just says, “Dude, it’s going to get there on Tuesday,” and takes care of it. If it’s not one the machine can fix, then it contacts the other person and you go back and forth with what you think the problem is and how you want to solve it. The machine pitches solutions for you. So step one and step two were completely non-human driven at all and then if that doesn’t work, eBay will do a human mediation where they keep track of everything you’ve already said so they won’t start from scratch. A human looks at it and says, “Have you tried this? Have you tried that?” If they say no then it goes to the equivalent of arbitration where again there’s no new information. Everything’s recorded. The person just reads it all and says, “Person A wins, person B loses.”

So they were really happy with it in the process. Again, this is all from the eBay point of view but they thought it worked really well. They reported customer satisfaction and actually people who had disputes on eBay, even the losers of the disputes were more likely to come back and shop at eBay. So they decided to license the technology and they split it off into a separate company called Modria and that’s where it started. So tell me what happened with the BlackBerry.

Sam Glover: Well, I mean, that all sounds very familiar. I got a BlackBerry that had a dead pixel line in it and I reported that and the manufacturer or the seller wanted to mediate to see if I would remove my negative review of it. I was like, “No, I mean, there’s a dead pixel line on my screen. It’s there.” Actually, what was good about it but also a little bit annoying at the time was either the system or a human and I think I got escalated at one point so there’s human, kept asking me, “Well surely there’s a dollar figure.” They would persuade you to remove your review. I was like, “No, there’s a dead pixel,” and it was like, “No. I mean, surely there’s a dollar figure.” I actually appreciated that because as a lawyer, I hated getting shuttled into community mediation where they didn’t want to talk about money and they only wanted to talk about feelings because I just wanted money.

So actually I really appreciated that Modria was focused on surely there’s a dollar figure and eventually I was like, “Fine, it’s this.” I think it was more than the price of the BlackBerry and they accepted it and they paid me off and I removed the review and that’s it.

Ben Burton: Oh was that true, really?

Sam Glover: Yeah. So it was-

Ben Burton: So there is a price for your integrity.

Sam Glover: Yeah, I guess so.

Ben Burton: It’s a little more than the price of BlackBerry apparently.

Sam Glover: I think so. Yeah, if you just basically undo the transaction, I’m okay with it. So anyway, that was my experience with it and it was fine. To bring it back, the possibility is that whenever you get involved in the dispute through the court system, you’ll automatically be offered the option to mediate it through Modria.

Ben Burton: Oh yeah, no. I think that the plan is eventually to have it be a required part. I mean, there’s a lot of different court systems where there’s required mediation at the beginning. That’s a classic one for divorce or other family courts.

Sam Glover: I mean, almost everything now, really.

Ben Burton: Right. But I mean, there’s no reason why you can’t put in the Modria part before the human mediation part and just hear it all and then you can have the online dispute resolution get all the low hanging fruit and then only cases that really sort of need to go to human mediation will go on.

Sam Glover: All right. So we need a quick break from our sponsors. When we come back, I want to keep talking about some of the promising technologies that might help us eliminate some of the access to justice gap.

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Sam Glover: Okay, so we’ve talked about Modria. We’ve talked about the need to treat the courts as if the customer, the client, the primary user is pro se. What are some of the other things out there that maybe courts are even actually doing now that are promising.

Ben Burton: Yeah, so the courts are doing both of those things and there’s actually a lot of openness to it especially at the state court level.

Sam Glover: I mean, when I talk to courts, I hear judges saying, “We understand that lawyers are not our primary users anymore.”

Ben Burton: Yeah, no. There’s an adjustment that’s going on and the state supreme court group is really into it and then the various access to justice commissions have done pretty amazing work so this is the second part of the story. There’s access to justice commission in Tennessee where I teach but it’s in like 42 different states. Basically what these commissions do is they figure out areas where they can help folks who don’t have lawyers and they put fillable forms on state supreme court website that people can print out and the use. So this sounds sort of basic and in fact like as a programming matter, it’s the world’s most basic thing, it’s like 1988 programming.

