“Why Can’t I…?” is the New “Can Do”

November 1, 2004

Markets and industries are not about products anymore. They are about you, the individual customer. You are in control. You are in the age of DIY; of eBay, Napster and Kelkoo. You can even tell Tesco to deliver what you want and when, and damn me if they don’t respond. The “Can Do” mantra of corporate culture has been replaced by the “Why Can’t I.” of “consumer culture”:

“Why can’t I: only buy the songs I like; buy something when UK stores have no stock; or do the grocery shopping while I’m making dinner?”

And in your role as a lawyer you find that:

☺ Meetings you once had with “Ops” or “IT” people are now dominated by someone calling herself “Head of Customer Experience”

☺ Contract negotiations are now called “partnership discussions”, which partnership seems to include one Joseph Public, who doesn’t seem to feel the need to attend

☺ Rather than jousting like a knight “against the Enemy” to zealously protect your client, you find yourself huddling defensively with your new found legal “colleague” while all others in the room snap in unison: “Too many clicks”

☺ Oh, and someone has changed all your [·]’s to [☺]’s.

How has this happened?

Technology is largely responsible, or rather the apparent absence of it. “E-business” and “e-commerce” were really about boxes and gadgets and software. Products were shaped around the technology. Now products are being shaped the way you want them.

This shift was predicted from two angles. But it’s important to understand which proved correct because those who backed the loser lost their shirts, while the others are cleaning up.

The false prophets of “e-commerce” preached a future where people realised that it was vital to be “Internet-enabled”, to have a “digital signature”, or a “smartcard” in their “home computer” or a “WAP phone”. People would want these things, said the false prophets, because. well, maybe they could play games.[1] Pretty quickly a “critical mass” of these people would simply emerge. Suddenly it would be worthwhile to sell stuff into this new virtual customer base. All that the suppliers needed was “fibre optic cable”, “processing power” and “storage capacity”. A strategy that equates to “If you build it, they will come”.[2]

So we had a “tech boom” while everybody invested in the kit. And a tech bust, because comparatively few people could actually see the point of all these gadgets. As you know, there was very little you could do with them to improve your own activities.

And this is what the real prophets had been preaching all along. The digital era would come into its own when the focus was on what people actually do that is slow and inconvenient, and which technology could readily improve, rather than the technology itself: the gadgets had to be invisible.[3]

Now, in 2004, you are compelled by the idea that you can do things faster, or more conveniently. You aren’t exactly sure how the extra speed and efficiency has been achieved in technological terms, but that is not important. Technology is not the issue, improving the relevant activity is. You no longer refer to gadgets and how they do things. Instead you refer to brand names, brand propositions or simply activities: “online auctions”, “music downloads”, “comparison shopping” and “home shopping”.

And the crucial point is that all these things are under your control.

How is this relevant to you as an IT lawyer?

Well, lawyers and law-makers are having a tough time.

Businesses have to be ready to do, sell or make stuff the way each customer wants it to be[4]. Consumer advocates who used to be at the mercy of Big Business are now having a field day, because everyone knows goods and services can be supplied just-in-time, via much cheaper distribution channels. There should be more value for money, better service; and customers are righteously demanding it.

The “law” and law makers are at a loss. Just as politicians don’t rely only on Mrs Single-Vote of 37B Personal Street to get them into office, neither does Parliament pass a law with her specifically in mind. Balances have to be struck between the agendas of competing pressure groups. Judges, too, are well aware of the axiom that “hard cases make bad law”. What seems “unfair” in a case at the margins, must give way to what is generally “just” in all the other cases.

But “The People” have no respect for that position anymore. Pressure groups – and tabloid editors – are seizing on single instances of apparent “unfairness” as an excuse for a crusade. Regulators, the battered front line of government, are folding under the pressure. The trend is eroding the traditional concepts of justice, strict rights and obligations in favour of “guidance notes” that build on elastic notions, such as “treating the customer fairly”. And these are customers who think it’s fair to have it their own way.

So commercial lawyers have to step out of the brogues of the manufacturer, wholesaler or high street supplier and into the street shoes of the self-righteously aggressive consumer.

Your clients may already talk a lot about “customer service”, but that is just another product. It’s yesterday’s thinking. Now it’s all about the individual customer. What are her objectives. What are her strategies – indeed, her outrageously affronting tactics – for achieving them? How can your client enable her to feel that she is in control of the customer relationship?

Only then will your meetings with the people in “Customer Experience” make any sense at all. Hell, they might even be fun – and secretly fulfilling – because, in this New Age, much against your better judgement, you are acting for you.

Simon Deane-Johns is the General Counsel and Company Secretary of a company that is creating a new financial service: sdjohns@hotmail.com.

[1] Or something.

[2] “Field of Dreams”, Universal Studios, 1988

[3] Eg Negroponte, N., Being Digital, Coronet Books, 1996

[4] See: Seybold, P., Marshak, RT & Lewis, JM, The Customer Revolution, Random House Business Books, 2002