Monthly Archives: February 2016

LSAT v. GRE – RHETORIC v. REALITY

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[NOTE: The trade paperback edition of my book, The Lawyer Bubble – A Profession in Crisis (Basic Books, 2016) — complete with an extensive new AFTERWORD — is now available at Amazon.]

The Wall Street Journal reports that the University of Arizona College of Law has begun accepting GRE scores in lieu of LSATs. Two other schools — the University of Hawaii and Wake Forest — are performing validation studies to determine whether they, too, should make the move to GREs.

At Arizona, Dean Marc Miller said, “This isn’t an effort to declare war on anybody. This is an effort to fundamentally change legal education and the legal profession.”

To “fundamentally change legal education and the legal profession,” accepting GRE scores instead of LSATs seems like a misfire. Beyond the rhetoric is a reality that might reveal what else could be going on.

The GRE Is Easier

According to the executive director of prelaw programs at Kaplan Test Prep, Jeff Thomas, “The GRE is regarded as the easier test. The entirety of the LSAT was meant to mimic the law-school experience, while the GRE was not created for that particular purpose.”

But the fact that the GRE is easier doesn’t explain why some law schools want to use it. Self-interest and U.S. News rankings might.

LSATs Are Telling a Sad Story 

As LSAT scores of entering classes have dropped at many schools, so have bar passage rates. According to the University of Arizona School of Law’s ABA Reports, its median LSAT for matriculants in 2012 was 161. For 2015, it was 160. That’s not much of a decline, but at the 25th percentile, the LSAT score went from 159 to 155.

According to the school’s website, in July 2013, 92 percent of first-time test takers passed the Arizona bar exam. In July 2015, the passage rate was 84 percent.

The GRE Isn’t the LSAT

Such trends suggest another possible reason for allowing students to substitute the GRE for the LSAT: It buys law schools time and complicates prelaw student decision-making. At many schools, year-over-year LSAT score comparisons have documented the willingness of many deans to accept marginal students. The easiest way to stop such time series analyses is to make that test optional.

The GRE will be a new data point. Until schools report those scores for two or three years, it won’t reveal trends in admitted student qualifications. That will deflect attention away from the “declining quality of admitted students” narrative that has become pervasive. Never mind that the narrative is pervasive because, based on LSATs and undergraduate GPAs for matriculants at many schools, it’s true. (Between 2012 and 2015, the University of Arizona School of Law’s undergraduate GPA for matriculants dropped at all three measuring points — the 25th, 50th, and 75th percentiles, according to its ABA reports for those years.)

The Heavy Hand of U.S. News rankings

In addition to confusing the story on the declining quality of applicants, law schools have another reason to accept the GRE. Applicants will take both exams and pick the better result for law school consumption. It’s analogous to the current ABA rule allowing schools to use only a student’s highest LSAT score.

Prelaw students who do badly on the LSAT will submit the GRE score instead. The ongoing self-selection of poor LSAT scores away from the applicant pool will increase the 25th, 50th and 75th percentile LSAT values for the scores that remain. Until all schools adopt the GRE option, it will help the U.S. News rankings of the schools that do it.

There’s precedent for such behavior. Most high school students take the SAT and the ACT. Where a college allows either score, students submit the higher one.

Look Beyond the Rhetoric

Trends at the two other schools mentioned in the WSJ article might be relevant to all of this. At the University of Hawaii, compare the 2012 and 2015 ABA forms reporting LSATs for matriculants:

75th percentile: 2012 – 160; 2015 – 158

50th percentile: 2012 – 158; 2015 – 154

25th percentile: 2012 – 154; 2015 – 151

Likewise, at Wake Forest the results are:

75th percentile: 2012 – 165; 2015 – 162

50th percentile: 2012 – 163; 2015 – 161

25th percentile: 2012 – 159; 2015 – 157

At this point, the appropriate legal phrase is res ipsa loquitur — the thing speaks for itself.

The ABA is planning to determine independently whether the GRE meets its accreditation requirement allowing schools to use the LSAT or another “valid and reliable” test when making admissions decisions. The profession’s leading organization is likely to approve the switch. That’s because doing so will perpetuate what has become the ABA’s central mission in legal education: protecting many law schools from scrutiny and meaningful accountability.

That’s about as far as you can get from trying “to fundamentally change legal education and the legal profession.”

