Sometimes one gets the sense of being tangibly at the end of an era – the door is closing and, perhaps, others are opening. I felt like that, quite suddenly, on my way to LegalTech in New York a few days ago as a result of the conjunction of three different sources. One of them involves the year 1599, the end of chivalry and the rise of a new merchant class, and another features dinosaurs and a yellow scooter. Those who have been with me a while are used to apparently random elements coming together in the last reel to reach an eDiscovery conclusion.

Richard Susskind’s Tomorrow’s Lawyers

The door which is closing will leave behind it the traditional law firm structure of partners selling at hourly rates the services of themselves and legions of  associates. There is nothing new in this prediction – Professor Richard Susskind has been making it for years, and one of my sources is his latest book, Tomorrow’s Lawyers.  The book is addressed to those starting out in the legal profession and to junior partners, and is subtitled An Introduction to Your Future. It restates views expressed in Susskind’s earlier works, especially The End of Lawyers?, sketches out the new legal landscape as he expects it to be, and (most interestingly) looks at the prospects for younger lawyers and at the skills they will need for the new legal landscape.

The points are all familiar ones – Susskind is cheerfully unrepentant about saying the same things for years, not least because time has invariably proved him right. The most specific predictions – about the use of e-mail and websites, and about the use of technology to standardise and commoditise the delivery of services – were once derided but are now part of life. The broader predictions, effectively signalling the end of the traditional law firm model, have always seemed reliable but distant, something on the horizon which lawyers might hope not to reach before retirement. My sense on finishing Tomorrow’s Lawyers is that we can now see the waves crashing on the rocks. We have reached the horizon.

More specifically for litigation departments, the “cottage industry” approach which Susskind derides will die, and probably in 2013. eDiscovery / eDisclosure, the major cost component in many cases, is still about finding the evidence, but has become an exercise in search, in project management, in statistics, in budgets and metrics. The point is not so much that lawyers are unused to this, but that technology, and those who know how to use it, can do it better, more cheaply and to a higher quality – you will perhaps recognise a well-known Susskind paragraph in this. The quality and accuracy of such tools increases yearly; just as significantly, the rise of managed document review providers offers the transparency and predictability of time and cost which (not coincidentally) is the aim of both courts and clients. It is not that lawyers cannot compete with these new business models but that that few of them seem willing to try.

I will come back to that in a moment.  What does the year 1599 have to do with it?

1599 – the year chivalry died and a new merchant force began to build an empire

The second book I had with me on the plane was James Shapiro’s book 1599, subtitled A Year in the Life of William Shakespeare (do stay with me on this, unless you are one of those who prefers your eDiscovery reading to consist solely of copy / pasted press releases). Shapiro’s book relates the political and social events of 1599 to Shakespeare’s writing, and shows how the plays of that year, including Henry V, Julius Caesar, As You Like It and Hamlet, were as much about current events as about the periods in which they were purportedly set. By accident, Shapiro gives me an additional parallel, about decline being followed by vigourous growth in other areas – a parallel too for what Richard Susskind describes in the closing third of his book.

Although there is no logic in arbitrary divisions by dates or the lives of monarchs, the closing year of a century and the 67th year of a Queen who had  been on the throne for longer than the lifetimes of most of her subjects inevitably brought with them a sense of impending change.  Queen Elizabeth held time at bay in her person as well as by her rule, dressed, powdered and bewigged in public to disguise the advances of time whilst her ministers used fear and brute force to keep the old ways. You begin, perhaps, to see where I am going with this.

The old order was changing in other ways as well. Chivalry, that ancient mixture of devotion to God, the monarch and women, whose practitioners could write a poem in Latin, slay dragons and infidels, win a tournament in the Lists, rescue a damsel, and dance to a galiard of their own composition at court, had pretty well died out by the end of the sixteenth century.  The Queen in her all-concealing make-up, wigs and finery, and the Earl of Essex, aristocrat, soldier, poet and composer of galiards, represented the last vestiges of the old order. On the morning of 28 September 1599, having abandoned his command in Ireland, Essex burst into the Queen’s bedroom at Nonsuch Palace.  Chivalry finally died, Shapiro says, at the moment when a mud-covered soldier came face to face with an old woman in her night-clothes with her hair down.

Something of even more significance happened in London that same week. A group of city merchants combined together to raise £30,000 to send a trading fleet to the East Indies. The urgency lay in the fact that the Dutch were already reaping large profits from similar expeditions, and England (not yet Great Britain) was being left behind. This was a middle-class venture, with no government or aristocratic backing, and from it grew the East India Company and thence the Empire. If you want to point to a moment when the old order died and a new, thrusting order appeared, driven by the hope of profit, then this week in September 1599 was it.

