In this piece, I expand on the topic of technology and law firms of the future first discussed in Some Challenges Facing the South African Legal Fraternity.
This article can be surmised by a quote of pioneering Harvard Professor Lawrence Lessig, namely, “code is law”.
The quote by Lessig refers to code’s ability to direct our conduct in a finely-honed way. When we interact with digital technologies, we also necessarily submit to the dictates of their code. As Jackie Nagtegaal explains in How the Fourth Industrial Revolution is Shaping the Practice of Law, those who control technologies will increasingly control the rest of us. They will have the power because of the stable and wide-ranging capacity to get us to do things of significance we wouldn’t otherwise do. Increasingly, they will set the limits of our liberty, decreeing what may be done and what is forbidden. They’ll determine the future of democracy, causing it to flourish or decay. And their algorithms will decide vital questions on social justice, allocating social goods and sorting us into hierarchies of status and esteem.
Dean Raviv from GoLegal (www.golegal.co.za, accessed on 01-08-2019) argues that the legal profession has historically been averse to change. “Centuries of complex regulation and obfuscation, suits, wigs, shiny shoes, and labour intensive procedures have managed to safeguard this prestigious profession from external competition […] But today, the digital agents of change are sending out a clear message, re-skill, or die”.
Legal technology and innovation are closely related to making legal knowledge and services easy to navigate and accessible. Raviv further points out that the legal system, a system designed to obscure and withhold information from the general public, is currently being fundamentally disrupted.
It is clear that as information becomes increasingly democratised, law’s empire will have to give way to the law of code, whether it is through time-management software, smart contracts and blockchain, language processing and machine learning, or Artificial Intelligence.
The legal services industry must become more opportunistic and focus on a client-driven ecosystem. In the previous article, I mentioned the so-called ‘uberisation’ of law firms. Following Uber’s business model, it refers to a model in which services are offered on demand through direct contact between customer and supplier, via mobile technology. Such a model will make it possible for firms to offer legal services based on a ‘legal practitioner on demand’ model at lower rates.
It should be noted, however, that even smaller changes in language can help a firm become more customer-driven. Prof Staub of Business Law and Legal Management at the University of St. Gallen (www.vista.blog, accessed on 01-08-2019) points out that the term “client” derives from the Latin cliens – a plebeian under the protection of a patrician – attested as meaning “a lawyer’s customer” from about 1400 onwards. He argues that its use is a convention, nothing more – “when all is said and done, lawyers have customers just like building contractors or retailers”. Significantly, though, it is the free professions such as lawyers which emphasise an expertise gap between themselves and their customers with terms such as “clients”. Staub argues that if we think about how we want to strengthen our relationship with the purchasers of our services and how to align our law firms with demand requirements, this isn’t particularly helpful. The term “customer” puts us on a substantially more equal footing.
When researching the usage of the term ‘customer’ in the legal sphere, I came across some articles vehemently defending the lawyer’s absolute right to refer to his/her customer as a “client”. One such defender of rights passionately noted that “forcing lawyers to have customers instead of clients puts them on a par with supermarkets and British Gas, and complaining about their services becomes the same as complaining about a faulty television.” This particular article reminded me of a quote by William Shakespeare – “First thing we do, let’s kill all the lawyers”.
With regards to the future of law, Aviv (www.golegal.co.za, accessed on 01-08-2019) makes another important point. He argues that Universities are still preparing graduates for old law. They should rather teach the practical amalgamation of law, technology and commerce – “which measures our ability to apply technological tools to better understand, enhance, and deliver legal and commercial knowledge, which is already available to all, in the most efficient way”. Graduates with this type of knowledge and approach will help transform the legal landscape even faster, and it is important for Universities to respond to the current, as well as future needs, of the legal fraternity.
Ultimately, successful transformation requires proper research, and a well-designed plan for integration. It is not enough for firms to merely tick the innovation box. Rather, strategies with regards to innovation and technology should truly add value.