 

SCALIA’S VACANCY — NEWS v. OPINION

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The battle lines are drawn: President Obama will name his choice to succeed Justice Antonin Scalia on the U.S. Supreme Court; Senate Republicans are determined to block it. One aspect has become striking: Which side has the better argument that history supports its position? It turns out, there’s another battle happening there: news versus opinion.

On the same day, February 16, 2016, two of the most widely read newspapers in the world, carried these contradictory headlines:

“In Court Fight, History Backs Obama” appeared in The New York Times.

“No Clear Confirmation Parallels in Recent Court History,” said The Wall Street Journal.

Who’s Right?

Unless you read both newspapers, you wouldn’t think there was any disagreement on the question of historical precedent for filling the current Supreme Court vacancy. The Times article appears on the paper’s op-ed page. But here’s the real kicker: The WSJ carries its version as a straight news item.

The Journal’s readers saw “news” declaring “no clear confirmation parallels” to the present situation. It cites and purports to distinguish only two earlier precedents.

In 1968, the Senate prevented President Lyndon Johnson’s lame-duck appointment of Justice Abe Fortas to succeed the retiring Earl Warren as Chief Justice and the naming of Judge Homer Thornberry to the Fortas seat. Eventually, President Nixon filled those vacancies. (The Journal doesn’t mention that it took Nixon two unsuccessful nominations — Haynsworth and Carswell — before getting Blackmun over the hump.)

The other Journal example is the oft-cited case of Justice Anthony Kennedy. A Democratically-controlled Senate approved him unanimously in 1988. Apparently believing that distinctions without a difference matter, WSJ reporter Brent Kendall notes that prior to Kennedy’s confirmation, the Senate rejected President Reagan’s first choice, Judge Robert Bork, and that his second choice, Judge Douglas Ginsburg, withdrew.

At the end of his article, Kendall identifies Jess Bravin — Wall Street Journal Supreme Court reporter with a bachelor’s degree from Harvard and a J.D. from University of California-Berkeley — as having “contributed to this article.”

Another Opinion

At best, The Wall Street Journal article is incomplete. Ironically, The New York Times op-ed includes more facts than the Journal’s news item. Professor Timothy S. Huebner notes: “On 13 occasions, a vacancy on the nation’s highest court has occurred — through death, retirement or resignation — during a presidential election year. This does not include the most recent and frequently cited example, Justice Anthony Kennedy, who was nominated by Ronald Reagan in November 1987 to fill a vacancy and won confirmation from a Democratic-controlled Senate in February 1988.”

Professor Huebner continues, “In 11 of these instances, the Senate took action on the president’s nomination. In all five cases in which a vacancy occurred during the first quarter of the year the president successfully nominated a replacement.”

What’s the Difference?

The distinction between news and opinion matters.  Editors have a responsibility to make that difference clear, especially in our age of political polarization. Due to the power of confirmation bias, consumers of media tend to limit themselves to views they embrace. It keeps people comfortable in belligerent adherence to an understanding that may, in fact, be incomplete or even wrong.

In October 2014, PEW Research reported, “Those with consistently conservative political values are oriented around a single outlet — Fox News — to a much greater degree than those in any other ideological group: Nearly half (47%) of those who are consistently conservative name Fox News as their main source for government and political news.” Both Fox News and The Wall Street Journal are parts of the Rupert Murdoch family’s media empire.

Liberals tend to be, well, more liberal in their choices of news sources. According to the PEW study, “On the left of the political spectrum, no single outlet predominates. Among consistent liberals, CNN (15%), NPR (13%), MSNBC (12%) and the New York Times (10%) all rank near the top of the list….”

The predispositions of their constituencies create a special obligation for the media. There’s money in fomenting divisiveness. Blurring the line between “news” and “opinion” might advance a political agenda or sell advertising space, but it’s making the country’s problems worse.

In my opinion.

A DIRTY LITTLE SECRET

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The Wall Street Journal’s front page headline tells only part of story: “Legal Fees Cross New Mark: $1500.” The February 9 article lists the range of partner hourly rates at some big firms: Proskauer Rose from $925 to $1475; Ropes & Gray from $895 to $1450; Kirkland & Ellis from $875 to $1445; and so on and so on and so on.

That’s great if you can get it, but most firms can’t. The 2016 Georgetown/Thomson Reuters Peer Monitor “State of the Legal Profession” tells a second part of the story: realization and collection rates have plummeted. How much a firm bills doesn’t matter; what it actually brings in the door does. In 2005, collections totaled 93 percent of standard rates. By the end of 2015, it was down to 83 percent.

