The legal profession’s ‘black swan’ problem


A black swan is an event or occurrence that deviates beyond what is normally expected of a situation and is extremely difficult to predict.

The term ‘black swan’ derives from the story that the English had traditionally defined the word ‘swan’ as a bird that was white. Swans’ whiteness was integral to their ‘swanness’. When the English came to Australia and saw black swans, they were thrown by this completely unexpected event. If swans were by definition white, what was this black bird? It was impossible to have predicted the event of a black swan because of the circumscribed definition of swan.

Author Nicholas Taleb used the term ‘black swan’ in his best selling book. He suggests that we cannot predict the future if we expect the current circumstances to continue on the same trajectory as they have in the past. I think that the legal profession is in such a predicament.

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Corporate control of staff personal life

News that Deakin University lecturer Martin Hirst was stood down without pay over three tweets, caused ripples of concern in the twittersphere and in the academy. Since the story first broke, Hirst has been sacked pending a decision to appeal. His employer’s position is that Hirst has breached the university’s code of conduct. The university had received a complaint from a Deakin University student that Hirst tweeted to the complainant in a threatening way. When the University inspected Hirst’s private account – that did not identify Hirst as a Deakin employee – it found two further offending tweets and suspended him. Hirst maintains that he did not know the complainant was a Deakin student.

This is not the first time an employee has had their job threatened by a social media post. In 2015, SBS reporter Scott McIntyre lost his job following a controversial tweet about the ANZACs. He has since settled his unfair dismissal case against SBS. More recently, La Trobe academic Roz Ward was  stood down for comments on her private Facebook page. Her comments did not relate to her work at La Trobe. She has since been reinstated after a massive national campaign.

The merger of public and private has never been so stark it seems. So, where might the boundary lie?

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Professionalism online (for new lawyers)

I have been meaning for some time to write a post about what’s described as ‘personal branding’. My interest lies in providing a constructive platform for those entering the profession and who seek to dip their toes into social networks as part of their development of a professional identity.

I was prompted again by the recent cases of academics Roz Ward and Martin Hirst each of whom has had their employment threatened due to a personal Facebook post unrelated to work, and a series of publicly available tweets, respectively. These cases, and many others like them, raise a myriad of issues about privacy, employers’ rights, employees’ responsibility, contemporary standards of discourse, and working out when they apply.

Before I could get my thoughts together to finish a post, Martin Hirst posted on his own blog most eloquently about the issues he and others face. So I have scaled back for now. The topic will likely need a series of posts to canvass the different facets of the complex issue of personal freedoms online and their intersection with our professional lives.

This post is a minimalist start on the topic of online professional personae. It addresses what I see as the professional needs of that most conservative of professions, the law. It is designed to offer a starting point for reflection about one’s digital presence in the context of professionalism in the law. It is not a highly critical piece – critique will come in later posts.

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Practical legal education & lawyering skills: are we losing depth?

For a while now I’ve wondered whether a consequence of increasingly vocational legal education and the automation of legal work is the deskilling of lawyers. I don’t have hard evidence, but I think there are questions worth thinking about.

I preface my comments here by confirming that I have no objection – as I know some do -to teaching professional skills in the law degree. Nor do I object to what might be described as an ‘academic’ degree, that emphasises more intellectual skills. My position on the law curriculum is informed by Shiro’s conceptualisation of curriculum. He suggests four types: 

  • Scholar academic (discipline based)
  • Social efficiency (practical skills)
  • Learner centered (such as might be used for an external cohort)
  • Social reconstruction (service to community)

Applying this framework, as I’ve observed before, law schools might develop their curriculum following any of these directions. I can see examples of each across Australian law schools, and I think each has its place.
Further, while there might be any number of alternatives to the Priestley 11, and perhaps different conceptions of the TLOs, there is no intrinsic objection to these as tools of curriculum organisation around subject areas.