Dinosaurs and a yellow scooter

The third thing which set me thinking about the end of the old order was a poster which I saw at JFK. I cannot remember what it was advertising, but it showed a bright yellow motor scooter zipping across a plain on which stood the last of the dinosaurs. I did not need to read the text to get the message.

Setting out the parallels

We do not have exact parallels here, of course. Richard Susskind’s characterisation of law firms as “cottage industries” and my comparison with the decline of chivalry do not really do justice to a business model which has served clients, and the lawyers themselves, well for decades – centuries even. The dinosaur comparison is a trite one, if only because it has been overused, and I mention it only because the juxtaposition of the old giants with the little yellow scooter adds something to the tired insult. Whilst James Shapiro uses the story of Elizabeth and Essex to identify a palpable moment of change, he carefully explains that this was a defining moment – the door closing – at the end of a long decline.

And yet, and yet. Richard Susskind’s “cottage industries” jibe comes up in the context of lawyers “deploying bespoke techniques… when mass production and mass customisation techniques are now available to support the delivery of a less costly and yet better service”.  He traces the evolution of legal services from bespoke (meaning handcrafted specifically for a single client) through standardised, systematised, packaged and commoditised, giving examples of each stage and showing that profit can result from each (except perhaps the last) by working differently. He says:

For any deal or dispute, no matter how small or large, it is possible to break it down, to “decompose” the work, into a set of constituent tasks. And it is in respect of each of these tasks, not the job as a whole, that one can ask: what is the most efficient way of undertaking this work?”.

eDiscovery / eDisclosure

My own interest is in one task which is itself a constituent part of another – electronic discovery / disclosure in the context of a dispute or investigation. In many cases, it is the biggest single cause of expense, and the problem is not getting smaller as document volumes increase.  The approach taken by many law firms is not very much different from how it was done when I first qualified more than 30 years ago – junior lawyers turn pages (whether paper or on screen), making decisions about each document in a linear progression from the beginning to the end. Quite apart from the obvious defects in the method, this approach is hardly susceptible to any form of prediction – you only know how long it takes and what it has cost when you get to the end, when the agreed charging rate is applied to whatever the hours turned out to be.

That this is as archaic as chivalry seemed to be by 1599 is only partly the point, nor is the problem solved by grudging agreement to reduce the hourly rate or adopt some form of enhanced efficiency – merely speeding up the turning of those pages and reducing the charge for doing so makes only a marginal difference. A jump is needed, as dramatic as the decision of those London merchants to launch a joint stock-funded fleet to compete with the Dutch, or as the leap from dinosaur to scooter.

My session at LegalTech was on the eDisclosure and case management aspects of the Jackson Reforms and on why the emphasis on informed discussion, on judicial management of both scope and method, and on budgets, is of relevance in other jurisdictions, including the US. It was not a coincidence that I was flanked on the panel by a technology provider (kCura) and a provider of document review services (Integreon). I had planned a straight-up-and-down description of the reforms but, inspired by my recent reading, used most of my time to explain why the UK courts’ heightened expectations of litigation lawyers – informed explanation, priced options and proportionality – matched what the clients wanted. The ability not merely to control costs but to predict them, the use of the metrics from past cases to support estimates, and clear explanations as to the proportionate relationship between cost and result were crucial, I said, not merely to the management of cases, but to winning the work in the first place.

Conclusion – move on or die

We are all asked after LegalTech for our impressions, our conclusions as to where the world is going based on what we saw and heard there. The general line taken by others this year is of a move towards information governance and of a better-informed audience with a clearer idea of what they want. So far, so conventional. I sense something much stronger. I hear that audible crashing of waves on the rocks which I mentioned above and the long-awaited moment when clients turn en masse away from the old order. Many law firm litigation departments will appear to their clients, quite suddenly, as the old Queen seemed to Essex, as something whose decay has been masked by clever make-up and fine clothes.

Along the street appear new business models, providers of technology and of services which resemble the forward-thinking merchants and the yellow scooter of my examples, ready to undertake the components of the discovery task faster, more cheaply and to a higher quality. Lawyers can tap into this, join forces with it, compete with it even, if they are willing to adapt in the way Richard Susskind covers in the third part of Tomorrow’s Lawyers. Susskind suggests some questions which aspirant partners should put to their firm before accepting partnership. They are much the same questions as clients will be asking.

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