John F. Kennedy once remarked “The Chinese use two brush strokes to write the word ‘crisis.’ One brush stroke stands for danger; the other for opportunity. In a crisis, be aware of the danger—but recognize the opportunity.”
What is the legal industry’s danger and opportunity?
COVID-19 Is A Unique Crisis Whose Legacy Will Outlive Its Cure
The danger is inertia of entrenched stakeholders— law firm equity partners, general counsel, tenured law school faculty, regulators, Bar Associations, and the judicial system. Their stasis is rooted in legal culture, anachronistic structural, economic, and delivery paradigms, fiefdoms, self-regulation, and hubris. The legal profession, until recently synonymous with the industry, has been acculturated to respect precedent, avoid making mistakes, and adapt to an insular, homogeneous, conformist, risk-averse, inward-focused culture that promotes the myth of its exceptionalism.
Law has responded to past crises with characteristic caution, resistance to material change, and an expectation of return to normalcy. The stock market crash of 1987, dot.com bubble burst, and global financial did not fundamentally alter legal culture or alter its way of doing things. Those economic downturns produced short-term industry belt-synching and cosmetic change. They did not expose the industry’s systemic weaknesses or trigger rapid adoption of new operating models.
COVID-19 is different. It has cast a harsh light on the outdated way justice is dispensed, law is taught, and legal services are delivered. In a matter of weeks, law schools have transitioned to online learning, cracks in the partnership model law firms have become fissures, and technology is an operational lifeline. The Corona virus has harnessed the potential of underutilized tools and alternative work paradigms long resisted by the legal establishment. Entrenched ways of doing things have been altered with astonishing speed, ease, and acceptance.
Is law’s present its future? The contours of the after-Corona industry have yet to be shaped, but there is little doubt COVID-19’s legacy will survive its cure. To borrow from T.S. Eliot’s The Journey of the Magi, the legal establishment is “no longer at ease here, in the old dispensation” –it has witnessed the birth of new ways of doing things and the death of the old order. The iron grip law’s entrenched stakeholders have long held on the industry has been released. The question is which elements of “old law” and legal culture will remain, not whether things will return to the before-Corona order.
Automation will eliminate many jobs once performed by attorneys, replacing them with new ones requiring new skillsets, mindsets, agility. The industry will accelerate its gradual transformation to a multidisciplinary, integrated, platform-driven, capitalized, data-based, problem-solving, customer-centric marketplace. A handful of elite providers have made that transition at scale and can expect explosive growth from customers in need of safe hands, track records, capital, and infrastructure required to deliver data-backed solutions to complex business challenges that include legal risk. The pandemic will turbocharge industry transformation and change legal culture with or without establishment support.
An Opportunity To Better Serve Clients, Customers, And Society
The opportunity is for the industry to ask, “How can we do better?” The process starts with the consumer perspective. The industry will be less inward-focused and far more customer-centric. Law schools will not be the sole arbiters of good students; the marketplace will. Legal buyers, not law firms, will determine the division of labor. Platforms will provide buyers and sellers with instantaneous, data-driven, secure access to resources across disciplines and geographies. The distinctions between in-house and outside counsel and allied legal professionals will become increasingly blurred, if not meaningless. Collaboration, agility, experience, results, and competency will drive the buy-sell dynamic, not pedigree and provenance. Law’s zero-sum mentality, a myth from the start, will yield to an “everyone wins” ethos. This will require a cultural reboot that will come from legal consumers that demand it.
The Academy must align with the marketplace to prepare grads for what it means to be a lawyer now. It must reduce the time and cost of law school, reimagine the curriculum, faculty composition, and morph from degree factories to learning centers for life.
Law firms must differentiate, collaborate, and replace the partnership model with an organizational structure and economic model that better aligns with its staff and clients. Paul Smith, former Chairman of Eversheds, wrote a thoughtful article offering law firm senior partners tips to survive the Coronavirus Black Swan event. His multi-faceted prescription is summed up by the assertion that “Clients will increasingly become customers and will buy their services in a way that they buy other services in their lives.” This bodes well for a handful of elite enterprise legal service providers as well as differentiated single-source organizations that can collaborate seamlessly with others in the supply chain to drive customer value.
