The same but different

This article is a practitioner’s response to the excellent book by Richard Susskind, The End of Lawyers?

If you have not read the book then I commend it to you. Much of it is directed at in-house corporate lawyers and what Susskind refers to as general counsel, but there is a clear message for those of us who see ourselves as everyday solicitors.

For the sturdy traditionalist (or at least one who is not willing to change), it is indeed a dismal read.

In his opening chapters Susskind predicts how the expectations and demands of clients will change. He illustrates how legal services will be commoditised and how clients will increasingly look to the internet for their advice and legal products. He argues that much of what we do is not law and need not be done by lawyers.

Information technology will deliver legal knowledge and services either directly to the client or via web based service providers. Susskind predicts that information technology will drive change in legal practice at an increasing speed and in directions which we cannot predict from our experience of the past.

He is not predicting the end of the profession, only that part of it which does not embrace the opportunities which these changes will offer.

Tear off the slip?

So what can a practitioner do?

Let’s look first at an example of what is going wrong. Let’s look at conveyancing.

Solicitors involved in conveyancing practices have for a long time realised that much of what they do is not legal work, but simply administration in a legal context.

Thinking practitioners have often broken down their more standard transactions and have allocated appropriate sections of work to suitably trained non-solicitors. Reducing the cost of work in this way can then be reflected in competitive fees, or increased profitability, or even both.

However, conveyancing is not valued by clients as it is by the profession. Clients do not see the solicitor as adding value. The only time a solicitor is seen by most clients as adding value in a conveyance is when he is giving of his knowledge and experience in advising on offer prices. Note that this is not a legal function, simply knowledge of a market.

The client therefore does not wish to pay for the service, and we have all seen fees being driven downwards to the extent that many practitioners are simply not making acceptable profits from this type of work.

Conveyancing in its simplest form is on the way to being something which clients will expect either for nothing or to do themselves. I know of at least one legal firm which proudly offers free conveyancing to first time purchasers.

This, I would argue, is precisely the point which Susskind is making. The client does not value the work and so is not prepared to pay. The Executive, through registration of title, is simplifying and commoditising conveyancing. How long will it be before the last page of the land certificate is a transfer of ownership form?

Before…

If we accept this example as something which could happen elsewhere in our businesses then, as business people, we need to identify the areas where clients perceive us as adding value and develop our skills to operate in these areas in a way which clients perceive as adding value.

We have to take responsibility for this process ourselves. There is no one pointing the way, no guidance and no overall vision of where we should be going. There is no one answer, as all of our practices will be different.

I have looked carefully at my own practice to see what might be right for it.

Ten years ago the practice was overly dependent on property. We also offered private client services which largely consisted of executry work, but the fees generated did not form a significant part of the overall fee income of the firm. We did some court work but again never to a significant extent.

I think that many readers will recognise the pattern.

… and after

We did two things. First, we set out to modernise how we did the work. I have written a previous article about this (Journal, April 2008, 36), so I will not repeat that here.

Secondly, we thought about what the client wants and values.

If we were going to continue to do property work, we had to identify which parts of it the client would see as adding value and which parts they saw as a cost. Our answer was that the client sees the estate agency element as adding value and the legal element as a cost.

This led us to develop our estate agency operation and to reduce the cost of our legal operation by the introduction of paralegals suitably trained and managed to carry out the work at an appropriate level.

Where we have recently made a valuable contribution to clients in property matters is when a developer has asked us to examine the writs for sites they have acquired piecemeal over a period of years, with a view to either achieving voluntary registration or at least ensuring that they have good title for the whole site, thereby avoiding problems on sale of the development.

Susskind describes this as providing a fence at the top of the cliff as opposed to an ambulance at the bottom, and he suggests this is the type of work which clients will increasingly come to expect and value.

Our executry work is now carried out by paralegals under appropriate management with daily input from the partner responsible. Apart from management, solicitors are only involved when the work can only be done by a solicitor.

Something extra

So we looked at what we were doing and geared the operation accordingly. This was all to the good, but it clearly was not enough.

The most dramatic change was when we decided to move into litigation work.

My partner Eric Baijal joined us with a view to his expanding our small number of litigation files into a full time role for him.

Eric is a specialist in litigation and worked in the litigation department of a large firm in central Scotland. He wanted to move to Caithness for family and quality of life reasons, but did not want to move into general practice.

We looked at what rural practices tended to offer clients by way of litigation services and concluded that very few general practices offered these services to a high standard. I am not criticising any practices here, simply commenting on a general trend where we see hard pressed general practitioners struggling to cope with a litigation caseload they really would love to hand over to that unsuspecting junior partner or senior associate.

We decided to offer something very different. We set out to offer a level and quality of service which would normally only be expected from a specialist city firm. We felt that there was a need for a litigation service which would be seen by the client as genuinely offering value.

Tapping a rich seam

Had we identified something which clients would see as adding value? Would it work?

Less than six months after starting with us, Eric was turning work away for lack of available time.

Within two years we have committed another partner full time to litigation work, have a full time litigation trainee and have just appointed a newly qualified solicitor who will be full time in litigation. We expect to take on our next full time litigator towards the end of next spring/beginning of summer.

We regularly have cases in the Court of Session and benefit from using the IT-literate Commercial Court (where we have had a number of interesting cases running).

What we have done here is to identify an area of law which clients perceive as being the preserve of lawyers. Here the service cannot be provided through IT alone. Here there is no one answer to clients’ problems and a solicitor must apply his training and expertise in an individual way to that client’s individual problem. This is an area which clients value and solicitors often do not.

Applied thinking

This is not intended to be a tale of “look how well we have done”, but an example of the application of Susskind’s thinking to the opportunities available to a small rural practice. Your practice will be different in its makeup and will therefore have different opportunities. The lesson here is in the application of the thought and principle.

Susskind points out that the title of his book does have a question mark at the end. It is a challenge, not a prediction; or rather it is only a prediction for those who do not take up the challenge!

Archie Millar is a partner in Drever & Heddle, Kirkwall