“The future is already here—it’s just not very evenly distributed” observed William Gibson, the noted science fiction writer. He was not referring to the legal industry but could have been. While there is no shortage of self-proclaimed “disruptors,” “innovators,” and “visionaries” in the legal space, the industry is a digital laggard, misaligned with the needs of business and society.
Law is an analog function in a digital world.
Why is the legal industry clutching the short end of the future stick? After all, lawyers are highly educated, trained to think critically, and high- achievers. They have well above-average IQ’s, are focused, and have a strong work ethic. Most are aware of the convergence of macroeconomic changes that are transforming lives, business, and the planet. Can the myth of legal exceptionalism, hubris, and other denial mechanisms convince lawyers that what they do is somehow immune to these seismic changes? For some it can. Others, notably many legal “leaders,” are either “too busy to change” and/or unclear about how.
The lawyer mindset has been forged by legal education, indoctrination, and time served in the profession. Most lawyers have been economically rewarded and, until recently, have seldom been questioned about how, why, with whom, and at what cost they deliver their services. Until recently, lawyers sold to other lawyers, so buyers and sellers had a tacit understanding not to question the process. Law’s insularity has produced a cosmetic brand of legal change that is more for show and internal efficiency than paradigmatic change that positively impacts clients, business, and society. That is what will raise the curtain on law’s future.
The legal profession’s collective stasis raises several ethical issues. Lawyers commit “to seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” They swear an oath to protect and defend the Constitution in all situations. They also commit “to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.” Discharging client and societal obligations are the cornerstones of the profession and what it means to be a lawyer. So too is service to clients and society. Many lawyers are not discharging these non-delegable duties, and the profession is failing to take concerted action to ensure that they do.
Lawyers Embrace Change—For Others
Lawyers are not resistant to transformative change provided that it does not involve their professional activities. Most lawyers have embraced transformative change as consumers but continue to resist it as providers of legal services. Why do lawyers make data-backed decisions, rely on peer reviews, gravitate to companies that value transparency and consistently provide superior end-to-end customer experience as buyers but resist the application of those practices to their professional roles? Why do they patronize disruptive-model companies but not emulate what they like about them as lawyers?
There are many explanations: mindset, culture, legal education and indoctrination, greed, short-term horizons, fear of redundancy, hubris, the myth of legal exceptionalism, and professional blinders (myopia), to cite a few. Lawyers are trained to adhere to precedent and to avoid making mistakes, not to challenge paradigms and innovate.
Law has operated like a professional cult; it is insular, homogeneous, lives by its own standards and rules, controls admission, and has resisted influence of the “outside” world (”non-lawyers). Lawyers have been ingrained they are uniquely qualified to determine what is a “legal” problem, how it should be managed, valued, and billed. They have used self-regulation to thwart competition, proscribe ownership, and retain control over not only the practice of law, but also the business of delivering legal services.
Law’s future has been delayed by the legal profession, not by the absence of tools, resources, and a digital transformation roadmap. What other trillion-dollar industry shares law’s dearth of performance metrics and standards, transparency, lack of data agility, collaboration, multidisciplinary workforces, innovation fragmentation, and customer-centricity?
Law’s legacy stakeholders—tenured law school faculty, firm partners, regulators, and the judiciary—have staid the legacy course, each operating separately—not collaboratively—in its own self-interested fashion. They have been the judge and jury of their own performance and have, over time, lost sight of the purpose of law and lawyers, not to mention its social compact with society. The legal industry as a whole has failed to coalesce around its purpose and to adapt—using available resources— to the changing needs of its customers and society. Law is not an ecosystem; it is a collection of fiefdoms. In a world with challenges that require scalable solutions, law remains artisanal.
The legal profession’s purpose has been shrouded in hubris, self-interest, and greed. It is manifest in its institutional stasis that has not served the profession, clients, or society well. This has contributed to an erosion of the rule of law and a threat to democracy. The legal profession is well-aware of its “wicked problems” but has failed to take concerted action to address them. Here is a partial list of those unmet challenges.
- “The court of public opinion” is undermining courts of law;
- Backlogs of civil and criminal cases, an alarming rise in pro se litigants and default judgments, and the slow, costly, opaque and anachronistic judicial process is no longer responsive to societal needs.
- A worsening access to justice crisis —even as an array of tech resources, processes, automation; self-help tools, multidisciplinary resources, and new model legal delivery options have come on line—further erodes the rule of law.
- Law schools fail to produce “market ready” grads and create a fiscal sink hole from which many newly-minted lawyers cannot escape from.
- The legal profession’s opposition to re-regulation designed to open up markets to competition, capital, and multidisciplinary practice that would benefit legal consumers and society evidences its protectionist stance.
