Innovation: A New Key Discipline for Lawyers and Legal Education

Abstract:

Over the past two years, I have interviewed hundreds of in-house and law firm lawyers from around the globe to explore the changing legal marketplace, expectations of clients, and innovation in law. One of my main conclusions is that we are experiencing an Innovation Tournament in Law and almost everyone is playing in it. As I explain in more detail in my book, Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law, driven by a combination of technology, socio-economics, and globality, we are witnessing innovation on almost every legal dimension, including how legal services are priced, packaged, sourced, and delivered. Importantly, this innovation is not only coming from legal tech startups and new law companies. Law firms, the Big Four, and corporate legal departments are creating innovations of their own including new services, products, tools, and, importantly, new processes. Even those that aren’t creating innovations are playing in the Innovation Tournament by utilizing the innovations (or exapting them) to become more efficient and deliver better service. Although we are not yet seeing disruption in the law marketplace in the Clayton Christensen sense, all lawyers should care about the Innovation Tournament regardless and here’s why:

Lawyers of all types, from big law to small and mid-size firms, from government to in-house, and even solo lawyers, are being challenged to change the way they work. Clients are asking their lawyers to innovate (and often with others outside their organization or departments). However, lawyers don’t know what their clients are asking for when they ask for innovation or how to do it—or both. The good news is, however, that my interviews and my experience working with over 210 teams of lawyers and their clients on innovation journeys, indicate that what clients are really asking for with “the call to innovate” is a new type and level of collaboration and client service. The evidence suggests that our clients’ call for us to innovate is actually a call for service transformation in disguise. Whether they want an innovation in and of itself or not, our clients want lawyers to hone the mindset, skillset, and behavior of innovators. The problem with this is that many lawyers are ill-equipped to meet these new demands. Some combination of our temperament, training, and professional identity seems to work against us when we try to espouse the DNA of innovators. This is why the new discipline for practicing and aspiring lawyers needs to be innovation.

This chapter was first published by Stämpfli Verlag in the book: New Suits: Appetite for Disruption in the Legal World, co-curated by me and Dr. Guenther Dobrauz. It begins by demonstrating that clients’ call for innovation is really a call for transformation in service from their lawyers. It then explores why answering this call can be problematic for lawyers. It seeks to show that lawyers’ professional identity, training, and temperament (along with extrinsic and intrinsic motivation) make it difficult for lawyers to adopt the collaborative, creative mindset and skillset of innovators. This chapter recommends that innovation be incorporated as a new key discipline at both the law school and executive education (continuing education) level because in the process of learning how to innovate, lawyers hone the mindset, skillset, and behaviors that clients desire. In support of this contention, it reveals that, as an added benefit, by honing the innovator’s DNA, lawyers also grow into inclusive leaders our society needs us to be. The chapter concludes with some suggestions for lawyers to help them better collaborate towards innovation along with a pie-in-the-sky call to the legal universe to make innovation the new key discipline for practicing and aspiring lawyers.

Citation:

DeStefano, Michele, Innovation: A New Key Discipline for Lawyers and Legal Education (June 27, 2019). New Suits: Appetite for Disruption in the Legal World co-curated by Michele DeStefano and Dr. Guenther Dobrauz (Stämpfli Verlag 2019). Available at SSRN.

Positive feedback from pilot of SRA’s Solicitors Qualifying Examination

The Solicitors Qualifying Examination (SQE) is a new, single assessment for qualifying solicitors and is due to be introduced by the end of 2021.

A pilot to test the first part of the Solicitors Qualifying Examination – known as SQE1 – has shown that it is on course to be a valid, rigorous assessment, while also highlighting the need for more work to see if a skills assessment is appropriate in the first stage of the exam.  Candidates will need to pass SQE1, which focuses on functioning legal knowledge, before being able to move on to SQE2, which tests legal skills.

Conducted in March, by Kaplan, the SQE1 pilot was completed by a diverse group of 316 candidates at 44 locations in the UK, and in Singapore and France. Candidates took three SQE1 papers with a total of 360 single best answer questions.  The second element of the SQE1 pilot tested skills, with one legal research and two legal writing exercises.

The pilot is part of the SRA and Kaplan’s wider work to develop a world class assessment. Hundreds of stakeholders have been involved in the development of the assessment so far. A pilot on SQE2 is due to run in December 2019.

Read more about this pilot

Law School as a Consumer Product: Beat ’em or Join ’em?

