Women in Law

How do we deal with upheaval as individuals? We have to adapt, be open to the changes ahead and listen to advice. In the legal profession, it is no different – as the world in which we practice law changes rapidly, lawyers need to be ready to rethink how they work.

That is the premise of a new book by Michele DeStefano, law professor and founder of LawWithoutWalls and MoveLaw. Legal Upheaval: A Guide To Creativity, Collaboration and Innovation in Law introduces readers to 7 essential experiences that lawyers must master to achieve innovation, transform their collaboration with clients, and create solutions at the intersection of law, technology and business.

With some urgency, the author encourages lawyers to think and behave differently in order to drive the innovation that so many in the industry are calling for. We were lucky enough to chat to Michele, and she is just as infectiously passionate in person as she tells us about the process of writing the book and the need for lawyers to be more ‘open’…

You are recognised as a ‘legal rebel’ by the American Bar Association – what does that mean to you?

To me a legal rebel means someone who isn’t just talking about what needs to be fixed in legal practice, both in training and practice, but is actively taking risks to do things that are different. Ironically, since the law is slower to change than other industries it’s not that hard to be considered a rebel!

There certainly is a lot of talk about innovation at the moment – in the book you define it as ‘lasting incremental change that adds value’, how much of that are we seeing right now?

There are various ways to define innovation, and it can be a hackneyed word. But there is some consensus in law that innovation is still about small steps – small change is difficult but is easier than asking for ‘big bang’ innovation, especially in a world of people that like the status quo.

However, lawyers and Heads of Innovation I think still inaccurately focus on the technology side of innovating, and it’s starting to frustrate in house teams and clients. Not every innovative solution has to be a technology. Will tech be involved in improvement? Yes probably, but we need to first change the view of the way legal services are provided. The focus needs to shift from what lawyers do, to how we do it; how we are utilising and leverage tech in order to improve our service and provide better legal products. If we look at design thinking, there was a similar trajectory that law is now learning from: there is lots of literature on the design thinker perspective on improving service, and we’re starting to see people from a design thinking method background being hired to work with lawyers to help them work through pain points and affect change in their service.

You put great emphasis on encouraging lawyers to be more collaborative and well-rounded in order to drive the changes needed in the industry…

Yes, that is something we typically struggle with. It’s a chicken-egg scenario: is the law attracting a certain type of person – those who are more introverted, more risk averse, more sceptical, but are great at complex problem solving – or is it that through the way training and practice churns and burns us that we create them?

That’s not to say being risk averse and sceptical are bad things, because in so many ways it’s our job to be those things to protect clients. We need those qualities, but it’s important to not be that all the time in the way we approach everything we do. Be a human! Use that fantastic lawyer mind but let’s work together and build on each other’s ideas to create a better service for those we work with.

Tell us about how you try to encourage openness with Law Without Walls?

With Law Without Walls, we have created a learning programme that is multidisciplinary in every way – people of all ages experience levels and type of discipline: academics, public servants, law firms and law schools from across the world come together into teams to co-create a Project of Worth – a practical solution to a real business problem designed to bring value. It’s extremely rewarding to watch the teams, especially the lawyers, change and grow in the way they ask questions, think about problems, approach meetings etc.  Especially when you hear that their teams back home notice the difference too, so much so they are asking them ‘who are you and what have you done with Craig?!’ That impact is exactly what we aim to achieve.

How was the process of writing Legal Upheaval? What did you learn from it and was there anything that surprised you in the conversations you had?

It wasn’t so hard to write but it was hard to edit! It took two years of interviews and I had enough for three books but had to edit it all down to one.  Interviewing is really a tough field – it requires listening beyond listening, there is no ‘I’ or ‘me’! We should be doing more interviewing training in law school.

Obviously I knew going in that the topic of innovation was being pushed, GC and in-house counsels are constantly saying ‘innovate or die’ but they don’t exactly know what it is or what they are asking for. Can you really measure it if you only know it when you see it? There’s an analogy to be made there with the diversity movement – calls for diversity initially were very vague, so firms would say ‘oh we have a female working with us’ – no mention of what level they were at, but okay!

It was only over time that the questions became more focused: what % of minorities are in our organisation, what % on my senior team are diverse etc. Now, clients are asking for your flexi-time policies, because without that you cannot support diversity – diversity doesn’t truly exist without creating an inclusive culture and environment.

