The mechanics of electronic disclosure are not an inherently legal function like Will writing or conveyancing. Instead of assuming that the work will always be theirs, lawyers must ask themselves why the clients should not divert it somewhere else.
There is something comforting about the certainty that you will always be needed. Doctors can always be reasonably sure of a steady flow of patients. Farmers and others engaged in food production know that people will always need to eat. It is not yet foreseeable that we will do without some form of energy piped into our homes. Fashions in clothes may change but we will always need something to wear.
Many apparent certainties, however, do not in fact last for ever. An article in last week’s paper predicts the end of fixed line telephony. A petrol station or roadside inn finds that its busy road is bypassed. I live between a canal, the latest thing in transportation when it opened in 1790, and the railway line opened in 1846 which killed canal trade overnight. Sometimes the need for a skill set drops away – a Western doctor specialising in, say, cholera, rickets and consumption came to need new areas of specialisation.
The need to handle torrents of documents has historically generated floods of work for lawyers, subsidising other areas of the firm’s practice such as the delivery of high value advice from their expensive offices as big cases brought big disclosure exercises and the opportunity to turn their assistants’ hours into large bills. What, however, if document handling flows away to others?
The imagery here of torrents and floods and flows comes from the bridge illustrated in my photograph. It has clearly seen better days and is obviously lacking its raison d’être in that there is no water for it to cross. It is in fact the remnants of a Roman bridge at what was, in the second century AD, a key crossing of the River Tees at Piercebridge in Yorkshire. I was there at the weekend for a wedding and the dog and I did some exploring. The original bridge was swept away in a storm and was replaced by the one which you see here. Its fate was less dramatic – the river gradually moved away, leaving the impressively solid bridge marooned and useless in a field. Those who built it might have predicted any number of fates for it, but probably not that a river which had once been forceful enough to destroy its predecessor should simply slope off somewhere else, leaving it without a purpose.
Those who have followed my earlier comments on the thinking of Richard Susskind (see, for example, Collaborating to avoid the end of lawyers) will know where I am going with this. The bridge is the law firm, comfortable in the certainty that litigation business will always bring with it a solid chunk of work in handling documents. The level of work may rise and fall, but lawyers nevertheless continued to make money from document handling in litigation in much the same way as the bridge continued to carry traffic across the river as its level rose and fell.
What if the river goes away completely? I do not mean that litigation dries up completely, but that the handling of the disclosure passes to other hands. The River Tees still exists in all its flowing force, but it is now 100 yards away from the bridge. It is wholly foreseeable that the bulk of disclosure work will pass the lawyers by as the clients come to realise that a combination of taking the work in-house and giving direct instructions to suppliers of litigation software and services is a much cheaper way of handling disclosure. They would then look to the lawyers to do the bits which lawyers are good at – the advice, the law, the tactics and the mechanics of bringing the case to court. That is expensive work to deliver on its own.
The Roman bridge at Piercebridge had limited scope for manoeuvre – two millennia were to pass before Sir Donald Bailey invented a bridge which could be picked up and moved. Litigation lawyers have more flexibility and could pre-empt the loss of disclosure work. It is not just a matter of cutting their fees or employing cheaper people – that is fiddling at the edges. If marketing theory involves finding out what your competition intends doing to win clients and then doing it yourself first, what if the competition is the client?
At the risk of beating my analogy to death, I see the clients as standing up-stream from the bridge and contemplating the diversion of the river which represents the document-handling element of litigation. They are, as yet, no more clear than the lawyers how best to handle disclosure themselves, but the suppliers are egging them on. What will stop them diverting the stream?
Lawyers, I think, will try to answer this in the same way as they react when clients want to write their own Wills or attempt to do their own conveyancing. They will play on the downside risks which, they will say, their learning and experience has equipped them to avoid, and they will emphasise the wider implications which they are trained to identify and deal with. The analogy is a false one; inheritance and the buying and selling of land are purely legal functions and need a lawyer to do them properly. Collecting documents for litigation and all the technical and mechanical activities associated with disclosure need some lawyer input but they are not primarily legal tasks, nor have lawyers equipped themselves to handle them. Why, then, should they be thought of as something a lawyer must do?
The lawyer who is not asking the question “what will stop the clients diverting the stream?” rather resembles the bridge in my picture, standing stolidly where it has always stood and expecting the river to keep flowing towards it. It seems unthinkable that the work will simply bypass them – but that is what the Roman bridge builders thought about the River Tees.