Towards ‘Open Lawyering’ – Revisiting The Future of Law

February 14, 2011

Looking back at The Future of Law 

In The Future of Law, Richard Susskind presented the prospect that might lie ahead for lawyers. As in many works of ‘futurology’, some predictions came true, others completely failed to materialise, but most fell somewhere in between. 

It is interesting to look back at the Contents page for the 1996 volume of Computers & Law magazine, the year in which the book was published. The articles included ‘Profiting from the World Wide Web: Preparing to compete electronically’, ‘Who’s Going to Manage the Network?’, and ‘Laser Printers: Unsung Heroes or User Headaches?’ Everyone uses and takes for granted the technologies that were the main talking-points; indeed, some have already had their day and been superseded. No doubt we will look back with amusement in 15 years’ time at the pieces on cloud computing, social networking and other current pre-occupations. 

The book itself was divided into four main parts, the first of which was about ‘the law’ generally: how law is made and promulgated, and how legislators, lawyers, clients and citizens generally interact with the law and with each other. In this section, Susskind described what was called ‘today’s legal paradigm’ – that is to say, the prevailing world-view and assumptions about the law and the way that legal services were delivered. After discussion of the developing technologies and case studies about their use in practice, he considered how the profession would change, concluding with a chapter on ‘tomorrow’s legal paradigm’. This article will address the 12 key elements of those contrasting legal paradigms, and the extent to which time has proved the author right. 

From advisory service to information service; and from one-to-one to one-to-many 

Susskind envisaged that the law would change from being an ‘advisory’ service to being an ‘information’ service, with lawyers largely ceasing to provide a service that was primarily consultative in nature (ie responding to a specific matter), and the majority instead assuming the role of what he called ‘legal information engineers’, working on service offerings of a more generic nature. Coupled with that, he predicted that legal advice would become packaged in a way that was suited to repeated use for multiple clients. 

Both these predictions have come true to some extent. There is a considerable volume of re-useable legal guidance available for clients to draw on with minimal input from an individual legal adviser. Lawyers and their clients alike can copy sample documents from a CD-ROM or download them from a web site, and then modify them as they require. Guidance is also freely available from law firm web sites, government and consumer sources, and from specialist legal information providers like Lexis Nexis or the Practical Law Company. 

From ‘reactive’ to ‘proactive’ service 

With legal guidance becoming packaged so that it can be easily digested and used by non-lawyers, Susskind described the practice of law moving away from the 1996 paradigm of a ‘reactive’ model, where clients only sought out legal advice when problems came up, to a ‘proactive’ model: clients would increasingly seek out their own guidance early on in the life-cycle of a matter, accessing generic products that were widely available. The non-expert could accordingly take control of the early legal input, and only have to seek ‘traditional’ legal advice when specifically needed.

However, our own experience – as a specialist law firm working in the field of IT and outsourcing contracts – is that our non-lawyer clients seldom want to make use of know-how and precedents for themselves. This is despite the fact that material is available from plenty of sources, many of them free, along with very good ‘plain English’ guidance. We have to acknowledge, however, that this perception is based on a self-selecting group – our own clients, who are perhaps pre-disposed to seek formal legal advice on their IT contracts. It may be different if the matter in question is primarily personal or domestic, such as will-drafting or consumer complaints, but it seems that business clients continue to demand a high degree of legal involvement in any transaction that departs substantially from their comfort-zone of standard terms. 

From time-based billing to commodity pricing 

Coupled with legal services increasingly taking the form of ‘productised’ information, Susskind predicted a move from time-based billing to commodity pricing. The reality is, however, that hourly rates are still the basis for most charging because, for matters of any complexity, the service that lawyers offer is generally not a ‘commoditised’ service. 

