Professor Pip Nicholson on how we equip future generations of lawyers for the evolution of legal practice

Episode 7: Professor Pip Nicholson on equipping future generations of lawyers for the evolution of legal practice

Run time: 38:52

Voiceover: This is a Lander & Rogers podcast, bringing you fresh perspectives on the legal and business landscape, and life through a legal lens.

Anthony Kearns: Welcome to Legal human podcast, focused on the role of human lawyers in the legal ecosystem and society more broadly. I'm your host, Anthony Kearns.

Professor Pip Nicholson. Thank you so much for joining us at Legal human.

Prof. Pip Nicholson: Pleasure.

AK: You are currently the Deputy Vice Chancellor of People at the University of Melbourne. But prior to that you were the Dean of the Law School and been a lawyer for long. For how long have you been a lawyer?

PN: That's an interesting way to think of my identity. I've been a legal academic for 30 years, and I was a lawyer before that for about five in two very different workplaces.

AK: And that's a good question to ask. Do you still consider yourself to be a lawyer as any part of your identity?

PN: I consider some of the skills I have to be skills that I acquired as a result of one, legal training and two, practice, so that going to issues and lining up the issues and trying to work out the priority that lies between them.

I see that as part of my legal training. Do I, and I use it on a daily basis. Do I see myself as having a legal identity as a lawyer? Not really. As a legal graduate? Absolutely. As a lawyer? Not really. Partly because I work really closely with people who are working as lawyers as their practice and what they're doing and what I'm doing is a little bit different.

AK: So, tell me a little bit about your current role?

PN: So, in 2022, the University of Melbourne decided to create a new role, Deputy Vice Chancellor of People and Community. That means that I work with the Vice Chancellor and his senior team, partly on issues relating to staff and partly on issues relating to staff and students, including the HR function reporting into me, diversity and inclusion, values. How we would want to create, foster, ultimately set up to thrive by staff and students as members of a community, that is both inclusive of both staff and students, and different communities within that, some of which will be staff only, some of which will be student only.

But I think it was a fabulous initiative of the university. Not because I'm in the role, but because I think post-Covid the university really needed to think long and hard about how it could best support its staff. It was also quite a challenging time for a range of other reasons. And it was a good moment for the university to decide to focus on, on its people, which it clearly signalled through the creation of that role.

AK: When I read your title, I thought it might include the role of university within the broader community, but it seems that it's contained within the university community.

PN: So that's an ongoing debate, sort of. And so, part of my role, I have some very quirky parts of my portfolio, Melbourne University sport being one of it. And I think, many people are surprised that the DVC People and Community, Pip Nicholson is working closely with Melbourne Uni sport. That is both an internal and external role because the clubs travel broadly and far and colleges are also within my portfolio and that's half in half out. We own some colleges, other colleges are entirely independent of the university but have a very close relationship with us.

The broader community engagement piece tends to be held in a range of portfolios. And so, engagement with government on a range of issues sits with me, as it does with other senior leaders across the university.

AK: It's a big remit and quite different to what you were doing. What have been the most challenging, interesting shifts from your perspective?

PN: The law school is a really special place to work. It's a pretty tightly knit community. And in university terms, it's what we call a single department faculty. So, after a period of enormous tension some decades ago and a long, sustained period on making sure that we brought that group of people back together, it is largely a very collegial place to work.

It's had, you know, it has its tensions, and it has its moments. But a single-department faculty doesn't set up a competition for resources in the same way that a multi-department faculty does. And many of the faculties at the university are multi department. That's the first observation.

The second is it's a place of extraordinary intellectual richness. And so I always felt it was an absolute privilege to lead that group of people, because if I wanted to know a bit about this or a bit about that, I only had to pick up the phone and I could be introduced into the vagaries of trust law, or the complexity of intellectual property law, or the ways in which comparative legal traditions could be critiqued or welcomed. So, it was an extraordinarily rich place to work. And in the final two years, 20 and 21, the COVID years, I actually think in some ways we came closer together than we'd ever been before.

