The Future of Legal Services from the Buyers' Viewpoint

On Friday, October 4, 2013, I presented a TED-style talk at the 2013 Futures Conference presented by the College of Law Practice Management and Chicago-Kent School of Law.  As a Fellow of CoLPM, I treasure these annual meetings with other veterans of legal practice, management, marketing and technology.  

This year, I was invited to speak on the topic of this blog—specifically about the global megatrends and other forces that will change global society and business over the next 15-20 years. These trends and forces will impact every market and industry the legal services industry serves.  

I’ve blogged briefly about these trends before and about the December 2012 report Global Trends 2030 published by the National Intelligence Council.  This speech was a chance for me to explore these issues more deeply and share my thoughts with colleagues.  

After my speech, the conference’s 120 attendees divided into roundtables and made some projections about the markets, legal needs and buyers of a dozen industries that law firms, legal process outsourcing companies, and other legal vendors serve.  

Then we reconvened and debriefed about several industries the groups had considered.  It was an enlightening and entertaining session, although you’d have had to be present to appreciate how much we enjoyed ourselves. 

This type of conference format—1) keynote, 2) TED talks, 3) roundtable breakouts, and 4) plenary debriefs proved to be a successful model for other gatherings that smart people attend who want to tap the experience and knowledge of everyone present. 

You can find a .pdf version of the full speech text and slides here.  A link to a video recording of my TED talk (without the slides) can be found here (speech starts 6:00 minutes into the video).  I can’t guarantee how long the video link will be live. 

Please feel free to share this speech with others or repurpose the content in any ways that benefit you.  You also have my permission to deliver the speech yourself to other audiences.  I’ll even send you the actual PowerPoint slide deck if you like. 

Law in the Time of Ideology

Lately, legal services pundits are finding more excoriation than exceptionalism in the legal marketplace. Some believe BigLaw is dead, dying, or taking too long to die, while others say that’s crazy talk. 

In the meantime, angry bloggers are trying to ride law schools out of town on rails.  They protest that law schools are too numerous, too expensive and too profitable. Schools are accused of churning out too many lawyers who can’t find lawyer jobs and are saddled with student loan debt they’ll have to repay by working at jobs where they don’t need law degrees.  

One of the loudest Jeremiahs about failing law firms and law schools is Steven Harper who in 2008 left Kirkland & Ellis where he had been a litigator for 30 years.  Now retired from practicing law, he is one of Northwestern Law School’s numerous adjunct professors (one of 235, to be precise) and opines about how screwed up the legal profession is at his blog, The Belly of the Beast, and in his latest book, The Lawyer Bubble:  A Profession in Crisis. 

From a different quarter comes a new study by Seton Hall law school professor Michael Simkovic and Rutgers B-school professor Frank McIntyre who calculate the value of a law school education by estimating that the pre-tax lifetime value of a law degree is, on average, $1 million.  Support for this optimism comes from other academics, including Santa Clara law professor Stephen Diamond who defends the study in this post and elsewhere at his blog.

In an Am Law Daily column earlier this week, Harper belittles the Simkovic-McIntyre thesis, citing the “bimodal distribution of lawyer income” as reason enough to ignore the study’s findings about averages.  His bimodal objection references the reality that law schools collectively graduate both higher-paid (BigLaw) lawyers and lesser-paid ones who, I assume, practice at smaller firms or don’t practice law at all.  Harper also complains that because Simkovic spent one year as a BigLaw associate at Davis Polk he surely knows all of BigLaw associates’ complaints, but somehow still summoned the temerity to investigate lawyers’ lifelong compensation—a complaint I readily admit I don’t understand. 

And here, finally, is the actual point of this blog.  Some time ago we arrived at the point where public discussion about the changing nature of clients’ needs, financial and cultural aspects of law firm models, lawyers’ pre- and in-service training, and new ways to practice law in the digital age are immediately framed as smackdowns posing dichotomies like: 

* BigLaw vs. Innovation

* Law Schools:  Evil or Just Stupid? 
* Why Don't Law School Gunners Just Kill Themselves Now Instead of Waiting Until They're Miserable BigLaw Partners? 

