Moving up the gears

You may think technology has made a big impact on the delivery of legal services in the last decade or two. According to Richard Susskind, keynote speaker at this month’s Law Society of Scotland Conference “Law in Scotland: Evolution or Extinction”, it has hardly got started.

Thirty years ago, Susskind, then a Diploma student at Glasgow University, made his first foray into publishing – in, as it happens, a Journal article (February 1983, 66) on research into computerising the case files of the prosecution service. The Future Office System project was rolled out more than 20 years later.

In 1996, he wrote that, within 20 years, technology would have exerted a fundamental change in the way legal services are delivered. (He now thinks that was two or three years out, and it will happen before the end of the decade.) In 2008, he wrote The End of Lawyers?, in which he questioned what role would be left for the profession in the wake of the financial crisis, allied to the other changes in progress. Five years on, the title of his latest book, Tomorrow’s Lawyers, suggests that the future is somewhat brighter. Is he more optimistic now?

“I’m more optimistic about there being new possibilities for lawyers of the future,” he replies. “In 2008, it seemed to me that there were a diminishing number of areas of advice that were exclusive or should be exclusive to lawyers, and the advent of legal process outsourcers, of various uses of technology, of accounting firms, and so forth, was presenting a great threat to lawyers, as was, particularly in England & Wales at the time, the advent of alternative business structures. So I wrote the book and entitled it in that way as a bit of a wakeup call. The title was provocative; I wanted to stimulate a debate, and that I did.

“If you fast forward to now, 2013, I’m more optimistic that there is a future for the legal profession, but only if the profession is prepared to change.” He believes there is a whole new set of opportunities for the next generation of lawyers, if they are willing to show some entrepreneurial spirit.

Clients: the main driver

But is it really true, as Tomorrow’s Lawyers suggests, that most lawyers are still in denial of the fundamental changes taking place in their marketplace? “Most people would say the evidence is such that there is no going back to the mid-noughties. In practice, however, I find in advising law firms that mainstream partners don’t behave as if they are in the middle of what is a fairly radical change. The leaders of many firms are very alive to the kind of flux in which we find ourselves, but mainstream partners are frankly often holding out to retirement, hoping that the changes won’t engulf them in the meantime.”

Though perhaps best known for his technology-related predictions, Susskind believes that IT is only one of three main drivers for change in the market at present. The liberalisation of legal service provision is another, but the dominant factor is what he labels “the more for less challenge” – clients wanting to pay far less for legal services while expecting more.

“The fundamental pressure is the price pressure. And what we’re going through is a cycle where a lot of lawyers are thinking that the way to respond to the pricing pressure is to move away from hourly billing and to charge in different ways, and that will be sufficient. What I’m saying is, that we have to move from pricing differently to working differently.”

That, he explains, will have two phases. The first is the growing move to alternative sourcing – to legal process outsourcers, or by moving work to lower-cost areas, whether through subcontracting or to a firm’s own service centre.

“These are all interim fixes, because in the end, it seems to me, when you look at the advance of technology, all roads lead in six, seven, eight years or so, to technology taking over so many of the tasks that we used to think required human intervention.”

Prepare for disruption

That is when, in Susskind’s words, we will truly see the arrival of “disruptive technologies” – those that will require lawyers to rethink radically the way they work. Tomorrow’s Lawyers lists no fewer than 13 types; Susskind selects three to illustrate our interview.

First up is ODR – online dispute resolution, which he expects to have a huge impact: “techniques such as e-mediation and e-negotiation, which underpin, for example, the way disputes are resolved on eBay. eBay has about 60 million disputes a year and almost none of them go to the courts. They are sorted out by electronic techniques, and I believe these kind of techniques, certainly for small and medium-sized claims, just make sense.”

Predicting that ODR will attract many disputes which it is uneconomic at present to attempt to resolve formally at all, he adds: “This doesn’t mean there are going to be no jobs for lawyers, but that lawyers are going to become specialists in ODR, whether as advisers or as mediators. In 2008, I was thinking, ODR will pretty much be the end of litigators; I’m now saying that if litigators are prepared to change, there will be new opportunities in a world in which a lot of dispute resolution is conducted online.”

Automatic document assembly will also arrive before the decade is out. “The idea of a system that asks a fairly basic series of questions and generates a fairly polished document, will be to the lawyer what the spreadsheet has been to the accountant.” Such technology is “disruptive” because, for lawyers whose business is based on hourly charging, it greatly reduces the amount of time a document takes to be drafted, and therefore the revenue to be derived from it.