But as a legal matter, it’s actually a pretty big deal. For example in Tennessee, there’s 97 different counties, right? Before someone could file for a pro se divorce, they would have to figure out in a little county what the judge is like, what form they wanted to use and the clerks office who’d frequently bounce them and the questions and answers were different everywhere on the state. So the state supreme court and this is what all of these courts are doing just straight ordered like, “This is what a pro se divorce application looks like and you must take it,” and that’s it. So now that it’s right there on the website and the steps are there and there’s the instructions that go with it.

Other states, like Indiana has got a whole YouTube channel where they have instructions for how to do all this with a happy clerk explaining it to you and putting in all the lines. California, New York have not dozens but hundreds of forms online. So there’s this real explosion in allowing pro se people to sort of a set form and a set process for them so that’s working really well, we think.

Sam Glover: I mean, standardized forms are huge. Whether or not you turn them into online fillable, submittable things, standardized forms are huge.

Ben Burton: Oh yeah, no. For sure. It’s a really, really big move forward and weirdly hard. You were to think that that would be something … If you didn’t know how judges and courts operate, you would think that that would not be a big deal but that in fact is a really big deal to have a single statewide form for changing your name, a single statewide form for changing child custody, a single statewide form for filing for divorce. All of those things are really helpful. By the way, they’re helpful for the lawyers too.

Sam Glover: Oh yeah. I mean, our listeners are lawyers so this isn’t going to surprise them but on the off chance that non-lawyers are listening, it’s because like at any point in the hierarchy from the supreme court of a state, the US supreme court to the chambers of an individual judge, right, somebody can say, “No, I’m not going to accept that form.”

Ben Burton: Oh yeah, totally.

Sam Glover: That’s why standardizing is so hard because there are so many steps along the way where somebody can just say, “No, no, no. In my courtroom, we use that form but you also have to submit this addendum,” and then you’ve thrown up a new barrier.

Ben Burton: Yeah, no. Totally. So yeah. So we’re very excited about that. We think that’s super promising.

Sam Glover: Very cool. I want to end with some optimism because I’m about to dive into some pessimism which is how are lawyers in the existing structure of the legal system getting the way of change?

Ben Burton: Oh, really, you got to bait me?

Sam Glover: I do. Because I see opportunity in it but I think it’s important to put it out there so that the protectionists get what they came for.

Ben Burton: Yeah. So I’ll tell a short story. The first [inaudible 00: 39: 02] I think is very problematic. I think bar regulators have been very problematic and I think the courts have been way better than lawyers that large. A short story I’ll tell is and I can’t, I don’t think I’ve heard this on your podcast, the AVA Legal Services story. So AVA added-

Sam Glover: The more recent version of it.

Ben Burton: Yeah, AVA added legal services. First they did advise and now they’ve got fixed fee legal services for filing an LLC and a bunch of other things. It’s come up so far and I think six or seven different state ethics boards where you write in a letter and ask a question and they send back and answer five of the six have said that it violates fee sharing and unauthorized practice law and a bunch of other different things. So they’re trying to drive AVA Legal Services out of the market. To me, this is crazy. The market already has computerized legal services being provided by Legal Zoom and Rocket Lawyer and so far those companies have skated through the unauthorized practice of law and in my opinion rightfully but that’s a different question. It’s a fact on the ground that they’re operating in all 50 states and they’re having success.

AVA Legal Services actually sells services by licensed lawyers, right? So if you were a bar regulator, you would think, “Oh look, here’s a competitor to Legal Zoom and Rocket Lawyer and instead of trying to drive them out of business we should let them do their thing and hope that there’s some place for lawyers in this low end of the market.” But to me, that’s just a classic shortsighted misunderstanding of it. They think that if they get rid of fixed fee legal services for AVA Legal Services, they’re going to make it better for the folks on the frontline of serving middle class people. But in my opinion they’ve got that exactly backwards, like that’s just driving people away from human lawyers and towards Legal Zoom and Rocket Lawyer.

