It’s Now Caveat Venditor

The “good old days” of law practice are gone... for good.

Those of us who live in earthquake country are used to the ground shifting underneath our feet all the time. Some of us have our homes bolted to the foundations, some of us have earthquake preparedness kits, some of us even have earthquake insurance (with hefty deductibles) and some of us take the ostrich approach, figuring that it won’t happen during our lifetimes or we’ll just literally roll with the punches.

There is also a seismic shift underway in our profession. As Jordan Furlong discusses in his book, Law Is A Buyer’s Market, Building a Client-First Law Firm (a shout out to Bill Henderson’s blog Legal Evolution, which mentioned Furlong’s book) we now have our very own San Andreas fault shaking the profession, which won’t look the same when the shaking ends.

There have been a number of books on the changing legal landscape over the past decade or so. While Richard Susskind’s book, The End of Lawyers? Rethinking the Nature of Legal Services, takes on how the role of lawyers and what they’ll do and not do going forward, Furlong’s book looks at the profession from the view of the buyer aka consumer of legal services, who may or may become a client, a subset of buyer. Not all buyers become clients, as many lawyers have found out to their chagrin over the past decade or so.

Although Furlong focuses his book on Biglaw (and even Midlaw to some degree) and strategies those firms might use to position themselves better in the new normal of practicing law, there is plenty for “blue-collar” lawyers to think about and how to better align their practices in this new world.

Furlong’s thesis is simple: the balance of power has shifted from the seller of legal services, aka lawyer, to the buyer of legal services, sometimes the client, but not always, and that shift is irreversible. The “good old days” of law practice are gone… for good. We can thank the global financial crisis of 2008 for hastening its demise.

Putting the client first. What a concept. I’ve railed, as have others, that law firms have been so self-absorbed that they’ve been clueless about changes not only in the profession (or as Furlong says, it’s a business as well), but oblivious to the shifts in the larger world and how those impact the provision of legal services. The world has changed, says Furlong, and in order to survive, let alone prosper, lawyers must put clients first. While we might like to think that the lawyer-client relationship is cut out of a different cloth, it is, at its essence, Furlong says, a commercial relationship.

We like to think we have always put the client first, but we haven’t. We see legal problems through the lens of the detached giver of advice. We don’t live the frustration, the angst, the anger, the heartbreak when people get dragged into problems even if of their making and especially if not. Furlong repeats Susskind’s comment that the law does not exist to make a living for lawyers, but many lawyers seem to have forgotten that. If the law is a serving profession, then our job is to serve our clients, not ourselves. The law exists for the buyer of legal services.

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While the seller’s market has worked well for lawyers (see profits per partner at many Biglaw firms, etc.) the legal market has failed miserably for buyers, who have difficulty getting any sense of what a particular legal matter may cost. Not having control over costs is a huge issue, both for the one-off individual client, as well as for ongoing corporate legal work, as is the sense that clients often think they’ve received little value for the legal spend.

The factors giving rise to the shift in the balance of power from seller to buyer should be apparent to anyone who’s been awake over the past decade: technology, the internet, globalization, the start to loosen regulation of legal services (see Washington State’s pilot project of licensing limited licensed legal technicians), competition, and most importantly, empowerment by the buyer. No longer does a buyer have to rely completely on the lawyer for information, for guidance, for a basic explanation of what’s what.

Savvy buyers, and we all know that they’re out there, can research issues and lawyers before making the business decision how to proceed and with whom. Couple that with the rise of providers such as Legal Zoom and Rocket Lawyer, which replace individual lawyer functions (an activity, process or outcome) and not the individual lawyer. Furlong calls these “parallel providers.” There are also legal process substitutes and legal solution substitutes. As one example, e-discovery is now a ten billion (yes, that’s a “b”) market worldwide. It doesn’t take a weatherman to see which way the wind blows.

What law firms should really fear, Furlong says, is the presence of the Big Four accounting firms making inroads into traditional law practice areas. Rather than being interested in the “bet the company” work, accounting firms are more interested in the “run the company” work, e.g. legal process, compliance, transaction and settlement, which can be scaled through systems and technology and generate steady income streams and predictable pricing. What client wouldn’t want that?

Accounting firms, Furlong says, take the time to understand the business and understand that companies need to make decisions every day without perfect information and with an inevitable degree of risk. (No twenty-page memo to a client that reads like a law review article without practical advice to resolve the issue and a whopping bill to boot. Been there, received that.)

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Nothing in law practice is sacred anymore. Furlong says that lawyers should welcome lawyer substitutes, as they allow lawyers to do creative thinking and lawyering, rather than the repetitive, mind-numbing work that is the bane of so many lawyers’ practices and makes them wonder why they ever went to law school. However, it’ll take a new mindset and letting go of the “but we’ve always done it this way.” There are some law firms who have let go or who are in process of doing so; you’ll have to read the book to see who those firms are.

The emergence of buyer’s choice fuels this seismic shift in the legal profession. So, instead of “caveat emptor,” it’s now “caveat venditor.” It’s about time.


old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.