LegalTech Asia Technology Summit opened in Hong Kong with a thought-provoking keynote from futurist Rohit Talwar. Don’t be put off by that “futurist`” label – UK solicitors (and even barristers) get something to think about from talks like this. I pick out the themes and points which are relevant to lawyers now. The Scrooge parallel, I should stress, is mine not Rohit Talwar’s.
Still the Ghost pointed downward to the grave by which it stood.
“Men’s courses will foreshadow certain ends, to which, if persevered in, they must lead,” said Scrooge. “But if the courses be departed from, the ends will change. Say it is thus with what you show me!”
Scrooge’s story is, as we know, one of redemption, and futurist Rohit Talwar, keynote speaker at LegalTech Asia Technology Summit in Hong Kong at the beginning of March, was rather too jolly to make an authentic Ghost of Christmas Yet to Come. Nevertheless, his message might well make lawyers think of the grave which persuades Scrooge to change his ways or, more positively, think of ways to modify their practices to meet a changing future.
“We have got to see past the current turmoil or lock ourselves into our history”, he said, and his reference to “current turmoil” related as much to the daily rushing around with what is on our desks as to the wider economic scene.
“These futurists are all very interesting, but I want to know what my firm should do now”. This is the common cry of those who attend talks by those who anticipate business trends. I do not particularly like the label “futurist” because it somehow implies too much science and not enough flesh and blood, but that is how Rohit Talwar describes himself, and there was certainly more than enough of the human in his talk. I occasionally meet an equivalent perception myself – because I live in Oxford and have a grey beard, it is somehow assumed that I am “academic”, and “academic” carries the implicit connotation of separation from the real world. My focus is in fact very much on commercial futures. What Rohit Talwar has to say, as with Richard Susskind, has implications for law firms now.
Rohit Talwar packed a lot into his 90 minutes. I must be selective in what I report, sticking to those things which have obvious relevance to eDiscovery and to the business processes needed, both by law firms and by their clients, to elevate eDiscovery beyond being a plod through the rules or (which is just as bad) being a mechanical set of tasks with little apparent relevance either to evidence and law or to business objectives.
Although Rohit Talwar’s analysis was one which transcended jurisdictional differences, business sectors and work types, I will look at it from a UK and Hong Kong perspective, those jurisdictions having more in common with each other in terms of litigation practices than either of them have with the US. This allows me, for example to bring in barristers as an example of alternative business models, and to refer to the recent civil procedure rules changes in England and Wales as I try to relate Talwar’s message to my own jurisdiction. Most of what he said applies anywhere.
Where does work come from and where might it be done?
Do we think enough about where future work might come from and where it might best be done? This has both global and local implications as what Talwar called “reverse globalisation” brings a shift of wealth and power to new regions and to new types of business. How do we get law firms to look for the up-and-coming sectors and work types? This might mean looking to China for clients and to India for “traditional” outsourcing, but (to bring a more everyday tone to it) can also embrace more local concepts. This might raise all the terminology which so alarms lawyers – foresight, insight, processes, services, collaboration, change management and technology were all mentioned – but might equally involve more simple ideas like “Where are the white spaces where others are not looking?” and “What new services and solutions can we offer that clients have not thought about?”.
Extending Talwar’s approach to home ground, this has meaning for those of us involved in eDiscovery / eDisclosure. Solicitors might ask “Are we as a firm actually good at this aspect of litigation?” If so, why not promote it as a specialist skill distinct from our sector or subject-matter expertise? If not – if we don’t have the right skills, or don’t get enough of this kind of work to warrant the development of the skills, or can’t make a profit on it, or if nobody in the firm is actually interested in it – then why not outsource it to someone else who can do it reliably, cheaply and to an appropriate level of quality whilst we retain supervision over it? One foreseeable trend is that barristers will go through exactly this type of thinking about a subject which they have traditionally left to solicitors: it is barristers who are in the front line at case management conferences; it is barristers who have the closest interest in the evidence on which the case will turn; there is no reason why barristers cannot develop a specialist niche in the management (not just of the rules) of eDisclosure.
