Regular Minnesota Litigator readers will be familiar with earlier coverage of “brain raids,” as I call them — the competition between corporate adversaries for “human capital,” that is, experienced, talented, motivated, specialized employees or corporate officers (click here, here, here, or here, for examples of previous posts on the subject).
“Brain raids” don’t just pit corporations against corporations. They pit individual human beings against corporations.
Last week brought the latest installment of St. Jude v. Delgado and Biotronik — in the form of Biotronik’s brief seeking partial summary judgment. The brief is, in my opinion, an excellet piece of legal advocacy. I look forward to Plaintiff St. Jude’s response because the excellence and tenacity of its counsel have been demonstrated time and again.
These brain-raid cases provoke me to reflect on the larger issue of corporation v. person, with a particular focus on lawyers (because I am self-centered).
How will the proliferation of multi-national global corporations affect the future of labor, and the future of lawyer labor in particular? There can be no doubt that individuals or small businesses cannot compete against Medtronic, Boston Scientific, St. Jude, Biotronik, etc. Not only can’t they compete, they struggle to exist. Are solo/small lawyers similarly doomed? Do future lawyers get to look forward to corporate life, with all of its promises, threats, rewards, and deprivations?
As far as I can tell, Prof. Richard Susskind, author of three books, Tomorrow’s Lawyers, The End of Lawyers?, and The Future of Law, has a monopoly on Prognostication About The Legal Marketplace (PATLM). (I am not an antitrust lawyer but if I worked for the United States Department of Justice, Antitrust Division, I don’t think that Prof. Susskind’s monopoly would give me any concern. Prof. Susskind’s monopoly isn’t anti-competitive. He might be the only entity selling PATLM because so few people are willing to buy it.)
My understanding of Prof. Susskind’s work is that he predicts the extinction of solo lawyers and small law firms over time. He also predicts the death of local “medium-sized” firms.
In their place, Prof. Susskind predicts Americans will rely on services like LegalZoom and Nolo for legal scut work (drafting simple wills, basic transactional documents and the like). Alternatively, they will go to Costco, Target, Walmart, or the like for fee-capped “walk-in legal clinics” which will not require staffing by licensed lawyers for a great deal of services now offered only by lawyers (once the “lawyers’ guilds” of state bar associations are forced to release their strangle-holds on the market for many law-related services, as Prof. Susskind sees it). Similarly, Prof. Susskind speculates that tasks like document review, whereby over-qualified lawyers generate tens of millions of dollars for law firms, performing work that barely demands more than literacy, will eventually and inevitably be performed by cheaper non-licensed workers (or, better yet, by computers).
Finally, Prof. Susskind predicts that the most sophisticated and complicated legal work will go to very large multi-branch law firms structured more or less like the large corporations they work for (like “The Big Four” accounting firms).
So, the Sole Seller of PATLM predicts, buh-bye LEVENTHAL pllc. In fact, buh-bye thousands of solo small firms. And buh-bye the venerable Minnesota law firms of Dorsey & Whitney, Fredrikson & Byron, Briggs & Morgan, Gray Plant Mooty, Lindquist & Vennum, Winthrop & Weinstine, Maslon, etc. etc. etc. (that is, all Minnesota law firms that are not multi-office and multi-state firms).
Prof. Susskind might be right. Minnesota lawyers have seen the disintegration of old and distinguished local law firms, Popham Haik, Doherty Rumble & Butler, Rider Bennett. Other local firms, Faegre & Benson, Leonard Street & Deinard, and, most recently, Oppenheimer Wolff & Donnelly have merged with non-Minnesota law firms to survive. In 2036, will we have “the Big Four” or “the Big Eight” of U.S. law firms controlling the vast majority of legal services?
As a 53 year-old solo civil litigator, I could react defensively to Prof. Susskind’s prediction of my demise (and the demise of the careers of most lawyers I know). On the other hand, the transition that Prof. Susskind predicts will take several decades to occur, if it occurs at all. As fans of Downton Abbey will appreciate, notwithstanding the predicted extinction of his “way of life,” Robert Crawley lived most of his privileged life on the crest of the wave. His own ride will likely come to a graceful end before the wave’s crash and possibly mine as well. Sic transit and all that rubbish.
Having said that, I wonder if Prof. Susskind might have missed a factor that might complicate (and might influence the outcome) of his PATLM.
Is it possible that Prof. Susskind and others who predict the consolidation and globalization of the legal market could be under-estimating the high cost of corporate life on “corporate citizens,” generally, and, in particular, a critical dissonance between the standard buyer, seller, and market model with the market for legal services? I would suggest to you that very few lawyers actually want Prof. Susskind’s predictions to be accurate.
While no one can doubt or deny “economies of scale,” which enable large corporations to sell widgets for much less than they’re sold at the village store, the savings that enable larger profits on lower profit margins come not only from discounted rates on larger volume raw materials. Large corporate savings also come from the mechanization of labor, the ability to break down manufacturing processes, distribution processes, etc., into simple and discrete tasks. Corporations get huge savings by standardizing work, by making laborers fungible, driving down their price of labor. But lawyers do not make or sell widgets and, perhaps, they might not be so easily plugged into call centers, cubicles, and other tools of mass production of human services.
Is it possible that a significant number of lawyers, the manufacturers of legal advice (“the product”) would happily trade, say, a $500,000+ salary at LawForce, Inc. for half as much or less working independently or with a small team of colleagues? How much of a pay-cut would many large firm lawyers take for the autonomy and independence, to avoid living the life of a cog in a large corporate system?
And is it possible that a significant number of purchasers of the legal product (“the client”) might view lawyers differently than they view hardware store owners, book-sellers, or other sellers who are being wiped out by mega-corporations?
I expect that Prof. Susskind might consider me a nostalgic who, with admitted self-interest, clings wistfully to an obsolete model. Time will tell. As I see it, I have had the good fortune of being either on the leading edge of a trend favoring micro-businesses like LEVENTHAL pllc or being one of the lingering, reasonably-viable remnants of a by-gone era. I feel very fortunate either way.