Law schools must focus on attributes, not just skills, for a new generation to thrive in tumultuous times.
Tomorrow’s lawyer — which, of course, actually means today’s lawyer — still needs to know the law and how to navigate the legal system. She needs to be able to communicate with brevity and effect — though now also with cultural nuance that was alien to most of us a generation ago. But knowledge of the law and procedure — our traditional stock in trade and the thing that for centuries has conferred on us the stature of a “learned profession” — is no longer enough. Tomorrow’s lawyer also — at least if he wants to be successful — needs to have a solid level of business acumen and a firm grounding in exotic topics with foreign-sounding names such as project management and lean six sigma.
Tomorrow’s lawyer will need to be an instinctive problem solver. The conventional party line in law school is that we teach students to think like lawyers. We don’t, though — at least we don’t in a systematic, structural way. What we do is teach students to think in terms of problems. We can throw a mess of disparate facts at students, and by the end of first year, they will almost certainly be able to wade through them and not just separate the grain from the chaff but also point out the legal issues and liabilities involved. That’s all well and good. But it’s only half the equation when it comes to “thinking like a lawyer” for good lawyers don’t just think in terms of problems, they think in terms of solutions. Even in terms of old-fashioned legal education, this was a profound skill gap! In the future, it’s going to be a deal breaker in terms of effective client representation.
Design thinking is another skill that tomorrow’s lawyer will need. To many, this will sound like so much business school mumbo-jumbo. But as design thinking expert Caitlin Moon has described it (quoted in an American Bar Association piece called “Design Thinking for Lawyers” by Vanderbilt law professor J B Ruhl), “The focus of design thinking in the legal services setting is to match client needs with what is legally feasible in a way that delivers client value and lawyer opportunity.” When expressed this way, it seems much less controversial. In fact, it seems like a natural corollary to really thinking like a lawyer.
And then, there is tech-savviness. That’s what most lawyers are referring to when they talk about “innovation” — how we can use technology to do what we’ve always done, but faster and less labour-intensively. People in the tech world call folk born before 1980 (i.e., the bulk of the Canadian legal profession) “digital immigrants” as opposed to people born afterwards who are said to be “digital natives.” This is significant, for it means that most lawyers don’t naturally possess the technological reflexivity that clients need. We need consciously to learn to be techy, unlike young people who learn it naturally as they are learning to speak.
Tech-savviness, business acumen, cultural sensitivity, solution-oriented design thinking . . . without these skills, and probably many others, a lawyer in private practice today will either flounder or end up before a discipline panel — or both. So, it’s up to those of us who are training the next generation of the profession to make sure that we nurture these skills among our progeny.
The truth, though, is that it’s wrong to think of this as a debate about teaching skills. What the lawyer of tomorrow really needs is different attributes. “Culture eats strategy for lunch,” Peter Drucker is famously supposed to have said. The legal profession’s version of that might be to say that skill without a propelling spirit is a recipe for more of the same. Technical skill alone cannot drive innovation. Technology — and the skill to use it effectively — enables one to be innovative. But the driving force behind a culture of innovation is something deeper.
The best lawyers have always been curious and have had a strong work ethic. These things are non-negotiable. Likewise, empathy and a team ethos have always been important attributes for lawyers (even though we often pay lip service to them when we reward compensation points). But we’re going to have to do a much better job at encouraging and nurturing an innovative outlook among our young lawyers. Part of this falls on us in the law schools. Yet an equal part falls on the practising arm of the profession.
If we ask the existential question “Why are lawyers important?” the answer is because we are relevant. This may seem obvious, but we should remember that the common law actually began without lawyers. So, we shouldn’t flatter ourselves that the system can’t operate without us. It can and it will if we don’t consciously recalibrate ourselves.
To phrase it in historical terms, the legal profession became important because we served an important role in society. We facilitated the transition from feudalism and absolutism in government to democracy and the rule of law. And we assisted with the flow of capital that fuelled the industrial revolution. We did this, possibly without even realizing we were doing so, by recalibrating our professional orientation in response to the changing needs of society. The recalibration was camouflaged, for in many ways we look and speak very much like our forebears did in centuries past. But it was a profound change all the same. The skillset that good lawyers brought to the table after the Glorious Revolution, for example, was different from the skillset they had used during, say, the Plantagenet period. And the perspective that good lawyers brought to bear during the Great Depression had evolved markedly from the mindset of their predecessors during the Industrial Revolution.
The question now is what outlook and skills we must bring to bear in the current revolution — the global revolution — that is taking part in our society. Yet there is an important difference between then and now. The transition from feudalism to constitutionalism took 300 years. The Industrial Revolution took 150 years. The development of the welfare state took three generations, and it was punctuated by two world wars and a Cold War. But the information revolution is taking place at breakneck speed. We don’t have the luxury of a gradual, multi-generational transition that our professional forebears did. That is why this project of innovation — a project of collective self-realization, really — is so urgent.
Ian Holloway is the dean of law at the University of Calgary and former dean of Western Law.