Sam Glover: I mean, if people aren’t confused about whether or not they’ve hired a lawyer and in fact if they actually have hired a lawyer, then I feel like you’re actually just stifling competition, good competition by trying to regulate that away.

Ben Burton: Oh yeah, no, totally.

Sam Glover: It doesn’t make sense.

Ben Burton: Right, right. That’s just one of the examples. I mean, again, the listeners here may disagree but were pro of Legal Zoom and Rocket Lawyer. We’re pro-computerized legal services. But that being said, of course, I’m pro-legalized computerized legal services all the way up the chain. I think of it as menu options, like Legal Zoom and Rocket Lawyer are like fast food and AVA Legal Services are like Chipotle or Friday’s or something. It’s still cheaper end of the services but it’s fancier because you get an actual human to do the actual work and speak to you as a human instead of a machine.

Sam Glover: There are some interesting developments on the UPL front though. I know in Florida, a past president of the Florida State Bar Association is representing an online parking ticket or speeding ticket resolution company and suing the bar for anti-competitive practices in trying to put it out of business for UPL. It’s super interesting to me that the lead plaintiff suing the bar is a former bar president. I think that’s kind neat.

Ben Burton: Yeah, that is. That is. I mean, that’s basically Legal Zoom has brought that case and won it where they brought it. So yeah.

Sam Glover: So how can lawyers help? Let’s be optimistic. Maybe what opportunity, what are the opportunities left for lawyers if we start automating everything?

Ben Burton: Yeah, so this is why I was so psyched that you asked me to be in the podcast and why I like your podcast so much and why I’m so pleased to speak to the tribe.

Sam Glover: Oh shocks.

Ben Burton: No, I’m serious. The folks who listen to this are the exact perfect people because they are the ones who are doing the work. I mean, basically the key problem and the real challenge on small firm and solo practitioner front is to provide more services to more people for less money. The good news about that, the thing that I’m super enthusiastic about is that technology is making that a lot easier, like we’re making it really, really possible to do that and the folks that are listening here and the folks that check out your website are the ones who are on the front lines of doing it. There, I think we’re really looking at the low hanging fruit.

I think you guys have talked about the Clio study about the hours that people spend on billable matters. I mean, that’s the perfect example of that practice. You’re not going to make much of a living if you can only bill out two hours of an eight-hour day. But the good news is you could-

Sam Glover: The disclaimer on that is always what kind of lawyer works an eight-hour day.

Ben Burton: Oh yeah, no. Dude, right, yeah, no.

Sam Glover: Lawyers are billing two hours out of a 10 or a 12-hour in most cases.

Ben Burton: Right, right. Yeah, yeah, yeah, no, for sure. I always point that out to people. Not only is it a really tough market, not [inaudible 00: 43: 55] a hard sort of competition among small firms, solo practitioners, it’s a really hard job. It’s a super hard job. So yeah, but the good news is though that technology can fix these things. Law schools or in other places that we talked about where the change needs to happen. But some law schools and we’re trying here at Tennessee are starting this process of explaining to the students like, “Look, you really need to think about this more standardized way of practicing so that you can get more people in the door and get more business out the door and you can charge them less but still make more money.” Guess what, if you’re spending two hours of 10-days practicing law and that’s why you went to law school and that’s what you love doing, that’s also not working out.

Sam Glover: I guess while I have a law professor on, I have a question for you about that because there are lots of law schools that are currently really trying to focus on practice ready skills or technology and things like that. The reality seems to be that there are very, very few firms that are in the tribe that are hiring for those skills at this point. Those skills are for the jobs that will be potentially on the market in five or 10 years from now. But right now, the only thing you can do with those is go and start your own firm which fully on board with that’s it but it feels to me like in law school were old, that it’s mostly geared towards employment numbers and people jobs. If you’re trying to teach practical skills and technology, you’re not helping people get jobs. That seems like a really weird position to be in right now, doesn’t it?