It’s the same with innovation – who is going to lead it? What are you hoping to achieve? If you don’t want the same thing to happen as diversity, where you are racing to  meet client demand instead of forward thinking and define innovation for yourself, now is the time to be asking serious questions. Part of being a great innovator  is self awareness.

Another thing I was surprised by was the amount of in-house counsel complaints on simple matters – particularly over advising. There is a disconnect there, and I don’t know why or what is happening. Perhaps it’s because we are taught to see the trees not the forest, so many lawyers are missing the bigger picture of how their documents are used in day to day business practices. In-house counsel can read the law, they don’t want to receive reams of information that they have to filter and rewrite. We need to spend more time sitting back listening and asking ‘why’ in what we are doing. Of course, that makes people uncomfortable, especially the more senior we get, as we think we know the answers and we are taught to find answers for ourselves.

From your experience as a professor of law, is there a change in approach to teaching? Are students coming in with different expectations now? 

It is a bit like moving the Titanic. I don’t know if students are all that different – for hundreds of years they have come in with bright eyes and big hearted missions, that won’t change, but the next generation may have different expectations of the culture of law. Unfortunately law schools are much slower to move and the tenure systems that are in place very much encourage status quo and professors keep on teaching the same things they have taught for years. So, though there are some great things being done in law schools across the world in terms of bespoke programmes being created, it’s not reaching every student that it should. But it’s not just up to the schools, it’s going to take the whole village to move and change way we train and retrain lawyers.

What do you hope people will take from the book overall?

My hope is that people will leave with hope. Lots of articles about law as an industry are negative, but we should realise that some of the traditional habits that have made us successful so far are also characteristics that we can utilise to get over hurdles. The mission of the book is to get every lawyer to try a problem solving group project with the mindset of an innovator and try to adopt some of those skill sets and characteristics.

My three rules of engagement are Open Heart, Open Mind and Open Door – it does sound corny, but they are essential. Yes, effective people are good at editing out the nonsense and saying no to things, but innovators are different. They let go of preconceptions and allow themselves to be more open to accept seemingly silly ideas. That’s something that those in the legal industry can adopt and build on, and take that brilliant lawyer brain to fine tune and turn them into the really good ideas. We can approach creative problem solving collaboratively through just a small shift in thinking.

Michele’s efforts to encourage collaboration struck a real chord with us here at Obelisk. While this change in mindset is a challenge for all lawyers given their traditional education, DeStefano concludes it is overall good news for women lawyers, because on balance they are better at the necessary skills: having an Open Mind, Open Heart and Open Door. It certainly gave us hope that we are on a real cusp of change in the legal industry, and that small actions being taken today are laying the groundwork for a more open and inclusive future.

Legal Upheaval is available on Kindle and in Hardcover Edition from 1st October

 

The Legal Update

Japan is known for its bright city lights, tall buildings and weird and wonderful technological innovations. However, behind the scenes the country’s innovation, especially in the legal sector, is suffering due to its conservative culture and demographic problems. Ken Onda, business intern at Obelisk Support, takes a look at these conflicting elements and what needs to be done to sustain legal innovation in Japan.

The Status of Women in Law

A recent domestic scandal, where one of the most prestigious medical universities in the country admitted to manipulating entrance exam scores of female candidates to keep their pass rate under 1 out of 3, drew attention to Japan’s ingrained conservative outlook on gender roles and the lack of progress being made on equality across professional and technological industries. The fixing was allegedly done due to the belief that women had a higher chance of leaving the medical profession after conceiving children, causing “an intolerable burden for already overworked doctors”.

It is no surprise on hearing this news that Japan is ranked 114th out of 144 countries in gender equality, one of the worst for a developed country. In the legal sector, female attorneys make up merely 18.2% of Japan’s lawyer population, according to the Japan Federation of Bar Associations. Of that 18.2%, only 11% are partners. This is a quite unbelievable disparity between men and women. Despite its shrinking demographic with 30% of its population 65 or over, Japan continues to discriminate against half of its population. This lack of representation is one of the reasons why Japan is suffering economically, and is increasingly unable to deal with international legal matters and lacking innovation in the legal sector.

Conservatism vs Legal Innovation

As far as the structure of its legal system, Japan has fewer per capita lawyers compared to other industrialised nations such as the US and EU countries. There are fears that at the current state, Japan will face a major problem in an ever-globalising world. Japan has adopted a Western legal system to settle legal disputes in courts despite significant cultural mismatch. Japanese people tend to resolve issues privately through negotiation without the involvement of lawyers. If there is no resolution, the conflicting parties will often go directly to court and litigate without private/commercial mediation. However, as lawyers are often not taught about mediation during university, they are not well equipped to solve problems in non-litigious ways.

