Lawyers as sponges and thieves

Larry Ribstein —  19 February 2011

Andy Kessler writes in Thursday’s WSJ: 

With a heavy regulatory burden, payroll taxes and health-care costs, employing people is very expensive. * * * Tellers, phone operators, stock brokers, stock traders: These jobs are nearly extinct. Since 2007, the New York Stock Exchange has eliminated 1,000 jobs. And when was the last time you spoke to a travel agent? Nearly all of them have been displaced by technology and the Web.

Kessler asks “which jobs will be destroyed next?”  To answer this he articulates the modern job dichotomy — not white vs. blue collar, but “creators” who drive productivity vs. “servers” who service creators. He says, “Many servers will be replaced by machines, by computers and by changes in how business operates.”

Kessler labels subsectors of the endangered service economy.  They include “sloppers” who move things around and can be replaced with code; “supersloppers” who create Giffen goods like Rolex watches; and “slimers,” who work in finance and grease transactions, but not as well as electronic trading.

And then there are two categories of particular interest to lawyers:  “Sponges” “who earned their jobs by passing a test meant to limit supply.” And “thieves” who “have a government mandate to make good money and a franchise that could disappear with the stroke of a pen.” 

Lawyers fit in both categories.

Kessler notes:

eDiscovery is the hottest thing right now in corporate legal departments. The software scans documents and looks for important keywords and phrases, displacing lawyers and paralegals who charge hundreds of dollars per hour to read the often millions of litigation documents. Lawyers, understandably, hate eDiscovery.* * *

Like it or not, we are at the beginning of a decades-long trend. Beyond the demise of toll takers and stock traders, watch enrollment dwindle in law schools and medical schools.

Kessler’s article meshes with my recent posts on the costs of licensing and technology’s threat to lawyers.

But if lawyers are protected by their licenses, how will mere technology make this legally-conferred advantage disappear?  I suggest a possible answer in my recent Law’s Information Revolution (which, by the way, is now on law review editors’ desks all over the country):

Innovators of legal information products comprise interest groups that can be expected to push against existing restrictions.  As law-trained people flow into jobs as in-house counsel and creators of existing legal products and market analysts and leave more traditional jobs in big law firms, they will add to the pressure to change existing regulation that restricts these activities.

I recognize that the problem is not a simple one.  Benjamin Barton demonstrates in a recent book (which I plan to discuss soon) the pervasiveness of the “lawyer-judge bias” which sustains the legal profession above other “sponges” and “thieves.” 

But even if lawyers ultimately are the last sponges standing, they should not be feeling too comfortable right now.

Finally, a note to commentors on my “lawyers in jeopardy” post linked above:  I do understand, and noted at the end of the post, that machines will not anytime soon replace all lawyers.  My point is that lawyers will have to figure out what they do that is not easily replaced either by machines or by lower-priced people.  In other words, what does “thinking like a lawyer” really entail, how do you learn it, and who does it well?  Until now it meant passing a bar exam.  We cannot count on that in the future.

Larry Ribstein

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Professor of Law, University of Illinois College of Law

7 responses to Lawyers as sponges and thieves

  1. 
    Douglas B. Levene 19 February 2011 at 10:03 pm

    Thanks to Walter and Larry for very illuminating posts. We live in interesting times.

  2. 

    “In other words, what does ‘thinking like a lawyer’ really entail, how do you learn it, and who does it well?”

    Being a lawyer means being able to extract facts from the confusion of reality, and to use them to create narratives about those facts that compel desired legal conclusions. It also requires being able to communicate narratives to lawyers in their language, and laymen in theirs. It is an art form and it requires creativity.

    Law school just teaches some basic grammar and vocabulary of the law. You have to know it, but 16 credits would do as well as the whole three years. Passing the bar exam is legally necessary but it no more makes you a lawyer that a does using a yellow legal pad.

    Really learning to be a lawyer takes about 8 years of working hard, and full time with competent, experienced lawyers. It is still an apprenticeship. I break the process up into three periods. The first 2 years are the infancy. The young lawyer really doesn’t know anything, and shouldn’t do anything other than fetch after a senior. The next four years, he can do a little, but still requires close supervision. After 8 to ten years, he should be able to handle anything in his specialty area without supervision.

    Who does it well. There are good lawyers all over and I met quite a few over the years. There is no science to finding them though. I have met famous lawyers whom I would not trust to do a house closing. I have also met small town lawyers who were as good or better than the highest priced partners in the biggest firms in New York. I always tried to respect the lawyers on the other side as competent until they proved otherwise. Those guys in New York tend to think that anyone who speaks slowly, and is pleasant, is stupid. They often wind up losing their underwear because of that error.

    None of this means that being a lawyer will make anyone a lot of money. Just ask musicians, they are artists, and good ones are very common. But there are more musicians than they are paying gigs.

    I know a musician who is a master of Renaissance instruments. He has an ensemble in my town that plays several concerts of Renaissance music every year. There is absolutely no money in that. His day job is as a lawyer, a partner in a big firm.

    My father was lawyer. He was assigned to India when he was in the Army during WWII. Because he had a couple of years of law school before he was drafted, he was sent to handle some claims (e.g. crashed trucks) for the US Army. He said that he was being taken to the Court House by an English speaking Indian driver. They passed a row of men wearing dhotis and squatting in front of the Court House. He asked the driver who those men were, and the driver said: “They are lawyers, Sir. Give them a rupee, and they will plead your case.”

    • 

      Walter, any ideas on where those 8 years of apprenticeship will come from for recent law graduates? Very few firms/employers are willing to make the investment in new people these days…

      • 

        Same place they have always come from. Just not at $160,000/yr., Probably more like minimum wage to start. A lot of kids will be unable to find it, and will have wasted the three years and the tuition. Some of them will be crushed by school loan debt.

        We must make student loans fully dischargeable in bankruptcy.

  3. 

    Larry, it was good to hear your perspective on this Kessler/WSJ piece. I also did a write-up over on my blog Legally Sociable, which has an interesting tie-in to Watson’s win on Jeopardy this past week. Not surprisingly, Robert Watson, a general counsel over at IBM thinks technology is going to be a boon for lawyers.

    As I put it over on my blog:

    But if using Watson/Deep QA is just as easy as running a Google search against a witness on the stand, why do you need to have an associate perform it? Associates are expensive, or, at least, used to be. Why not a paralegal? Why not someone even cheaper, with even less training? Are you sure it has to be an actual lawyer? (Besides, Weber also tells us that “We’re pretty sure [Watson] would do quite well in a multistate bar exam!”)

    Perhaps when he said Watson “won’t ever replace attorneys,” Mr. Weber meant that Watson won’t ever replace someone like himself: a successful, established, general counsel at a Fortune 500. You know, the sort of person who passes off his “research” to an “associate.” Or whomever. Or whatever.

    I’d be curious to get your perspective.

    • 

      My perspective is that I don’t know for sure where we’re headed, but U.s. lawyers need to figure out their comparative advantage damn quick — and that includes not just machines, but other people, all over the world.

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