Further down the line is artificial intelligence, which has already produced Watson, an IBM system that in 2011 took on and beat the top human contestants in a US TV quiz show. “In due course, people will sit down and speak to their machines and sketch out their problems, and the computer will be able to offer answers. That sounds like science fiction, and I’m absolutely not saying it’s coming to pass over the next decade, but it’s probably within the career lifespans of students who are graduating now.

“The lawyer’s inclination is to say, that’s never going to happen, but one really has to do one’s research before one can confidently conclude that. Look at what Watson has achieved, look at what is happening in medicine, and ask yourself, is there anything special about legal diagnostics, legal document drafting, and legal advice giving, that means these unbelievably powerful technologies are somehow not applicable in the legal domain?”

Future skills

The online extra section of this feature (see below) explores Susskind’s views of the nature of legal work going forward, and why he doubts that the traditional high street firm has much of a future. At the same time, he disclaims any blueprint for what his model law firm of the future might look like. “What I’ve found after advising many law firms is there is no single formula, no magic bullet. I often say lawyers want off-the-shelf competitive advantage; they want to know what’s the answer, what’s the blueprint – I don’t think there is one.

“Of course, with the legal profession it’s not one single service – there are innumerable different service lines, and markets, and for each there are different answers. But also, when you are allowing, as liberalisation does, for entrepreneurs to come in, for there to be new investment, new thinking, by definition it’s not possible to put together a blueprint because the market itself will create new models and new approaches that none of us was anticipated or thought through.”

What of the profile of the new lawyers of the future? Susskind’s line is that the traditional training will still be valuable if you can get it, but if not, there are large businesses that are increasingly interested in people who have legal skills but are not necessarily fully qualified: the big accounting firms, the big legal publishers, legal process outsourcers, ABSs – a whole set of new employers who won’t necessarily be looking for people trained in the conventional way.

But they will be looking for a combination of skills. “We need a new generation of hybrids, people who are equally fluent in technology and law. Looking at jobs like the legal knowledge engineer, legal risk manager, legal process analyst, legal project manager, to name but a few that I talk about in the book, a legal background will be crucial, but there are some other vital skills in there too, and so I encourage law students, and law schools, to see whether they can put together some courses so that people are skilled not just in the law, but also in related areas such as project management, the development of online services, process analysis, systems analysis and so forth.”

Like accountants, Susskind maintains, lawyers of the future should train in project management, to equip them to take the lead role in a big transaction or case, responsible for delivering to timetable, budget and quality. If not, they will be left as technical subcontractors to others in charge. “The opportunity, I’m saying, is if we train lawyers in project management, we can actually take control of that side of the running of a deal or dispute. Clients are looking for new techniques, greater rigour in the management of their legal work. Legal project management is one of a number of new disciplines, I think, that we should be immersing ourselves in, and that our law schools should be training our young lawyers to be conversant with.”

Professional attitudes

Will the law still be a profession if Susskind’s view of the future comes to pass?

“I don’t really have a vision of the future; there is no single vision. If I sometimes sound excessively prescriptive, that’s not my intention. What I try to do is lay out a buffet and say here is a whole bundle of things that are possible, and whether these changes happen slowly or quickly will be up to many readers. Alan Kay said the best way to predict the future is to invent it, so my call is for young lawyers, and older lawyers, actually to invent the future given all these changes I’m talking about.”

Susskind’s next writing project, along with his older son, is a book on the future of the professions generally. “I think it’s important for lawyers to know that the kinds of changes I’m discussing, commentators and analysts like me in other professions are also making similar predictions and offering similar analysis.”

He believes we are at a point in social development where we “revisit the deal that society has with the professions”. Under the present model, certain monopoly rights are given to occupational groups, providing certain types of advice and guidance to lay people, in return for a fair income and the maintenance of standards. That model is now facing the twin problems, first, that a lot of the work of the professions is becoming unaffordable, and secondly, the internet now delivers access to much of the knowledge, insight and expertise hitherto regarded as the preserve of the professional.

“These changes, it seems to us, call for a reconsideration of the role of professionals in society. Our tentative thought is that there will always be a need for the deeply expert, trusted adviser, but certainly in law we are going to see, in relative terms, the number of these advisers diminish over the decades. Interestingly, the values we deem to be tremendously important in the professions, in our research are not restricted to the professions – whatever their endeavour, even people involved in quite manual tasks who would never be regarded as belonging to the professions, would never want to be accused of being ‘unprofessional’. And so we somehow have to preserve the values of the professions without necessarily preserving the outdated parts of the professions, whose work can be conducted in equally reliable and far more accessible ways.”