The Music Stopped, Almost

Annual standard hourly rate increases have blunted the profit impact of declining collections, but trees stopped growing to the sky about ten years ago. Except in bankruptcy courts. That’s the third element of the story and the profession’s dirty little secret: one of the most lucrative big law practice areas has no client accountability for its fees. Even worse, the process facilitates pricing behavior that spills over into other practice areas.

Take the recent Journal article. Where did the reporters get the detailed hourly rates for the firms it identified? A note at the bottom of the chart reveals the answer: “Source: Bankruptcy court filings.” If managing partners exchanged their firms’ hourly rates privately, it would raise serious antitrust issues. But in bankruptcy, publicly filed fee petitions do all of that work for them.

It gets worse. In bankruptcy, no one forces attorneys into the discounting that produces the current 83 percent overall average collections rate. Remember the infamous “Churn that bill, baby” email involving DLA Piper a few years ago? That was a bankruptcy case. Traditional mechanisms of accountability are ineffective. Unlike a solvent corporate client, a company in trouble has little leverage in dealing with its outside counsel. Until it emerges from a Chapter 11 reorganization, the days of minimizing legal expenses to maximize shareholder value are suspended. If it winds up in Chapter 7 liquidation, those days are gone forever.

At the same, time, the lawyers handling the bankruptcy have little risk. They get paid ahead of everyone else. Lawyers for creditor committees are a theoretical check only. They, too, get paid first and the members of the exclusive club of big law firm attorneys reappear. Their roles may change — debtor’s counsel in one bankruptcy may be creditors’ attorney in another and the liquidating trustee’s lawyer in yet another. In none of those capacities is there any incentive to rock the long-term, “paid-in-full hourly rate” boat.

More Theoretical Accountability

The U.S. Trustee receives all attorneys’ fees petitions before courts approve them. The Trustee can object, but it doesn’t have sufficient resources to analyze detailed line item time and expense entries on the thousands of pages that firms submit. The Trustee issued new guidelines that became effective for cases filed after November 1, 2013. Perhaps they will make a difference. But in the end, they are still guidelines and the final decision on attorneys fees resides with the bankruptcy judge.

As hourly rates have increased to the $1500 level that the Journal highlights, courts have given their rubber stamps of approval to the trend. Rather than challenge the high rates that all firms charge, bankruptcy judges determine merely that they are “reasonable and customary” because, after all, comparable firms are charging them for comparable work. The circularity is as obvious as the resulting payday for the lawyers. Someday, media attention and popular outrage may force meaningful change that has yet to occur.

Worse Than It Seems

Considering the 83 percent collection rate in the context of the nearly 100 percent rate for bankruptcy lawyers yields an insight relevant to the fourth and final part of the larger big law firm story. In particular, the current 83 percent collection rate is deceptively high. If a firm’s average is 83 percent and its bankruptcy lawyers collect close to 100 percent, then firms with large bankruptcy practices have non-bankruptcy clients pushing some practice areas into deep concessions off standard rates.

Likewise, combining this fact with two conclusions from the Georgetown/Thomson Reuters Peer Monitor Report produces ominous implications for such firms:

— “Demand for law firm services…was essentially flat in 2015,” and

— Bankruptcy experienced the largest negative growth rate in demand by practice area.

Unless the country heads into a recession that few economists expect, the continuing reduction in bankruptcies will drive overall average collections dramatically lower. That’s bad news for big law firms with significant bankruptcy practices.

Back in 2011, an icon of the bankruptcy bar, the late Harvey Miller of Weil, Gotshal and Manges, defended his firm’s approach to legal fees: “The underlying principle is, if you can get it, get it.”

Miller isn’t around anymore, but his unfortunate credo for a noble profession survives — for now.

[NOTE: The trade paperback edition of my book, The Lawyer Bubble – A Profession in Crisis (Basic Books) — complete with an extensive new AFTERWORD — will be released on March 8, 2016 and is now available for pre-order at Amazon and Barnes & Noble.]

BIG LAW LEADERS PERPETUATING MISTAKES

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In January 2014, the annual Georgetown/Peer Monitor “Report on the State of the Legal Market” urged law firm leaders to shun a “growth for growth’s sake” strategy. The year 2013 had been a record-setter in law firm mergers; lateral partner acquisitions were the centerpiece of what many big law firm leaders passed off as a “strategic plan.”

