This post was originally published on Forbes.com
The legal industry has several wicked challenges: access to justice; legal education and training for a rapidly changing marketplace; enhancing delivery and improving consumer satisfaction; aligning the appropriate resource with task; and defending the rule of law. The industry’s common challenges eclipse geographical, cultural, practice, and regulatory differences. That’s the biggest takeaway from a month-long speaking tour across Europe. Similar challenges exist in North America, Asia, and other parts of the world.
Another takeaway is that there is an emerging global legal community more diverse, customer-focused, socially committed, inter-generational, multidisciplinary, and innovative than the parochial, homogeneous, lawyer-centric one that it is supplanting. Law—like so many other industries—is undergoing a transformation that self-regulation cannot stanch. Change has been fueled by the confluence of the global financial crisis and its reboot of the buy-sell dynamic; the impact of technology on how we live and work; and globalization. The legal guild is morphing into a digitized marketplace where lawyers are no longer the sole providers of legal services and customers drive the bus. Across Europe and around the world there is palpable energy- and capital—invested in transforming legal delivery and addressing the industry’s key challenges.
Law is A Profession and An Industry– Practice and Delivery
At the heart of law’s transformation is its duality as a profession and an industry. Legal practice—differentiated legal expertise, judgment, and skills– is the profession. Legal delivery, the business of leveraging and delivering legal services, is the industry. Technology and process are the foundations of a new delivery paradigm that is melding practice and delivery. Lawyers are resistant to digitization that is shrinking the scope of practice activities. This does not mean that lawyers have diminished importance; attorneys bring professional judgment to help solve business and personal challenges, and they will play a pivotal role—with technologists, process experts, other professionals, and machines– in solving the legal industry’s big challenges. But they are no longer the sole providers of legal services or the decision makers determining how they will be delivered.
Technology is spawning corporate structures that reward output (results) rather than input (hours/origination). Technology is also recasting how and when lawyers are required and from what type of delivery model. The incumbent law firm partnership and its leveraged, brute-force, labor-intensive approach is giving way to a digitized paradigm that leverages legal expertise via technology and process that create flatter structures. An increasing number of ‘legal’ tasks are automated, and many service functions are now offered as products. It is no longer presumed that lawyers are required to deliver all legal services, and they often collaborate with other professionals, paraprofessionals and/or machines to perform tasks once described as ‘legal.’ This is nothing new to other professional service industries; medicine, accounting, architecture, and business have traversed this path decades ago.
Change and Legal Culture
The legal industry’s transformation is recasting its lawyer-centric, insular, homogenous, pedigree-centric culture. The cultural clash between lawyers and other professionals, paraprofessionals, and machines playing key roles in legal delivery’s evolution is what is retarding legal innovation. But that’s changing because legal culture is being reshaped by outside forces—consumers and new players. Lawyers long dictated the terms of engagement with clients because they were the industry’s sole providers. Now, technology, process, and consumer demand for ‘better, faster, cheaper’ solutions are spawning new delivery models—some in-house and many others outsourced. New providers are garnering meaningful market share, and this will increase as the incumbent lawyer-to-lawyer buy/sell process is replaced. Procurement, CFO’s and other ‘business types’ are now often involved in buying legal services, and they are applying business practices—and performance metrics—to replace law’s clubby, fuzzy selection process and performance evaluation.
Consumers have effectively re-regulated legal delivery by driving change from their side—especially in the corporate market segment. Corporate legal consumers, notably in-house legal departments, have become its largest provider. Change is even more pronounced in the retail side of the legal market where well-capitalized tech and process-savvy companies like LegalZoom and AVVO are providing accessible, affordable, and efficient legal services to millions of new consumers previously priced out of the market. LegalZoom has serviced more than 4 million customers including one million small and mid-sized businesses (SME’s). And the U.S. is by now means the sole market where this is occurring. LegalStart, a Paris-based legal tech company, has become the dominant retail service provider in France by taking a similar approach. It began selling its services to individuals and has now pivoted, marketing them to corporations as an employee benefit. The result is that tens of thousands of workers previously priced out of the market can now access legal services. And while lawyers might dismiss the scope of service as limited, it is often sufficient as evidenced by high consumer satisfaction ratings. LegalStart, LegalZoom and others provide consumers with a range of service options from chatbot to full-blown attorney-client engagement (albeit more tech and process enabled and at a lower price than traditional retention).