Process excellence, higher throughput, lower cost and higher quality
Rohit Talwar opened his section on this with the rather scathing comment that “UK surgeons think they are artists”. Those familiar with the work of Richard Susskind will recognise the broad subject here. Susskind’s parallel is with lawyers who like to think of their work as “bespoke”, developed especially for this job for that client, whilst clients actually prefer the idea that the lawyer has been there before (quite apart from the cost considerations).
Rohit Talwar spoke of an Indian hospital which had developed protocols for conducting heart surgery – a set of core processes in which everyone involved knows exactly what will happen, in what order, and by what method. This does not exclude the bringing of specialist skill to specialist problems, but it means that the routine stuff (and medical processes, like legal ones, include a high proportion of routine processes) could be delegated to cheaper staff who know exactly how to do their bit whilst leaving the surgeons free to concentrate on the things for which they were specifically skilled and trained. The result was a much higher throughput with no loss of quality, and better usage of equipment as well as of humans.
I focus on this because my standard eDiscovery / eDisclosure slide set includes a photograph of Henry Ford’s production line accompanied by bullet points such as “This is how we do things here”, “Who does what in what order?” and so on. Yes of course each piece of litigation is “special”, but there is a great deal in common between cases, and lawyers stand a better chance of winning both clients and cases, while still making a profit, if they focus on getting through those routine stages quickly and cheaply. The point will be emphasised as the new Civil Procedure Rules bite in England and Wales, and lawyers find themselves required to understand, to explain and to try to agree both the scope of disclosure and the methods of achieving it, whilst remaining all the while proportionate. The Groundhog Day approach is for amateurs.
Recruiting the brightest and best and not fearing to fail or be the first
Rohit Talwar gave us a lot – too much to record here – on attracting talented young people to work for you, on reducing the time from concept to delivery, on identifying those parts of a business task which take too long or which are too expensive, and on approaching clients with prototype ideas before they ask for them. He gave us examples from retail to insurance to construction, but they apply also to the delivery of professional services. Put ideas in front of clients and potential clients, get their reaction and input and, he said, “be tolerant of uncertainty” – accountants and ROI calculations have their place, but we need to lead rather than follow; “we say we are leaders, but want 20 examples of others who have done it” is an idea which applies equally to ways of raising money, of delivering goods and services, and of structuring law firms.
In our eDiscovery / eDisclosure world it applies to formal precedent and approaches to the court. The disclosure rules of England and Wales, with their emphasis on proportionality and the question “what really matters?”, positively invite lawyers to propose different approaches to the scope of disclosure and the methods to be used to accomplish it. Whilst it is not true to say that prior case law is redundant, there is scope, whilst the rules are new, for lawyers to drive different ways of tackling the cost and time of disclosure.
That involves another, and perhaps overriding, recommendation which Rohit Talwar made and one which is, perhaps, more easily said than done. We need to stand back from things occasionally, to give ourselves time to think about new and different ways of working, of marketing ourselves and of offering services which, though they may not know it, the clients actually need. I am no good at this standing back – there is always something which it seems urgent to do which makes pure thinking seem a luxury. Rohit Talwar convinced me to try.
The quotation from A Christmas Carol came to me when I first started writing this on the day I listened to Rohit Talwar (yes, it has taken me a month to get back to it – blame Jackson). Its trigger, I suppose, is Talwar’s line which I quote in opening: “We have got to see past the current turmoil or lock ourselves into our history”, which were in fact his closing words. My quotation from Dickens shows Scrooge, fearful of his fate, putting the ‘locked into history” bit this way:
“Men’s courses will foreshadow certain ends, to which, if persevered in, they must lead, …[B]ut if the courses be departed from, the ends will change. Say it is thus with what you show me!”
I don’t really need to draw an explicit parallel here. The gravestone context is an extreme one, but many law firms and barristers face the need to diversify if they are to avoid the “certain ends” to which Scrooge refers. While I was writing this, my attention was drawn, via Twitter, to a barrister offering Early Neutral Evaluation as a service in his particular field – not just doing it as opportunity arises, but promoting it as something for which his traditional skills equip him. I have suggested above that the approaches which Rohit Talwar suggested have application in the here and now, and specifically in relation to eDisclosure / eDiscovery.
“Are these the shadows of the things that will be, or are they shadows of things that may be, only?”
You choose. Scrooge did.