I wonder though if we try to do too much with the law degree. If we all aim to do a little bit of everything, will we really produce graduates who are particularly skilled at anything. It’s not that I’m pretending to have emerged from my own undergraduate degree highly skilled in much at all. But in those days universities weren’t promising ‘work ready’ graduates to either the profession, or to graduates themselves.

The past

In terms of my own legal education, I always felt that those who did five year articles (no longer a pathway to practice) were the most skilled of all of us graduate lawyers. These practitioners had a depth of knowledge borne of experience that the two-year clerks like me were unlikely (possibly ever) to match. Upon admission, the contemporary graduate with three months of PLT is unlikely to come near the skill level of the five or even two year clerk. That is not to disrespect my esteemed PLT colleagues or the fine graduates of PLT programs. It is simply that the entire learning/practice context is different. 

But there were flaws with the ways of old – you could get ‘good articles’ or ‘bad articles’. It is no wonder that a standards based PLT was implemented, and that universities are now called on to start professional skills training. If the profession is not training but expects work ready graduates, the training has to be pushed back into the degree.
There is no doubt then that the newly minted lawyer must be sufficiently skilled to start in what is now a high paying junior lawyer position, relative to the low pay of articled clerks of old. Again, I don’t begrudge this. But I do have some questions about how we are developing the real skills of junior lawyers, fully qualified.

The salary of the junior lawyer demands they do fee paying work to meet budget. They are likely to be too expensive to do repetitive back room work like due diligence, discovery, turn-the-handle conveyancing. Indeed this work – in the world of Susskind’s tomorrow’s lawyers (actually right now!) – will either be run by paralegals, outsourced, or computerised. 

I don’t mind the fragmentation of the profession. I don’t mind cost-effective bundling options. I love, and am indebted to, the highly capable legal secretaries and paralegals who taught me so much. I’m a technology fan. And lastly, who wants to do all that drudge work? Not the lawyer, right? 

The future 

I’m not so sure. I was no fan of that grinding work. But it offered me a unique opportunity to learn about the components of transactional law, about land titles, corporate process, and securities. I learned to read word by word, line by line. I learned to take each menial task as an opportunity to practice for the big one. When I had grown up enough to do more glamorous work, I was equipped to give effective instructions to other staff, and to know what inquiries to make. In short, I think it made me a better lawyer. 

I’m sure there are plenty of good lawyers out there who have not taken this path – but increasingly, this path will not be available for lawyers. The problem I foresee is that with all the unbundling and outsourcing and technology, lawyers will lose control of the process. I don’t mean the profession is losing its monopoly (though it is) but that lawyers will not have the insight or experience to know how to give instructions, or what the processes underlying their work even are. Further, will those teaching PLT in the future  have the depth of professional practice knowledge to pass on to graduates?

For example:

  • E-discovery is great. Facilitated by algorithms, it is cost effective and a boon for litigation. I imagine that the software has been designed by or with lawyers who understand the process intimately. In all likelihood, they became experts because they spent hours and days and weeks doing the drudge work of discovery. But their knowledge, grounded in experience, will one day be gone. We will have the algorithm we inherited from them, but no capacity to know what lies behind it or what the electronic process misses or adds to the human skill of litigation.
  • The sanctity of the duplicate certificate of title has long disappeared. Conveyancing now can be achieved from the comfort of one’s desk, with the press of a button (subject to the banks getting their act together – some things seem never to change). The Torrens fraud cases are dated but we still teach them. What is the skill set required to undertake a disembodied land transaction? What will lawyers know of titles beyond the current notation? Indeed (and I have some hard anecdote to back Tis up) what will land registry staff know about titles…

There is still a place for the boutique lawyer, according to Susskind. But what will they cut their teeth on? How will they develop the depth of knowledge, of experience, to become that lawyer? We can’t provide that in universities, nor can PLT courses provide it. ‘Authentic’ learning is training and it may set the graduate up for practice but it is still managed and bounded. It’s the beginning not the end.

The future of legal practice will look different. And educating and training future lawyers will look different. What I’m grappling with, at the risk of calls of Luddite, is whether what we lose in translation is an essential layer of experience and therefore knowledge.