So if not quite “we’re all doomed”, Susskind’s message to the conference will certainly be a challenging one. What is his selling point?

“I see my role at these events as to think ahead and identify ways in which we can modernise the way that legal advice is offered and legal problems are resolved in society. There’s a philosophical side to this, about the nature of law and what law is in society, which I hope is interesting for its own sake, but from a business point of view, it’s a little bit of inspiration, a little bit of cause for concern, and hopefully a whole set of ideas for people to take away, which will encourage them to think differently about the services they are providing. If they’re wanting answers, off-the-shelf competitive advantage, they’ll be disappointed, but if they want a whole array of thoughts and suggestions about the way in which they can develop their business, then I hope they will come.”

Online extra

It is possible, reading Susskind’s books, to get the impression at times that he sees all legal work as a series of transactions which, unless entirely bespoke, can be analysed into a series of components each of which is more or less open to some kind of systemised process. But another favourite metaphor of his is the lawyer providing the fence at the top of the cliff rather than the ambulance at the bottom. Where does the trusted adviser role fit into his predictions?

“These are two different lines of thought”, he replies. “They do overlap, but I don’t think they contradict. Our feeling as lawyers that a huge amount of legal work is highly bespoke and needs customised, tailored, handcrafted attention, is often misguided. “What I’m saying, and it’s probably one of the biggest points of my work over the last six or seven years, is that you can decompose, or as economists would say disaggregate, legal work, that is break it down into component parts and for any large piece of work, we ought to look at the various tasks involved and make sure we are undertaking each in the most efficient way. The example I give in litigation is that there are probably, on my model at least, nine different tasks involved, only two of which, experienced litigators tell me, are law firms uniquely qualified to undertake, and therefore seven of the nine can be delivered by others. And if seven ninths of litigation can be delivered or supported by non-lawyers, this is something that lawyers should be discussing and debating and if possible rectifying.

“That’s quite a different set of issues, it seems to me, as compared with the fence and the ambulance. My argument there is that lawyers, in thinking about the future, tend to be thinking about how they can equip the ambulance that bit better, or get the ambulance to the scene of the problem that bit quicker, but fundamentally what clients want is avoidance of lawyers and avoidance of legal problems. The point about the fence at the top of the cliff is actually a far more fundamental challenge. What clients are saying, it seems to me, and this is based on all sorts of research, is that they are not wanting the conventional form of legal services in any event, they are wanting dispute avoidance.”

Related to that point, Susskind has a rather gloomy view of the future for high street firms, which he believes will be unable to compete against large commercial ABSs. Is that not dependent on a view of legal work as transaction based rather than advice based?

“If you look for example at the Co-op, who famously have announced that they will be delivering legal services from 350 branches, and recruiting 3,000 people some of whom are lawyers, to deliver this service, it seems to me that when read along with all the research that has been conducted into consumer preferences, which has found that they would be as happy if not happier to have legal services delivered by a high street name as from a conventional law firm, one can begin to see that the traditional model is threatened.

“I’m not saying, and never have said, that there will be no need for the trusted adviser, but the trusted adviser will have to make the case that what they are doing is absolutely necessary, and not only that, is something no one else can do. We shouldn’t assume that the model of service delivery with which we’ve always felt comfortable in the past is the way that will prevail in the future, particularly in respect of the internet generation, who I think look very differently on the idea of going to a one or two partner high street law firm of the traditional sort for the delivery of any kind of professional service, when so much of their lives is conducted and mediated through technology.

“What I’m really saying is not that lawyers will no longer be involved in consumer law and in the work that’s dominated by high street lawyers, but actually that a law firm itself is no longer a sensible legal model. We have got to move away, if I can put it provocatively, from essentially the cottage industry or corner shop, to more of a supermarket approach. I know that so many people, particularly in the legal world, will throw up their hands in horror, and will want to extol the virtues of the corner shop, but I say again, in difficult economic times, and particularly when legal aid is being reduced across our world, we have to find ways that may not have the personal involvement of the lawyers of yesteryear, but will still deliver a responsible, reliable, robust service to people who have less cash in their pockets.”

Can collective enterprises like solicitors’ property centres make a difference? “The questions I ask of almost all such developments are, is it too little too late, or is it tokenism, or is it a genuine attempt to change fundamentally the way in which legal services are delivered? I think the property centres are admirable and important developments, but they have to be managed tightly, they have to be progressed quickly, and they have to compete effectively with the alternative providers that are available and emerging in the liberalised legal market place.”