Linguistic precision is a must-have in the legal toolbox. Words matter—especially to lawyers. Lengthy “definitions” sections are standard fare in lawyer-crafted contracts. Who but lawyers parse definite and indefinite articles or contest the meaning of the word “is?” Semantic gymnastics are exercised regularly by the legal profession.
With all the linguistic precision of the profession, the legal industry—the business side of delivering legal service— lacks a standardized vocabulary. For example, there are no common terms for the growing array of legal professionals and paraprofessionals that are not licensed attorneys; differentiated, tech-enabled, well-capitalized providers with organizational structures, business models, resources, and competencies different than traditional partnership model law firms; and even what constitutes legal practice.
Law is a trillion-dollar global industry without a systematic business lexicon. A lingua franca linking the practice and industryis essential to promote clarity and to avoid the need to explain and confirm common understanding of basic terms. Its ongoing absence undermines talent management, education and training, career development, the supply chain, consumers, and society. As they say in baseball, “You can’t tell the players without a scorecard.”
What has caused this linguistic conundrum, why does it persist, and how can it be rectified?Today In: Policy
Language Is A Reflection Of Culture And Self-Identity
Noam Chomsky, the eminent linguist/philosopher, observed that “Language is not just words. It’s a culture, a tradition, a unification of a community, a whole history that creates what a community is. It’s all embodied in a language.” Chomsky’s holistic view of language provides a framework for addressing law’s language challenge.
Generations of lawyers have crafted their version of a tribal dialect. It is an insular, idiosyncratic language that reflects an inward-facing culture and closed community. The language of lawyers—often disparagingly referred to as “legalese”— is abstruse, verbose, rife with gratuitous Latin phrases, and designed to create a linguistic barrier between “lawyers and ‘non-lawyers.’” Legal parlance does not derive from mainstream vocabulary. This faux language seems inappropriate for a service profession dependent upon the power to communicate and to persuade. How did it come about and why does it persist—especially in the age of the customer?
Lawyers have relied on language to distinguish their standing and function from other professions and business. The legal profession named its customers “clients.” The attorney-client relationship has unique qualities—notably, confidentiality and privileged communication. There is more to the client moniker than that. Clients have generally been treated as supplicants, not customers. Lawyers have traditionally dictated the terms of engagement to buyers, turning “the customer is always right” adage on its head.
That is changing; clients are better informed; have more choices; and recognize that legal services now require business, technological, and legal expertise. They expect to be treated as customers and to receive counsel where legal risk assessment is an element, but by no means the whole. Legal buyers are customers in search of holistic, data-informed, rapidly-delivered, input that drives value by solving business challenges. Clients are always customers. Customers are sometimes clients.
Lawyers have long controlled the narrative of what they do, how they do it, and the value of their services. Most importantly, they determined what legal work was and insured that only they could perform it. Legal language was designed to perpetuate an aura of exclusivity, erudition, rank, expertise, and membership in an elite calling. Legal-speak was designed to promote the myth of legal exceptionalism.
The profession was the industry for generations, and its language was the embodiment of the community. That dynamic has changed because the legal sector now has two parts: profession and industry. The profession remains comprised exclusively of lawyers. The industry has morphed into a trinity of legal, technological, and business management expertise. There is a cultural divide separating the profession and industry, especially within the legal establishment. Lawyers have different training, skillsets, mindsets, expectations, and buy-sell attitudes than allied professionals that are now an integral part of the industry, yet the profession continues to use lawyer-centric language to describe the transformation of law from guild to global industry.
Language is one of several fronts where the profession is resisting industry change. For example, any providers, fee agreements, or other deviations from traditional firm partnership norms are collectively referred to as “alternative.” This omnibus, marginalizing term fails to advance an accurate understanding of today’s legal industry. It sows confusion throughout the legal ecosystem, discourages allied legal professionals from entering the legal marketplace, marginalizes their standing and voice within it, and acts as a retardant to desperately needed law school curriculum reform. Most importantly, it denies consumers an opportunity to better understand the legal supply chain and to make better informed buying decisions.
