Richard Susskind + Mark Cohen on the future of the legal industry
I originally posted this on 30 April 2020 as a live blog post of a 75-minutes live video streamed discussion with Richard Susskind and Mark Cohen hosted by Legal Geek and sponsored by Thomson Reuters, UnitedLex, and iManage.
The session title was The Uncertain Decade, “Richard Susskind and Mark Cohen debate the future of the legal industry”
As a live blog post. I published it as the session finished. When I re-post here at LinkedIn, I do not edit it, so please forgive typos and misunderstandings of meaning that may occur from writing in real-time.
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Mark Cohen opens with a 10 minute talk: What will legal market look like after the crisis ends, or ramps down. Lawyers like to look at precedent. What can we learn? From prior crisis, only the 2008 economic crash had a noticeable impact on the legal market. It accelerated disaggregation and the rise of legal operations and alternative legal providers. But other parts of the legal ecosystem did not change: law schools curriculum stayed the same and courts continued to function as they had.
Why will Covid be different asks Mark. The legal market, law firms and law departments included, quickly adapted to work from home. Similarly, law firms went to exclusive online learning. All had previously resisted WFH. From this, market players learned about “latent technologies” existed and worked. Moreover, the model of showing up at the office turns out not to be necessary. “This is a great surprise.” This casts a light on how we can do things differently.
What will happen as lockdowns ease? Is law’s present its future? Mark thinks much of the present will be the future, but with re-imagination of the present. To understand the future of law, look to the GCs, who are the belle-weathers of the legal profession. And GCs, beyond the crisis, have been moving to integrating law and business. They will drive more of a focus on digital transformation. Consumers (legal clients) will drive this too. Law will become more about platforms and less about pedigrees, more about competencies and metrics. The academy will recognize that education is lifelong and not just about ticking boxes; it will have to re-think the curriculum. The academy must improve marketability of graduates with multidisciplinary training. Legal providers will have to be data-driven and customer focused.
In sum, in 1959, President-Elect Kennedy said Chinese word for crisis combines danger and opportunity. Legal faces the danger of not seeing the underlying paradigmatic shift. The opportunity is for lawyers to recast themselves, that we will see more legal professionals, and to improve legal delivery.
Richard Susskind: I am in violent agreement with much of what Mark said.
I see 5 phases of recovery:
- Mobilization (get to WFH)
- Lockdown (where we are now)
- Emergence (come out of lockdown, but that will be slow + uneven)
- Surge (economy comes back to life)
- New equilibrium (which is what Mark talked about)
Richard sees a clear distinction now between leadership and managers. The latter focuses on getting through the month (short term), focused on lockdown survival. To get beyond the lockdown, we need leaders who ask the questions Mark posed – how will legal life be fundamentally different. It’s been revelatory that so many parts of the system have already adapted.
Tech to data has been about automation, not transformation. During lockdown, we see little discussion of AI.
Questions the sustainability of everyone doing WFH for more than lockdown. Not everyone likes it, but they are tolerating it now. Longer term, some / many may want to return to offices. We need to look at innovations now that came about by necessity to understand what we keep.
We are not seeing a new business model. We are just seeing some different ways of working. A business model change would be a shift from service to products based on tech.
Discussion:
Mark: if you are a managing partner, you are constrained by the model. If it’s not sustainable, how do you tell your partners. Customers will have to tell firms that the model is broken. Though law firm models have worked a long time, it will not be optimal going forward.
Richard: We need to look at how market leaders act. I have not observed any firms acting very differently. I am not seeing any change in service that law firms offer. This could hint that law firms think the legal market will not change very much.
Mark: I was a managing partner twice. Wearing that hat, I would go talk to clients, asking how my firm could help. Law firms should be of service, without the meter running.
–In audience poll, 57% ask to focus on law firms versus ALSP or in-house–
Mark: how does MP get to structural case, make that case. Richard thinks that’s a big challenge. Some MP are better in good times, some better in crisis. That’s a matter of luck. Richard cites a Harvard Prof on change. First step is creating a sense of urgency. That’s hard given that law firm platforms have done well. But the platform is in fact burning. Firms that respond emphatically will succeed.
Richard: law firms have very long and deep relationships with clients. They can use that to empathize and engage with clients. ALSP don’t have that a strongly. Firms should use that to gain the edge.
Mark raises the issue of culture. In law firm culture, profit and new business drive most decisions. How can a leader overcome that, inculcate a new set of metrics that changes the culture.
Richard observes that UK and US firm cultures may differ. US firms focused mainly on profits. In UK, more firms concerned with purpose as well. Big difference between those focused only on profit versus those focused on community. Latter less likely to lay off people now. Now is the time for organizations to be clear on this – and it’s hard to change values. The job of a leader is to focus on this
Mark points out that legal is almost at bottom of list of industries with “despair” – addiction and mental health issues. (Only coal miners are lower.) We also have an access to justice challenge.
Q&A
How will trainees / junior associates be supervised and mentored? Will this affect the revenue model? Richard Given (in-house counsel)
Richard: if we simply graft old system of training onto Zoom, it’s a big mistake. We should think about simulators to train lawyers. If this can be done for astronauts, we should be able to do do.
