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We are in the new millennium, and even comfortable with it. We passed the Y2K crisis without any real disasters. Some suggest the talk of "future shock" is overblown.
I, however, agree with Bill Gates who suggested we overestimate the change which will occur in the next two years, and underestimate the change which will occur in the next ten years.
Looking back, we see little change since 1998, but significant change since 1990. Similarly, in 2010 we may marvel at the primitive way of practicing law back in 2000.
Lawyering Has Changed in the Past
There have been many changes to the legal profession in the past. Some of these have been tolerated because they have been gradual.
Examples include the quiet surge of non-lawyers involved in real estate closings, Social Security proceedings, and tax courts. The profession has also suffered more abrupt involuntary
changes such as the abolition of minimum fee schedules, advertising restrictions and residency requirements for bar admission. The fact that change has occurred in the past should tell us
that change will occur in the future. Change will likely continue to come in abrupt and quiet ways
There are those who say some changes cannot occur in the legal profession because "there are rules against it." But the rules are relatively recent. The 100 years that
organized bars have existed is really a short history. No license to practice law was required in most states in the 1800"s. The Utah State Bar was established by legislative
authority in 1931, and moved under judicial authority as recently as 1984. History which is barely longer than memory is not a guarantee of perpetuity. In the view of some, the need for
licensed legal service providers is outdated, or outweighed by the detriments of an exclusive profession. The boundaries around our profession may not be as inviolate as we, inside,
perceive them. They are not so historic as to be indispensable.
An objective commentator might justly question the resilience of a precedent-based profession in a time of unprecedented change. Our own tendency to look backward for guidance
may be unhelpful as the world around us looks forward. We justly pride ourselves in being rooted in the past and there are essential values that merit preservation, but we must not fail
to look around us and to the future. This article will attempt to focus on trends outside the profession, some of which are emerging inside the profession, and suggest ways we should
prepare for what the practice of law may be in 2010.
Hints of Future Changes in Lawyering
Changes that are taking place in the business world around us hint at the changes lawyers may see by 2010, and can guide us in
preparing for the practice of law in the next decade.
Technological means of delivery have made significant inroads on commercial transactions. For example, Amazon and Barnes & Noble deliver millions of books to persons
who do not enter traditional physical stores. The ambience of the store, and ability to browse through stacks of books are replaced by computer recognition of our interests and purchase
history and hyperlinks that enable jumping from topic to author. We see signs that computers and electronic delivery are moving beyond supply of hard goods, to supplant professional
delivery of services to persons as well. WebMD has become a premier source of medical information and can even store an individual"s personal medical information on its site. Instead
of filling out forms for each successive health insurer, users can store the data securely and print it out on demand.
There are already significant technology inroads on traditional lawyering turf. Legalopinion.com offers "an opinion from a licensed legal professional from the privacy of
your home or office." Those professionals may themselves be working in "the privacy of their homes" Ð in the comfort of their pajamas. A typical feature of these emerging
sites is a broad offering of legal forms. Another emerging trend is competitive bidding for legal services. Some judges are using this for class action handling, but consumers can obtain
bids online at places like sharktank.com.
Non-lawyer providers
are also emerging, and using e -delivery options. Independent paralegals offer "comprehensive cost effective preparation of legal documents with a commitment to service." These document preparers are emerging as alternatives to use of lawyers in traditional offices. Unauthorized practice of law enforcement does not affect these providers, in part because of enforcement challenges, and partially because of a lack of complaints of harm by these providers. Another example is the National $119 Divorce Center which has legal, counseling and chat services for those with domestic problems. This site has divorce information and forms for all 50 states.
Another angle of competition is from larger players, such as Price Waterhouse offering Tax and Legal Guides to Real Estate. This is representative of the emerging
competition from other professionals, such as the push by the American Institute of Certified Public Accountants to help CPAs offer "Assurance Services." Assurance services are
a professional certification that offers review and comfort, similar to that offered by an opinion of legal counsel. The AICPA spent $20 million on a visioning project 5 years ago and
outlined new areas of practice. This is one of the many new emerging areas of service.
Consumers also use other means to obtain legal services.
LegalCare is one of the many legal insurers that provide a base level of services for a fixed monthly premium. This is one of the ways the middle class, left out of the pro bono scheme, and priced out of traditional lawyering, is meeting its need for legal service.
External Trends
Besides these concrete examples, there are also trends external to the practice that foreshadow changes in our profession. As new ways of delivery of
information and transacting emerge, it is apparent there is no "business as usual."
- The Napster phenomenon tells of the desire in the market for peer to peer exchange of intellectual property. What if clients linked together, in networks of community of interest, to
exchange shopping center leases, litigation histories and results, or informational content? Bill Cobb has said that the Internet will do to lawyers what the printing press did to
priests and rabbis. He sees information as a lawyer"s product and the Internet as a new means of distribution.
- Social structures change with diversity, tolerance and cultural trends, and gender and family roles are constantly evolving. Traditional domestic and contractual law may be molded to
these new needs, while assumptions made in jury selection and business advising will be altered.
- Personal values evolve and alter, as "generation X" issues of personal fulfillment assume primary motivational roles in employment. This has implications for clients and for
our own workplaces. Survival is no longer an issue in the midst of material prosperity Ð a sense of personal well being becomes the paradigm.