After years of listening to these squabbles, I find myself wishing debates were not dominated by snark and logical fallacies.  I wish that more of us were able to acknowledge that we don’t have sufficient information or intelligence to fiercely defend the win-lose arguments that benefit us the most.  Certainly, none of us can claim the perfect prescience to demand that everyone put all of their eggs in our favorite future scenario basket.

Insufficiently explored in these squabbles is the extent to which “the legal services industry” is really multiple, diverse markets.  Each market requires services from vendors with different key performance indicators, different business models, and labor forces with different combinations of training, skills and experience.  The inappropriateness of any single service model to serve all markets well does not invalidate that model for the markets it was designed to serve. 

But one-size-fits-all ideologies and passions have come to dominate what should be more reasoned discussions about our industry’s future.  Ideologues describe each other as disgruntled, disingenuous, disheartening and even demented.  I find least helpful the commentators-for-a-day who raisin-pick anecdotes and data to prop up their storylines. 

The loudest pundits have deep sunk costs they are unable to abandon.  They have been highly rewarded or bitterly punished (in terms of money, power and medals) by their own experiences, and they’re taking it very personally. 

If you invite opinions about the future of law from BigLaw managing partners, LPO CEOs, law school deans, consultants, senior partners and associates, you can predict with nearly perfect accuracy how each of them sees the future of our industry, depending on whether they got a raise and/or a bonus this year, have thriving practices (or not), were just made partner or failed to make partner, were recently de-equitized or recently escorted downstairs into unemployment.

In fact, most of us with a dog in this hunt come across like we should recuse ourselves from the conversation while cooler heads grapple with the important issues. 

I also believe that most of us are ignoring two inconvenient truths.  The first is that the practice of law is inherently and highly competitive—intellectually, psychologically and financially.  I don’t know how we can factor competition out of the legal profession or the industry.  Put most bluntly, we cannot.  

The second inconvenient truth is that lawyers, as a group, are psychologically unresilient—meaning that they find it hard to bounce back after a loss or to tolerate change comfortably (see “The Case for Testing” by American Lawyer publisher Aric Press). 

Put succinctly, we have a US legal services industry now worth nearly $300 billion that’s in transition and that’s managed and staffed by a preponderance of combative neurotics.  Given this combination, we probably should not expect our industry’s transition to be easy or pretty. 

Nonetheless, I hereby make a public mid-year’s resolution to breathe more deeply when considering and discussing the future of the legal services industry, to listen more carefully to all viewpoints, and to stop thinking that those whose observations and conclusions differ from my own should DIAF. 

I'm Shocked, Shocked!

The New Republic’s latest cover story, “The Last Days of Big Law – You Can’t Imagine the Terror When the Money Dries Up” by Noam Scheiber, is a dishy article about the international law firm of Mayer Brown. The author recited some of Mayer Brown’s well known management missteps over the last decade and cited numerous unnamed sources, most of whom are former lawyers at the firm, to construct a parable of what’s wrong with the rest of Big Law.

For the record, I once consulted with Mayer Brown and think highly of that firm and the leaders, lawyers and marketers I worked with who are still there.

The author of The New Republic article looks down his nose at Mayer Brown and, consequently, Big Law for (1) having too many lawyers, (2) replacing expensive lawyers with cheaper lawyers, and (3) firing anyone because there’s not enough work for them to do. He says he's shocked to discover that (4) Big Law is also Big Business, which those of us who work in and for law firms have known for some time. Perhaps most amusingly, he is even more shocked to find that (5) lawyers are competitive creatures who are ideally educated and trained to game every reward system ever built.

The author employs the effective journalistic techniques of card-stacking, false assumptions, either-or-fallacies, false generalizations, etc. Given his skills, I’m surprised he doesn’t do more political reporting.

He appears either ignorant or uncaring of any actual facts about the size of the corporate legal services market and its recent- and long-term trends. However, he’s not alone in that regard, since “The Sky Is Falling” still seems to be #1 on the “I Wonder if Someone Will Pay Me to Write about Law Firms?” hit parade. Here are just a couple of actual facts:

•  In 2007, Am Law 100 total revenue was $62.9 billion. In 2012, it had grown to $73.4 billion. Yes, some of that was due to cross-border mergers. But most of it was not.

