The legal industry favors navel gazing. But, I’m sure if we looked hard at other professional service providers, we would find the same thing. Accountants probably spend an inordinate amount of time focusing on the challenges of being accounts, consultants focus on consultants, and engineers focus on engineers. Even so, there is a downside to navel gazing when we fail to pick our heads up and look around. We are spending a bit too much time looking at ourselves right now and not considering how our clients’ needs for legal services will change as forces like technology affect them.
We all know the legal industry is changing. Many believe the changes are structural; some hope they aren’t. The changes range from small, incremental tweaks to our business models and legal service delivery methods, to fairly significant shifts where work flows in directions unheard of ten or even five years ago. At this point, clearly the consensus favors the structural change view.
Discussions about structural changes focus on the impact on lawyers, law firms, and law departments. Law firms, the story begins, are under siege. Law departments are the combatants who are pulling work away from the firms and bringing it in house or sending it to LPOs. A few law firms remain above the fray, but most see these changes chipping away at the walls of law firm fortresses.
For lawyers, the story continues, this does not lead anywhere good. At best, lawyers will see their practices shrink, incomes decline, and futures become uncertain. As with the descriptions of many disasters, what has happened in the past (firms folding, unemployment among practicing lawyers, difficulty getting jobs for graduating lawyers), is mere prelude to a darker future.
Richard Susskind, recently joined by his son Daniel, has done a nice job explaining how the relentless march of technology will overrun lawyers’ weak defenses. As hardware becomes more powerful – some predictions say we will have a desktop computer with the computational power of the human brain by 2020 – and software develops to take advantage of that power, more of what lawyers and other professionals do will shift from person to machine. The question we face is not if, but when. As the Susskinds conclude:
Looking to the longer therm, then, the future of legal services is unlikely to look like John Grisham or Rumple of the Bailey. More probably, our research suggests that traditional lawyers will in large part be replaced by advanced systems, or by less costly workers supported by technology or standard processes, or by lay people armed with online self-help tools’.
Clients’ Needs Also Are Changing
Lost in this discussion are clients. I don’t mean that we forget that lawyers have clients or that clients pay lawyers to provide services. Rather, I think we forget that at the same time the legal industry is shifting, our clients are shifting. We describe a fluid future on the lawyer side and a static future on the client side. We tell lawyers they can be taken over by computers, but we don’t discuss what clients will need given that what clients do also will be changed by computers.
Clients legal needs, both in substance and in delivery model, will not remain static while the legal industry changes. The changes impacting the legal industry, technology included, are having similar impacts on clients and especially on their knowledge workers. Employees in finance, marketing, logistics, human resources, and all the other substantive areas touched by clients are seeing their roles change.
Today’s financial analyst will find that many of the Excel spreadsheet calculations she does will be done tomorrow by an artificial intelligence program. It will not only run the calculations, but also modify the algorithm controlling the calculations to improve the usefulness of the outputs. Human resource specialists who used their judgment to evaluate candidates will find their roles diminished, as software runs psychometric analyses on candidates and compares the results to models highlighting the characteristics of job candidates most likely to make them successful. While the role of humans will diminish in certain areas, the question remains whether human roles in other areas will expand. “Are humans underrated?” is the question Geoff Colvin asked in his book by the same name published this year.
A Dynamic Future
As the legal and client universes evolve, what a client needs or wants from a lawyer will evolve. We tend to think of a client asking a lawyer for a contract and the lawyer preparing the contract. But in a world where the contract is a smart contract communicated between computers for the client and its counter-party, is the client really asking the lawyer for a contract? Or, is the client asking the lawyer for guidance on a strategic level and the contract is simply something two computers work out once they are given instructions by their respective owners?
