Stanford Hosts the Legal Industry’s Bernie Sanders

Editor’s note: The author of this post is a fellow at CodeX: The Stanford Center for Legal Informatics and is a member of the California bar.

By Monica Bay, Fellow, CodeX: The Stanford Center for Legal Informatics

James Sandman, president of the civil legal aid agency Legal Services Corporation, shares one thing in common with Bernie Sanders: a desire to change the country’s legal system.

“My name is Sandman, not Sanders, but I came here to urge a revolution,” he began in his keynote address at last month’s CodeX FutureLaw Conference at Stanford University.

“We have a legal system that doesn’t work,” he said.

Sandman, who started as president of LSC in 2011, spent 30 years at Arnold & Porter, including ten years as managing partner.

Citing statistics that the majority of Americans cannot find or afford a lawyer in civil matters, Sandman laid out what he viewed as some of the impediments to change and also some of the levers for change that could improve access to justice.

Impediments

• Insufficient capitalcan repress innovation. Examples: There are prohibitions against “non-lawyer” ownership of law firms. The Big Law partnership model focuses on profits-per-partner, tech expenditures can reduce their pay.

• Pricing modelsdo not reward efficiency—and actually penalizes efficiency. Alternative fee arrangements are usually just discounts to billable hours (still the dominant model).

• Law firm structurewhere power is dispersed among partners. “It is considered bad manners for a leader to take control and tell people how things will be done.” said Sandman. Partners have great discretion on how they work.

• Malpractice insurancecreates an environment that discourages new processes. Rates are based on the past actions — if you change you may get pushback.

• Legal education hasn’t changed. With a few exceptions, law schools provide no grounding in management, efficiency, client service or user focus.

• Lawyerly judgement. Lawyers are encouraged to see that every case is unique, and thus resist commodity approaches and technology tools.

• Who becomes lawyers? Risk adverse people who didn’t want to go to business school.

Sandman also said there are “levers of power and agents of change out there that we can enlist to accelerate the pace of change. Most are not lawyers—we need to go around the lawyers—and in some instances, over their head— to engage people to compel them to do what they would not do on their own, left to their own devises.”

‘Levers of Power’

• Funders of legal servicescan use their clout and money to push lawyers into technology. An example: the Florida bar gives grants to about 30 legal aid units, but insists that they all use the same technology (which the bar pays for). That allows the bar to compare progress among the groups.

• Go over the heads of lawyers and go directly to their clients. Sandman cited Jeff Carr, Senior Vice President, General Counsel & Secretary, FMC Technologies (now at Valorem Law Group), an advocate for value-based billing.

• Pressure legal journalists. Sandman urged the legal media to publish lists ranking the use of technology in Big Law. “Shame them.” Report on their behavior—firms will pay attention. “Take a close look at who is doing what and come up with a set of standards to evaluate tech proficiencies of lawyers,” he urged. Write about who is doing what and who not is doing what. “That will get the attention of law firms.”

• Don’t give up on regulators, including bar examiners. There is a legal obligation to give competent service. There is a growing perception that competence as a lawyer includes technology, he said.

• Involve insurance companies. Insurers have argued for standards re: tasks for billing purposes and they could do the same thing for use of technology. They have an interest in efficiency. They want work done in less time, not more.

• Involve malpractice insurers. If you have an innovation that will reduce the risk of malpractice, where a failure to adopt it could put a firm at risk, think about how to approach malpractice insurers. Lawyers will listen.

• Legal academia.This is a longer term proposition — legal academia needs to introduce technology and client-centric perspectives to law students right at the beginning of their education.

Sandman quoted judgeLearned Hand: “If we are to keep our democracy, there must be one commandment: ‘Thou shall not ration justice.’”

If we have technology innovations that can improve access to justice and if its adoption is being impended by self-interested regulatory structures administered by lawyers, shame on the lawyers, said Sandman. “Go around them. Go to state legislators and get them to compel what the self-regulators did not do themselves.”

It’s embarrassing that the legal profession lags behind so many industries and professions in the adoption of technology to serve our clients — which is what our profession shoud be all about, he said. “We should be leading the way, not dragged a long by others.”