To Code or Not to Code. That is Not the Question

Eddie Hartman has thrown down the latest gauntlet in the ongoing  “should lawyers learn to code” Twitter war.

Hartman, a professionally-trained programmer, self-taught lawyer, and a dude who’s way smarter and more successful than me, lays out in Lawyerist three scenarios in which lawyers could be coders and summarily dismisses them (for the record, I’m one of the “countless others on Twitter” to which he referred in that piece). I’ll quickly respond to each of his points but then I’ll get to the meat of my argument: It’s not about coding per se. It’s about what lawyers can and should become.

But back to Eddie and what he wrote.

1. 1. Group 1 – Paraphrasing, Eddie argues “Lawyers shouldn’t learn to code because it’s inefficient.” The current legal graduate is suffering from a huge mismatch of present skills with the needs of the modern and future legal marketplace. Yet, it’s just as inefficient to teach lawyers to code as it is to teach them to run good businesses (aka be “practice-ready”) or teach them design or empathy or entrepreneurship (all things I and others have argued lawyers should learn). I’m not saying coding is the answer but it’s arguably as good, or better in the current economy, as any of the other aforementioned skills and certainly better than the status quo. Is it inefficient to move any tanker-ship-like entity the size of legal education or legal professional development? Absolutely. Should we default to inaction simply for reasons of efficiency? Absolutely not.
   2. Group 2 – Eddie also argues “Teaching lawyers to code for fun or as one skill among many in the tool belt is the path to bad code that arguably violates the lawyer’s duty of competence.” Failure is the latest obsession in Silicon Valley. Everyone is talking about “failing fast” and how many times one has to fail before finding even a modicum of success. This is all a bit buzzwordy but the principle is a good one, particularly for risk-averse, perfection-inclined lawyers: mistakes are learning opportunities. Failure is a painful but powerful teacher. In our modern society software development presents one of many ways for lawyers to try out new legal services and business delivery models to see if they work. Not every type of practice or legal issue lends itself to experimentation but without the failures that come from trying we’ll never build a bridge across the huge gap currently separating lawyers and those in need of legal services delivery. And though Eddie’s company LegalZoom does not deliver legal services it does help legal consumers with their legal issues and it does engage in experimentation – and fail, just as Avvo, the company I work for, does. Of that I have no doubt.And on competence: as a society we frequently trust lawyers with responsibility far beyond their expertise. In the eyes of the rules of professional ethics any first year lawyer is deemed competent to handle clients’ significant liberty interests and even more astoundingly handle thousands or millions of dollars in client funds and trust accounting responsibility all with limited financial experience. We can argue about whether these lawyers should be deemed competent to handle liberty interests or client funds but it’s hard to see how lawyer-hobbyist coders shipping sub-standard code is a bigger competence issue.
   3. Group 3 – Eddie’s final argument is: “Lawyers don’t need to code they need to make coders partners because that’s what other smart companies and industries do.” Eddie and I are largely aligned on the basis of his argument. A fundamental problem is not that lawyers and coders don’t communicate, it’s the coders have a little incentive to fully participate in lawyers’ businesses. However, this second-class citizen status isn’t limited just to coders, lawyers have relegated marketers and operations experts and finance people and a whole host of others to a lower place on the law firm totem pole. This isn’t a lawyers vs coders problem, it’s an industry issue. While I won’t say that every lawyer should learn marketing, or learn design, or learn the ins and outs of law firm finance I also won’t say that they shouldn’t. My point about these other disciplines and lawyers and coding is that the two don’t have to be mutually exclusive. There are plenty of good reasons that lawyers can learn to code and the rules that prohibit non-lawyer ownership in law firms should still be changed.
      Regarding Eddie’s argument that lawyers shouldn’t learn to code because “. . . serious people in other industries . . . such as the management of Fortune 500 corporations . . .  do not learn to code . . . . ”? Well, actually, some of them do.

Eddie’s arguments are persuasive. There are good, logically coherent reasons that it doesn’t make sense for today’s lawyers to drop everything and learn to code, especially learning to code while watching Mr. Robot because multitasking sucks anyway.

But it’s not about what lawyers are today it’s about what lawyers can and should become. It’s about the fact that there are huge, systemic problems inherent in the legal system. It’s about the fact that lawyers, the stewards of the law, those who deservingly (or not) have been entrusted with an effective monopoly in the delivery of legal services, have failed to make the legal system meaningful and accessible for a vast swath of the population. And that many more consumers who can afford lawyers still see lawyers as too expensive or unresponsive.

The internet revolution has transformed of a wide variety of goods and service industries. Everything from travel to toys to medicine to retail is being remade right before our eyes. The promises of the information revolution are particularly powerful in information-based sectors like law. But those promises have yet to be realized in law – not even close –  and I’m embarrassed for my profession to admit that the best ideas aren’t coming from those of us who have been entrusted to solve these problems, those of us whose responsibility it should have been to solve them. That’s not to say that lawyers shouldn’t partner with others in fixing this problem but it is to say that lawyers need to “get with the program” (pun intended).

In doing so, in getting with the program, one thing lawyers need to adopt are skills that are consistent with the 21st century workforce. Most lawyers learned a type of legal analysis in law school that is applicable largely only in opining about appellate legal opinions, not writing them or arguing them mind you. Their skills are so far from those that are necessary for running modern customer-centered businesses it’s hardly funny. Again, there is a whole host of skills that lawyers are obviously missing but I’m convinced that coding is in there somewhere.

Professor Oliver Goodenough tells a story about his first years in law practice. An older, more experienced partner at Oliver’s firm held out his fingers and said “These lawyer fingers should never deign to touch keys.” The story seems laughable considering today’s lawyers who couldn’t survive without word processing skills. But when you look at the modern lawyers skill set compared to those of a modern worker outside law, and particularly in light of this debate about coding, many of the arguments against lawyers learning to code sound a bit like Oliver’s law partner. “Lawyer fingers should never deign to write code.”

I’m not railing for impeccable lawyer coding skills. I’m railing against this law partner and the notion that lawyers shouldn’t roll up their sleeves and be the builders of the future of legal services and justice in our country. That doesn’t mean that lawyers shouldn’t partner with coders, nor that lawyers shouldn’t reconsider rules around non-lawyer ownership. It doesn’t mean lawyers should aspire to build production quality code, and it doesn’t mean every lawyer should make learning code the primary aim of their legal education or professional development activities.

It means lawyers should take responsibility for that which has been entrusted to them. They should stop putting the responsibility on other people – those whose fingers they feel can deign to touch the keyboard – and start actively participating in building the future of legal themselves.

Learning to code is a metaphor for and one specific and immediate way they can start doing that. And, gratefully, using any one of the tools Eddie suggests – Udemy, EdX, Coursera, the local community college, or many others – lawyers can get started today.

To code or not to code is far too limiting a question. I prefer to build or not to build. To be a part of the future or not to be.

That, my friends, is the question.

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