Some of law’s most impactful innovators are not lawyers. Consider Joshua Browder, a 20-year old Stanford undergrad majoring in computer engineering. Josh created DoNotPay, a free chatbot-an artificial intelligence-enhanced robot one chats with- that helps people contest parking tickets. Within months, the bot had successfully “represented” hundreds of thousands of consumers. Buoyed by this success, Browder next designed a bot to assist UK public housing residents with the legion of forms that are part of the process. This too was an enormous success, and Josh has promised there’s much more to come. Browder’s success underscores several key points: (1) law is not simply about lawyers anymore; (2) lawyers are not required for all legal services; (3) technology is a powerful tool to combat access to justice, promote efficiency, accessibility, and cost-reduction in the legal industry; (4) many tasks are not cost-effective for lawyers to work on in the first instance but are important to consumers; and (5) if one ascribes to Clayton Christensen’s theory of disruptive innovation that change comes ‘from the bottom up,’ then corporates should monitor retail law because the convergence of the two markets is inevitable. This was on display at the recent Legal Geek Conference in London where the two groups came together and demonstrated that delivery tools have efficacy across the entire legal marketplace.
Some Suggestions for Tackling Law’s Big Challenges
The global legal industry has the tools to bring tens of millions of new consumers into the marketplace. This will foster respect and confidence in the rule of law for millions presently without access to legal services. It will also create many new jobs for lawyers and others in the legal service market. Technology is not a panacea, but it does provide the means to scale legal delivery and to make it more accessible, affordable, transparent, and efficient. It will not replace lawyers but it will recast how, when, under what circumstances, from what delivery model, and at what cost their services are rendered.
Technology and process alone won’t solve law’s challenges. They are the engine for change, but not the driver. The legal community must embrace diversity in the broadest sense of the term. Legal delivery is a team sport that requires lawyers, professionals and paraprofessionals from other disciplines, and machines. The legal profession must be more diverse to better reflect the composition of the society it serves and protects. It must provide equal pay for equal responsibility and a level playing field for advancement. And it must implement performance and reward criteria that measure output (results), not input (hours and origination). So too must it grant an equal say at the management table to those that deliver legal services. Practice and delivery require different skill sets, both of which are essential to serving society and solving law’s big challenges.
Legal education must be better aligned with the marketplace. It must forge partnerships with providers and consumers to ensure that graduates have the skills required in the market. Students must be exposed early-on to the client perspective—how can they effectively and ethically advance client objectives, not turn out the ‘perfect legal product’ without regard to desired outcome or value? Clients want solutions to business challenges, not legal tomes.
Legal regulators have long served the interests of lawyers; that’s a conflict endemic to self-regulation. They should consider the Solicitors Regulatory Authority (SRA) whose re-regulation of the UK legal industry sprung from a simple question: how can regulation better serve the interests of the public? This has little to do with abrogation of legal ethics and everything to do with placing client objective ahead of lawyers.
Finally, the legal industry should realize that while practice remains largely territorial, the catalyst of legal delivery—technology, process, institutional funding, greater consumer access and choice, and the creation of a legal marketplace—cross borders. It’s time for a more global approach to the delivery of legal services to address its remarkably similar set of challenges.
The legal profession can either embrace the changes transforming the industry or continue to resist them and be marginalized. Law is no longer solely about lawyers, and consumers are dictating how and by whom legal services are delivered and when lawyers are required. The legal profession would benefit from closer alignment to the new players in the industry and the needs of consumers.
About Mark A. Cohen
I have had a forty year career in the legal field. For thirty years, I was a civil trial lawyer and tried 57 major civil cases. My clients included the United States of America (while serving as an Assistant United States Attorney), four foreign sovereign governments, and approximately 60 Fortune 500 companies. I also served as outside general counsel to three insurance companies and as Receiver of an international aviation parts company overseeing operations on four continents. I then became an entrepreneur, focused on driving greater client focus, efficiency, and value in the delivery of legal services. I founded Qualitas, an early legal process outsourcing company, and later became a Co-Founder and Managing Director of Clearspire, an internationally recognized law firm and legal service provider. Teaching—especially skills necessary in today’s marketplace—is another passion. I am a Distinguished Lecturer in Law at Georgetown where I devise and teach professional competency courses and mentor students. I have spoken widely at educational institutions, global legal conferences, and private companies including: Harvard Law School Speaker Series, Reinvent Law, and 3M’s Global Legal Alignment Summit. My writing focuses on changes in the legal ecosystem and, more particularly, on the melding of legal, technological, and business process expertise in legal delivery.