- The opacity oflegal language and procedure, high cost and unpredictability of legal services, dearth of data agility, and lack of empathy and humanity have further distanced law from the society it purports to serve.
The foregoing problems have metastasized because of neglect, a patchwork of ineffective palliatives, complacency, and a fragmented collection of legal factions unable to coalesce even as to their purpose. These challenges are no longer law’s headaches; they are incapacitating societal migraines. That is one of many reasons why business is taking the reins and will lead the legal function into the future.
Business Will Usher Law Into The Future
If lawyers do not lead the legal function’s future, business will. Business is pragmatic. It is keenly aware of the threat that climate change, war, social upheaval, and other geopolitical risk places on supply chains, the ability to conduct business, and the stability of capital markets. It has a vested interest not only to protect its workforce, but also its shareholders and the societies it operates in. The legal function should play a key role in preserving respect for the rule of law, honoring contracts and trade agreements, and a host of other commercial functions. Without the assistance of business, it may not to be up to the task. That is why business engages in “commercial diplomacy” and other measures to backstop Governments and lawyers.
This is not to suggest that business minimizes the importance of law. To the contrary, it is beginning to recognize the latent potential of the legal function. It no longer regards law as a self-contained “legal” resource operating as a cost-center. Instead, business sees law as a business function—part of a larger enterprise whole— comprised of integrated, data-sharing business units.
Business is encouraging—in some instances demanding—legal teams to operate proactively, predictively, quickly, efficiently, collaboratively, and in data-backed fashion. The expectation is that the legal function will morph from self-contained cost center to collaborative catalyst for enterprise and customer value creation. .
This is law’s future. It’s not as far off as some might think. For example, a recent study by The Digital Legal Exchange revealed the C-Suite is expanding its remit for legal beyond financial and operational issues. The research found that 97% of business respondents said they wanted the legal function’s success metrics to be aligned with business goals. Nearly three-quarters (74%) of business respondents said it is important/extremely important for legal to create revenues and new market opportunities.
To achieve the elevated expectations of business, the legal function must undergo a mindset change. Legal must function as an integrated team internally and with its supply chain. Then, it must integrate, with other business units that have already begun their digital journey. That transition requires the legal function to replace its insular lawyer-dominated, narrow “legal” role with a far broader, business and customer-oriented, multi-disciplinary, cross-functional one. The transition requires a holistic, end-to-end re-imagination of the legal function from the enterprise, end-user, and societal perspectives. That means asking questions such as:
“What do customers and society expect from the legal function and what differentiated role can we play?”
“What kind of talent do we need to meet and exceed those expectations?”
“What kind of culture and workplace must we create to attract the talent we need?”
“What is our purpose and how do we create a culture that will attract, retain, and up-skill a digital workforce, supply chain, and strategic partnerships necessary to drive positive business impact and experience for our customers? ”
The legal function’s latent value will be extracted when it ceases to operate in isolation and aligns with the enterprise and its customers. The end result will be a legal team that collaborates with and positively impacts numerous business units across the enterprise (like technology). The legal function will help to detect, deter, mitigate, and accelerate solutions to business challenges and capture opportunities. It will be a proactive, positive force in the enterprise, not a reactive, “department of no.”
Driving impact to business and its customers is one part of law’s future. The other is the reclamation of its purpose to better serve clients, those in need of its products and services, society, and the rule of law. Paradoxically, law’s transformation will take it back to its service and “higher purpose” roots.
Law’s impact on its clients and society will be driven by human behavior and adaptation. It will be enabled and scaled by technology, data, process, agility, integration of law with other functions, multidisciplinary collaboration, customer-centricity, and a commitment to constant improvement for the benefit of clients and society. These change components are inter-connected and interdependent. Law’s future is a mosaic, not a disparate collection of isolated elements.
The legal maxim “Justice delayed is justice denied” is apropos. To further delay law’s future is to deny society a reimagined legal function that will better serve us all and the democracy so many take for granted.
No discussion of the future of law would be complete without reference to Richard Susskind, “law’s Nostradamus.” He has written and spoken on the topic insightfully, provocatively, and engagingly for decades. Susskind’s work has been published in 18 languages, and he is the world’s most cited author on the future of legal service (IBA Research, 2017). The Third Edition of his bestselling “Tomorrow’s Lawyers” is coming out in February,
- Having read an advance copy, it is a must-read for lawyers, those considering a career in the legal industry, and anyone interested in the changing legal function. Unlike most other legal industry scribes, Susskind holistically and deftly weaves together the disparate threads of the legal mosaic that will collectively transform the legal function as we know it.
Article originally published in Forbes.