October 2011 • Volume 99 • Number 10 • Page 488
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Technology is changing the world, not least the world of lawyering. Can we keep up the pace?
Radiohead's 1997 music masterpiece dealt with computers and insanity. It's no surprise that 13 years later we're dealing with the same. Computers will continue to be a part of our lives, and with each blessing comes uncertainty. Life changes as we know it.
For the July Illinois Bar Journal cover portrait, it was suggested that I have my picture taken in front of law books. Although this is a nice look, it didn't fit with my theme of technology for this year. But I didn't want to be photographed next to a laptop either, because in five years we'd all be laughing at how old the computer looked.
Technology is the shark
Computers will always be here. Technology won't jump the shark. Technology is the shark.
So what do we do with this shark? What does the future provide for lawyers? None of us has the answer. But for a glimpse into the possible future, I highly recommend The End of Lawyers? by Richard Susskind (available on Kindle, by the way).
Notice that the book's title ends with a question mark. Susskind does not know the outcome. He believes the future is up to us, the legal profession. But if the legal profession does not use technology, the future will pass us by.
He asks us to identify where we can perform more efficiently and cost-effectively using technology. Obviously, many tasks can be performed only by a lawyer: legal analysis, decision making, counseling, planning and litigating, etc.
However, we all know that within our own practices repetitive tasks can be automated. Susskind firmly believes that the legal profession has to modernize and streamline. Modernization is not simply for our immediate benefit, although it does bring that. The survival of our profession depends on it.
The market place will drive this modernization. Given the global and technological competition our clients face, they have no choice but to demand efficiencies from their legal providers. If the legal profession does not meet this demand, our clients will obtain answers elsewhere - in fact, they already have.
Putting aside the unauthorized practice of law for discussion's sake (and there will be continual UPL battles), our clients will increasingly try to meet their legal needs inexpensively through the internet. To survive, we must embrace more efficient ways to provide value.
The five-stage evolution of legal work product
Susskind details a five-stage evolution of the lawyer's work product. The first he calls "bespoke" work, a term I was unfamiliar with. In Britain, it describes tailoring or any type of handcrafted service (for instance, a bespoke suit is hand tailored).
We lawyers, to varying degrees, perform bespoke legal services. A client sits across from us and describes his or her financial assets, and we draft a will or trust accordingly. In the old days, we would have hand written or later hand typed a document using original language.
Years later, we used formbooks, thereby entering the second stage of our evolution - "standardization." By standardizing the legal process through templates and cutting and pasting, we were able to serve our clients more efficiently by avoiding duplication. The handcrafted, bespoke suit now became an "off the rack" garment the lawyer still had to "tailor" to fit the client's needs.
The third stage, which we are now beginning, is when legal service becomes "systematized." In this critical stage, lawyers use and help develop systems and technologies to automate legal work. We will no longer use computers to cut and paste our documents. We will use them to assemble documents by merging previously stored data and adding appropriate language after we have responded to a series of questions in document production software. Our checklists and calendars will become integrated into practice management software, making our practices more efficient and less prone to error.
Susskind next envisions a fourth stage, where all of these tools will be made available to lawyers' clients. To what extent this will happen is debatable, but I envision a day when clients will at least want their own "portal" on their law firm's software where they can view or add information.
His final and most controversial stage is "commoditized" legal service. This occurs when a legal product or service becomes so commonplace on the internet that the supply drives the price down to zero. Indeed, this is already happening. For instance, if an apartment building owner wants a lease, there are plenty of free ones on the internet.
Let's not go the way of the ancient guilds
Susskind also discusses the impact of technology on discovery, e-filings, mediation, the court system, and judges. He provides a glimpse into the future in these and other areas.
In the future, aspects of our profession could become obsolete as new law jobs and ways to practice emerge. Technology itself will result in new legal issues. Today, we must concentrate on the third stage of systematizing our profession. If we don't, the fourth and fifth stages will bypass us, and we will go the way of the ancient guilds.
The book is controversial and is only the author's view. I believe there will always be a place for lawyers. It takes a lawyer, not a machine, to listen to and advise clients. It takes a lawyer to litigate in court before a judge. To the extent that a legal product is generated by a computer, it takes a legal mind to analyze and craft the subtle differences that produce an effective document or winning argument.
But there is no question that we must be on the cutting edge to improve our law practice, to better serve our clients, and to remain relevant in a quickly changing world. The ISBA will help us accomplish that.