I’ve been thinking a lot about Toya Gavin’s article A New Solo’s Perspective on the Current State of the Business of Law. I am simultaneously encouraged by her vision of a solo/small firm practice that functions very much like any other entrepreneurial business, and disheartened that the same resistance to change I felt when I started writing for Solo Practice University is still there in our profession.
I think a lot of that resistance is born not out of a fear of the unknown, or even out of skepticism regarding change, but rather out of a certain brand of laziness peculiar to lawyers. Change requires that we actually do something about the things that are broken. And we all know what’s broken.
High legal bills have left clients soured at best and disgruntled at worst. Competition in the legal marketplace from LegalZoom and RocketLawyer, for better or worse, means that a good portion of our work has been commoditized: nobody is going to pay a lawyer’s fee if they can fill out an online form and produce a document that, in their mind, is the “same thing.” Lawyers are getting burned out on long hours and lower salaries and high student loan debt. Big Law isn’t hiring as many brand new lawyers straight out of law school, and yet law schools continue to crank out new lawyers en masse. Meanwhile legal practice management and document assembly software is getting pushed to the Cloud, making it more affordable to hang a shingle right out of law school. Oh, and state bar associations are just now figuring out that they need different rules for lawyer advertising on law firm web sites, nevermind social media. Don’t even get me started on e-Discovery.
In short, the marketplace has changed, there is ever more competition for legal business, technology is constantly changing, and an entire generation of solos is rising up without the benefit of a “traditional” associateship at Big Law. And yet, we cling to hourly billing, outdated technology, and lawyer regulations designed for the year 2005. We act like going solo out of law school is de facto malpractice, rather than treating it as a practical reality. We live in an age where information is exchanged freely, and where laws favor such exchanges, and yet we still fight to retain control over every shred of information that passes through our hands.
When are we, as a profession, going to wake up? The fact is, change is already here.
I recently had opposing counsel suggest to me that the only reason I was pursuing my client’s case was that I was racking up legal bills. While I pointed out that what my client paid me was simply none of his business, I also let him know that I billed my client on a flat-fee basis. He stated that I had to be crazy, and that there was no way I could possibly make a living that way. Meanwhile, he dragged his feet in discovery, forcing me to file two separate motions to compel. When his client fired him (for overbilling, I learned – can’t make this stuff up), we finally got the case to mediation. At mediation, the opposing party handed me everything I had been asking for, we had a productive meeting of the minds, and we got the case settled. I asked him why it took so long to get him to the table, and he said, “To be honest, it was my former lawyer. I kept taking his advice.”
That story, in a nutshell, is what I’m talking about. This one lawyer sat there clinging to his old ways: don’t talk to the enemy, don’t share information, bill for every phone call and email and second of research. He was so wrapped up in the zealousness part of zealously representing his client, that he forgot about his client’s best interests. Meanwhile, the world around him had changed. I was asking for electronically stored information as part of discovery and getting frustrated at his lack of cooperation. I billed my client for work performed on each segment of litigation rather than on the number of hours spent, so I also was frustrated at what I saw as time-wasting. I firmly believe that, if not for opposing counsel’s death grip on his old ways of practicing law, we could have gotten the case settled with a phone call two years earlier.
I’ve got a case going right now where I asked opposing counsel to schedule an informal case management conference by telephone. He replied that there was no court order requiring that we have such a conversation, and that he refused to talk to me without such a court order (again – can’t make this stuff up). I’m still trying to figure out what exactly he’s afraid will happen if we communicate. I wonder what his client would have to say about it.
I realize that we have an adversarial system of law, and I am not proposing we change that. I do believe that we have lots to change to get with the times. Our billing models, and the legal economy. Our advertising and the laws regulating lawyer advertising. Our ways of communicating and sharing information with our clients and with each other. I’m not just talking about the adoption of technology. I’m talking about embracing the brave new world our clients live in.
All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.