Regulation must be designed to better serve legal consumers and society, not to shield lawyers from competition The anachronistic US regulatory scheme must be overhauled to remove unnecessary regulatory barriers in the corporate segment and to end the scourge the access to justice crisis in the retail market.
There is an opportunity—and imperative—to modernize the justice system. Its virtual standstill at a time when it is most needed has expanded the access to justice crisis even to those that can afford representation. This is the moment when courts around the world can be redesigned to be faster, more accessible, creative, scalable, and efficient. A crippled justice system imperils our already flawed democracy.
There are encouraging signs that judicial modernization will occur. Online Courts Worldwide, an effort to assist judges, lawyers, officials, litigants and court technologies to share best practice on the use of remote alternatives to traditional court hearings recently launched. The initiative is spearheaded by Richard Susskind whose recent book Online Courts and the Future of Justice, provides a road map for modernization. The Online Courts project is tapping into global interest generated by the 2018 First International Forum on Online Courts that drew 300 delegates from 26 countries. Each sovereign entity may have its own legal system, but the tools and designs of modernization can be scaled and customized across borders.
A More Humane Culture
The legal industry also has an opportunity to better serve its workforce. This process begins by asking, “how can we create a more humane culture that prioritizes well-being, elevates decency, and restores the service component to our workforce as well as our customers?” A culture committed to these principles prizes emotional intelligence, cultural awareness, collaboration, and compassion—traits not presently prioritized by legal culture. The industry has an opportunity to refashion its culture and to ameliorate its horrific suicide, mental health, alcoholism, substance abuse, and divorce rates—each among the highest of any occupation.
Is this a Utopian mirage? No; reconsideration of the legal function is already underway and will accelerate in the after-Corona world. Jason Barnwell recently wrote about Microsoft’s “modern legal” initiative. He described it as “an investment that will create new work experiences that serve Microsoft’s future needs. These experiences will be built on investments in culture and tools that serve our people.” (emphasis added). Barnwell’s focus on “culture first,” coupled with resources, is a reminder that technology alone will not “disrupt,” “innovate,” or “transform” the industry. It enables change, but business models and people drive it.
Change starts with culture, not technology. It requires a collective commitment to define the profession/industry by new metrics. What is valued most is not law school ranking, profit-per-partner, or “innovation” awards but student outcomes, net promoter score (e.g. client satisfaction), and quantifiable, impactful results, not self-congratulation. Such a value system requires a reboot of legal culture, an elevation of emotional intelligence, and client/customer focus. Humanity, compassion, and social commitment are its core values. How a society, organization, and group behaves is dictated by what it values.
Culture is the normative glue that binds a group together and a collective expression of how it self-identifies. Now is the legal industry’s time to effect a cultural reboot that holistically embraces diversity, eradicates the gender pay gap, shatters the glass ceiling, endorses flexible work arrangements, work-life balance, commits to legal access for all, recognizes that one need does not require a law degree to deliver impactful legal assistance, and collaborates with others across disciplines and geographies to improve access to and delivery of legal services.
Joshua Browder, the founder of DoNotPay (DNP), personifies a new breed of legal delivery pioneer, consumer rights advocate, and legal professional. DNP has just released a 50-State unemployment benefits claim app in response to the unprecedented COVID-19 layoffs. Browder told me a team of seven rolled out the app in less than a month. This fast, scaled, accessible, affordable ($3/month bundled subscription for all 100 DNP apps) solution to widespread, urgent, real-life challenges provides a glimpse into the potential of reimagined legal services in the digital age.
ConclusionSocial distancing and remote working have created a new workplace social dynamic. We metaphysically visit with business colleagues at home. They see our pets, kids, partners, and spouses as we do theirs. Workplace hierarchies are less rigid and the human side is on display. There is a flatter, more egalitarian social structure and more relaxed interaction. The line dividing our work and personal lives has become blurred. This might be the start of law’s cultural reboot.