The Changing Practice of Law

Barry Scholl, Of Counsel Attorney with Richards Brandt, is the Editor of Res Gestae, a publication for alumni and friends of the S.J. Quinney College of Law. In it’s latest edition, Barry authored an article on “The Changing Practice of Law – Graduates Contemplate the Future of the Legal Profession.” Below is an excerpt from the article, with commentary from Russell Fericks, a Shareholder with the Firm.

In July 2015, the Futures Commission of the Utah State Bar released a document entitled Report and Recommendations of the Future of Legal Services in Utah. The Commission, made up of more than two dozen legal practitioners and educators, business executives and non-profit representatives, produced an ambitious and thoughtful work focused on how “current and future lawyers can provide better legal and law-related services to the public, especially to individuals and small businesses in Utah.”

Inspired by the report, Res Gestae approached 15 alumni with a related question: in a fast-evolving world characterized by enormous social and technological change, from self-driving cars to intelligent machines to near-instantaneous worldwide communications, how might the practice of law change in the next 10 years (and beyond)? Their answers, not surprisingly, are as diverse as the field of respondents.
Russell Fericks, ’82, predicts, “The practice of law will continue to see accelerating and increasingly unsettling changes wrought by technology in this age of information. And legal practice will continue to fray at the margins as non-lawyers, including laymen, weave their way into the traditional domains of attorneys.”

“What won’t change are the three fundamental elements of good lawyering,” Fericks elaborates. “First, a mastery of legal terms and concepts; second, the ability to implement effective legal solutions in real time; and third, a refined judgment — ‘wisdom,’ if you will — about the what, when, why and where of those legal solutions. This simple model will not change because it is the definition of good lawyering. The mastery of terms and concepts starts in law school, which is essentially a language and rhetoric academy. Developing effective, efficient skills is an ongoing process, but one which is frontloaded in the early years of practice. And attaining outstanding judgment — the ‘legal wisdom’ factor — takes a long time, lots of experience, and constant intentionality, coupled with the fortuity of good role models.”

The challenge to this model is the growing propensity to digitize and commoditize everything, according to Fericks. “We are slouching into a belief that anything worth knowing or doing can be downloaded or Googled. Unfortunately (or maybe fortunately, now that I think about it), mastery of the language of the law, mastery of the mechanics of the law, and mastery of the meaning or wisdom of the law cannot be digitized. These are not fungible commodities. They are learned and practiced by analogue humans. They always have been; they always will be.”

RCF res gestae


Restoring Public Access to Public Waters

May 2015

Since 2011, RBMN’s Craig Coburn has been serving as pro bono counsel to the Utah Stream Access Coalition (USAC) in lawsuits seeking to restore public recreational access to as many as 2,500 miles of Utah streams that was effectively eliminated in 2010 under Utah’s ill-named Public Waters Access Act. Craig and another pro bono attorney tried one of those lawsuits to Third District Court Judge Keith Kelly in February 2015. On April 10, Judge Kelly found in favor of USAC on all counts, ruling that the upper Weber River, from its headwaters in Holiday Park to the Town of Echo some 42 miles downstream, is navigable under the federal equal footing doctrine and, as such, the State owned the river bed in trust for the benefit of the people – just as the State owns the water – and that private landowners could not prohibit public access to or use of the river and its bed. While in theory limited to the one-mile stretch of the upper Weber fronting the named defendants’ properties, the decision if affirmed on appeal, will establish a valuable precedent to restore public access to several hundred miles of other navigable Utah streams, including the Provo, Logan and Bear Rivers. A second USAC lawsuit, this time regarding the upper Provo River, goes to trial at the end of August 2015. If successful and affirmed on appeal, that lawsuit will invalidate the Act and restore public access to all 2,500 stream miles now off limits to the public.

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