Risk aversion is hampering CLE (and why I'm not averse to the risk of competition from great speakers)

I've just spent a few days here in New Orleans at an ACLEA conference, i.e. the folks who put on continuing legal eduction programs. I've learned a lot, and met some great people.

But that said, I also have some thoughts on the sad state of how we regulate CLE programs. Not everyone will agree with my point, and that's fine. But, if you think we overreacted to 9/11, and wound up making air travel unnecessarily harder, then you might accept my point.

But first, a quick observation.

As some of you know, lawyers are risk averse. They (and those who regulate them) think that the first step in looking at a problem is to identify all the risks and possible mishaps. The "risk-examining mindset" is developed early in law school, and grows steadily as one practices and hangs around other lawyers. What doesn't get developed by law school, or any law organization, is the ability to weigh risks in a practical way.

The TSA mindset is a derivative of the lawyer mindset: think of every possible risk and react to it fully. Why do we search old people in wheel chairs and infants traveling with their mothers? Because it's more important to anticipate every conceivable risk than it is to weigh risk with common sense or human judgment. Okay, I suppose not everyone minds the TSA approach. But, if you're like security expert Bruce Schneier (who believes the current TSA approach is nothing more than 'security theatre'), then you'll probably share my dismay at the way CLE is viewed by those who regulate it.

To understand the problem, let's focus first on the laudable objective of CLE.

Call me crazy, but the overriding objective of CLE programs should be to encourage lawyers to learn. CLE programs should be engaging, and –dare I say it– entertaining. Okay, that's the objective.

What do many CLE regulations focus on?

Mostly, they try to minimize the risk some lawyers will try to cheat and not stay for the whole program, or not really use the opportunity to learn. That's why you get a rule that says that you can't serve food at a CLE program, only coffee and mints (the D.C. rule). Or you get a rule that you can only have "online CLE" if it's interactive, which is interpreted in some states to mean that there has to be live Q&A or a live chat window where questions are answered.

Why can't questions be answered by email within a few hours, or a day later (where presumably the answer might be more thoughtful)? Don't ask. We're fighting risks here, not trying to figure out how to make things convenient, interesting, or consistent with well known principles about how our brains learn most effectively.

Most CLE speakers that I've seen do a poor job. Sorry, but that's the truth. And if you polled every attorney who's been to five CLE programs you'd confirm this with data.

The bad speaking happens not because the speakers are incapable of doing a good job, but because: (1) it's not something they tend to do often, (2) they're not usually paid or given any incentive other than "notoriety," and (3) they don't usually craft their speech for use at more than one event.

Good trial lawyers are in court a lot and handle a lot of cases, and they get good by getting a lot of experience in the courtroom. Some of those lawyers might be good CLE speakers, but they're usually busy and it's hard to get many of them to take time off from their lucrative practices with the simple lure of "notoriety."

Good CLE speakers are rare. That's a fact.

Obviously, if there were more good CLE speakers, or if the system somehow created better incentives for CLE speakers to improve, then more lawyers might benefit from mandatory post-grad education. Instead, according to the metrics I'm hearing at the ACLEA conference, 70% of the lawyers who get CLE don't care at all about the educational component; they simply look for the most convenient program that will satisfy their reporting requirement.

I'm don't consider myself to be an exceptional speaker, but I work really hard to create interesting talks that are also practical. When I create a new talk I find ways to give the talk repeatedly so that I can tweak it, and refine it. This is what you have to do if you want to give a speech that is well received. You have to figure out what works and what doesn't by speaking and then self-evaluating your performance. Then you change it up and try the new approach, until eventually it clicks. This would be true of a five minute talk, but it's especially true of a hour long speech.

It took Jerry Seinfeld a year to come up with an hour long comedy show (watch the movie Comedian). A year of working full-time on nothing but creating that one hour's worth of material. Seinfeld did this after he created his hit show, at which point he had obviously developed serious chops as a comedian. To develop his hour's worth of material he had to go do shows in dive clubs, and a lot of his jokes flat out bombed. But he knew that the only way to get an hour of top notch material that was to practice in smaller venues, and to do LOTS of shows.

Pretty much every CLE program lasts an hour, or close to it. How much time do you think that most speakers put in? (Obviously they aren't trying to make a living at speaking like Jerry Seinfeld. But, still, they're going to take up an entire hour of an audience's valuable time.) And so how much do they prepare? The answer, usually, is: not much. Maybe an hour or two, at most. In some cases, maybe a little more. But that's not enough to give great a great presentation. And like I said (and sorry if this is disagreeable), most presentations stink.

I've seen well-respected leaders of the bar bore audiences by reading from old Powerpoint slide decks that they didn't even prepare. If they went into court and bored a jury the way that they bore their CLE audience they'd lose notoriety, not gain it.

Lawyers pay good money to receive instruction about topics that are critical to their practice. The lawyers in the audience value their time as well. If some of them aren't paying attention it isn't always because there are snacks being offered in the back of the room, or because they don't care about learning. It's because the talks are boring. The talks are lifeless. The talks are disorganized. Not all of them, but plenty enough.

So why am I risking my livelihood by doing full-time CLE speaking? People have peppered me with skeptical questions.

When you start a new business people invariably ask "who's your target audience"? My target audience is: those lawyers who figure, if I'm going to have to sit through a seminar to get CLE credit, then I'd rather go to one with interesting speakers who know how to explain what I need to know efficiently. Even if only 30% of lawyers want good CLE (and I think it's higher than that), that's still a lot of lawyers. The problem for people who want to do great CLE is that most lawyers are conditioned to expect mediocre CLE. So, what my company has is "a marketing problem."

Most of our "target audience" doesn't even know the product they want is for sale, or who they would buy it from if it was.

When Dane and I do presentations people invariably say "my God. I had no idea that anyone was doing CLE programs like this." We know that we're not the only ones. There are other people who are doing great CLE, and trying innovative approaches that inform and entertain. Those folks walk a tight line sometimes. The more innovative you are they more likely you are to have a regulator say that what you're doing is too risky and not allowed.

What does good CLE look like? Have you seen a great CLE presentation? If so, list the name(s) of the presenter(s) in the comments and give a link to their webpage. My well-meaning skeptics also tell me I need to figure out who my competition is, and those skeptics would probably say, "hey, Ernie, why help identify those people, aren't those other good speakers your competition?"

To which, I'd respond: no, those are my brethren.