We shouldn’t define what a lawyer does by the snapshot of what we see today. A lawyer’s tasks were different 200 years ago and undoubtedly they will be different in the future. But those tasks don’t define the role of “lawyer.” Put differently, strip away the tasks of drafting a contract or writing legal briefs and we haven’t stripped away lawyering. Richard and Daniel Susskind attempt to define the professions (including lawyer) in their recent book, but acknowledge the following “mouthful” is the best they get:
In acknowledgment of and in return for their expertise, experience, and judgement, which they are expected to apply in delivering affordable, accessible, up-to-date, reassuring, and reliable services, and on the understanding that they will curate and update their knowledge and methods, train their members, set and enforce standards for the quality of their work, and that they will only admit appropriately qualified individuals into their ranks, and that they will always act honestly, in good faith, putting the interests of clients ahead of their own, we (society) place our trust in the professions in granting them exclusivity over a wide range of socially significant services and activities, by paying them a fair wage, by conferring upon them independence, autonomy, rights of self-determination, and by according them respect and status.
Clearly, lawyers are not defined by a simple set of tasks. But lawyers don’t fit within an easy definition of “profession,” so we benefit more by looking to what clients need and what will be done to serve those needs than by trying to fit things into pigeonholes.
If we don’t define lawyers by a discrete set of tasks they do today, then we should be able to imagine a future where the demand for lawyers has increased. The Susskinds attempt to avoid this trap, but because they don’t also look at the client side of the equation, still end up thinking too narrowly.
Once freed from the tyranny of the task, lawyers could spend more time contemplating the increasingly complex interactions of peoples, cultures, and technologies and how to structure them to operate together smoothly. That may take more lawyers to do, with the lawyers integrated into society in many more places than today, much closer to the point of those interactions. Asking and answering these complex interaction questions takes us far beyond tasks into a prescriptive, ethical, and moral world where there will be many possibilities and no absolute answers.
Why more lawyers? If lawyers become better at forecasting interactions, perhaps by working in teams and using techniques we are learning from superforecasting studies, we may be better served having teams of lawyers distributed throughout society forecasting risks and working interactively to mitigate or avoid them. The role of lawyer will co-evolve with client needs and could become much more of a counselor role using knowledge from many disciplines, then its current, narrower and more technical role.
The next step in our lawyer-client evolution could be pairings on each side of the hash, interacting in complex ways. The lawyer (person plus computer) interacts with the client (person plus computer). That four-way relationship adds some interesting dimensions to legal services delivery.
There will be times when the lawyer and client do not want their computers involved. The person lawyer will want to speak directly to the person client and decide, without intervention, what roles their computers will play in the legal services equation. Some predict there will be computers who will do the same – the computers will interact and “decide” to what extent people need to be involved in the legal services delivery equation. (For those who enjoy scary futures, read Nick Bostrom’s thoughts on the existential risk to humans of powerful computers.) At some point along each evolutionary line of computer use, the question “I know a computer can do it, but should a computer do it” becomes relevant.
The Future Belongs to Those Who Can See It
As much as lawyers like to think they are good at predicting the future of contracts, lawsuits, and other complicated human relationships, history has taught us that lawyers are not accurate forecasters. If they were, we would have eradicated litigation years ago. Throw some computers into the mix, and we have no reason to believe that lawyers will do much better at forecasting the interplay of people and computers on each side of the lawyer-client relationship. As the developing disciplines of superforecasting and cognitive psychology are teaching us, we should be vary wary of accepting our own predictions.
The march of computers is relentless and it will impact all of us in ways we can’t imagine. The same is true in our world of legal services and client needs. While we can and should keep a weather eye on what is happening as computers evolve and incorporate what they can do into the practice of law, there is a better use for much of our time than handwringing about what might be.
Lawyers should focus on streamlining their practices, and making those practices nimble, flexible, and adaptive. We can’t accurately predict tomorrow, but we can prepare to handle what tomorrow brings. Tomorrow will bring not only a changed legal industry, but changed clients. We should not forget that our role is not to provide the best legal services, but to provide the best legal services our clients’ need.
 Susskind, Richard and Daniel Susskind. The Future of the Professions. (2015), at note 171 (quoting Susskind, Richard. The End of Lawyers? (2008), 2.)