Ben Burton: Yeah, no. Absolutely. This is super mean to say about law schools but that’s actually a reflection of how crappy we are. It’s partially a reflection on how crappy lawyers are [inaudible 00: 45: 43], conservative. They don’t like to change. When they got hired, they got hired because of their class rank basically. So when they go to hire somebody else, they are like to just reproduce that. That’s true even at the small firms and solo and not just in big law. But there’s another part to it too which is that they have … The practice-ready, the law schools have been talking about practice-ready for 25 years and 10 years ago they hired somebody who was practice-ready and they weren’t much better than they were a generation before.

Part of the problem is that law schools are not actually delivering that promise and part of the reason they’re not delivering on that promise and we argued this in the book is they’re just stuck in the same model that they’ve been stuck in since 1880. The changes, the practice-ready stuff, I mean, of course I’ve taught in clinics. I love clinics but I think it’s fair to say that clinics and the technology stuff are add-ons in the third year, not the heart of the experience. The heart of the experience is still, the first year still look identical to what it was 150 years ago.

Sam Glover: Well, I guess I feel sort of emblematic of this. I don’t want to point fingers or name names but there was a law … Because this law school is trying hard. They really were trying to be a technology focused law school and then teach those sort of innovation skills. In many ways, they were doing a really good job of it. But kind of on that, they were sort of putting technology onto the old school program and what sort of emblematic of that is I was at a conference and the dean gets up to talk and starts with a joke about how hard it was for him to set up his email. I’m just like, I just wanted to smack my head on the table because it’s like if it doesn’t … If the change isn’t throughout the DNA of the school, how do you actually teach those sorts of things. You’re just trying to put technology on things in the end, I guess.

Ben Burton: Yeah, no. That’s a really good example. But it’s even a little bit more than that on my opinion. So the first year and all of law school is about working the gray areas and working on uncertainty and each individual case has got a million different moving parts to it and that is appropriate, like that’s the most lucrative work that lawyers do and so I understand that we have to train the people to do that. That being said, when you finish up law school and then you’re told, “Oh, no, no, no dude. We spend all this time on like every case and individual snowflake. Well now, you need to go out and commoditize your work and repeat it and do it less expensive for more people.” You’re like, “Ooh. Never heard that before.” That’s a problem. You know what I mean? That’s a aspect of the training that has to change and that’s a real DNA problem.

Sam Glover: You’re going to do it on your own because there’s no jobs for what we’ve told you you can do.

Ben Burton: Yeah, well, right, right. There’s still some jobs but yeah, no, right. If you want to go out and do that, you’re going to have to figure out how to either convince the firm that you’re out to do that or do it on your own, yeah.

Sam Glover: Yeah, I’ve dragged far a field here but Ben I really appreciated having you on the podcast.

Ben Burton: No, you got me to complain about law schools. That’s one of my favorites. Good job by you.

Sam Glover: I should check another box. This has been fun. I get to geek out with you about many of my favorite issues in law and practice and education and so I really appreciate you be on the podcast. So thanks.

Ben Burton: No, I’m thrilled. Thank you so much for having me.

Sam Glover: If you’re interested in reading Ben’s book, dirty secret, I haven’t had a chance to read it yet but it looks fascinating. It sounds great. Talking with you, if you’re not convinced by now that you ought to read it then I don’t even know what. So there will be a link in the show notes so go find that. Thanks so much.

Ben Burton: Beautiful. Thank you.

Aaron Street: Make sue to catch next week’s episode of the Lawyerist Podcast by subscribing to show in your favorite podcast app. Please leave a rating to help other people find our show. You can find the notes for today’s episode on lawyerist.com/podcast.

Sam Glover: The views expressed by the participants are their own and are not endorsed by Legal Clock Network. Nothing said in this podcast is legal advise for you.

Episode Details
Published: November 29, 2017
Podcast: Lawyerist Podcast
Category: Access to Justice
Podcast
Lawyerist Podcast
Lawyerist Podcast

The Lawyerist Podcast is a weekly show about lawyering and law practice hosted by Sam Glover and Aaron Street.

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