Mark: We need to thin about delegation here. Not all tasks we ask young lawyers to do are the right ones. These tasks can / should shrink, with delegation to machines or other professionals. That will affect our view on training. In the past, lawyers exclusively decided what is a “legal activity”. That will change with more of a focus on legal delivery to solve client problems.
Do you think digitizing of legal procedures will affect access to justice?
Richard hopes this will help increase access. Hopes that tech will be the first port of call.
Mark cites a Joshua Browder. His DoNotPay. is helping unemployed Americans file for unemployment. It’s a great example of A2J with tech
Both: this reflects conversion of software to product
If we all treat WFH as given, it’s just a matter of time to big cyber breach. Will that cause revert to office?
Mark: It’s likely not an either-or situation. Risk is endemic to life and business. Risks in offices, risks in remote. I don’t see it as key driver of work force operation.
Richard agrees. Yes, there will be some horror stories. Crisis is a call to create robust / industrial strength remote work environments. Breach will cause
— Poll: about 2/3 of audience think there will be a “massive” or “significant” change in how lawyers work. [RF: I selected “modest”]
Richard talks about future of courts: Most courts around the world are phsyically close. I have created Remote Courts Worldwide to share info.
The key question is whether court is a service or place? Do we really need people to gather IRL to resolve disputes. We have 3 alternatives: audio, video, and paper hearings.
Courts are very conservative. Until crisis, judges were skeptical of remote. Many have been surprised at how well the alternatives work. But now, there is a growing recognition that traditional in-person can change. We should view lockdown as a massive, unintentional pilot. We need to capture data so we know in the future, when remote works and when it does not. But we’ve seen a “flip in thinking.” In a few years, the default assumption likely will be remote and a request for in-person will need to be justified. In past, I was asked for evidence this would work; now we have the evidence.
We will see the rise of alternative – designed from the ground up as a digital approach – dispute resolution. There are already such systems and these will increasingly become a viable private digital approach to the public courts.
Richard also mentions ideas of using visuals to make arguments (in lieu of paper).
Mark mentions Richard’s book Online Courts and the Future of Justice by Richard Susskind.
Mark: I see resistance in key stakeholders – the senior judges, who hold elevated status. To ask them to give up that pomp and circumstance (“Your Honor”) is a big ask. We have to ask why they are there. Judges interpret and apply the law. We’ve lost sight of that. For example, during impeachment proceedings, subpoena question was rendered moot because it would have taken too long. That is _not_ a functioning justice system. We have the same issue at the opposite end… access to justice. This is to say, we must focus on whom the judiciary serves. It’s not just the litigants, it’s all citizens, who need better access.
Mark asks Richard: Start with the premise that law is very territorial. In the US, each state has its own law. And there are sub-units. How do we overcome this provincialism / variation.
Richard: not sure I would take -on this challenge. Introducing common approach is too hard, it’s enough to just use digital techniques for better access and dispute resolution platforms.
— Poll: audience selects clients as next topic —
Richard: the purpose of law is not to keep lawyers working. Patients don’t want surgeons, they want health. We should not ask what the future of surgeons is. We should ask how we solve the problems they address. Framing the discussion around clients forces us to think about outcomes more than how we get there.
When Mark needed medical care, he focused on outcomes, based on data, with a range of options. Why should it be different for law and clients. They should have options, and data to help them decide. The crisis is causing us to doing things differently. This opens our eyes to doing things differently. That’s the central take away of the lockdown.
Richard agrees we need to focus more on outcome. We need lawyers to think less about the type of law and more about problems clients face. And what the real issue is and outcomes clients want (eg, sometimes apologies are better than lawsuits). Lawyers need to ask clients how they want to feel at end, eg, whole or vindication.
Q: any examples of full digital transformation of a law firm?
Richard: I’ve not seen a sizable firm where this is true. Even in firms known as innovative have only small pockets of actual innovation. From press releases, we seem massively innovative but if you look beyond the surface, that’s not true. Therein lies an opportunity for alternative providers, especially the Big 4.
Mark – there are some boutiques that are digital and some in-house departments, citing DXC law department, which works with sponsor UnitedLex. We need to keep an eye on what happens when law departments go digital, what impact will that have on clients.
Richard – if legal is like other markets, the real game changer will be a new player. We now have hundreds, not just a few, legal tech start-ups. One of them might emerge.
Q: If we take as given that law schools must change, including use of tech.. what are your thoughts?
Mark: until 20 years ago, lawyers only needed expertise. Today they need ‘augmented skills’. that includes, eg, legal project management know-how, basics skills in data management and analytics, the ability to read a balance sheet, and understand how to use technology.
Richard: what law schools teach has changed little in 40 years. If we think of likely outcomes, lawyers will need to move beyond just legal advice, to multidisciplinary training. Now, we have 20th C. legal training. We need to move to the 21st century.
Last Q: What is the role of regulators in aiding recovery and legal profession?
Richard: in England and Wales, we have re-regulated. Lawyers can take investment and share fees. That makes new ventures easier. It’s still early days (starting in 2011) but we now have new providers. The goal is to have multiple providers for law. Richard: lawyers in US should not survive because they have built a moat. Clients should have a choice.
Mark: I have ABS envy (alternative business structure, which is what Richard referred to indirectly). It is a blight on US legal industry that three efforts to re-regulate have been quashed by lawyers. But now, Utah is passing some interesting reforms. It comes down to the purpose of regulation. The purpose is to serve consumers, not lawyers.
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