In other way, it was more difficult. When I think of the focus on teaching from February 2020, when it became really clear that we would have to pivot and go online, upskilling every academic to be able to work digitally in two weeks, which was, in effect, what we had, you know, all hands to the mill, and incredible partnership.

And then working with students, I think we set about weekly meetings with student leadership because we needed to understand 1) what they were going to through, but also how they were experiencing this utterly new way of teaching and learning that had been sort of developed overnight. And so, in some ways, it's not only a privilege because it was such an intellectually rich place. It was a place of enormous partnership. But through the COVID years, I saw really the best of staff and students in so many ways. And there was a real preparedness I think, to work differently. Everyone just accepted we had to work differently.

So why am I telling you that? I'm telling you that because universities are frequently accused of being stuck in the past. They are frequently accused of being unimaginative and insufficiently agile. And I would just like to say that I think that, across those two years, not only the law school but the university as a whole was upended and we continued to do what we were there to do, which was to teach and research. And I think that's a great achievement.

AK: You've mentioned that you now encounter lawyers working within their… as lawyers. Is that really the first time in your career that you've been a client of lawyers?

PN: Yes. So, I worked for a commercial law firm for a while, and then I went to legal aid for a while, and I volunteered at a community legal centre for three or four years. So I'd worked in three very different sites.

When I went back to the Academy, I went first to do a Master's in Public Policy. I wasn't sure if I'd stay in the law. We were at ANU at the same time, I believe Anthony, and then I went back to do a Doctorate in Law and commenced working, you know sessionally and then as a full-time academic at that time. From the moment I stopped being a practising lawyer until I became Dean, I had not been a client, and nor had I had a lot of engagement with the profession, except to the extent that they were working in emerging jurisdictions in Southeast Asia. So, I worked closely with a range of Australian practitioners who were either building a practice or contributing to law reform in Vietnam. And we worked together on a range of projects. So, lots of academics have particular engagements with lawyers. But then when I became Dean, there were a few occasions when I became the client, and engaging with the profession was a core part of that role.

And seeing how different it was, was I working with the tax lawyers? Was I working with the corporate lawyers? Very different tribes within law, I think.

AK: And now you're using lawyers a lot.

PN: And now I am a significant client, because within my portfolio are some of the major pieces of litigation that the university holds. Partly I think they find their way to my portfolio because I'm legally trained. And I think every now and then that I should bat some of them back to others. But, there's certainly some of the major, regulatory responsibilities of the university sit within my portfolio, and therefore I work with our in-house team, very, very closely.

AK: So, what have you found interesting about that experience of being a client?

PN: So quite early on, I decided I would never give myself legal advice, that that was not my role, and that if I was to take on the role of either second guessing or giving myself advice without seeking expert advice for others, the institution could end up in very hot water. So very early on, and I made that quite clear, because people would often say, "So Pip, what do you think? You're a lawyer, what do you think?" And I'd think, I'm a comparative legal studies expert on socialist legal systems. Don't think I'm really a lawyer, so I would just say I don't give legal advice, and I'm not taking my own counsel on this. We will go to the General Counsel. We'll go to her team, and they'll tell us when we need to brief out. And that's how it works.

I quite like the position of client. I have said that on numerous occasions to our team that I really, I really enjoy working with them. I think they're a great team, but I've also enjoyed receiving the advice and then thinking, right, so we know what the legal answer is, what do we actually want to do? And then bringing in others to work out, do we take these steps and comply in this way? Do we take these steps and comply in that way? Do we change who we are so we comply in another way? And I think it gives me more creativity in a way, or more flexibility with the answer than I found finding the answer, if that makes sense.

AK: So, from that perspective, what do you look for from the lawyer and what constitutes good lawyering?