Abstract:

With rising costs, pressure on performance metrics and competitive high-profile rankings, law schools are more than ever before being judged on a consumer satisfaction basis by both students and the public. While this perception has been growing over the past two decades, it has reached a crisis point in legal education. When students have their choice of educational institutions, they may act like consumers, and choose to spend their money based on metrics that satisfy them as buyers. This consumer mindset not only impacts admissions, but also can play out in the retention of students. The loss of students transferring out can take a serious toll on a law school, including potential detriments in bar passage, productive classrooms, the loss of future high performing alumni, and the cost of replacing the tuition generation. Schools are thus pressured to address the consumer issue.

Many of the conflicts that arise as between students as consumers, and their institutions, are not necessarily based in the substance of rules. Instead, much of the complaints can easily stem from the institution’s transparency and communication about various aspects of the educational experience, from in the classroom, to a student’s prospects on the job market. As such, institutions should be considering the student perspective in formulating how they present their program of education, and the various aspects within it.

While others have asked the question outright whether college students are consumers, this article does not debate whether law students treat their institutions with a consumer mindset. It presumes they do and seeks to solve the problem for institutions. Part II of this article summarizes how this mindset arose in education and specifically how it arose in legal education, and examines previous conflicts between students and institutions as a result. Part III examines different areas of law school operations where traditional academic mindset and student consumer mindset may clash, and offers solutions and strategies as to where and how the consumer pressure should be embraced to make institutional change, and where it should be resisted to ensure the consumer pressure does not result in changes that are not in students’ best long-term interests. Part IV offers some conclusions on the approach.

Citation:

Vollweiler, Debra Moss, Law School as a Consumer Product: Beat ’em or Join ’em? (July 10, 2019). Available at SSRN.

Singapore launches ‘China-Ready Programme’ to deepen legal services cooperation with China.

The Ministry of Law (MinLaw) in Singapore, has recently launched a new programme targeting the legal industry. The educational programme is designed to help Singaporean legal professionals understand Chinese culture, business environment, legal systems and laws, as well as improving their understanding of Mandarin used in a legal context.  The programme, as well as a series of secondments and networking events, is part of MinLaw’s three-pronged strategy helping to increase opportunities in the legal services market between China and Singapore.

The programme hopes to meet the growing Chinese market for legal services. China has been Singapore’s largest trading partner and Singapore has been China’s largest foreign investor for six consecutive years since 2013. Whilst in 2018, Singapore was the largest foreign investment destination for China along the Belt and Road, capturing close to 23% of total investment flow from China to Belt and Road countries. Whilst the launch is well-timed to meet the signing of the Singapore Convention on mediation.

More information on the programme, which will be developed and delivered by the Han Culture & Education Group (HCEG), which is a subsidiary of Singapore Press Holdings (SPH) is available here.

Revised SRA approach to CPD is well recieved by law firms

Newly published feedback received by the Solicitor Regulation Authority (SRA) on continuous professional development (CPD) requirements introduced in 2016 has indicated that the changes have been well received by solicitors and law firms. The requirements, known as ‘Continuing Competence’ are available in full here and include requiring solicitors to make an annual declaration of their own training and development as part of their renewal application, allowing for greater time flexibility and more targeted development.

Feedback from firms was very positive with 40 per cent of law firms reporting that the changes have increased the amount of learning and development support offered to their solicitors, 52 per cent of firms saying that levels of learning and development have remained unchanged, and only 9 per cent reporting a reduction in the focus given to this area. SRA comments are available here, whilst the full report is available here.

 

LSK calls for ending of law school monopoly

The Law Society of Kenya (LSK) has called for the ending of the monopoly on Bar education in Kenya, following an inquiry into high rates of failure in the Bar examinations. Results from November 2018 revealed that 80 per cent of those who sat the test failed, with only 308 of the 1,572 candidates qualifying.  The results led to calls for investigation into the Kenyan School of Law (KSL) which holds a monopoly on bar education in the country.

The exams which are set and marked by the Council for Legal Education (CLE) costs students KES 47,000 (USD455) on average in fees. Reports suggested that there is a lack of clarity over the content of the curriculum compared to the exam, meaning that students may find themselves being required to answer questions on topics they are unfamiliar with, as well as a lack of clarity over the relationship between KSL and CLE. Further information is available here.