Chart source: Wall Street Journal

This is a problem as when foreign entities – especially those in the West – try to do business with Japan, they are often caught off guard by the norms within the Japanese legal industry. This makes them less willing to work with Japanese entities, which is a significant barrier to collaborative innovation.

Moreover, the driving force of innovation – start-ups – are the most under-supported sector in Japan. Japan embodies a vertical collectivism, where bureaucracy, group-thinking and strict regulation dominate. It is a country where people are generally less inclined to take risks. For instance, Japanese landlords often want to see at least 2 years of profits before renting space to a company. It is therefore no surprise that venture capitalists often do not invest on high-risk ventures such as emerging technologies in the legal sector.

Although Japan invests heavily in R&D and is known for its technological advancement, it lacks entrepreneurship and application and capitalisation of its research due to its culture and regulation. Japan is still at its core a highly conservative country that does not embrace change readily as other developed nations, especially concerning new technologies. Japanese corporations such as Fujitsu, Hitachi and Sony are too slow and bureaucratic to keep up with agile foreign competitors in countries such as the US, Germany and South Korea.

Japan’s Missing In-House Lawyers

Japan is facing a major demographic problem involving shrinking population, going below the replacement rate. Subsequently, its market is also shrinking. For this reason, many Japanese companies are being more inclined to enter foreign markets, such as by conducting outbound M&A. However, due to the lack of experience in M&A and human resources, especially for SMEs, most of these deals fail according to the Asia Business Law Journal. This is exacerbated by the fact that Japanese firms tend to not employ in-house lawyers, but instead, make their departments deal with their own respective legal issues (e.g. a finance department deals with finance-related legal issues). This means that senior management is not given legal guidance when going through an M&A deal that is often full of legal issues. This increases the likelihood of the M&A deal not going through. Even when there is a legal department present, they often take traditional roles such as reviewing contracts and dealing with litigation. According to the Association of Corporate Legal Departments in Japan, only 6% of in-house lawyers felt that senior management frequently implemented the advice of in-house legal counsel.

Illustrating this trend, only 5% of qualified lawyers in Japan work as a legal counsel. One of the main reason for this is because the Japanese Bar Exam has been deliberately designed to be one of the hardest in the country to pass. On average, people take the exam 6 times before finally passing to qualify as a lawyer. For this reason, a lot of Japanese law students go on to work after graduation as in-house counsels without being qualified. Could foreign-qualified lawyers be the answer to Japan’s lack of qualified lawyers?

Not so. The barrier for foreign lawyers to work in Japan is high, as it requires extensive documentation and in-person visits to the Japanese Bar and Ministry of Justice, taking at least 5 months. Conversely, hiring foreign-qualified lawyers for matters such as international arbitration is seen as a strenuous process for firms in Japan and in practice, not common. The resulting short supply of lawyers stunts the demand for innovation and change in the Japanese legal industry.

The Bottom Line

There is a serious need for legal innovation in Japan. To do this, the country first needs to address the core issue regarding gender discrimination. There needs to be progressive reforms and auditing of university admission process by the government to break entry barriers for women in male-dominated professions such as law and STEM. Additionally, university teaching of law should include the concept of mediation, as often practiced internationally, and the general practice of law around the world, especially in Western cultures. This is essential to keep Japan in the global stage.  

Then there is the lack of supply of qualified lawyers, especially in-house counsels. This will be a major problem in the coming years for Japan due to the rapid pace of globalisation, and increasing importance of IP and technology. The scarcity of in-house counsels means that Japan is increasingly unable to deal with international disputes, especially for SMEs. Despite the efforts to increase number of lawyers in Japan, little progress has been made. Japan needs to encourage not only domestic lawyers, but also foreign lawyers. On the one hand, the Japanese Bar Exam should ease its examination requirements while not losing its quality in order to encourage fresh law graduates to take the exam. On the other and, work barriers for foreign-qualified lawyers should be loosened to also increase the global availability of lawyers.

Finally, Japan needs to change its approach to business. In the age of rapid technological advancements, Japan needs to move to a more agile approach to business and loosen regulations to enable startups and entrepreneurship to thrive. Japan needs to place as much emphasis on commercialisation of technologies as it does on R&D. It will be interesting to watch progress over the next decade to see how the country can reconcile its contradictions to perform to its full potential on the global stage.