PN: So, part of it is I want to know the law, and I want to know where it's stable and certain and where we're testing its limits. And I get that from the team. I also want advice on how we manage the risks. And I want that to be quite clear. So, an enormous part of an in-house team is identifying and managing risk. I want humour, and I get it.

AK: And give it.

PN: I hope so. But I do want a bit of levity. Of course, I want nothing but sober judgment at the critical instances. But I do want some levity. I do want empathy. There are times when some of the things we're doing have really serious consequences for our employees. I want empathy for the impacts of the law, and also empathy for those who are having to make those decisions with those impacts. I think humour and empathy would be two of the most important things.

The third I would probably add to that is, it is extraordinarily useful if people can communicate well. So, I want the legal team to explain to counsel or to explain to the Vice Chancellor with as much clarity as possible what the law is, what the choices are, and what the risks are. So levity, communication skills, and an enormous amount of empathy, which obviously can't trump the business at hand. I think being an empathetic lawyer is an art in and of itself. It would not help me if the lawyer was to over-emote. In some ways, there's a judgment there about what that empathy looks like, but good empathy can be really gratefully received. And empathy in judgment, which is something which is a little bit different, perhaps.

AK: At the end of the day you also would like them to be an emotionally stable part of the experience?

PN: Yeah. It would not help me if the legal team was intemperate. It would not help me if the legal team was irascible. So, there is a certain evenness, or maturity that is really needed.

AK: It's quite a nuanced line to walk.

PN: It is. Not everyone can do it.

AK: And this communication thing, I mean, we hear this a lot, right, in the context of, legal advice. And you've touched on it at a sort of in a general sense. But when you think about it, what is the key to that?

PN: Probably a couple of different things. One is to remember that the room that you are addressing as the lawyer is most often not legal. And so, take a step back and give the client enough of the context, the legal context, to understand perhaps why the law is the way it is.

I've seen numerous occasions where those receiving the advice, "that can't be right, you just can't be right!" And you think, well, actually, they're not here to make it right. They're here to tell you what it is. So sometimes I think the communicator can sit back a little and just position what it is they're communicating, is very helpful. So, a little bit of context.

I think some crispness about the law itself. Don't get too granular about the law itself. Keep it to the bits that people need to know, is extraordinarily helpful, and then good structure in what you're trying to communicate. You know, is it in three buckets? Is it in four? What's in those buckets? Try and keep it at the level of abstraction that is digestible for the audience involved.

And sometimes if you're addressing counsel, for example, and you've got highly competent lawyers, some of them will want to take you right into the detail as legal counsel. You can go there with them, but don't ever forget to carry the broader audience that might not otherwise be capable of following you.

AK: I used to help lawyers with writing and one of the things I used to talk about was dissociating the conceptual complexity from the linguistic complexity, that was often unnecessary complexity in the way in which things were said. And to distil something really complex down to something people can understand seems to be the key.

PN: It's an art form.

AK: Yeah

PN: Short sentences.

AK: And confidence.

PN: It does take confidence. It takes real confidence to strip out the minutiae and be confident that you've got the principles right. I think it takes real expertise too. But I think what I'm saying about oral advice is not dissimilar from what you're saying about written advice.

AK: Meet them where they're at. So, the sort of premise of Legal human or what stimulated this, is that there's a lot of conversation in the profession about the impact of generative AI and technology.

PN: Yep.

AK: And language and words like "existential" and "threat" are thrown around. I don't think there's much doubt that there's going to be an impact of generative AI not only on the legal profession, but in the universities…

PN: Everywhere

AK: Higher education sector. It's something to be really considering how it's incorporated into what we do. I think that part of the conversation, which is not, we're not having at the same frequency is, what is the enduring and evolving role of lawyers then? The technology enabled lawyer. I think the assumption we have is that once we have all of this time freed up with generative AI doing all these tasks, the BAU, low value tasks that our intelligence alone and our curiosity will take us into this different role.