The Report offered this damning observation:

“In our view, much of the growth that has characterized the legal market in recent years… masks a bigger problem — the continuing failure of most firms to focus on strategic issues that are more important for their long-term success than the number of lawyers or offices they may have.”

Since then, the situation has deteriorated.

The Destabilizing Lateral Hiring Frenzy Continues

In 2015, there were more lateral moves in big law firms than at any time since 2009. Morgan, Lewis & Bockius’s mass hiring of 300 former Bingham Mccutcheon partners contributed significantly to the total, but the continuing lateral frenzy is evident. Was the 2014 Georgetown/Peer Monitor wrong? Has aggressive inorganic growth become a winning strategy?

The answers are No and No.

Those answers are not news, but a recent ALM Legal Intelligence analysis suggests that they still are correct. As MP McQueen reports in the February issue of The American Lawyer, “[The] study of 50 National Law Journal 350 firms conducted with Group Dewey Consulting of Davis, California, and released in November found that 30 percent of lateral partner hires delivered less than half their promised book of business after a complete year.”

The co-author of the report notes that lateral hiring is “the top growth strategy for many firms today but there is an incredible lack of empirical evidence as to whether laterals are achieving their promise.”

It’s actually worse than that. The evidence suggests that most lateral hires are disappointments to the firms that acquire them.

Cognitive Dissonance

The survey reported that 96 percent of respondents said that “hiring lateral lawyers with a client following” was “very important” or “moderately important” to their revenue growth strategy. In other words, virtually all firms continue to defy the Georgetown/Peer Monitor Report’s 2014 admonition.

But the survey respondents also said that only 49 percent of lateral hires delivered at least 75 percent of expected client billings. The other 50 percent did worse. Almost one-third of laterals delivered less than half of what they’d promised. And remember, those are anonymous, unaudited responses from the leaders who brought those laterals into the firm. The reality is far worse than they admit.

Likewise, as I’ve written previously, managing partners responding to the Hildebrandt/Citi 2015 Client Advisory’s confidential survey admitted that only about half of their lateral partners were break-even at best. As the Client Advisory reported:

“For all the popularity of growth through laterals, the success rate of a firm’s lateral strategy can be quite low. For the past few years, we have asked leaders of large firms to quantify the rate of success of the laterals they hired over the past five years. Each year, the proportion of laterals who they would describe as being above ‘break even’, by their own definition, has fallen. In 2014, the number was just 54 percent of laterals who had joined their firms during 2009-2013.” (Emphasis supplied)

That’s down from two years ago when managing partners self-reported to Citi/Hildebrandt a self-defined break-even or better rate of 60 percent.  At alarming speed, most big law leaders are running their firms backwards.

Costly Mistakes

The cultural impact of aggressive inorganic growth is not susceptible to measurement, so it gets ignored in the prevailing law-firm-as-a-business model. But there are plenty of recent examples of the potentially catastrophic costs. Just look at Howrey, Dewey, and Bingham McCutchen — three recent collapses on the heels of stunning lateral growth spurts.

“Nonsense,” big law leaders are telling themselves. “We’re not like those failed firms. They had unique problems. We’re special.” Sure you are. Things look great until it becomes apparent only too late that current partner profits are the only glue holding partners together. If money lured laterals into your firm, someone else’s more reliable money can lure them away.

But even in the not-so-long run, top-line growth through misguided lateral hiring produces bottom-line shrinkage. Laterals are expensive on the front end. On the back end, it can take years for the failure of financial expectations to become apparent. The ALI study estimates that lateral hiring misfires can reduce law firm profit margins by as much as 3 percent and profits per equity partner by 6 percent.

Why?

If lateral hiring is bad, why are so many firms committed to it as a growth strategy. One answer is that it’s not always bad. Some of my best friends are laterals. Their moves benefitted them and their new firms. In every one of those cases, culture was at least as important as money to the partners’ decisions to relocate and their new firms’ desire to recruit them.

But that doesn’t account for firms that continue to pursue aggressive inorganic growth as an unrestrained strategic policy. When the odds of success are no greater than the flip of a coin, confirmation bias displaces judgment that should be a key attribute of true leadership.

That leads to another explanation for the continuing lateral hiring frenzy: The opposite of leadership. Most managing partners relish the creation of ever-expanding empires over which they can preside. Having made more than enough money to feed their families for generations, now they’re feeding their egos.

Unfortunately, those appetites can be insatiable.