Adapt or Die

Volume 29 Number 5

By

Stephen J. Curley operates a solo practice in Stamford, Connecticut, focusing on civil and complex commercial litigation.

A very persuasive argument can be made that the law is the profession most resistant to change.

Stare decisis and the power of precedent hold great sway in the courtroom. New legislation requires all three branches of our government to cooperate in order to become truly effective. Even our professional habits sometimes take generations to evolve. Thus, calling on a lawyer to alter the way he or she practices is a mighty task; most of us, like the stubborn children we all at heart are, will fight that change to the end.

Given the glacial traits of the law, it follows that anticipating change is perhaps one of the rarest talents to find in even the best attorneys. We nonetheless have to recognize that all things in the professional world are in continual flux. Economic forces foster much change. Technology begets other changes. Finally, many of these changes are driven by the creation of new industries and the controversies they create. The challenges these phenomena foster will compel each attorney in practice today to be far more nimble than our generations of predecessors could imagine. Those lawyers who can spot and exploit these changes will stand the best chances of survival in our hypercompetitive legal world.

 

The Changing Legal Landscape

Obviously the process of change is highly personal, but lawyers require particularly acute stimuli to embrace it. The strongest of these is economics, which has come into very sharp relief over the last generation. Little more than 25 years ago, a law degree and bar license often equated lifetime employment for even the most mediocre attorney. Whether engaged in governmental, corporate, or private practice, lawyers enjoyed a predictable and time-honored career path. Associate, junior partner, senior partner, and retired partner (or similar titles) categorized their progress. The firm, company, or political entity was their base, upon which lawyers turned for professional and economic support. Even when the twentieth century eroded the notion of the generalist attorney in many areas of the country, those entities proved to be immune to many economic stresses. During periods of prosperity, corporate and wealth management departments thrived; in downturns, litigation and bankruptcy blossomed. Tax and probate work stayed constant. Lawyers rarely had to consider changing the focus of their practices because the other elements of the firm would subsidize them. The symbiotic notion that they would do likewise for their partners when the economy turned kept the system working.

This system took a body blow in the late 1980s as the overall economy slowed and many of the tax-driven transactions that had buoyed large law firms in particular were erased by the 1986 amendments to the Internal Revenue Code. In relatively quick order, highly specialized corporate finance and real estate syndication lawyers were faced with the unthinkable: become workout and bankruptcy attorneys or face extinction. Some faced the challenge; others had to leave the law. Law firms created a new norm: Each lawyer (even equity partners) had to prove his or her economic worth to the organization at all times.

Economic fortunes will wax and wane so long as we remain in a capitalist society, so what is a lawyer to do to adapt? There is proven value in creating niches and specialties in your practice, but what happens when that focus is made unprofitable or even obsolete? The key appears to be anticipating obsolescence. Accept the fact that virtually everything you do as an attorney will eventually be rendered valueless by our economy and that you must begin to develop a companion to your specialty—an “antispecialty”—to prepare for that day. Just as the real estate syndication attorney morphed into a workout lawyer, identify the reverse of what you already do. Corporate contract specialists could develop at least some litigation skills. Litigators could improve their contract drafting abilities. Foreclosure experts could begin to develop expertise in real estate closings, and vice versa.

 

The Impact of Technology

The second force for change, while rapid, may be a bit more predictable: technology. The impact of technology on our profession over the last 20 years has been nothing short of profound. Everything from the look and feel of the traditional law office to the way legal research is conducted finds its roots in technological development. After all, when was the last time you recall a preeminent law firm boasting about the size of its library? These advancements have paved the way for the 24/7 life in the law. Connectivity and communication have exploded old notions of confining one’s work to weekdays at the office. Weekends and vacations have been overrun with client commitments. Contacting an attorney at home is no longer synonymous with the highest level of emergency. Freeing lawyers from some of the burdens of the pre-digital age has shackled them to the devices that liberated them.

