My previous post gave an overview of the Law Society of New South Wales’ flip Report, on the future of law and innovation in the profession. My overall impression is that the Report might provide a useful and very gentle overview of the road ahead, but fails to engage in any real sense with the way in which technology will – and already is – changing law and legal practice.

Nowhere is this more apparent than in the chapter devoted to legal education. This poses a real limit on the possibilities for innovation – especially to the extent that regulatory bodies are likely to accept the Report’s statement that existing knowledge and skills must remain.

In a brief chapter on legal education, the Report identifies a range of skills and areas of knowledge required by law graduates. These include ‘technology’, business skills, ‘soft’ skills, project management, internationalisation, and interdisciplinary experience. Interestingly, resilience and the ability to adapt to change is listed separately from what I call soft skills.

Tellingly, at page 77, the Report finds that:

No existing areas of law or skills were identified as being able to be removed from the law degree, PLT or CLE. Rather the challenge appears to be how to include the skills and knowledge discussed below in a crowded curriculum.

In a further comment the Report suggests that:

students be familiar with using new legal technologies, such as data analytics … students would then be able to use technology in their future careers, including being able to provide assistance to clients who may need to use or provide these services.

Finally, the Report identifies the challenge to be:

how to include the [additional] skills and knowledge … in a crowded curriculum.

The answer is that this is not possible – or rather, it is not possible to do this effectively. Indeed the assumption that the existing suite of knowledge and skills should remain the same will necessarily stifle the innovation required to advance the profession. This runs directly counter to the aims of the Report. In my view, the Report has failed to grasp that one of the key drivers of innovation is a re-imagined legal education.

Add tech and stir is no recipe for innovation. I identify three key drawbacks in the Report’s approach to legal education that illustrate why.

Crowded curriculum

It is true that the existing law curriculum is crowded. Law schools are stuck with the Priestley 11 as the core knowledge domains that define both legal education and what it means to be a lawyer. Despite a fairly broad expression within the regulations themselves (‘topics of such breadth and depth as to satisfy the following guidelines’ followed by a broad overview) regulatory authorities have been known to focus on the minutiae of doctrine and even which cases are taught. Such an approach anchors law schools in a content-driven curriculum.

At the same time, the profession seeks ‘work-ready’ graduates – a point made in the flip Report. This seems to mean a graduate who can be billed out on day one with no further need for training. Sadly, in my view this unrealistic – yet complaints about graduates’ work readiness dominate discussions about legal education. The curriculum thus has to cope with an ossified suite of content, plus develop a range of professional skills – writing and drafting, advocacy and oral communication skills, professionalism, research, critical thinking, collaboration, ‘soft’ skills, and so on.

To achieves this requires a complex, structured curriculum that challenges student demand for flexibility. Usually, and aligned with contemporary higher education practice, skills and knowledge are assessed throughout the semester. Students no longer sit 100% end of year exams, but must constantly produce assessable tasks.

There are two further environmental factors to account for. The first is that many students work. In surveys I have done of my own students over the years, it is apparent that many students work more than 16 hours per week, sometimes also studying full time. The reason students  work to feed themselves and their families. They are not working for overseas holidays and the like. Work is therefore not negotiable.

The second environmental factor is that more and more universities are moving to a trimester system rather than a semesterised system. For the same ‘volume of learning’ (ie number of subjects), students exit with a degree far more quickly than they would in a traditional degree and with only limited breaks for the duration.

Our students are flat out. A study released this week shows that 70% of university students rate their mental health as poor or fair. It is no wonder with the pressure put on them. I suspect that the design of university courses is already putting students at breaking point. Suggesting we add more to this is not only unrealistic, it may well be harmful.

Dissonance

Secondly, the legal education chapter seems not to align with observations made in other chapters. Elsewhere, the Report:

• finds the emergence of a ‘legal operations’ role likely (p20)
• identifies the need for a supported transition to the ‘digital age’ (p41)
• observes the difference between operational data (where we know the questions) and substantive legal data or big data (where we do not know the questions but they will be revealed through data patterns) (p40)
• asks ‘how do we code for Hercules’ (referencing Dworkin) (p42)
• recognises diverse ‘new ways of working’ that dispense with the traditional practice models as to: place, task, method, product, and discipline (Ch3)
• recognises the unmet needs arising from contemporary models of practice (Ch4)

These findings would tend to suggest that we need to do something different in educating and training our legal professionals. As the Report intimates, we need to think differently about legal work and what is required to do it. In particular, the unbundling of work – a consistent theme throughout the Report – suggests that the existing knowledge component of legal education (the Priestley 11) is no longer relevant for a significant component of legal services. Yet the Report suggests that this existing knowledge must remain.

Further, the Report observes the expectation that graduates can ‘undertake many of the elementary tasks in practice and interact with clients’ – while at the same time observing the likely automation of the routine tasks that may well comprise ‘elementary’ components of practice. Where do graduates fit in this future, and how do we innovate legal education to equip our graduates for this future?

I’m not suggesting that we throw out the entire system. I’ve yet to see a future vision of the law that does not recognise the likely ongoing need for bespoke specialist legal services. The existing degree structure goes a long way to serving the traditional mode of practice. But we now have nearly 40 law schools in Australia, producing a huge number of graduates with effectively the same education that is not fit for the growing demands of alternative forms of legal service delivery in a changing world.

Digital capabilities

Finally, the Report does not grapple with the inherent requirement for contemporary and future practice – that of digital capabilities.

Although there is tacit acknowledgement in the Report about use of technologies – for example that graduates should be ‘familiar with using new technologies’ – the way in which this is expressed does not capture the contemporary understanding of the digital landscape and what is required to work within it.

Traditionally, a library tour might have provided instruction on where to find the grey annotator, and how to use it. However, the presentation of legal information using technology is ever-changing. Learning any one technology – such as the grey annotator – will not stand the test of time. By the time a student graduates, they will need to learn a new interface and perhaps a completely new way of doing things.

Fluency in the digital realm is more than just understanding how to use technology.

Training must go beyond gaining isolated technology skills toward generating a deep understanding of digital environments, enabling intuitive adaptation to new contexts and co-creation of content with others.

I am not convinced therefore, that it is a matter of ‘using new technologies such as data analytics … [to] be able to use technology in [students’] future careers’. The quest to promote digital capabilities goes beyond simply using a new technology. Further, where students do engage with a technology – for example e-discovery programs – we must expect that things will look different in this realm as they enter practice. Already, e-discovery is becoming a specialised task, posing the question of whether civil procedure including discovery should be a specialised field, rather than a base line knowledge requirement. Additionally, as some jurisdictions are dealing with earlier generation e-discovery for example, the technology has already advanced. The law itself has trouble keeping up – posing a real challenge for universities and their students.

We need to look at legal education in an entirely new way, beyond the bounds of the existing framing of a lawyer, and of the profession itself.

What future then?

The flip Report has gone some way to identify what is happening around the profession. But in terms of how legal education might advance to meet the challenges of legal service delivery, it is sorely lacking. What is called for is a bigger vision that better aligns with the observations elsewhere in the flip Report, as well as the broader project facing universities globally of promoting graduates’ digital capabilities and global citizenship.

In the same way that the practice of law is being unbundled, so too is higher education. Working with the potential offered by technologies and innovation within higher education may offer an innovative solution to the needs of the community and the justice system, in developing appropriately qualified legal professionals. To do this however requires the profession and the regulators themselves to think differently about what it is that lawyers do.

Watch this space.

You can catch Melissa Castan and me in conversation about the flip Report and legal education: