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What should law schools be teaching?

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Before launching Office & Dragons, I was an M&A lawyer with Kirkland & Ellis in London and New York, advising large private equity firms on billion-dollar deals. In that time, I witnessed first-hand the mounting pressures that both our clients and our firm were facing. The way that deals get done is changing. Things are getting faster and more competitive. “Instant” is the expectation, and the legal sector is facing mounting pressure to keep up; it cannot remain an expensive bottle neck.

These pressures manifest themselves within law firms, with everyone, from trainees to partners, frustrated over the hours of copy/paste work and signature-page pulls that routinely stood in the way of closing deals and paranoid about the possibility of mistakes slipping in due to human error. You can bet the clients are even more frustrated than the lawyers when the clock is approaching midnight on the closing date and the commercials are agreed, yet their lawyers still haven’t sent the final documents… 

Clients generally trust their lawyers to be perfect, so they won’t actively worry or hunt for mistakes, but when they find one, that trust cracks, and when they find a few more, it shatters, and you can bet they won’t want to work with those lawyers, or maybe anyone at that firm, again.

Why then, despite these pressures, despite the growing number firms with “innovation” or “operations” or “transformation” teams and the growing number of legal tech companies like ours, do we effectively see no change in the way legal professionals work on deals for their clients (even at the firms that have innovation teams)? No doubt the answer is multifaceted, yet one facet, undoubtedly, is that no one is teaching them to work any differently.

In fact, to a large extent, no one is teaching them how to work at all. In common law jurisdictions, legal education revolves around reading judges’ rulings in past cases illustrating some point of law and understanding the reasoning by which they reached their rulings. Exams essentially involve applying that logic to some novel case. These courses might be useful for litigators (I wouldn’t know), but they had no relevance to my work as a deal lawyer (not exaggerating; it was zero). 

In the past decade, “clinical classes” have increased in popularity. Essentially, these are internships that law students undertake in exchange for academic credits. These do teach law students how to work, but they don’t teach them to work any differently. They won’t learn that “on the job” either. They will learn to work the way that everyone works today. They will learn to work in a way that is broken, but still gets the job done, makes money and is less risky than trying something new. 

True innovation – inventing disruptive new ways to work – doesn’t make sense for most going concerns, whether for- or non-profit. What makes sense is applying ideas which have already been developed and validated elsewhere. Developing and initially validating those ideas, and spreading them within the workforce, is the role of universities. This is why countries which want to see an industry thrive invest in research and education in that industry. Countries which don’t make those investments see that industry stagnate instead. 

So, what should law schools be teaching? They should be teaching students how to deliver “legal solutions”.  What are those? Good question, and not one I have an answer to today, but I think I know how we can go about discovering them.

First, we must consider the roles the legal industry plays in society and in the economy. There are several: evaluating disputes, resolving disputes, allocating risk, documenting procedures, applying procedures, and more. It’s clear that there are several distinct concerns for the legal industry addresses, and for each of these, the optimal form of delivering a legal solution may be very different. Accordingly, it doesn’t make sense to have just one legal major or degree program any more than it would to have a single engineering degree that covers manufacturing engineering, electrical engineering and every other engineering discipline.

Hypothetically, there might be a “transactional legal solutions” degree.  The courses in that degree probably wouldn’t involve reading case law. Instead, courses would cover topics related to allocating risk and documenting procedures (the latter of which, as an aside, might look a lot like computer science courses). There would also be courses centered around what business of various kinds – corporates, financial institutions, etc. – are aiming to achieve in transactions of various kinds, and how legal might play a part. This would be the coveted “commercial awareness” that every legal employer expects new employees to have coming into the job. You won’t learn it by reading the Financial Times, and unfortunately, today, you won’t learn it in university or law school either. But maybe tomorrow, you will.

Sam Smolkin
Founder and CEO, Office & Dragons

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