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New Year’s resolutions for me are a waste of time and energy that evaporate into thin air by Valentine’s Day (if not sooner). I had thought about having an AI write this column, complete with resolutions and predictions, but that would set a dangerous precedent, at least with my editor. My Ouija board, crystal ball, and Magic 8 Ball (remember those?) are all in the shop, so it’s hard to make predictions, not that I’d want to in these times. Predict at your own risk.
However, people reflect at this time of year and decide how and if they want to move forward, and what that would look like. Often, parents would tell us that the “grass always looks greener,” “your eyes are bigger than your stomach,” and other platitudes, some of which had more than a grain of truth. Time for a change?
As one example, lawyers in law firms, especially at the associate/junior partner level, often think that if they could just land in-house jobs, life would be perfect. Au contraire, life in-house is hardly a bed of roses, but one with plenty of thorns. This recent Axiom survey proves my point. Nearly 90% of in-house lawyers say they are dissatisfied with their jobs.
That’s a huge number.
The issues in the Axiom survey are nothing new: chronic underfunding of legal departments because they are viewed as “cost centers” rather than money makers. I have always thought that the view was extremely shortsighted. The legal department may or may not help bring the money in, but it is the one that will keep it from going out the back door. For savvy businesspeople, this should not come as a surprise, but it’s amazing how often it does.
Another issue is technology: whether companies are willing to invest in the necessary bells and whistles that will make the legal department more effective and thus more cost efficient. Businesspeople shrug and say that what the legal department has is “good enough.” No, it’s not. Workloads increase and technology does not keep up with those demands.
The number of matters and their growing complexities are other reasons why in-house counsel are dissatisfied. And, of course, there’s the ever popular (but not to the legal department) notion of freezing headcount in the department, aka doing more with less, a concept that has diminishing returns.
And that “let them eat cake attitude” is prompting approximately two-thirds of in-housers to look for other opportunities, which is a whopping increase from the under 20% seeking to ditch the in-house world in last year’s survey. More attorneys want to return to a law firm environment, rather than the 33% who want another in-house position.
No longer a haven for burned-out law firm lawyers, in-housers are burned out as well. Possible solutions? If we have learned anything from the pandemic years, it’s that the old ways of leadership and management don’t work in this new environment. Listening to what the in-house team wants and needs to function is a way to start. It also takes gumption to tell businesspeople what the legal department needs to survive and thrive. Yes, there are still some businesspeople who say that they will just close the legal department and send all work outside. Good luck with that. Just wait until those bills start coming in and there’s no one to review and push back against the fees charged when no one is looking. Let the squawking begin.
And what about AI? AI can do a lot of lawyering, but it can’t give advice, at least not yet, and, I hope, not ever. What AI can and does do is much of the drudge work that makes lawyers want to stick forks in their eyeballs or leave the profession in utter frustration. By drudge work, I mean e-discovery (I dare you to name anyone who really likes doing that); paperwork automation, thus reducing the amount of time that lawyers need to cut and paste; and basic contract drafting. There will always be issue of content or form that need human intervention but replacing lawyers completely? Nope.
We have honed certain skills that AI just doesn’t have: the ability to negotiate, the ability to read the room, the ability to see below the surface of a dispute to plumb the underlying causes, and to suss out what the client really needs and or wants. Context does matter here. No automaton can do that yet and, I hope, never will. AI stands for “artificial intelligence,” and the profession still needs HI, human intelligence, although sometimes I wonder if our profession has more “inhumane intelligence,” than “human,” but that’s a topic for another time.
Right now, the biggest AI threat to lawyers is financial, that is, the billable hour. Some courts are requiring disclosure when AI is used to create court filings. The next step may be to require law firms to disclose their use of AI in their practices and how it’s reflected in their bills. Reduce or strip away hours spent on tasks that AI can do more effectively and efficiently than lawyer hours and firms may have to start being more mindful about what they can charge for and what they can’t. Ethical practices will come into play.
Some have been predicting the demise or at least the diminution of the billable hour, and 2024 may be the year when billing practices get slapped upside the head. It’s long overdue. The demise of the billable hour? Too soon to tell, but it may well be on life support in the coming years. Try to have a happy new year anyway.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
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