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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.

P.S. If you're a practicing lawyer, check out this Law Practice Assessment . After answering a few questions, you'll get detailed recommendations for improving five key areas of your practice.


  • Chris Osborn says:

    Thanks for sharing these thoughts, Ernie. I really appreciate your passion for making sure a CLE experience is truly worthwhile, and hope this post will contribute to further dialogue about how to make that more of a reality. Thanks also for the kind mention of ReelTime CLE, where we share both your instinct that CLE seminars can & should be enjoyable and meaningful. (Oh, and we do have a website, by the way – Michael and I look forward to more conversations on this subject, and also to having a chance to collaborate on something towards these ends, as the opportunity arises. Take care.

  • Alli Gerkman says:

    I'm sorry I wasn't at ACLEA–these are some of my favorite conversations. All of this and more is why I tend to think regulators should either give mandatory CLE some teeth (and I think the key here is assessment over "credit hours"–as John mentions above, reading articles specific to the work you do can be just as enriching–or even more–than sitting in a class) or do away with mandatory CLE altogether. Either change would allow for a market that is driven by education–not credits.

  • The typical retention rate for courses delivered via lecture (individual speaker or panel lecture) is 10-15% . No wonder many lawyers think that CLE is a waste of their time and money. There is significant need to change the way that CLE is delivered. Our focus must be on facilitated learning. John Gear's commend provides a good example of facilitated learning. Here is another:

  • John Gear says:

    You are my new hero. The cle emperor is not just naked, he's naked and butt ugly.

    I was an instructor in the navy's nuclear power program, and we weren't allowed to get near students until we'd had a two week course on training, even though we were the top recent finishers in the exact same program our students were then taking.

    But any licensed attorney with a pulse can give CLEs There's no actual quality measures, just butts in seats time. The CLEs I've taken have almost all been horrible … Most people are there just to log the hours and get the required CLEs done, and most instructors know that their audience is there under compulsion and they prepare accordingly, which is to say not much.

    I first took the bar in Michigan, and I thought it sad and odd that michigan didn't require CLEs. Boy have I changed my mind since moving to Oregon.

    In the sixteen months I've been in private practice here, I took about three times the required CLEs load for the next three years (I had over 120 hours, we're required to do 45 every three years). No more. The value returned is infinitesimal compared to the lost income and even to the tuition. As far as I can tell, CLEs exist because someone once decided that professions required such things, and a cadre of folks built careers around serving that "demand," (kind of like the "demand" for license renewals at the DMV).

    One of the things I think about is how, every morning and every night, I go through digests of about ten different legal listservs, and how on most days, I'm clipping one, two, or even a dozen posts for my files, things I want to have for current or future cases. You know, learning. If we actually cared anything about learning, as opposed to butts in seats and money for CLE sponsors, there would be a way for lawyers to count something for their listserv participation and reading. Figure at least an hour a day, five days a week, with a much higher actual throughput of learning per hour than most butts in seats CLEs.

    The one exception is a really fine program offered by the ElderLaw section here (apparently modeled on a national ElderLaw bar model) called the "unCLE" … A day-long retreat for ElderLaw attorneys where the CLE is sessions where there are topics and facilitator teams in each room, but other than that, it's open form. Typically, the facilitators open by saying who they are and what things they think are most pressing to discuss under their heading, but then everyone else does the same, and it's usually an audience suggested question that takes over. Everyone learns from everyone else. Best CLE I've ever seen, by a mile.

  • Cecil Caulkins says:

    As a retired CLE director, I've been around this block many times, and I especially agree with your comments about CLE regulation. I had a regulator tell me one time, when explaining why telephone seminars were not allowed, that "When it's a phone seminar, we can't tell if they're learning anything or not, like when they're actually in the room." Ferris Bueller wept! I hope MCLE regulators see your blog. Some of them seem to view lawyers much the way stockyards view cattle. It's not a good situation.

  • Just to get the ball rolling, here are some of the excellent speakers I ran into at the ACLEA meeting.

    Sean Carter of
    Stuart Teicher of
    And Chris and Michael of ReelTimeCLE (no website yet)

    There are more great speakers that I know and could name, but I want others to share their recommendations here.

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