The Secret Sauce to Teaching Collaboration and Leadership to Lawyers: The 3-4-5 Method of Innovation

Abstract:

It is a hard sell to convince lawyers that they need to learn how to innovate. However, when we consider the skillset and mindset that is honed in the process of learning how to innovate, this decision should be a no-brainer. This is because, as discussed in the prior chapter (Innovation: A New Key Discipline for Lawyers and Legal Education), the call for innovation by clients is also a call for service transformation. When clients ask their lawyers to innovate, they are asking for their lawyers to co-collaborate more proactively and with a different mindset and skillset. The easy sell is that, in the process of learning how to innovate, lawyers learn to do just that: they learn to co-collaborate and hone the mindset and skillset that clients desire. An additional and under-emphasized benefit to learning how to innovate and honing the innovator’s DNA is that we also hone the DNA of leaders. When you compare the key qualities of an inclusive, adaptive leader with the key qualities of an innovator, they overlap. Research demonstrates that innovators, like leaders, have high emotional intelligence and communication skills: they are empathetic, open- and growth-minded, self-aware, associative, and audacious. This is why I believe that all lawyers should try their hand at innovation, even if their business model is not broken. This is also why I believe that innovation should be the new, key discipline in legal education for practicing and aspiring lawyers. By teaching practicing and aspiring lawyers how to innovate, we are, in turn teaching collaboration and leadership—and the lawyers don’t even know it. It’s like getting away with putting broccoli in someone’s ice cream—it’s the secret sauce.

But it’s not an easy sauce to whip together. That is, although these benefits may make the need for teaching innovation an easy sell, teaching lawyers how to innovate is not an easy task. This chapter (first published by Stämpfli Verlag in the book: New Suits: Appetite for Disruption in the Legal World) begins by explaining why this is so and why we need to utilize a method of innovation designed specifically for lawyers. It then describes the method of teaching innovation that I designed, re-designed, and tested over the past 10 years on over 200 multidisciplinary teams that included lawyers, business professionals, and law and business students: The 3-4-5 Method of Innovation for Lawyers. It then explains the secret sauce, why this new method works. Finally, this chapter concludes with a call to action for law schools, law firms, and legal departments to put on “New Suits” by creating a culture that inspires lawyers and aspiring lawyers to learn how to innovate (i.e., that cultivates intrinsic motivation) and that provides external rewards (the extrinsic motivation) to those that do.

Citation:

DeStefano, Michele, The Secret Sauce to Teaching Collaboration and Leadership to Lawyers: The 3-4-5 Method of Innovation (June 27, 2019). New Suits: Appetite for Disruption in the Legal World, co-curated by Michele DeStefano and Dr. Guenther Dobrauz (Stämpfli Verlag 2019); University of Miami Legal Studies Research Paper. Available at SSRN.

NCBE’s Testing Task Force and the Bar Exam of the Future

In the United States, the authority to regulate the legal profession belongs to individual jurisdictions; each U.S. state or territory sets its own rules and makes its own decisions about legal licensure. For  licensure examinations, most jurisdictions use one or more of the bar exam components produced by the National Conference of Bar Examiners (NCBE), a nonprofit organization based in Madison, Wisconsin. Thirty-six jurisdictions have adopted NCBE’s Uniform Bar Exam, which is comprised of three NCBE exam components: the Multistate Bar Examination (MBE), Multistate Performance Test (MPT), and Multistate Essay Examination (MEE).  The UBE is a uniformly administered, graded, and scored bar examination that results in a portable score.

At NCBE, we are proud of the high quality, validity, and reliability of our exams, which help jurisdictions protect the public by ensuring that only competent candidates are licensed to practice law.  The legal profession in the U.S. is changing rapidly, and we realize the importance of assuring the bar exam reflects those changes. To that end, in 2018 NCBE appointed a Testing Task Force charged with undertaking a three-year study to ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing profession.

The Task Force’s study is currently in the second of three phases. In the first phase, extensive feedback was solicited in a series of listening sessions with stakeholders from across the profession—bar admission administrators, legal educators, and practicing attorneys and judges. (A report summarizing these sessions is available on the Task Force’s website.) Currently, the Task Force is conducting a nationwide practice analysis survey of lawyers as phase two of the process. This survey will provide valuable and comprehensive information about the knowledge, skills, abilities, and other characteristics that new lawyers must have to practice effectively and ethically. The conclusions drawn from the first two phases of the study will  help inform the study’s final phase, which will consider options for designing the bar exam of the future.

The work being done by the Testing Task Force is important and timely; we are proud of this study and excited to learn all we can from it. Please visit the NCBE Testing Task Force website and sign up to receive updates as this historic study progresses.

Article provided by ICLR member, Judith A. Gundersen, President, National Conference of Bar Examiners

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SRA launches legal access challenge

Legal Access Challenge launched to encourage innovation

  • Six in 10 don’t think the legal system in England and Wales is set up for ordinary people
  • Many who experience a legal problem don’t take professional advice, citing cost and trust as key barriers
  • Eight in 10 say it needs to be easier for people to access legal guidance and advice
  • We are partnering with Nesta Challenges to launch a prize to make legal support more accessible and affordable through new technology

New research from Nesta Challenges reveals six in ten (58%) people in England and Wales think the legal system is not set up for ordinary people, with the vast majority wanting it to be easier for people to access legal support.

