Core Methodologies for Law Practice

Let me clear what I am talking about here.

I’m looking for methodologies that pretty much all successful lawyers use as a core part of their practice. In a larger sense, I’m looking to generalize away from Langdell’s definition of lawyering as mastery of certain core principles and doctrines (modified and carried forward as ‘thinking like a lawyer’), and get to a more complete view of what lawyering involves in all its diverse settings. I’m looking for methodologies comparable to the different clubs in a real golfer’s bag besides the putter, such as the driver, the long iron, and the pitching wedge. In identifying core methodologies, I’m looking to move toward a conception of lawyering that is richer than Langdell’s view of mastering legal principles much in the same way a view of golfing as it occurs with a whole bag of clubs will be richer than a view of golfing as putting.

I’m also looking for methodologies that I think are fit for academic study – methodologies that I think an academic institution concerned with both the occupation of lawyering and society’s need for legal services ought to be thinking about from an academic perspective. 

I don’t mean to make a list of useful, or even essential, specialty specific skills (drafting a complaint, writing a contract). I don’t mean to suggest those don’t belong in a fully rounded JD curriculum, but here I am looking at generalizable and worthy of academic study methodologies that can be used to break down diverse problems across diverse settings.

I’m also not looking for providing an understanding of what other occupations do, so that lawyers can converse knowledgeably with them, but that are not in and of themselves part of the work product of lawyers (e.g., creating balance sheets or econometric models). Again, these have a place in a modern curriculum, and all good lawyers need to understand the goals of their clients, but it’s not the current inquiry.

There are functions that I think all lawyers engage in – for example, discovering and evaluating ‘facts’ – but I’m unable to describe a useful methodology that fits in an academic setting. I’m also looking at methodologies that can be taught at at least an introductory level within the constraints of a three year J.D. curriculum – methodologies that would require a separate master’s or Ph.D. track seem beyond the achievable scope.

With regard to the kind of generalizable methodologies core to all the diverse kinds of law practices, I’m pretty sure I don’t have the complete list. I also think that to do this right someone is going to need to do field research, observing what successful lawyers actually do (not just what they think they do). I do have four methodologies, aside from legal analysis of all kinds and legal writing/speaking, that I think pretty much all lawyers use and that are fully worthy of academic study.

They are legal process management, negotiation, stress management, and forming an ethical awareness / professional identity.

Legal Process Management / “Knowing The Drill”

To me, this goes to the core of what lawyers do, and to the divide between law schools and practicing lawyers. One hundred and forty or so years of defining law as the “mastery” of certain “principles and doctrines,” all of which can be found in reported cases, has successfully shifted attention away from this core aspect of lawyering. Captured by too narrow an idea of what lawyering is about, and largely unaware of what is happening outside the profession, we’ve reached a point where lawyers face the real risk of losing control of their workplace, demoted to narrow technical specialists.

Back when I was in practice people tended to call the process “knowing the drill.” A client would walk in the door with a problem. In the groups I was in, it was generally a litigation matter – a TRO, a big class action, or a maybe major contract dispute. What brought them to our rather expensive doors was not that we knew the substantive law better – back in those less specialized days we often had to learn the relevant law as we went – or even that we had great trial lawyers on tap, although we did, but excellent, equally intelligent trial lawyers could be found at all kinds of firms that were on no one’s list for the kind of work we did.

What we had was the process or “drill” for breaking the problem down, identifying the legal and non-legal resources that would be needed, from eyes looking at documents to appropriate technology support, and proceeding to a solution. Up and down the elevator banks, different groups knew different drills, but whether the problem was crafting a complicated estate plan, handling the work related to a major private equity investment, or crafting a tax strategy, we had lawyers and groups that knew “the drill” as it applied to them.

The firms I was with were elite, but the same reliance on knowing the process marks lawyers at levels all the way down to traffic court. Very rarely do clients walk through a lawyer’s door only asking to have core legal principles identified. Most often, they have a problem, and solving the problem requires a process for breaking the job down and getting it done.

