Indiana Judges Association: Are we heading toward a ‘gig’ legal profession?

The people who get on in this world are the people who get up and look for the circumstances they want, and, if they can’t find them, make them.

–George Bernard Shaw

In 1980, I graduated from law school and my whole class had jobs. On-campus law firm interviews teemed with activity, and the legal profession began a boom decade. Today, law schools report fewer student applications, fewer firms showing up to hire, and graduates are taking any job they can get. In fact, the largest percentage of employed new law graduates comes under a category called “self-initiated,” that is, networking, applying, or starting on one’s own. A more alarming statistic shows that most employed new law grads have three different law jobs in their first three years out of law school.

These changes in the legal landscape are of course parallel to what is happening everywhere. Lawyers used to function and prosper well during any economic or social circumstances. Law firms seemed to be immune to barriers and uncertainties facing other business entities. But today, as Jerry Garcia once wrote, “if the thunder don’t get ya, the lightnin’ will.” Change is constant, and everything is in flux, even the future of the legal profession, law schools and the courts. We should not be distracted by the growth of e-filing, e-discovery, Skype depositions and near-instantaneous pleading production. They simply represent the advances of traditional law practice. Rather, our efforts are best directed to discovering the newer geography of the profession, no matter how unsettling.

Hence, the “gig” economy (or short-term, one-time employment) which might be fueling the future. Some call it the “sharing economy” or the “on-demand work force.” Best known through Uber rides and Airbnb stays, the gig economy foreshadows an emerging dominant economic model. For employers, there are fewer employees and expense. For workers, there is balance with other life demands, such as child care, and being one’s own boss. For everyone, there is a flexibility that seems to accommodate a cultural shift in the 21st century toward “bringing people, processes, and technology together to find the most appropriate and effective way of working to carry out a particular task,” according to Mark A. Cohen, a legal business consultant. U.S. Senator Mark Warner of Virginia calls it “reimagining the whole social contract.” A recent TIME poll found 44 percent of Americans have participated in the gig economy, evenly divided between providersand users. That is 90 million people, more than identify as Republican or Democrat. Regardless of issues regarding worker protection, benefits and job security, The New York Times reports temporary contract employment represents the largest growth in jobs over the last decade. The majority of U.S. college professors are now adjunct or part-time. My backyard fence was recently repaired by an Angie’s List weekend carpenter who under-bid established companies. A friend, and former lawyer, used to make a living buying and selling items on eBay (often without seeing them), so the so-called “peer-to-peer platform” connects us easily, works quickly and adapts seamlessly.

What about the legal profession? “This is not about the billable hour and a ‘scorched earth’ approach to every task. It’s a paradigmatic shift,” Cohen says. Client demands are different, lawyer tasks are evolving, and law schools struggle to figure out how to train future lawyers. As such, attorneys and firms may be looking at new ideas, like career research associates, short-term gigs on particular litigation projects, or on-demand specialty mediation. Courts, on the other hand, are possibly facing more dramatic operational challenges. Whether Facebook is admissible or who is a custodian of records contained in the cloud requires adapting traditional rules of evidence. But how do judges apply platforms of justice to a gig economy that needs to move fast? Below are some speculative options that deserve serious consideration:

Travel Gavel – a phone app that works like Uber. When a legal need arises and a dispute needs to be resolved, tap into it, and a roving judge will come over and make the call. Will require software for instant filing of the complaint, answer, judgment, etc. (obvious savings on courtroom overhead); and probably consent to binding arbitration.

The Bench Bar – a cocktail lounge that serves beverages and legal decisions. For example, a typical happy hour could be a martini and a TRO for $100. (Would raise money for the general court budget and everybody goes away happy no matter what.)

AirJD – When the need arises, find a judge and courtroom wherever you are, or want to be. Spend a day or two to get it decided, and enjoy extras like local farm-to-table snacks, spa discounts during breaks, and of course, complimentary selfie with the judge. (Would require flexible jurisdictional rules.)

App App – for appellate decisions. (See Travel Gavel above). Would require instant briefs, online transcript access, and a five-minute argument if the judges want.

Overall, lawyers may be following the medical profession into more bundled corporate organizations, digital delivery, flat fees, and non-lawyer specialists, says consultant Cohen. But the courts have an even wider horizon. Our best future judges may be found among today’s best entrepreneurs.•

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.