April 19, 2010
Minding Our Business Forum: The “Value-Add” of Big Law and Transactional Lawyers Generally
Posted by Michelle Harner

I first want to commend those who have already posted on this interesting and very timely topic. I think everyone has raised valid issues, and I thank Larry not only for linking us to his thoughtful piece that is forthcoming in the Wisconsin Law Review, but also for distilling this complicated topic into three key points for legal education. I want to focus on Larry’s second point in the context of what transactional lawyers do and who should be responsible for developing that product.

Like Brett, I am less pessimistic about the future of Big Law. (In the interests of full disclosure, I should note that I worked at Big Law for over ten years and thoroughly enjoyed my colleagues, clients and practice.) I think Big Law and the demand for high-quality transactional lawyers will continue. I do, however, think that Big Law, its clients and law schools need to reflect on the “value-add” of lawyers in complex legal representations and to re-evaluate their expectations and responsibilities with respect to that legal product.

To illustrate my point, let me start by observing that most clients do not hire Big Law (or lawyers at any firm for any complex transactional matters) to perform routine legal services that can be outsourced or otherwise “unbundled.” I think unbundled legal services have an important role to play in the legal profession, particularly with respect to the underserved and underrepresented. (See here and here.) Nevertheless, I do not think that unbundling serves the best interests of sophisticated clients with complex legal needs. In complex transactional matters, neither the client nor the lawyer can anticipate fully the relevant issues, the direction of negotiations or even the parties who might show up at the negotiating table. Clients in those matters should be hiring lawyers who are great thinkers, problem-solvers and technicians—i.e., lawyers who can find or develop solutions beyond those in form books and treatises.

That is an example of how transactional lawyers add value. It is that type of value that Big Law should showcase and for which clients should be willing to pay. Law schools, in turn, need to consider that legal product in curriculum choices and transactional offerings. Those offerings need to balance theory, doctrine and skills and include interdisciplinary and global components; easier said than done. (Joan’s post does a wonderful job of highlighting the value of skills training. Also, to the extent that Big Law wants to or does provide commodity-type services, it needs to adjust its model for delivering and pricing those legal products. Larry’s Wisconsin article does an excellent job of identifying the challenges for Big Law in this respect and offers possible solutions.)

So is this daunting training solely the responsibility of law schools? In my opinion, it is not. I think law schools, Big Law and even clients each have a role to play. (Rest assured that I have not been out of practice so long as to think that clients will pay for this training—as discussed below, that is not my suggestion.)

Training lawyers for today’s transactional practice should be a collaborative endeavor between law schools, law firms and clients. I agree with those who suggest some type of apprenticeship model for legal training (see here and here), but also support less extreme, interim steps in that direction. For example, coordinating workshops, internships or even one-credit modules at law schools with practitioners and their clients would help socialize law students to the practice and inculcate often lacking soft skills. What would motivate the parties to participate? Perhaps law schools facilitate the programs in return for law firms selecting new hires from the programs in return for clients continuing to hire and support those law firms. I do not mean to suggest that this model would work or solve the current issues facing Big Law and the profession, but I offer it solely as an example of the multiple structures we can and should explore to strengthen the role of legal education in the marketplace and the legal services ultimately delivered to clients.

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