These new technologies have empowered solo and small firm attorneys enormously. Such attorneys are now better equipped to compete competently and competitively with much larger firms. But this empowerment has not come without costs. Liberated from some of the largest capital outlays and highest overhead items, small firm lawyers are now frequently held to the same efficiency standards as their large firm colleagues. Their clients, who once deliberately exchanged some large firm efficiencies and sophistication for the small firm personal touch, are now savvy enough to demand all these elements from their attorneys, and, frequently, it is their own familiarity with technology that girds them to hold their lawyers to such standards.

The good news for attorneys is that the legal world is rarely the first place in which new technology is put to work. It is far more common to see these changes appear in financial services, accounting, and advertising offices long before law firms. As a result, lawyers often get the benefit of previewing new technology through their clients’ eyes. Occasionally, these previews take on more significance when contracts or cases involving new technologies wind up at the attorney’s doorstep. If you happen to get that opportunity, you should embrace it fully. It may amount to a rare glimpse into the future, which in turn may give you an important competitive advantage over other attorneys who have not had the chance to see the new device, process, or technique at work.

But what if one doesn’t get the chance to experience the cutting edge of technology through a client-subsidized experience? Fortunately, the lucrative legal services market has attracted many purveyors of the “next big thing.” Attorneys can serve as beta testers and focus group members for companies promoting new technologies. Lawyers’ unique blend of analytical thinking and effective communication is a sought-after commodity for tekkies. Volunteering for such work may offer attorneys important and unique insights into the world to come.

Lawyers can also turn to their colleagues in bar associations for additional technology exposure. The annual ABA TECHSHOW features the latest developments in a single venue. The GPSolo Division does its part as well, frequently previewing and reviewing new gadgets and software while identifying trends in its blogs and traditional publications. In short, with the wealth of early warning resources available to attorneys today, there is little excuse for lawyers to be anything but technologically competent. By preparing for technological shifts before they completely occur, today’s attorney can better protect his or her future.

 

Emerging Industries and Opportunities

A final font of change is innovation: the creation of entirely new industries or products and the laws that will support them. Of the categories of change catalysts, this one is the most difficult to divine. Identifying and concentrating on learning the substantive law in support of an industry that is, at best, in its infancy is a gamble with a lawyer’s time and resources. Few attorneys can afford to make such gambles casually.

Scouting out entirely new industries from scratch is no mean feat. A more thoughtful means of investigation might be to rely on one’s personal interests or social connections and extend an existing interest into a professional one. The pursuit may start as a hobby or pastime. It may lead to a meeting or convention of similar enthusiasts where the discussions can mature into consideration of the legal implications of the new activity. Extending a common bond of interest in that activity into attorney-client relationships can be easily done from that stage.

Another means of joining a new industry is to observe the forces that are causing a fading industry to die out and to learn more about the law that promotes the innovation. This technique may serve more senior attorneys who have “matured” alongside their clients in aging industries. For example, lawyers with specialization in collective bargaining in certain manufacturing sectors have seen their clients face the twin challenges of rising labor and benefits costs, and they also have witnessed the emerging power of overseas manufacturers as transportation and logistical systems become cheaper relative to the costs of the good produced. Such lawyers may see an opportunity to embrace international law, alternative dispute resolution, and transportation law in order to respond to this challenge.

A final method is to use the eyes and ears of your colleagues as your scouts. There is no better forum than the American Bar Association as a wellspring of research and opinion on emerging industries and markets. Frequently, ABA Sections or Divisions produce the first scholarly works that brand and analyze a new legal field of endeavor. Partnering with the resources of the organized bar is easily the most efficient way to take the guesswork out of reconnoitering innovation. It also saves a great deal of the time it would otherwise take a lawyer to discover these facts on his or her own.

 

Keep Evolving

The pace of change and the demand for attorneys to adapt are certain to accelerate over time. Lawyers must remain nimble and flexible enough to change their practice numerous times through a career that is likely to last longer than most of our predecessors in the law ever imagined. As life spans grow longer and the reliance on state and company retirement plans shrivel, more and more lawyers will find themselves turning to these skills to maintain and extend their practices. Hopefully, the suggestions above will help some attorneys shoulder the greatest task of their legal lives—to change with every day.

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