The drill is important because the law is not a thing, a fact or an object, but an activity. (Don’t take my word for it – Judge Posner has said the same thing.) What lawyers do is transitive, and requires a command of process.

It’s been a while since I left law practice and the drill I knew is no longer the drill being run at firms like the ones I knew. If I walked in with a legal pad and a whiteboard and markers and tried to manage a case just by collecting lawyers in a conference room, I suspect I would be looked at like Rip van Winkle coming out of the woods after his 20 year nap and asking how good old King George was holding up.

Today, the process at elite firms is being pushed towards the same kind of sophisticated business process management techniques major corporations use. Seyfarth Shaw in Chicago has gotten a lot of well deserved attention for bringing Six Sigma and Lean Management techniques to a proprietary and comprehensive process for managing matters for their clients.  The process they employ requires defining the problem, measuring the current performance of the process, identifying ways to reduce waste, trying and testing process changes, and, not least, controlling the process to generate sustained improvements. I didn't learn any of that in law school, and I think it requires more focused study than usually is possible in practice settings.

They’ve now spun a group with that expertise out of the law firm as a separate company providing legal process training and services to clients. Here’s the thing, though – they will not be alone in that endeavor. Other companies skilled in business process design and business process outsourcing will surely see law as near virgin territory, and would like to take over managing the process for corporations with big legal tasks, whether those tasks are litigation or major mergers.

There was a time when outside law firms controlled the legal process. To an increasing extent that control has moved inhouse. Going forward, control of the process could move to specialists in legal process managment and design, who will plug in inputs – including specialist legal knowledge – where it fits. With that a prospect, it might be instructive to look at other professions that increasingly labor as specialists where others control the workspace and the processes, whether that be doctors responding the businessman running the HMO, architects taking orders from the developer, or engineers controlled by their corporate employers.

I don’t think this is just a big law issue. Small law has its own processes, and one of the reasons we have an access to justice crisis is that they are hand-crafted, inefficient processes (for a hilarious yet thoughtful send up of the way lawyers tend to think that more lawyers are the solution, see The Access to Clothing Crisis by Canadian lawyer Malcolm Mercer, which posits tailors cluelessly standing in the way of the industrial revolution the way some lawyers and law professors would stand in the way of today’s technological advances). Legal Zoom already provides most of the documents of small law; software such as that being innovated by Robot, Robot & Hwang could provide the process.

I can hear someone saying, “But law is not like designing widgets!! The legal process is special.” To that, I respond by wondering aloud why it is, if law practice is somehow special (and I think it is), that more legal academics do not study the kind of processes I’m talking about. It’s been fifteen years since David Wilkins argued that law schools have a duty to study and teach the profession, but very few scholars have the skills, interests or institutional incentives to study the generalizable but technical issue of how legal professionals deliver services in the way, say, business school professors study how product design processes can and should be carried out.

Law school probably provides too short a runway to get a completely formed legal process specialist aloft, but the core methodology of process design can be taught in an intellectually rigorous and useful way. The cohort of scholars teaching those courses will have the skills and tools to study how legal services are delivered, and propose improvements in both process design and the substantive law itself to drive out the deadening costs of inefficient process.

Negotiation

By any measure, negotiation is low hanging fruit. I’ve never known a lawyer past the apprenticeship phase of practice who didn’t negotiate on behalf of clients as a routine and necessary part of the job. Discovery plans, extensions of time, settlement agreements, contracts, plea agreements – the list goes on. Since at least the MacCrate report, negotiation has been widely recognized as an essential competency, and it has grabbed a place on the elective curriculum at most schools. At present, about ten percent of law schools require a course that includes some kind of negotiation training. A body of academics who study negotiation in the context of lawyering already exists.

Negotiation can be taught as a durable methodology that students can take with them to the diverse settings of their various practices. I teach a course in which I assign both a standard law school negotiations text and Richard Shell’s Bargaining for Advantage, but center the course around Shell’s book as it aims to deliver a concise, structured methodology that can be applied in different contexts. The law school negotiations text is rich with additional theoretical readings, and we draw on that and other sources for more coverage of some concepts Shell short changes (BATNA, legal negotiations, cultural issues) as well as for mock negotiation problems and exercises, but for a first course I find the structure of Shell's approach helps keep students focused.

