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Vol. 39, No. 3

Law professor Bill Henderson shares ‘Blueprint for Change’ with bar communicators

by Marilyn Cavicchia

How worried should law schools be about the recent changes in the economy and the legal profession that have led to declining enrollment? “We have more problems than bar associations do,” said Bill Henderson, professor at Indiana University Maurer School of Law.

That sense of shared urgency is what brought Henderson to speak at the 2014 National Association of Bar Executives Communications Section Workshop, in hopes that the communicators in attendance would carry his message back to their bar associations and provoke some productive conversation and progress.

In the almost-year since he published the widely acclaimed scholarly paper “A Blueprint for Change,” that type of discussion and collaboration has not occurred among law schools, Henderson said, and none have adopted the curriculum model he laid out in that paper.

Instead, he said, many law schools continue to “pretend” that the reality they prefer still exists: that it is acceptable for law scholarship to be divorced from law practice, and that “Career services will find you a job” is sufficient guidance for today’s graduating lawyers.

To clarify the nature of his concern, Henderson said, “From a social point of view, no tears need to be shed” over the decreasing number of lawyers that this new landscape can support. LegalZoom and other tools that offer legal services in a form that is commoditized and affordable can serve more of the public than the traditional lawyering model can, he believes.

But law schools, bar associations, and others that depend on the continuing presence of lawyers and the ongoing viability of law as a career do need to worry, he said.

Henderson believes that the changes that were brought about or exacerbated by the recession are permanent, that “the past is a poor preparation for the future,” and that law schools, bar associations, and others with a vested interest in the legal profession should work together.

And the time, he said, is now—or should have been long before now—because “our platform is burning.”

Inside a crisis

At the top levels of the profession, the “preferred reality” does still exist, Henderson said: “Partners in major firms are making baseball money,” and these older lawyers may have enough older clients that they can finish their careers without being pressured to adapt and change.

These older lawyers and older clients may gladly continue to trade in “bespoke” (individualized, custom) legal services of the type that is crafted by artisans, Henderson said—but this will not change the fact that the world is swiftly and steadily moving toward commoditized legal services like those offered by LegalZoom and other “tool makers.”

It’s well known that clients have become more budget-minded and no longer wish to foot the bill for an associate’s on-the-job training. This has translated to law firms “getting older” in general and doing more lateral hires of lawyers who have already received training elsewhere, Henderson said.

Young people are beginning to get the message that there may no longer be a toehold for them in the legal profession; after a high point of about 55,000 in 2010, the size of the entering 1L class in ABA-accredited schools had dropped to slightly less than 40,000 as of 2013, Henderson said.

And those who are now entering or completing law school may very well end up obtaining either a “JD advantage” job or one in which a JD is completely irrelevant. The percentage of new law graduates who attain entry level jobs in private practice has seen a slight uptick recently but has not recovered from a precipitous decline, Henderson said. After a few flat years at around 55 percent, this measure had dipped to just over 46 percent in 2011 before beginning to climb again—but not reaching 50 percent—in the following two years.

Between 1999 and 2012, the U.S. Census Bureau category for law offices lost 63,000 jobs, Henderson said, while the sector for All Other Legal Services (which would include jobs in which a law degree is preferred but not required), gained 17,000 jobs and seems to be on a continuing upward trend. What’s the problem? Among other things, Henderson said, it’s that, on average, those jobs in All Other Legal Services pay about 40 percent less than jobs in law offices—and law student debt loads continue to be prohibitively high.

As for those who graduate from law school and then go into completely unrelated fields, Henderson often encounters this among LinkedIn profiles of his previous students. When he sees, for example, that someone he taught is now a high school teacher or works for a design firm, he wants to ask him or her, “Was law school worth it to you?”

Henderson’s proposed new model

The typical law school curriculum, Henderson said, can be represented by a series of “very predesigned dots” that have no relation to each other. If you’re a professor, he said, you pretty much just publish your syllabus and then grade things as they come in on a very predictable schedule.

Henderson’s law school curriculum would be represented by carefully sequenced dots (one subject logically leading to another), by a coordinated pattern in which all of those dots are sorted according to where they best fit (a more carefully planned version of sequencing), or, ideally, not by disparate dots at all, but by a large circle that contains all of the individual subject areas in one whole.

This ideal, 3.0 model would be “sequenced, coordinated, and integrated,” Henderson said. Professors would talk to each other and coordinate with one another so they all “do the same stuff” during the semester, in order to “create a little legal world” that is immersive and that better replicates the real legal world, where clients’ matters often involve many interrelated problems and areas of law.

Law professors are often loath to work together like this, Henderson said, or, in general, to consider changes to the traditional curriculum. Also, he said, they enjoyed many years during which it was assumed that the current model was working well; “Professors have never been held accountable.” In the midst of this ongoing crisis, Henderson believes, it’s now past time for professors to be compelled to answer the question, “What’s the product?”—that is, whether law school in its present form is still worth it, and if not, how it can be changed so that it is.

Next steps

Henderson concedes that it’s relatively easy to develop such a model—indeed, he first came up with his while on a flight—and much harder and more expensive to execute it. In a much more manageable “eyedropper” version that could nonetheless get things moving in the right direction, he said, the curriculum could stay the same for now—until the final semester of law school, which would be designed according to his model.

Henderson is now involved in raising money for law schools to get together and coordinate their efforts in this way, and he’s “eager for bar associations to help.” He’s also developed a two-day program that brings together bar leaders, law school officials, practicing lawyers, law students, and any other stakeholders to imagine some “what-ifs” and envision a “Future Firm”—and how to get there.

It’s important that this group be as mixed as possible, he said; for example, it’s critical that this discussion that’s fundamentally about young people actually include some young people, and that they not be broken out from the rest of the group. To break the ice, Henderson suggests a group dinner on the first night. “People can be highly creative if they trust each other,” he explained.

At the time he spoke, Henderson was planning a program at the North Carolina Bar Association to discuss the future of law practice and legal services; he hopes other bars will follow suit. Anything that arises from these discussions is better than just “protecting the guild” or pretending the current crisis is just a temporary wobble, Henderson said.

“We can’t put the cork back in the bottle,” he stressed. “We lack the power to basically stop time.”

[Note: The National Conference of Bar Presidents, in collaboration with the ABA Commission on the Future of Legal Services, will hold a plenary session called "The Future Is Here: NCBP Futures Conference" at its 2015 Midyear Meeting in Houston this February.]