I feel like we probably have to be a bit more deliberate about that. Now, what I think is interesting is that you spent so much of your career, and certainly as Dean, I feel considering this, you know, considering how do we best equip our lawyers, next-generation lawyers, for the practice that will be, not the practice we're currently in. We've had conversations about that, and I just wanted to pick up on first from that perspective, your previous role as the Dean of the Law School, what do you think are the capabilities, skills, mindsets that we haven't necessarily focused on or not focused on sufficiently that will be necessary for lawyers in this future state?

PN: So, around the time I assumed the Deanship, which I think was around 2018, at the school we were having a conversation about the creativity that lawyers would need, looking ahead to a future of practice that would change substantially across the lifetime of our graduates.

If you think of someone finishing law today or yesterday, at any time in the last five years, the practice of law will fundamentally alter in some ways across a 30-year career. So, some creativity was, and how we might look to bring that into a curriculum that is already jammed and is very technically heavy. So that was one part of the conversation, because I think there was a strong feeling, at least among a sufficient coterie of the staff, that this was something we needed to bring in. And so a range of subjects were enabled to do that.

I think the second competency that we certainly wanted some of our graduates to hold, and in my view, increasingly more of the graduates would need to hold, is the capacity to form a judgment about what machines were doing or what AI looked like. What was it actually delivering, and on what assumptions and biases would it be building? So how would it be perpetuating a way of looking at people within law, for example, and then perpetuating biases that are fundamentally unacceptable in the practice of law?

And I know Harvard did a study around how if you look back across criminal sentencing data, you might perpetuate biases about colour, socio economic circumstance. All sorts of human traits could become embedded in AI decision making. If you weren't alert, mindful and correcting for that and or saying it's not appropriate to use it for that reason. So, I think that capacity to judge what it is that the artificial intelligence is offering is really important, and that will become harder and harder as the artificial intelligence itself becomes smarter and smarter. So increasingly, you might need to draw in other experts to help you with that. Or you might need to, as a graduate, go back and do some particular study to uplift your capacity to do that. But I think that is really important.

And a third school of thought that I know, in particular, Professor Jeannie Marie Paterson, who's the Director of the Centre for AI and Digital Ethics at the University of Melbourne was debating with colleagues - and this was five or six years ago, okay, so now I think the debate is less and the practice is more - was that students need a sense of the principles of the system, systems of law and the jurisprudence within. So, contract law and its principles, trust law and its principles, remedies and its principles, so that they're capable of judging what is being produced.

There are more considerations than that, but we needed creativity, we also need some boldness, fearlessness with AI, but a fearlessness that remained critical of what artificial intelligence is offering us. Never to assume that because AI produces this result, it's the right result. You need to have done some due diligence around that. And then that third part about a real fluency around the underlying principles that inform particular areas of law, so that you've got a yardstick that is beyond the technical competency to just sort of self-check, check. So those were at least three that we were conscious needed to be in parts of our curriculum at least.

And that's without going to the actual areas of law that you might need. Privacy - how are we going to hold that? Regulation of a digital world - how are we going to hold that? Regulation of AI? Is it possible? How are we going to hold that? So that's without even looking at the technical challenges of very different ways of living and working.

AK: I've got so many questions about what you just said, but one is, do you see any irony in the second of your core, when the same criticism was sort of levelled at the retrospective, precedent-based approach to common law, when we're always looking backwards, how do we adapt to changes in society? And the law is obviously inadaptive… common law in particular is inadaptive. And we have other mechanisms to create law than just the common law. But that was a criticism of the legal system, that it's because we're always looking backwards, the education is always looking backwards. Where is the opportunity for creativity and the evolution?