•  By 2020, Global 500 revenue is predicted to double – from $30 trillion to $60 trillion. Call me crazy, but the business, legal, political, demographic, and other changes that accompany that growth will doubtless require some considerable, proportionate growth in legal services.

(An aside to those who think the above facts are misleading: If your own firm’s revenue is declining, then the proper response might be to consider whether your firm is selling what buyers used to buy, not what they’re buying now.)

I readily acknowledge that my irritation with this article and similar ones I’ve read lately stems from my long tenure in the legal services industry. I’ve been around law firms so long now that, while I constantly see new things happening, I also see them as part of longer-term patterns. For that reason, I suppose I’m less alarmed than younger participants in this space.

All industries change – they change a lot. And people adapt – so much better than you’d think they would. There are always career casualties when big change comes. The resilient are resilient. The unresilient are not. The popular theory that the legal profession and the legal services industry don’t and won’t change is one that I simply refuse to accept. I’ve seen firms, lawyers, leaders, and their business advisors all change so much in the decades I’ve worked in this industry. The future rewards – financial, intellectual, and otherwise – of adapting successfully are too great to ignore.

Finally, I do get piqued by those who randomly wander in from off the street and say: “Hey, I know somebody who used to work in a law firm, and they hated it. You guys must all be miserable, too!” When that happens, I think for a moment about how good it would feel to toss my beer in his face. And then I smile and remember – that’s why I don’t do PR for law firms.

You Know Your Firm’s in Serious Trouble When …

The only reason for a law firm to invest in competitive intelligence is to help its decision makers prepare to benefit from (or avoid the dangers in) near- and long-term opportunities and threats. Therefore, among their other duties, CI professionals and their clients must track leading, lagging and coincident indicators that identify specific opportunities and threats and that forecast their timing.

Yes, the US economy is recovering from the Great Recession. But like all downturns, it stressed our industry. Some firms, more vulnerable than others, were tested hard. Happily, some of those firms’ leaders took major corrective actions, and their firms are emerging stronger than before. But some firms will not recover.

Below are 20 indicators that your firm—or a competitor firm—probably won’t make it, at least not in its current incarnation. I thank my esteemed colleagues (you know who you are) for suggesting some of these indicators. 

Twenty ways to know your firm’s in serious trouble …

1.    You dread coming to work.

2.    Partners’ doors are closed all the time.

3.    The coffee’s gotten worse.

4.    Firm revenue and headcount have shrunk, and net operating income has fallen even more.

5.    Profits per equity partner are shrinking or flat, kept aloft by partner de-equitizations.

6.    The only thing growing at your firm is the number of non-equity partners.

7.    Women at your firm are third-class citizens, not firm leaders or full equity partners.

8.    You don’t recruit government officials without business because you can’t afford to invest in them.

9.    There’s a big donut hole in your firm’s partnership, where future leaders used to be.

10. All the firm’s largest client relationships are controlled (“tattooed”) by the firm’s oldest partners.

11. Clients are viewed primarily as revenue sources, not objects of real affection and service.

12. Partners won't delegate work to other lawyers until they make their own production numbers.

13. Equity partner compensation is decided by a few partners, black-box style.

14. Your firm has downsized marketing and eliminated the CMO position.

15. You’re still using MS Office 2003.

16. You haven’t had a real firm retreat in years.

17. Your firm has recently been sued for malpractice, discrimination and/or sexual harassment.

18. Clients have started to ask you about the firm’s health.

19. You’re open to a combination, but “worthy” firms’ leaders won’t take a meet and greet.

20. You’ve finally started to say the M-word, assuring reporters your firm is not interested in a merger.

What other leading, lagging or coincident indicators do you think identify a law firm that’s in imminent danger of failing? 

Global Trends 2030 Released by NIC

Every four or five years, the US National Intelligence Council (NIC) publishes a Global Trends report. And now Global Trends 2030 has just been released. A short (5-page) briefing can be found here. The longer (160-page) report can be downloaded in pdf, iPad and Kindle formats here.

