Oliver Duchesne, Client Operations Associate at Priori, sat down with Richard Susskind to discuss the future of law, technology and the evolving relationship between the two. Susskind is an esteemed author, speaker and professor who specializes in the future of professional services, particularly the law. In Part 1 of a 2-part interview that was also published on the Priori Blog last week, Susskind and Duchesne dive into the technology’s impact on the legal profession to date.
Priori’s Oliver Duchesne and Basha Rubin with Richard Susskind
OD: In 2013, you stated that the legal world would change more in the next 20 years than it has in the past two centuries. Do you still stand by that prediction?
RS: Absolutely. I know others find this prediction melodramatic, but I stand by it. If we look at the past five years, we’ve already seen remarkable progress, and the pace of change is only accelerating.
One illustration is in the area of online courts, which is the subject of my next book. They weren’t really on anyone’s radar in 2013. However, I’m now aware of twenty or so jurisdictions around the world that are taking them seriously. Fifteen years from now, our courts, a fundamental legal institution, will be changed beyond recognition because physically congregating in a courtroom will be a rarity, particularly for lower value claims.
So, yes, I am quite content with my prediction. I was never going to say that I got it wrong, of course.
OD: In your experience, what is the most common misunderstanding that people in the legal profession have about technology?
RS: The most common and profound misunderstanding is that the purpose of technology is to automate the way that lawyers have worked in the past. However, lawyers need to open their minds to the idea that technology will allow us to do things that previously weren’t possible or even conceivable.
Technology will fundamentally challenge, change and replace a lot of the work that human lawyers do. Many people say: “I can’t see how a computer system could replace what I do.” To give you an example from online courts, court lawyers feel safe from technological change because they can’t imagine how a robot could ever replace a human in the courtroom. Most people are of the mindset that if what they do can’t be replaced by a system – such as oral advocacy – then they’re safe. While we are many years away from technology that could engage in advocacy, that line of reasoning misses the point. The whole idea of online courts is that you will have judges making decisions online on the basis of arguments and evidence submitted to them electronically. This means there’ll no longer be a need for traditional oral advocacy. Instead, new skills will become necessary that involve formulating and delivering arguments and evidence in a form that is most compelling online. As a result, technology will help deliver the outcomes that clients want in entirely different ways. To use the example of surgeons: patients don’t want surgery, they want health. There probably isn’t a future for surgery because eventually there will be non-invasive techniques for sorting out the health problems to which surgery today is the only answer.
OD: If you were a speaking to a small law firm, what would you advise that they do right now in their practice in order to make sure they’re not caught behind the technology curve?
Unless small firms radically change what they do, they’re going to struggle to survive in the early 2020s. Smaller law firms that don’t have niche specialization do a lot of the routine and repetitive, process-based, administrative work that is most susceptible to technological change. If you’re a small firm, there are a number of directions you can go in. If you want to stay general purpose and do everyday law, you are going to struggle. You’ll either have to become closer to your clients and genuinely become the “trusted advisor” where the role is not exclusively legal – instead someone on whom your clients deeply rely on for your business acumen and psychological support as well as regular legal advice. Alternatively, you have to go niche, which means that you become a specialist in a certain area and there’s no reason why bright lawyers and small firms shouldn’t be able to compete with the best. And of course, that’s the premise behind Priori’s services.
Another alternative is to think about strategic alliances. That might be with other law firms or it might be with other providers such as new players in the marketplace. A further option is to try and secure outsourcing arrangements. For instance, a small firm could go to a major legal department and say they’ll take on all of their employment or immigration or tax work or whatever it might be; and try to get steady streams of that work rather than individual matters. Of course another option for small firms is to use Priori, as that would greatly widen their reach. A key problem for small firms is that their brands aren’t particularly well-known. And one of the values Priori brings is being able to help these firms reach out and match their capabilities with major players who would otherwise not be exposed to their expertise and experience.
There are two further points to make about smaller firms. Firstly, many small firms say to me that they don’t have the capability of major firms to invest in technology. But I always point out that many of these technologies are inexpensive. I think it’s less about investment in systems and more about spending the time in developing the content. The second related point is that small law firms can be more nimble than large practices and can get projects up and running very quickly. At a major firm you’ve got bureaucracy, funding decisions and organizational barbed wire that often stands in the way. The advantage of smaller law firms is that they can simply get on with it.
RS: What specific changes would you like policymakers to implement so that lawyers better utilize and adapt to technology?
I understand there’s huge resistance to this, but I think the U.S. should liberalize its legal system as the UK did. In the UK, it was thought that users of legal services were not given sufficient choice by only being able to go to one category of provider — the law firm — and that it was borderline anti-competitive that law firms were given exclusive rights to help on legal matters. This “grand bargain” of granting exclusivity to certain groups actually defines the professions in many ways. Only surgeons can cut you open, only auditors can undertake audits and only lawyers can stand up and appear in a courtroom.
In the United States, the net is cast widely in terms of the unauthorized practice of law, which differs from England. In England, we passed legislation in 2007 and introduced it in 2011 and this allows the external funding of legal businesses via private equity or venture capital and permits non-lawyers to share profits with lawyers in legal businesses. This was accomplished via a new kind of business structure called the ABS — the alternative business structure. I believe all of all this will encourage new entrepreneurs to come into the market, boost investment in the development of better legal technologies and give clients a wider range of options. This doesn’t mean it’s unregulated or a free-for-all. It just means, as an ABS, you’re no longer regulated as a law firm, which gives greater choice to the marketplace and creates a more competitive spirit. It’s likely that this will both encourage innovation and reduce costs. I understand that if you’re a lawyer, some of this seems rather unattractive — it’s better to pull up the drawbridge, regulate everyone else out of the field and keep your exclusive rights in place, keep the grand bargain running. But that thinking is catering more to the interests of the provider than the recipient of legal services and I can’t support this. My message to policymakers and lawyers is that you should survive and thrive as lawyers in law firms not because you regulate others out of the field but because you can bring value in terms of experience and knowledge that no one else can.
For those people who are happy to continue with the current protectionist practice structure for reasons of profitability, I would say in the long run that you’ll put yourself and the U.S. at a competitive disadvantage. The legal profession is becoming increasingly global and many businesses have global general counsel. They will, and already are, benefiting from more innovative providers in other more liberalized markets and jurisdictions. Methods and techniques will evolve over the next five years which will deliver benefits that traditional law firms won’t be able to provide because they won’t have the capital structure, the culture or the management style that is needed but exists today only in more liberalized jurisdictions. While people say the current rules in the U.S. are in the interests of protecting clients from unsavory or inexperienced providers, in England we’ve shown that you can still offer that protection with alternative regulatory structures.
Oliver Duchesne is a Client Operations Associate at Priori, the legal marketplace changing the way in-house teams find and work with outside counsel. He is the creator of the Priori Digest, a weekly newsletter containing interesting ideas, developments and factoids from the worlds of both law and technology. Oliver holds a Bachelor of Arts (Philosophy) and Juris Doctor from the University of Sydney.