Notwithstanding a rapidly changing legal buy-sell dynamic, the language of legal practice still permeates the business of law lexicon. There is no differentiation among provider types, competencies, size, delivery capability, scale, and other meaningful criteria. This is a remnant of law’s insular, guild culture, self-regulation, lack of meaningful performance metrics, awkward embrace of technology, lack of data, and languid adoption of customer-centricity. Providers that are not law firms or in-house legal departments are lumped into one bucket and marginalized. The “lawyer/’non-lawyer’” paradigm persists linguistically, operationally, and culturally.
Lawyers Retain Control of The Industry Lexicon—That Must Change
Lawyers have long been the lexicographers of the profession. The profession has engaged in linguistic resistance, an ongoing effort to use language that suggests the dominant role of lawyers in an industry that is recasting their role, functions, tools, required skillsets, delivery models, metrics, reward systems, and organizational structures. Linguistic stasis is not an antidote to industry transformation, but it negatively impact all stakeholders in the legal ecosystem— especially consumers. The industry’s archaic language creates an incomplete, misleading narrative of required competencies, new legal career opportunities, and providers. It is designed to marginalize the new and enshrine traditional ways of doing things— labor intensity, pyramidal organizational structure, practice-centricity, and billable hours.
The legal industry is being transformed. Consumers and new providers responding to an unmet market void are driving the change—not lawyers. The practice of law is shrinking and the business of delivering legal services is expanding. Law is shifting from practice to skill. Allied professionals—notably from business and technology— para-professionals, and machines routinely perform a growing list of “legal” tasks formerly reserved for licensed attorneys.
The Big Four, UnitedLex and Axiom, each are home to thousands of lawyers, yet the industry struggles to describe their place in the legal ecosystem. Many of those lawyers do not engage in practice, yet important distinctions in how lawyers function are also overlooked. At a time of industry maturation where differentiation matters as never before, the industry lumps all non-traditional partnership model providers together as “alternative providers.” Omnibus terms like this are useless. They fail to describe and differentiate expertise, depth of resources, geographical footprint, access to capital, focus on outcome, and consumer-centricity of these organizations. Standardized language that captures these key elements is important to all stakeholders in the industry—especially consumers.
The industry’s language fails to reflect that law is no longer solely about lawyers and the traditional partnership model is not its sole provider source. Its vocabulary retains a lawyer-centric, guild bent that is increasingly out-of-synch with the marketplace. Lawyers that leverage their legal training and experience outside the practice arena continue to refer to themselves as “recovering” or “former” lawyers. Professionals from other disciplines that perform critical tasks—data analytics, project management, design thinking, risk assessment, etc.—remain second-class citizens. Their standing is undermined by cultural resistance from attorneys and reinforced by the absence of language that grants them equal standing.
Words matter—and not only to lawyers. The industry and the profession that is subsuming it must coalesce around a standardized vocabulary. That task will not be easy because, as Chomsky notes, “language is not just words.” The transition of law from guild to marketplace and from lawyer-centricity to customer-centricity is a work in progress. The new legal community is not yet cohesive or unified in its operation or self-identification. Its antiquated vocabulary evidences that.
Law’s accelerating transformation is already altering what it means to be a lawyer; engage in legal practice; pursue a legal career; satisfy competency requirements; collaborate; acquire augmented skillsets; upskill; engage in learning for life; digital preparedness; to possess tech and data-literacy, etc. The legal lexicon must reflect the industry/profession as it is, not as it once was. How can law tackle its wicked problems if its stakeholders lack a common language and consumers are left to guess who is competent to address their needs?
It’s up to the providers and large-scale consumers driving reimagined legal service delivery to create a standardized contemporary legal business lexicon. Legal scholars and law schools are too removed from the marketplace to lead such an effort. The American Bar Association is too beholden to its dues-paying lawyer membership to take on the task. The legal establishment is too entrenched in wagon-circling and fear mongering to participate meaningfully.