The research was conducted to mark the launch of the Legal Access Challenge – a new prize we are running in partnership with Nesta Challenges – which aims to help more people access legal services through new technology.

The survey also found one in seven (15%) people in England and Wales have experienced a legal issue in the last 10 years; although with only half (51%) of all respondents confident they can identify whether a problem is a legal matter, this is likely to be far higher. We know from existing data that very few people seek professional advice from a solicitor or barrister when they have a problem1, and the research showed people are instead turning to friends and family (20%) or Google (16%) for legal advice.

When asked about barriers to accessing legal advice, seven in ten (68%) say the high cost, followed by the uncertainty of the cost (56%) and knowing who to trust (37%). The vast majority (79%) believe it needs to be easier for people to access legal guidance and advice for themselves.

There is a widespread belief that technology could be the solution to this, with six in 10 (59%) saying they think technology could lead to better services to help people resolve their legal problems. People believe that the biggest benefits to using a digital service for legal advice would be having a fixed price upfront for legal fees (38%), being able to understand their rights (26%) and having access to cheaper legal advice and information (23%).

Part of our wider programme to drive innovation in the sector, the Legal Access Challenge will offer £250,000 in grants to help innovators develop new technology solutions to help make legal advice more affordable and accessible for the majority.

Chris Gorst, Head of Better Markets, Nesta Challenges, said: “For too many people, legal support and advice seems out of reach and reserved for those with the time and money to navigate a complex legal system.

“Technology is not a panacea, but in many areas of our lives it has transformed the choice, convenience and quality available to us and this could be true in legal services too. The UK is a world leader in both technology and legal services, and there is a huge economic and social opportunity in bringing these together.

“We are launching the Legal Access Challenge to help demonstrate what technology can do and to bring these new solutions to market. We want to see digital solutions that directly support individuals and small businesses to access legal services conveniently and affordably, and which can help close the ‘legal gap’ we currently face.”

Nesta Challenges is part of Nesta, the innovation charity, and offers financial prizes to stimulate innovative solutions to some of the biggest challenges society faces. The team works with regulators, policymakers and others to help make markets more competitive and open, advising on how regulatory reforms and targeted public investment programmes can work together to achieve greater impact.

Anna Bradley, Chair of the SRA Board, said: “Whether they are dealing with a personal legal matter , or running a business, people need to be able to get legal support when it really matters.

“Having access to professional advice is important at those life changing moments. And for small businesses, it can make the difference between success and failure.

“There are real barriers for people looking for help and the innovative use of technology is one way of tackling those barriers.

“We want our regulation to support new ideas. The Legal Access Challenge can help to drive the development of new approaches which will deliver tangible benefits to the public, opening up access to legal services for as many people as possible.”

The Legal Access Challenge is open to entrants until 11 August 2019. More information can be found at www.legalaccesschallenge.org

Colorado Lawyer Self-Assessment Program yields analytical insights

Colorado Supreme Court Office of Attorney Regulation Counsel started developing its lawyer self-assessment program more than two years ago, immediately after a seminal workshop on proactive, risk-based regulation at the 41st ABA National Conference of Professional Responsibility in May 2015. The new resource is a leading facet of a larger shift toward proactive management-based regulation, which aims to help lawyers practice ethically and soundly in the first place, rather than just reactively imposing discipline after lawyers make mistakes.

The new system provides the regulatory team with real time stats on lawyer engagement and self-assessed professional performance. It highlights the professional objectives scoring the highest and lowest across all respondents, providing the team with evidence to support further educational program development. The platform also has the ability to create customized lists of continuing legal education (CLE) resources based on each respondent’s own personal benchmarks and areas of need. These lists make yearly CLE planning fast and easy for lawyers, and keeps them focused on the most effective resources for their needs.

Jon White, staff attorney at the regulator, writes “The practice of law will always be challenging. The “ounce of prevention is worth a pound of cure” approach of the proactive practice program seeks to reduce some of that stress. The self-assessments give lawyers the blueprint to build an ethical infrastructure. Lawyers, in turn, benefit from enhanced peace of mind. Clients benefit from exceptional service. It is a win-win for all.” The insights generated by the program’s data is informing the regulator where practitioners need more assistance, and where there may be weaker points in the sector as a whole. Staying ahead of this issues protects the public and strengthens the jurisdiction as a whole.

Read more about Colorado’s Lawyer Self-Assessment Program Here