- There is a downturn in belief in justice as a standard, or as an achievable goal. Media exposure to high profile cases and Judge Judy have drained public respect for courts. And for
many, resolution and peace-making have replaced justice as a primary value. Some see justice as retributive and revengeful, without the healing values of resolution and restoration of
relationships.
- The complexity of everyday matters increases, creating a need for niche specialists with practical experience. Often, these providers are not traditionally trained professionals, and
do not need to be, as they acquire knowledge and serve in their limited area without significant collateral ramifications.
- Complexity and interrelatedness drive consumers to seek horizontal solutions, like Home Depot, instead of going to a plumbing store, an electrical supplier and a lumberyard. As we buy
technology, we want the software, network and hardware to come from a single responsible vendor.
- Self-help trends are increasing. People utilize the Internet and technology to find ways of doing things on their own. Information rich sites, such as WebMD grow as a result of this
trend.
- Boundaries thought to be inherent disappear rapidly. Geographic limitations disappear with the Internet; educational qualifications disappear when Bill Gates makes more than college
graduates; and hierarchy fades when a fourteen year old kid can run a Linux server on a five year old computer.
Changes Ahead for the Legal Profession
With this background of current transition, it is possible to make some broad predictions of changes lawyers are likely to
experience.
- E-delivery of legal services will dramatically increase. This will change the attorney client relationship and accelerate segmenting (unbundling) of legal service into discrete parts,
such as consultation, letter writing and document drafting, as the consumer purchases only what is needed.
- Empowered consumers of legal services will collaborate on areas of common interest, reducing reliance on custom fit professional service.
- Mass purchasing of legal services, such as we have seen for insurance companies and corporate counsel, with restraints and guidelines on practice standards, will increase. Groups of
consumers will contract for legal service, through associations of common interest such as AARP or through legal insurers.
- We will see more non-legal solutions based on entirely different value foundations than traditional legal standards. Just as ADR has supplanted justice with resolution, non-legal
standards may emerge in transactional and other settings.
- There will be much more horizontal delivery of professional service. The client who shops at Home Depot on the weekend will want to have a single firm handle all the aspects of a
business transaction, or real estate development, or domestic dispute.
- Other professionals, including paraprofessionals, will do lawyer"s work. As a natural outgrowth of complexity and handling related issues, contracts will be drafted, applications
made, representation handled and disputes resolved by non-lawyers. This may happen in their own professional firm, without lawyers, or with lawyers on staff, as
"consultants." This will amount to "APL" Ð the alternative practice of law Ð that will be invisible to and immune from UPL regulation.
We can see some changes in the courts, which are responding more rapidly than lawyers. Courts do not have the lawyers" barrier of pricing, and have a constitutional mandate
to be open to the public. In Arizona, 60% of divorces have no attorney involved, 20% have one attorney, and only 20% of the cases have an attorney on each side. This has required Maricopa
County to install a Self Service Center Room with computers and Customer Service Representatives, with a web site full of forms and guides. The alternative to preparing the pro se
litigants is to clog the courtroom as the judge explains procedure and law to each litigant.
How do we prepare?
We lawyers should prepare for this new lawyering by assembling resources and taking strategies that meet future needs. We may not be sure of the
future, but we can be relatively sure what we will likely need to compete there.
First, we must recruit the right people. We want "knowledge workers" who are good information handlers. They must have computer skills and communication skills to
enable them to deal in our stock in trade. We want diversity in our workforce to ensure we can stay in touch with all segments of the market. If we know what people want and need by
hearing it from our own staff, we can be better tuned to the market.
Second, we should prepare personally by acquiring those skills our staff needs to have. We ought to fit into rather than fight technology, and be aware of what is going on in
the business world. That business world is shaping ours. The skills and strategies of emerging and dying companies ought to be of interest to us.
Third, we should start to affiliate and build alliances, making sure we can create a horizontal whole solution approach to a client"s problem. We ought to think about where
our clients come from (which professional they just saw) and where they go next. This makes us more competent in solving clients" problems. Relationships with those professionals are
also important because they are potential keys to multidisciplinary solutions.
Fourth, we must no longer view technology as a tool, but from a strategic perspective, integrated into all business planning and strategy. Information management, including
security, organization and maintenance is critical to lawyers. More law firms will have CIOs (Chief Information Officers) to manage intellectual inventory.
Finally, we ought to start to consciously retool the way we work. We can delegate more to qualified lower cost professionals in our offices. We can automate routine tasks, to
save time and provide service at lower cost. We can streamline processes to remove unnecessary steps that have "always been done that way." Services can be "unbundled"
so that a client can purchase what is needed step by step. Information can be prepared for e-delivery as we use the ATM paradigm: Better to have a computer providing service than to
require a teller to be involved in each transaction Ð so long as the teller is still available when needed.
We Can Compete
As I speak with lawyers about these challenges, I sense concern in the conversation. There is always some hemming and hawing when the cheese is moved.
But I have great confidence that lawyers are just the ones to meet the future challenges. We are lawyers. We got into law school. We survived it! We passed the bar exam. We have continued
our training. We have practical experience. We just need to think outside the traditional institutional box, which we are not used to doing. But we can acquire that new skill.
If we do meet these challenges better than the dot-coms and other professionals, we will create more value in our firms, reduce the shock that future surprises bring, and serve
more clients better. So, I see upsides in this future and believe that lawyers can be the best at rising to the challenge of change.
"The Internet will do to the legal profession what the printing press did to priests and rabbis."
ÐWilliam C. Cobb, Chair, ABA Seize the Future Conference, 1999
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