The executive summary describes the NIC’s goals for this massive effort:

“This report is intended to stimulate thinking about the rapid and vast geopolitical changes characterizing the world today and possible global trajectories during the next 15-20 years. As with the NIC’s previous Global Trends reports, we do not seek to predict the future—which would be an impossible feat—but instead provide a framework for thinking about possible futures and their implications.”

Since the mid-1990s I’ve studied these Global Trends reports carefully, using them to ground myself about changes I see in the economy, the legal industry, and my personal investment options. Below are my very quick Cliffs Notes on this latest report.

 

Global Megatrends

The global megatrends (relative certainties) presented and discussed in the 2030 report include:

Individual empowerment

·         Rapidly expanding middle class (for the first time, most of world’s population aren’t in poverty)

·         Life expectancy increases rapidly, with deaths from communicable diseases dropping more than 40%

·         Religious, ethnic and national identities are strengthened

·         More technological breakthroughs in information, communication, manufacturing, healthcare, warcraft are great levelers for good and evil

·         Individuals and states experience greater stress levels

Diffusion of power

·         Asia surpasses North America and Europe in global economic power

·         Power/impact of Europe, Japan and Russia lessens

·         No global hegemonic political power remains – regional conflicts and regional partnerships are both possible

Demographic patterns

·         World population becomes increasingly urbanized (from 50% to 60%), and urban construction explodes

·         Economic growth may decline in demographically aging countries

·         Youthful countries are politically unstable (the “demographic arc of instability”)

·         Global migration and immigration increases

Food, water, energy nexus

·         Huge increases in demand for food (35%), water (40%) and energy (50%)

·         Addressing demands for each of these commodities is linked to supply and demand for the others

·         Severe weather patterns intensify – wet areas get wetter, dry areas get drier

Critical Game Changers

The report posits six critical variables whose trajectories are far less certain and are subject to control by state and non-state actors:

1.    Crisis-prone global economy - Will divergences and increased volatility result in more global breakdown? Or will the development of multiple growth centers lead to increased resiliency?

2.    Governance gap - Will current forms of governance and international institutions be able to adapt fast enough to harness and channel change instead of being overwhelmed by it?

3.    Potential for increased conflict - Will rapid changes and shifts in power lead to conflicts?

4.    Wider scope of regional instability - Will regional instability, especially in the Middle East and South Asia, spill over and create global insecurity?

5.    Impact of new technologies - Will technological breakthroughs occur in time to solve the problems caused by rapid urbanization, strain on natural resources, and climate change?

6.    Role of the United States - Will the US, as the leading actor on the world stage and with its new energy independence, be able to reinvent the international system, carving out potential new roles in an expanded world order?

Four Alternative Worlds / Scenarios

Like the preceding global trends reports, the 2030 report includes four different global 15-to-20-year scenarios for use by organizations that engage in scenario planning. The four Alternative Worlds posited are:

1.    Stalled Engines – In the most plausible worst-case scenario, the risks of interstate conflict increase. A pandemic hits, the US draws inward, and globalization stalls.

2.    Fusion – In the most plausible best-case outcome, China and the US collaborate on a range of issues, leading to broader global cooperation.

3.    Gini-Out-of-the-Bottle – Inequalities explode as some countries become big winners and others fail. Inequalities within countries increase social tensions. Without completely disengaging, the US is no longer the “global policeman.”

4.    Nonstate World – Driven by new technologies, nonstate actors take the lead in confronting global challenges.

What's Next?

 

I know how full the days (and nights) of law firm CI professionals can be. However, I hope you will find time to explore this new report. I also hope some of you will comment about it. I’ll soon be posting more here about 16 disruptive technologies, 8 possible black swan events, and other topics discussed in the Global Trends 2030 report.

 

Hastening ZombieLaw’s Collapse—and Why That’s a Good Thing

Ignoring the ballyhoo about “The New Normal” and the debate about whether this is BigLaw’s end of days, most seem to agree that the US legal market is overcrowded. It suffers from too many lawyers and law firms.

Like many aspects of our industry, market overcrowding is not new. For years, we have watched some BigLaw firms stagger around zombie-like and refuse to die. They decline in vigor and resort to bottom feeding and submitting low bids on every job in town. Some of these ZombieLaws are highly leveraged affairs with shrunken equity partner castes and even smaller star chambers that oversee closed compensation systems. Other ZombieLaws are over-leveraged and offer a warm bunk to lawyers with small books of business whom no one else will hire.

