The Legal Beat
Lack Of Curiosity Is The #1 Killer Of Legal Innovation… And Law School Is The #1 Killer Of Curiosity
Posted on Tuesday August 15, 2017
Albert Einstein once said, “It is a miracle that curiosity survives formal education.” Unfortunately, there are no such miracles in law school which beats student curiosity into submission. And while killing curiosity was always problematic, the repercussions are particularly dangerous as the legal profession careens into an uncharted future.
Before I examine the impact of law school on curiosity, let’s define the term. Simply put, curiousity is a desire to learn and explore. Passionate curiosity propelled DaVinci, Einstein, and countless others to the advancements that moved humankind forward. Curiosity is the force that fuels creativity and innovation — and that’s why it is so vital to the legal profession as we’re faced with a cornucopia of powerful new technologies yet not a clue as to how to best maximize their use or much of an interest in doing so.
This lack of curiosity and inquisitiveness has its source in law school. Though granted, many of those drawn to law aren’t particularly curious to begin with, law school does nothing to cultivate curiosity. As for students who arrive with a healthy sense of curiosity, most leave three years later defeated.
Law school’s assault on curiosity begins the first day with the introduction to the Socratic Method. Although the Socratic Method has fallen into disfavor, it is still used in some law schools — and accounts for the greatest blow to curiosity. The Socratic Method, by its very nature, preempts students’ ability to ask questions or to explore new theories outside the narrow parameters of the Socratic forced colloquy.
Of course, even without the Socratic Method, law school is hardly a breeding ground for curiosity. Law school affords few opportunities for law students to ask questions during a class, observes Elon Law School Professor Stephen Friedman in this article — and without the ability to question, curiosity is stifled.
Meanwhile, law school exams demand one task of law students: to identify as many issues as possible, analyze both sides, and reach a conclusion within a strict time period. Students are rewarded for the number of issues spotted, and don’t have much opportunity or incentive to ask whether a particular issue should even be raised to begin with.
Finally, in contrast to traditional doctoral programs where students work closely with professors, giving them an opportunity to ask about why they chose a particular career path or new research developments, law students can go through an entire three years of law school without ever once speaking to a professor outside of the classroom. As a result, another resource for asking questions and satisfying curiosity is lost.
Once at a summer job or in permanent employment, most students’ brains have been gutted. To my consternation, many of the student law clerks or associates who have worked for me over the years have been utterly passive after client meetings or trials — rarely asking probing questions like why opposing counsel took a particular approach or why the judge responded as he did. I remember back to one of the first cases I worked on while at a firm — a three-day arbitration — and after each session, I couldn’t stop asking questions about every aspect of the proceeding. That’s how I came to understand how and why things were done and how they could be improved
Granted, my law clerks’ lack of curiosity didn’t prevent them from producing a workmanlike product. But it blocked their ability to develop new theories or to figure out a way to tease the desired approach out of uncooperative case law.
A lack of curiosity doesn’t necessarily hurt lawyers or their clients. Young lawyers can advance through the ranks of a government agency or Biglaw to leadership positions by doing only what they’re told. As for clients, ethics rules only impose a duty of competence which is easily satisfied without a shred of curiosity.
No — where the lack of curiosity takes its toll is on innovation in the legal profession. Because lawyers aren’t curious, they often reject new developments out of hand without any further inquiry Take Legal Zoom. Every time this service rears its head within a group of solo or small-firm lawyers, they immediately launch into a tirade about how the documents are inaccurate. Reasonable enough — but no one is curious enough to ask fairly obvious questions such as how Legal Zoom’s rate of error compares to lawyers’ rate of error. Or even assuming error, how many Legal Zoom wills actually wind up in court, and does that risk justify forking over hundreds or thousands of dollars to a lawyer?
Regulators are even worse. A recent ethics opinion issued by the New York State Bar Association that prohibits lawyers from participating in Avvo Legal Services proudly proclaimed that:
[I]tis not this Committee’s job to decide policy issues regarding access to justice, affordability of legal fees, or lawyer quality. Our job is to interpret the New York Rules of Professional Conduct.
So even though the underlying purpose of ethics rules is to protect clients and the public, NYSBA had no interest in asking whether lawyers’ participation in Avvo would harm clients, or whether there was any evidence that clients seeking help from Avvo had been duped into hiring an unqualified lawyer, to their detriment. No, lacking even an iota of curiosity, the NYSBA was content to say that rules are rules are rules and leave it at that.
To be fair, it’s not just practicing lawyers’ lack of curiosity that stymies innovation. Sometimes the very lawyers and entrepreneurs who develop the technology that they want lawyers to adopt are to blame. For example, many so-called legal futurists assume that lawyers won’t embrace new technologies because of a guild mentality or fear of giving up market share or the billable hour. Yet when I’ve suggested that many solos are risk averse about using new technology and becoming a “test case” for regulators, the futurists poo poo my explanation without ever asking if there’s any evidence that these fears are justified (there is). One noted futurist snidely remarked, “It’s not that lawyers can’t do these things, they just don’t want to.” No one bothered to ask more questions or engage but instead remained content to stick to their story even though the result is fewer lawyers adopting these new products. Trouble is, these dismissive attitudes simply mean that companies won’t develop technology to make it more compatible with ethics regulations or better, invest the money needed to change the rules and remove a barrier to use.
Of course, there are cries to change the way law schools prepare students. For example, it’s all the rage to urge law students and young lawyers to develop T-Shaped skills — i.e., both narrow legal skills and a broad base of business judgment capabilities — to prepare for the future. Don’t get me wrong, the T-shaped model for lawyer professional development is sound advice — it’s just not enough. Because unless we can figure out a way to re-ignite the spark of curiosity permanently dimmed by law school, the future of the legal profession doesn’t look very bright.
Carolyn Elefant has been blogging about solo and small firm practice at MyShingle.comsince 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at [email protected] or follow her on Twitter at @carolynelefant.