One of the most important features that has revolutionised the legal landscape, and that has the potential to add real value, is Analytics (www.lawsiteblog.com, accessed on 02-08-2019). An example of the use of analytics is the launch of Context from LexisNexis. In the US, it analyses the language of judge’s opinions in order to identify the cases and arguments that specific judges find persuasive. Specifically, Context gives an overview of how a judge has ruled in the past on a type of motion. It covers 100 different motion types. It also indicates the judges, cases and texts the judge most commonly relies on in making those rulings. It further provides analytics on some 380,000 expert witnesses.
LexisNexis has been steadily working to build on the foundations established by other products and integrating them into its legal research platform, LexisNexis Advance. In staying with the US context, investment in legal tech hit $1 billion in 2018. This is a clear indication that legal technology is seen as a worthwhile investment and is an indicator of the type of innovation yet to come.
Rob Otty from Norton Rose Fulbright, London (www.nortonrosefulbright.com, accessed on 02-08-2019) has described the law firm of the future as a firm that has lawyers who understand technology, promotes an innovative mindset, has an improved organisational structure and business model, creates new roles, businesses and functions, delivers innovative products and services to clients, and is efficient and cost-effective.
For Otty the intersection between Legal Practice and Information Technology (IT) will mean that each sector will face challenges from the other. He states that “as these two industries combine, the challenge for the legal industry is to keep up with the fast pace of change that the tech industry is accustomed to. The challenge for the technology industry is to understand law firms and identify how technologies can be utilised in the legal environment.” According to Otty, the combination of these sectors gives rise to opportunities for new roles within a law firm, breaking the traditional hierarchy. For example, a lawyer who can read or write code would be a valuable addition to a law firm.
This is echoed by Katherine Thomas who’s consulting agency provides strategy advice and implementation action to pioneering law firms (www.remakinglawfirms.com, accessed on 01-08-2019). She suggests that firms should focus on their mission, not roles. The firm of the future will create a clear mission and then procure skills to achieve it. Instead of aligning skills to fixed departments which exist to control and organise people, the new organisation structure will centre on project teams, assembled purely to achieve particular aims. She states that “roles are stagnant, skills are not. It is better to look at the skills the market would need and develop those skills – “skills not roles. Competencies, not job titles. Project teams, not departments”.
As mentioned in the discussion of the so-called ‘uberisation’ of law firms, it will become essential for firms to develop client products and subscription services in addition to providing the usual billable hour. In the South African context, Legalese is a perfect example of how such a model can be utilised. The Cape Town based agency describe themselves as a creative legal agency “which has redesigned legal services to suit creative, start-up, and tech-based businesses by making them accessible, affordable and understandable”. They claim to look at the law differently by utilising modern technology and innovative thinking to tailor-make legal solutions that suits a specific business.
With backgrounds in corporate law and the South African creative sector, as well as experience in running start-ups, the agency offers the type of legal solutions and services that are customer and product driven.
Although there are a number of things to consider, a strategic approach, where a group of people is made responsible for the exploration and implementation of technological changes and advances, with clear goals and a forward-looking mindset, can help firms take advantage of innovation and its myriad offerings.
When considering building a ‘law firm for the future’, useful questions to ask are the following (www.pwc.co.uk, accessed on 01-08-2019):
- Are the technology ‘basics’ in place that allow the firm to operate effectively on a day to day basis?
- Does the firm have a technology improvement plan?
- Is the firm aware of all available emerging technologies and do they know which ones have a ‘best fit’ for the organisation?
- Is the firm able to ensure all new technologies adopted are secure?
- How will the firm fund the continuing need for technology investment?
To these questions, I would add focussing on innovative products and client service, cost-effectiveness and efficiency, the creation of new roles, and improving organisational and business models.
Ultimately, we will all have to yield to the law of code. What is clear is that innovation has paved the way for a new age of law. I am reminded of an anonymous quote – “In law, nothing is certain but the expense”. Those firms and practitioners that know that nothing is certain in law but expense, and who accordingly invest and plan for a technological future, will survive. Others, who are slow to change will, in part, fulfil Shakespeare’s plan for lawyers.
Independent Consultant to Tech4Law