The most powerful single message from ILTA INSIGHT 2010, held in London yesterday, was that lawyers risk becoming merely part of the clients’ processes in a slot marked “insert lawyer here”. Technology must become part of the lawyers’ business processes, and not merely an adjunct to them.
ILTA INSIGHT 2010 took place yesterday at the Grange Hotel St Paul’s Hotel. Peggy Wechsler and her team put on an interesting programme, as ever, at an event which always manages simultaneously to be friendly but challenging. ILTA’s scope is much wider than my own specialist subject, e-Disclosure, embracing every aspect of bringing technology to the business of being a lawyer and, in consequence, has a delegate contingent which is wider than I usually see. There is a greater emphasis on law-firms-as-businesses, which tends to be side-lined at pure e-Disclosure conferences. It deserves a place there – the internal decision-making about this aspect of the litigation process should be driven as much by the firm’s own costs as by those incurred by the clients.
The British election has so far not thrown up a single defining slogan, that killer combination of words which simultaneously captures the mood and skewers an opponent. Abby Ewen of Simmons & Simmons came up with one at an ILTA INSIGHT session led by Charles Christian of Legal Technology Insider and the Orange Rag blog. The context was the identification of things which lawyers are good at, as opposed to all those other things which they do as part of their traditional work for clients and to the (relatively novel) idea that they are running a business. Abby said that “not much of what lawyers do is all that clever stuff they went to university to learn”. It was important, she said, to “try and extract the things which lawyers are not very good at”. The corollary to that is that the clients are only interested in those things which the lawyers are good at, so that they, and the charging rates which go with them, are applied only when necessary.
The word “process” is not immediately appealing to lawyers, but what it means is the set of steps or functions which must be undertaken to achieve an objective. Clients, Abby said, were moving towards devising processes whose steps lay in multiple hands, a mixture of in-house functions, technology, and specialist providers of other services. These processes might include a space marked “insert lawyer here”. The implications of this go beyond merely abbreviating the chargeable time which the lawyers can spend on a project. It means that they lose control of work in which they have traditionally been the project manager (though that is perhaps not how they would describe their role).
This is consistent with the message of Professor Richard Susskind in his book The End of Lawyers?, which envisaged a breaking-up of traditional tasks and a distribution of functions, each placed where it can be done most efficiently, effectively and cheaply. One of the concrete manifestations of this, which applies across a broad range of services, is outsourcing, perhaps (but not necessarily) to a distant country. I give that merely as the obvious example: there are many other ways in which functions can be distributed – Susskind has a slide which lists about a dozen of them.
Litigation was not specifically referred to in this session, but the expression “insert lawyer here” ties in with something I have predicted in these pages. This involves clients taking more of the litigation process in-house and entering into direct relationships with experts in search, calling on the lawyers as needed for the formalities of the legal process and for advice on the issues, on the facts needed to argue about the issues, and on the searches needed to find the documents relevant to those issues. This is very far removed from the traditional model in which the clients instruct the lawyers to run the litigation and the lawyers sub-contract parts of it (to barristers, experts and so on) as required. One of the recurring themes involves the idea that the lawyers need to identify for themselves (that is, without waiting for the client to tell them so) when they should be involved and when they should not be involved. In part, this is a purely mathematical matter determined by whether a particular type of work is profitable at a price the client is willing to pay for it.
This session, in which Charles Christian was also joined by Jason Haynes of Allen & Overy and Julie Berry of Reynolds Porter Chamberlain, was rich in quotations and examples – too many for me to record or report. Charles Christian’s reaction to a Twitter report of an earlier session was “this sounds like Richard Susskind circa 1995”, and he interrupted his panellists at one point to say that “clients have always said they are unhappy”. One answer from the panel was that clients are now much more sophisticated in the way they have their services delivered to them, with the implication that client unhappiness now has an alternative approach in mind. Abby gave as an example an AirBus, with the wings made in one place and the engines in another, with the implication that the lawyers must fight for their place in the production line or risk being cut out altogether. Jason Haynes saw this as a cyclical matter, based on his experience of previous peaks and troughs in the economic cycle. The imperative now may be pure cost-cutting, but when good times come back, clients will look for added value and not merely for the cheapest option.
These are not incompatible conclusions, nor is it only at the top end of the market that the clients will be willing to pay more for something better. Recession flushes out time-worn practices but, for those who survive, it gives a sound base for new value-added functions; that may mean letting go of certain roles, either because the firm’s own statistics tell them that they cannot do it profitably or by the firm being brave enough to redefine for themselves their place in the process before the clients do it for them.
Julie Berry drew a distinction between what the lawyers must do and how they must do it. The “what” often represents external pressures – compliance with rules and the management of risk as well as pure economics. As to the “how”, the firm must offer its lawyers options which the lawyers can in turn offer to clients. In the context which is my primary interest, the management of disclosure in litigation, this involves making sure that the court rules and the effect of cases are known to the lawyers, and then giving them a set of options which the firm has researched and costed as to how compliance can be achieved most economically.
Space and time prevent me from passing on more of the useful stuff which emerged during this panel. One last quotation may help those who are interested in changing lawyer behaviour. A question from the floor asked for suggestions on how to effect the kind of cultural and behavioural change which had been discussed. “Relentless, water dripping on stone” said Abby Ewen.
Master Whitaker adopts much the same approach in promoting the relatively simple messages about e-Disclosure, which he did in the session I ran with him. We pointed to the rules, the existing and proposed practice direction, Lord Justice Jackson’s observations on education and on active management, and at the clear message coming from recent cases that firms could not ignore electronic documents. If the message is unchanging, the pressures are increasing. In opening, I referred to risk – not just the risk that your firm ends up in the same paragraph in a judgment as the word “incompetent”, but the risk described earlier to the effect that the lawyers will end up as just a place in somebody else’s process. That is the negative-sounding, doom-laden way of encouraging people towards the proper handling of electronic documents. I prefer to draw attention to the positive, case-winning, client-getting benefits which follow from recognising the new sophistication of clients and meeting it head-on as a challenge.
One cannot, of course, avoid drawing attention to the downside risks, of which Earles v Barclays Bank Plc and Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence contain the most obvious examples. Although, as I say, there are much more positive reasons for getting good at this subject, one of Master Whitaker’s closing observations was that if a whole profession is told by judges that it is incompetent, this has implications for lawyers generally which go beyond the obvious downside for the firms and lawyers directly involved. If lawyers are seen to be losing costs as a result of their conduct, then clients will turn on them as a group, with long-term implications for the profession.
I will pick but one example from the keynote speech delivered by David Morley, senior partner at Allen & Overy. He referred to the metaphor boiling the frog which, I have to say, I had heard without understanding. It refers to the fact that if you put a frog in water and warm the water gently towards boiling point, the frog does not realise what is going on until it is too late. David Morley’s context was the use of technology generally. It has particular resonance in the business of handling electronic documents electronically. The temperature is rising.
It will be obvious from what I have said here that much of what comes up at ILTA is not jurisdiction-specific, but applies to law firms anywhere. The next annual ILTA educational conference is at Gaylord Opryland Resort and Convention Center, Nashville, Tennessee from 22 to 26 August. I commend it to anyone interested in how technology can be used to make law firms efficient and competitive.