PN: Well, the academy is part of the solution to that, Anthony. I think, you know, legal academics spend an enormous amount of time critiquing what we have, and some of them are very focused on what new choices could look like. And then working with law reform commissions or wherever the site of debate is. So, I think there's an incredibly important role for the academy in that. But there's also an important role for the legislature in the development of law, and I don't think there's anything controversial about that statement either. And it's agencies and regulators to be mindful of what adaptive changes they might need, whether in terms of their practice or in terms of the regulation that they administer. So, I think there are lots of ways in which the law can be adapted.

The common law looks back and perhaps having a partner as a judge, I'm inclined to think it doesn't exclusively look back… I mean, I think it's a terribly important part of that is to work out whether what exists meets the case in front of you, or whether you do need to develop the law.

And so, a key part of the common law is entrusting the notion of its development, not simply the acceptance of precedent. So, I think we need to be careful to characterise the common law, when properly held, as quite organic. Dynamic might be a stretch, but certainly organic and responsive to different fact situations.

AK: I guess my other question is...

PN: I mean I guess the caveat on that, if I can add one is the sheer cost, right? So, where we might want to see cases challenged, they might not be. And so, a wrong that we are confident is being perpetuated in the law remains, because it's not challenged unless we can get it picked up through some of those other institutions.

AK: The other two things I wanted to pick up on was you said that the degree, by that you now mean the JD presumably, is very technical, technically heavy. And linked to that, I think is a lot of the capabilities you described, are really at the boundary or at the interface with technology. If Gen AI delivers on its promise and it really is the most efficient and effective vessel for, you know, the accumulation and access to all of that, and it becomes accurate enough for us to rely on it, then what? And then what from the perspective of the JD, what are we then teaching lawyers? Is it just the core that you've just been describing that enables us to be able to make, to discern what generative AI is? What are lawyers then learning, what's at the heart of expertise?

PN: So, I think we're still learning what that is. I don't think we've landed the proto perfect law school for the next 50 years, because I think just as the profession's experimenting and innovating, I think so too are law schools around the globe and around the country. So that's a little bit of a save there in the sense that we are all learning in this together. So, I don't think I'm going to tell you what the answer is, because I don't think I have the answer. If you go back to some of the skills I talked to the need for, which I have felt very acutely as a client, I think if you look at our co-curriculum, witness examination, mooting, and so on, you're seeing there communication skills, communication skills, communication skills. And I think we will need to spend as much time as we have, if not more, on communication skills. We will need to spend more time on ethics, but not the ethics of the profession, which remain bedrock and have to be taught and should not be abandoned, but the ethics of working with other people as knowledge providers. I think that becomes very critical, and I think that will become quite mainstream relatively quickly around how the ethics of working with automation, but also the ethics and the management of working with machines as co-creators of a service, which is what AI ultimately look like. So, I think ethics will become very important.

There's been a long debate in law schools, do we have to teach students to code or not code? I think that ship has sailed. I don't think we have to teach students to code. But anyone living in what is now a digital age needs to have much more structured thinking about technology than my generation was equipped with at law school. And I think we probably will be seeing that relatively soon. Whether it's better than ethics or not, I think that's probably another standalone piece there. So then there comes the question, which is an age-old question for law schools, whether you teach skills within curriculum or whether you teach skills standalone. And, in some senses, I think often a hybrid is, is that we introduce skills and then we see them embedded through and tested through curriculum. So, the ethics, how we understand the AI contribution to that particular body of law, and that communication skills and making sure that the adjunct curriculum is really honing in, and or we bring it in, to some parts of the curriculum which we've done at various points of time as well. So, I think those are some of the questions we need to be able to answer.

AK: Can you ever see control of the core being released… I mean, the Priestley 11, the Langdell, you know the… Do you see a future where teaching lawyers the law is not the core?

PN: I don't see it in the immediate future, not in the short term. I'm not even sure that I see it in the near term, because I think there's enormous risks in that. And at the end of the day, you go to the lawyer to help you manage risks. You don't go to the lawyer to have your risks magnified and there's a, until the law has resolved its relationship with AI, I can't see us absolving the graduate from the need to know the technical law.