Law firms routinely offer alternatives to hourly rates, of course, including fixed and capped charges, or retainer-type arrangements where clients hand over everything that the firm can manage for a fixed monthly charge. Even then, though, the basis of calculation has to reflect the cost of time in providing that advice. Law firms have certainly become more flexible on rates, more open about their charging arrangements, and more amenable to alternatives to the traditional hourly rate, but it seems unlikely that we will ever see genuine commodity pricing for anything more complicated than processing standard documents, because of the unpredictability of the time commitment required for any given engagement. 

From ‘restrictive’ to ’empowering’ legal service 

Susskind predicted that with the newfound access to legal information would come a realisation that the law is not just designed to throw up obstacles, but in fact can be a very useful tool for consumers and businesses alike.  

This prediction does seem to have come true to a degree. In the private, domestic arena, individuals can readily access guidance from the Consumer Association, Trading Standards or other sources to help them sort out problems. On business matters, though, the more sophisticated clients – like those who are themselves in-house lawyers – certainly seem to recognise the value that an expert legal adviser can bring to a deal: identifying and resolving key issues, leading negotiations and project managing the development of contract documentation.  

From ‘defensive’ to ‘pragmatic’ lawyering 

Susskind envisaged that the developers of the new, ‘productised’ kind of legal service would be less prone to ‘defensive’ lawyering – a conservative and one-sided approach to advice calculated to protect the adviser’s own interests as much as to inform the client – precisely because it would be understood that advice was not tailored for any specific situation. Legal information providers should, he said, have greater protection from liability than ‘traditional’ lawyers.  

This must surely be the case already. It is hard to imagine someone successfully bringing an action against Lexis, say, because of an inaccuracy in a legal update; and the kind of information on most law firm web sites tends to be both very generic in nature and hedged with disclaimers about the need to get specialist advice on the circumstances of the particular matter. 

From ‘legal focus’ to ‘business focus’ 

Legal information services would, it was claimed, be commercially-focussed as much as purely legal. It is certainly true that all commercial lawyers think of themselves as understanding their clients’ business as well as just advising on legal issues, but surely this was already the case in 1996? That understanding is a major element of what we offer to our clients. Anybody can knock up a computer contract using a standard precedent, but the real value for the client comes from industry knowledge and from experience of numerous transactions in the same field.  

From ‘legal problem solving’ to ‘legal risk management’ 

The shift in emphasis from ‘problem solving’ to ‘risk management’ has happened and continues to happen. However, it is not a function of IT or of the growth in legal information services, as Susskind suggested, so much as a greater appreciation on the part of all concerned that this is a commercially-desirable approach to giving legal advice. Few commercial lawyers today would seek to dictate whether the client should or should not agree to any particular provision in a draft contract, say; the aim rather is to outline the legal and commercial risks that will follow, and suggest opportunities for mitigation. 

From ‘dispute resolution’ to ‘dispute pre-emption’ 

The same applies to the shift from ‘dispute resolution’ to ‘dispute pre-emption’. The change is happening but it is less a function of IT or communications than of a more general change in behaviour and expectations, and an increasing degree of commercial nous and pragmatism on the part of legal advisers. 

From ‘publication’ to ‘promulgation’ of law 

One prediction that has come true, though, is Susskind’s point about law being promulgated more effectively. Historically, legislation would be published and printed by HMSO, and if you wanted a copy of a statute you had to go and purchase a hard copy, for which you would be charged. That has all changed, with the vast majority of current statutes and SIs being available without charge via the Government’s legislation portal, and with additional guidance available through individual Government departments or agencies. 

Case law is still slightly less easy for the non-lawyer to keep track of, but again there are numerous service providers – both free and subscription-based – which enable lawyers to do so. So in terms purely of the availability of legal information, this box can unequivocally be ticked. 

What is less true, though, is Susskind’s prediction that all this information would be available in a readily digestible form. Many of the web sites run by the public sector in particular are very far from being user-friendly: the Information Commissioner’s Office and the web site are particular examples where the vast volume of information, and the lack of really advanced search functionality, makes tracking down just what you are after really quite difficult. It is the private sector service providers who are making the running here, in terms of front-ends and filters, and the public sector has a lot to learn from them. 