I find it hard to imagine a robust definition of lawyering that does not include negotiating on behalf of clients as a standard part of what lawyers do. I think students emerging from law school should not be asked to self-study, but should be armed with a methodology that has been presented and taught, as it should be, as applicable to any kind of practice the student might pursue.

Stress Management

The practice of law is an unusually stressful occupation. I believe this is inherent in the job. If a lawyer doesn’t feel some major amount of stress in the practice of law, I think it’s because that lawyer does not fully realize the serious responsibilities that come from being a fiduciary charged with handling important client problems. There are other pervasive stressors that, if not inherent in the job description, are routinely encountered – adversarial conflict, career uncertainty, demanding hours, conflicting and sometimes irreconcilable task priorities, erosion of personal relationships due to time demands, lack of day to day control over one’s life, and, these days, major personal debt loads carried over from school.

My observation in practice was that some lawyers, while serious about doing a great job, handled stress well. Others were broken by it.

The consequences are well known. Unmanaged stress can lead to serious health problems, physical as well as mental. One study showed that of 104 studied occupations, lawyers were the most likely to be depressed. Suicide rates among lawyers are many times the national average, as are rates for alcohol and drug abuse. Law students are not immune, with studies showing the issues start becoming statistically significant as law school goes along. Despite this, thoughtful cases have been made that both practicing lawyers  and the legal academy  tend to wrap the issue in a cloak of silence.

It’s important to remember that the costs, while tragic for lawyers, do not stop with the lawyers or their families. Clients suffer as well, as the tolls of disease and abuse cause matters to be neglected, with neither the malpractice system nor the disciplinary system providing full or certain recompense.

Not all lawyers fall victim, of course. Some have robust skills for dealing with stress. I know plenty of lawyers who, despite taking their responsibilities seriously and juggling frantic schedules, find happiness and success in the law in part because they have developed effective methodologies for handling stress.

It seems to me that if stress is part of the job description, if successful lawyers are marked by handling stress well, and if the consequences of not managing stress are serious for lawyers and clients, a complete legal education would teach stress management. And here’s the thing: stress management can be taught. Stress management has been a field of academic study outside of law school, and courses exist for training in stress management.  Not every student will successfully adopt the methodologies, but it would seem that teaching a methodology is a more responsible and helpful approach than silence.

In the ideal world, some of those teaching stress would do research into stress creators and stress management in the unique environment of law practice, developing and extending knowledge. As we come to understand at a more refined level why it is that law practice causes such stress, we will understand our legal tradition better, and will be better able to make constructive changes.

Methodology for Addressing Ethical Issues / Forming a Professional Identity

I’m almost embarrassed to include this one because it is so obvious. All lawyers confront, more or less constantly, ethical issues in practice, and need to develop a method for dealing with them and forming a core sense of their professional identity.

That said, I think it’s fair to wonder if many law schools actually send most of their graduates out the door with this methodology in hand. I do think many schools recognize this as an issue, and both through the way they teach Professional Responsibility and various kinds of capstone courses try to achieve this goal.

As I said earlier, I’m pretty sure this is not a complete list of methodologies that apply to all lawyers. Some methodologies that I see as being not quite universal – say, methodologies for providing leadership – others might see as close enough to universal to belong in a core curriculum. Beyond that, there are methodologies that, while not applying to all lawyers, would apply to all transactional lawyers, or all lawyers working directly or indirectly for capitalistic enterprises, or to all lawyers working in big organizations, whether for profit, non-profit or governmental.

My goal in this post is not to get to a list of things law schools might usefully teach. My goal is to move toward a richer conception of what it means to be a lawyer, rooted in the core methodologies succesful lawyers really use, that in turn will drive a new conception of how law schools should engage with training for and conducting research relevant to the world of legal services.