There's also, so no, not in the near or medium term. What it looks like in the long term, let's wait and see. I think there is another part of this which, I'm sure there's a range of views on, and that is to what extent if at all the disruption of AI sees more and more legal practice working in partnership with other skill sets. So, the interdisciplinary team, and that - the shape of an interdisciplinary team changes a little depending on the problems you're looking at, or the sectors you're in, or the organisations you're working for.

But I instinctively feel that that sort of partnership across expertise will grow as AI grows, because it will impact different places and spaces in different ways. And there will be benefits of leveraging different skills and disciplines and mindsets to solve particular issues. I see it a bit as a client that, it's good to have the technical legal advice, but let's take that to some sort of problem-solving mindset. And, you know, there are people much more learned than me writing about this. But I can see the benefits of an interdisciplinarity. And I think AI pushes us more in that direction.

AK: To the extent you can talk about it, but in your current role, obviously, and looking at higher education and the impact of generative AI on the educational process, obviously the universities are, you know, in the thick of trying to work out how to accommodate that technology now. This is not a… this is not a future thing. This is about how do we embrace that, you know. What are the key elements that you're considering? Clearly there's a sort of, is it your work, plagiarism..?

PN: Yeah. There's an integrity issue.

AK: There's an integrity issue. But beyond that then, what are you looking at as universities across your disciplines as to the role of…

PN: So, there's been a range of different places within the university where we're experimenting with, how do you bring AI into the classroom? AI is everywhere, and our students are acutely aware of how to use it and its utility to them. You know, we set readings. They can put them into a machine and get a summary and just read a summary. So we have to be looking at how we are interrogating their knowledge, but we don't want to do so without recognising that the ways you can find knowledge and share knowledge and synthesise knowledge are fundamentally changing. So, I think, across lots of parts of the university, we now see teachers bringing AI into the classroom saying, this is AI generated work, you critique it, you tell me what is missing, is a very basic example.

Now, that's quite easy to do at the moment because AI is missing quite a lot. It's going to be harder and harder to do as AI gets better. So, we're going to have to refine that. I think there is a lot of work around the integrity of assessment. There's also the ways in which, as teachers, just as lawyers, we can become more efficient about some of the work that we do with the assistance of AI. And we are working through the boundaries of when is it entirely appropriate for AI to assist with the work, and when is it absolving some component that shouldn't be, in effect, contracted out by the teacher? I was driving to work yesterday, I think, and I won't reveal which station I was listening to, but the question was put, is it appropriate for a teacher to contract out the writing of reports? Well, teachers have had template responses to reports for a long time. Is that different? So, we have to explore where the impact is positive, where it's negative and where it's unethical.

AK: Last question. Going back to law again. How optimistic are you for the future contribution of lawyers, human lawyers to the legal ecosystem?

PN: I think they'll continue to be needed for a very long time. My title is People and Community. That might indicate a certain bias as to the need for the relationship, whether it's between colleagues or advisers. But if you go back to the things that helped me to digest and work with legal advice, and I think I said to you, levity, empathy, structure. Those things at this point, even if they're available from a machine, they're not received by me in the same way because they come from a machine.

And so, I think there is a real role for humans in, in lawyering, but also in developing the law. We have ethical dilemmas as a society all over the place all of the time. And I think if we contract out their resolution, and the law is often dealing with that, what is right and just in these circumstances, and sometimes the circumstances are between a neighbour and a fence, and sometimes they go to the heart of the social contract. And I think if we are absolving humans of responsibility for that decision making, we have absolved our responsibility to each other and the society in which we live. So, I cannot see a world where we can contract out the human element in the administration of justice, which is what lawyers are actually involved in.

AK: Pip Nicholson, thank you so much for joining us on Legal human.

PN: Pleasure.

AK: You've been listening to Legal human. To hear more Legal human podcasts, subscribe to the channel.

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