From ‘dedicated legal specialists’ to ‘legal specialists and information engineers’ 

As noted above, Susskind predicted a bifurcation of the legal profession into ‘engineers’, who provide the majority of advice in guidance in the form of information services, and ‘specialists’, who will only be called in to advise on problems of great complexity or high value. 

There are certainly some excellent providers of information services around. Legal material is considerably more accessible than 15 years ago, and those who design and compile material specifically for electronic resources, where the skill is as much in understanding how information can be made accessible and searchable as being an expert in the content itself, may well regard themselves primarily as ‘information engineers’. However, the role of the lawyer who holds the client’s hand and guides him through the issues is still alive and well; and the legal profession does broadly the same kinds of advisory work as in 1996, albeit benefitting from the advent of new systems and productivity tools. Traditional legal practice does not represent just a ‘relatively small fraction’ of the profession as Susskind envisaged in 1996, and it seems unlikely that this will be the case in another 15 years either. 

From ‘print-based’ to ‘IT-based’ legal systems 

Susskind’s final prediction was that lawyers would no longer suffer from the excessive quantity and complexity of printed legal material, and it is true that vast quantities of information are now stored on machines and networks; but, certainly in the world of corporate and commercial contract negotiations, we still see large amounts of paper being generated as the parties run through successive drafts of a document. 

The fact that a technology is available, and that its adoption might arguably confer environmental or financial benefits (saving trees or reducing print costs), does not mean that people necessarily want to use it. Susskind himself acknowledged the importance of the ‘tactility’ of paper. Being able to carry a document around, flick easily from page to page, and scribble in the margins is still for many people the most efficient way of looking at a document of any length. Many lawyers are entirely comfortable doing their own marking-up on a screen, but still print off copies of documents to take along to meetings as part of the hard-copy record of the ebb and flow of discussions. This prediction, reminiscent of other predictions about the ‘paperless office’ which were looking increasingly unlikely even in 1996, has simply not come true. 

A different future for the law?

So legal information services are now very widely available and accessible, as Susskind anticipated, but their quality and usability are variable; and in any case, not everyone wants to obtain legal advice in this way. 

The truth is that there are several qualities that distinguish a really good lawyer from someone who just knows the law. Clients want people whom they trust, and with whom they like to work. They like advisers who can simplify difficult legal concepts, and draft and explain things in plain English. They want lawyers who can lead a meeting, build a relationship with the other parties at the table, and find practical, commercial ways around problems and contractual sticking-points. None of these things can be done by a legal information service. Even as ‘the law’ becomes more readily available and guidance gets pre-packaged, lawyers with these qualities will always be in demand: with the quality of legal knowledge increasingly taken for granted, the emphasis will shift to the value of skills – drafting, negotiations and personal relationships.  

What the changes in technology have done is to ‘democratise’ the provision of legal services by creating more of a level playing field between big and small firms, and so create greater competition which will benefit the client.  A specialist firm with a handful of partners can now compete effectively with the biggest firms in the country. The Internet provides smaller firms with a shop window through which to offer their services to the world, and gives them access to know-how and resources that would previously have been almost impossible to manage without a dedicated support function or law library. Cutting out expensive overheads like a marketing department, a library and town-centre office space, also means that the ‘new model’ of law firm can offer lower rates, which is an additional attraction in the current climate. 

Eric Raymond’s book The Cathedral and the Bazaar, in some ways the manifesto of the open source movement, provides a satisfying analogy: what is now developing is a genuine ‘bazaar’ of legal service providers, all of whom have slightly different skills or commercial offerings from what is available from the conventional ‘cathedral’ of big City or international practices.  

There will continue to be increasing standardisation and commoditisation of routine tasks, but in another 15 years’ time there will still be a demand for the genuine legal expert. The way we do it may have changed of course, and the place we work, but we will still be doing what we do. 

Jeremy Newton is a Director at Technology Law Alliance: