The Coronavirus pandemic will soon turn one year old. Of course, it is impossible to know exactly when it came into existence, but in terms of its impact on life as we know it we will soon have expended an entire calendar year living with the threat of Covid-19. In England & Wales, March 19th marks twelve months since the Prime Minister, Boris Johnson, issued the very first ‘work from home’ order.
Since then, legal professionals have learned quickly how to adapt their practices to working from home and firms have embraced a small revolution in ways to work: Zoom meetings with colleagues; hearings via government-sanctioned online platforms designed to emulate the courtroom; and a dramatic move towards online working more generally. In the background, the continued rise of workflow tools and AI-driven platforms has been encouraged by legal service providers looking to save both time and money.
Since 11 January, England & Wales has had a new Master of the Rolls. Sir Geoffrey Vos made clear early on his commitment to the digitisation of the justice system where it was beneficial to the users, and promised in setting out his ‘ultimate vision’ for civil justice to digitise the civil claims process from front to back. Such commitment to a modernised, streamlined and online justice system is timely, and welcome. In May the government plans to launch its Official Injury Claim portal, but private sector offerings like Small Claims Portal have already been live for months. In the US, People Clerk has been offering a similar service for the small claims court in California. The future is here, it seems.
In the UK we will likely be working from home until the summer. But what happens after that? Where will the legal profession stand, and what will it need to do to take what it has learned and go forward? I offer some of my predictions and suggestions below.
It is unlikely we will all end up going back to the office five days a week, fifty-odd weeks a year. Organisations had the experiment of remote working foisted upon them and have now recognised the benefits of flexibility for all their employees. Now that they know it works, they should be more willing to let employees work remotely for some of their time — particularly if they can save money on office space. Although few companies have said they will do away with offices altogether, city law firms have predicted a reduction in floor space of between 30 and 50 per cent.
One of the major factors which has been given lip service but only recently is being taken seriously is wellbeing and mental health. The Mindful Business Charter, which counts Freshfields, Herbert Smith Freehills and Baker McKenzie among its signatories, was designed to promote a culture of openness around wellbeing in workplaces, acknowledging that being ‘on call’ 24/7 may be great for the client but can take a huge toll on the lawyer. The Bar Council’s Wellbeing at the Bar services aims to support barristers through difficult experiences and ensure they have adequate help from their chambers when things are tough. Working from our living room and kitchen tables has perhaps taught us all a thing or two about mental health and wellbeing, and even simply going for a walk during the day or committing to a time at which the laptop and emails go away and you come ‘offline’ has made a huge difference. Balancing excellent client service and personal wellbeing should be key in 2021/22.
The conversation about whether clients want a law firm or a firm that offers legal services, among other things, will continue. Big city firms are either considering becoming multi-disciplinary and offering more than just legal services, or already have (see CMS for an example).
More generally, the work that law firms do and the businesses they own and collaborate with might change. The Legal Process Outsourcing market is predicted to be worth $35.9 billion by 2025. However Captive LPOs are also on the rise. Captive IPOs exist when a law firm creates a subsidiary to which it can outsource work, but that subsidiary is still wholly owned by the firm.
The legal world will have as much to learn from other dynamic sectors as they have to learn from it. The UK government’s recently released Kalifa Report recommended a new regulatory framework for emerging technology. It will be impossible for law firms to ignore progress on this front, given how closely their work will be interconnected. An interesting example of crossover expertise between the financial and the legal sector is ScribeStar, which started out as a way to streamline the paperwork involved in capital markets transactions and compliance but has now been taken up by the likes of Travers Smith and Simmons & Simmons to help with their corporate work.
Online justice will only continue to grow. Her Majesty’s Courts & Tribunals Service (HMCTS) has demonstrated that online and remote hearings can work, albeit not in all cases. Online Dispute Resolution (ODR) has bloomed over the past year; arbitrators, mediators and adjudicators have revealed that these proceedings can be heard without the need to be physically present. Now the UK Jurisdiction Taskforce (UKJT) has published its draft Digital Dispute Resolution Rules to allow quick and cheap arbitration for disputes surrounding digital technologies. If successful, it could broaden the opportunities for Alternative Dispute Resolution to step in as a viable alternative to litigation in the courts.
Finally, lawyers may have to consider what this quantum leap means for vulnerable parties. Digital poverty is real, and for individuals who are bringing and defending smaller claims the prospect of needing a laptop, internet connection, webcam and the various additions in order to participate in online proceedings is a daunting one. The rise in Litigants in Person will continue; serial underfunding from government on Legal Aid and lack of help for litigants without substantial funds has meant approximately a three per cent rise in defendants in the crown courts who self represent between 2010 and 2018. In the Family Courts it is similarly stark, with only 20% of cases seeing both parties represented.
The last year has been life, but not as we know it. When we return to some form of normality, lawyers cannot forget the lessons they have learned in 2020 and 2021. Alongside the need to remain dynamic and provide top services to their clients is a need to recognise personal wellbeing, the benefits of flexible working, and the rich seam of ideas that are coming from other professions with which the legal services industry is connected. Online proceedings will become a fixture, not an anomaly, of the justice system. In short, law firms will be expected to embrace change where it is useful, and remain vigilant to developments that may mean altering longstanding practices and traditional methods.
All opinions my own.
Stuart McMillan | Policy Analyst: Bar Council
Stuart’s work at the Bar Council includes working on new and ongoing efforts to improve the practising lives of barristers. He works with HM Courts and Tribunals Service on their court reform programme and is responsible for the IT Panel, with a focus on new data regulations, LegalTech and AI, and the Alternative Dispute Resolution Panel, where he helps to promote the use of arbitration and mediation as effective methods of dispute resolution across the Bar.
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