The disappearance of five such firms would blow fresh wind under the wings of fifty nearby firms and lift them higher. I blogged about this in 2008 when I predicted Bay Area firms would benefit from Thelen’s and Heller’s demises. (See "It's Hard to Accept Intelligence That Breaks Your Heart.") Since then, the Boston and Atlanta legal markets have also benefitted from regional right-sizing. The New York City market is right-sizing now, albeit slowly. In several other overcrowded markets, a handful of firms are feeling and causing each other’s pain.

If I had more resources right now, I would create two online prediction markets. (See Intrade for examples of such markets.) The first market would solicit bets on which US law firms will dissolve by December 31, 2013. The second one would solicit bets on which firms will merge with one or more firms by the end of the year. On January 1, 2014, I would close those markets, open two new ones, and start all over again.

If these markets worked well—and I believe they would, by crowd-sourcing intelligence anonymously from knowledgeable persons who will never go on the record—they would quickly and accurately identify the weakest firms. And, yes, these prediction markets might hasten their deaths.

What a mean thing to do, right? Wrong. It would be a kind thing to do. Depending on your viewpoint, of course.

So how about it—would you place anonymous bets on these two markets?  Which geographic, practice and industry legal markets do you see as the most crowded? Which firms would you bet will dissolve or merge by December 31, 2013?

 

Pulling Away from the Pack – or Powering with Arithmetic?

Last Friday, The Recorder published an article about FY 2012 Am Law early results:  “Revenue Growth Modest at Many Firms, But Profits Surge.”   Bylined by Julia Love, the article discussed several ways law firms can try to improve their top line performance when revenue stalls, including thinning their ownership ranks.  Three California firms whose FY2012 equity partnership ranks contracted and whose profits per equity partner (PPEP) showed double-digit increases were highlighted. 

Shrinking law firm ownership is an old tradition

 

The arithmetic potential to improve a firm’s PPEP by reducing the number of equity partners at that firm is obvious and significant.  But it’s far from a new trend.  Firms have been thinning their ownership ranks for over 20 years.  In FY1990, Am Law 100 equity partners constituted 32.8% of all Am Law 100 lawyers.  By FY2000, that metric declined to 27.5%.  And by FY2011, it was down to 22.3%. 

As legal industry metric wonks know, Am Law’s leverage metric also measures the extent of law firm ownership, but is calculated differently – as the ratio of all non-owner lawyers to each owner lawyer (equity partner).  In FY1990, the Am Law 100 collective leverage was 2.05 to 1.  In FY2000, it was 2.63 to 1.  And in FY2011, it was 3.49 to 1. 

How low will law firm equity partnership ranks go? 

I’ll confidently predict that if nothing happens to modify this trend, by FY2020 equity partners will constitute no more than 18% of Am Law 100 lawyers.  Stated another way, in FY2020 the Am Law 100 lawyer population will have at least 4.56 non-owner lawyers for every equity partner. 

If those predictions take away your breath, consider the accounting firms:  In FY2011, leverage at the Big Four was already 10.6 to 1, as reported by Accounting News Report.

Some uses of this competitive intelligence 

As ow iHow you absorb the above information and patterns, consider their import to your firm’s and your competitors’ choices about growth, management and business development models.  For instance: 

1.       How will this continuing trend of shrinking firm ownership affect your firm? 

2.       How will this trend impact your firm’s efforts to increase equity partner diversity? 

3.       What unintended consequences might this trend precipitate? 

4.       To what extent have specific firms’ PPEP been “enhanced” through rapidly shrinking ownership ranks? 

5.       When you factor out those PPEP “enhancements,” how do you interpret individual firms’ actual performances? 

6.       Put another way, which firms are truly pulling away from the pack, and which are simply leveraging the power of arithmetic? 

7.       Between now and 2020, what new business models might your firm or some of your competitor firms create to differentiate themselves and go to market more effectively? 

8.       How could you compete effectively against those new models? 

As Am Law releases more early FY2012 firm results, I’ll be discussing them here.