The future of lawyers

First published in the Internet Newsletter for Lawyers, January 2009.

In The End of Lawyers? (Oxford University Press) Richard Susskind challenges the legal profession to ask what elements of their current work could be undertaken more quickly, more cheaply, more efficiently or to a higher quality using new methods.

He makes his case firstly by mapping the path that almost all legal services will inevitably follow: from bespoke to standardised to systematised to packaged to commoditised.

He argues that the majority of lawyers have little appetite for the journey towards the right and any movement in that direction is frequently regarded by lawyers as generically offensive. But clients are attracted to the right, competitors may break rank and drive in that direction and (with the implementation of the Legal Services Act) alternative forms of legal business are likely to start trading some way along the path.

He concedes that, because of the nature of legal work, there will always be be a place for bespoke work, but the demand and justification for it will diminish over time and lawyers who wish to remain in the bespoke camp must continually innovate and generate new bespoke offerings. The scope for differentiation in legal services lies in creating such new bespoke work and in developing systems and packages ahead of the competition.

To respond effectively lawyers must “decompose” their work: look at each task in turn and honestly assess the optimum way of executing each. The resulting legal service will have its origins in numerous sources, each chosen for its suitability and efficiency, and combined in a seamless solution. He refers to this as “multi-sourcing” (deploying everything from in-sourcing, through outsourcing in all its manifestations, home-sourcing and open-sourcing to computerising; and even “non-sourcing” where the risk of doing nothing is negligible).

Susskind also calls for law firms to overhaul their practices and align their interests with those of their clients: to put themselves in their clients’ shoes. Fundamental to this is the abandonment of hourly billing which motivates firms to spend more rather than less time on work where clients want precisely the contrary. Put crudely it rewards the inefficient and penalises the well-run legal business whose sytems and processes enable it to conclude matters rapidly.

Much of the analysis centres on the work of the top 100 firms who advise the top 1,000 businesses. The arguments are not limited to them, but for the most part, the smaller firm will need to read between the lines in the early chapters and move on to Chapter 7. Barristers can take some comfort from the fact that most of their activity is highly bespoke; but of concern to them should be that firms are likely to build their own bespoke capacity at their expense.

In Chapter 7 on Access to Law and Justice, Susskind directly addresses the needs of “citizens, individuals, voters, consumers, regular people”, who are ill-served by the status quo, and the fate of law firms who serve citizens, who will be as deeply affected by the arguments in the preceding chapters as their commercial cousins.

Susskind sees improved access to justice being achieved with the following building blocks:

  • the empowered citizen – using the web to recognise when they have a legal problem, select an appropriate service provider and obtain service
  • streamlined law firms – who have decomposed their work and multi-sourced as described above
  • a healthy third sector
  • entrepreneurial alternative providers – who will find new and improved ways of delivering conventional legal services (encouraged, particularly, by the Legal Services Act)
  • accessible legal information systems, and
  • enlightened public information policy

(cue FreeLegalWeb).

Does all this spell the end of lawyers? For many, it does look to Susskind as if the party may soon be over. Certainly there will be no place for inefficient lawyers in the legal service of the future; but there will be opportunities for the expert, the efficient and the innovative, including:

  • the expert trusted adviser – who delivers genuinely bespoke advice
  • the enhanced practitioner – whose skills are deployed in delivering standardised, systematised and packaged services
  • the legal knowledge engineer – who develops these services
  • the legal risk manager
  • the “legal hybrid” or multi-disciplinary practitioner

There is little to criticise in the way Susskind writes and one would be foolish to question his undoubted experience and expertise. My only quibble is that the book feels too far weighted to the concerns of large law firms and in-house counsel. Although such work reputedly accounts for at least 40 per cent of all law firm revenues, according to Law Society statistics for 2007, firms with over 25 partners represent only 1.9 per cent of law firms by number and only 40 per cent of solicitors by number. The average small- to medium-sized firm is as much in need of his counsel as the mega firm and could have been better engaged in the early chapters.

Most of the criticism of Susskind’s arguments comes from those who have digested only snippets; certainly they have not not read him in sufficient depth. With few exceptions, they seek to distinguish their work from that of the lawyers under threat whom Susskind describes and consequently to argue they they are somehow immune to the the forces that will drive them either to further efficiencies or to extinction. It is not doomsday stuff. It is simply a case of recognising that legal practices are businesses; more than that, they are knowledge businesses. Such businesses, more than most, are subject to relentless pressures as the information economy develops. They cannot rely on past privilege for their survival; it is adapt or die.

If you doubt that, I suggest you do the following. 1) Ask yourself how you conducted your practice in 1995. Did you foresee how your work practices would (have to) change with the development of email and the web? 2) Look over your childrens’ shoulders to see how they conduct their business. 20 years or so from now, they will be running the show. Will they do so as inefficiently as you?