By Parminder Nahl (Corpus Christi College,1999)
Law professor Richard Susskind's latest book, Tomorrow's Lawyers, updates his three previous publications and seeks to identify the pressing challenges facing the legal profession today — as well as providing his own insights how they may be best met.
As one of the foremost academic authorities in this field over the last twenty-five years, Susskind succeeds in combining an impressive breadth of original thought with a concise yet persuasive writing style. This book, then, is as accessible and relevant to a reader with a general interest in law and its impact on society as it is to commercial practitioners with more immediate interests. Having worked as a solicitor in the City at international law firms for nearly a decade, I’m aware that this book is already considered required reading within the Magic Circle, by both partners and ambitious young lawyers alike.
Susskind's main argument is that the present costs of legal services are simply too high and that, despite the legal profession's conservatism towards adapting its working practices, going forward law firms will increasingly be challenged to “re-invent the way in which legal services are delivered." In the context of the present economic downturn, he identifies three very distinctive drivers of change: the "more-for-less" challenge, where clients demand greater bang for their buck; "liberalization", which reduces barriers to practice and increases competition; and, finally, advances in information technology.
From my own experience, the "more-for-less" challenge has, as argued by Susskind, already seen a marked realignment of the relationship between institutional clients and their lawyers. He highlights how, since the credit crunch, an oversupply of capable lawyers and fewer instructing clients (with a declining legal spend) has led to law firms facing considerable challenges in maintaining their profitability. Assuming that clients continue to seek to maximise this advantage over the next decade, Susskind goes on to argue that today's law firms, at least as presently structured, may have enjoyed their zenith and will struggle to maintain the profitability of the last two decades. He does not dwell, however, on the broader question of whether this realignment could prove temporary and this is, perhaps, an area he could have developed further in his argument.
Historically, law firms have operated a business model where they sought to benefit from general corporate and banking transactions in economic booms and insolvency and litigation work in economic busts. The onset of quantitative easing has interrupted this cycle: there have been fewer insolvencies than you might have expected in a period of prolonged economic downturn. Susskind's argument requires one to believe that current economic conditions are permanent — but critics, including myself, would caution that, should quantitative easing eventually be reversed and lead to the restoration of the normal boom and bust cycle, law firms may very well return to their traditional and often remunerative ways. This is a great unknown.
Accepting Susskind's judgment on this point, however, and acknowledging that his book is consciously appealing to those lawyers who wish to be forward-thinking and receptive to his ideas, much of what he writes is perceptive and has value. Many like-minded lawyers will share his concerns about current market practices: that law firms cannot simply get on by reducing conventional overheads and failing to adjust their practices whilst competitors do, and that clients no longer wish to pay hourly rates to have junior lawyers undertake often routine and repetitive work at considerable cost to them.
This last point goes to the heart of Susskind's particular concept of change. In his opinion, market forces are increasingly likely to seek and discover more cost-effective solutions which will directly impact not only on how law firms will be able to recruit and train junior lawyers but also whether law firms are still best placed to undertake such lower value work. He believes that these "disruptive" market forces will result in sustained commoditizing of the law, which will fundamentally change present legal practice.
To a degree this is already happening: leading law firms have begun to adopt a number of the proposals he sets out, including automating documentation, improving knowledge management and off-shoring. He also points to the Rulefinder online legal risk management tool, which was developed by a major law firm and its banking clients to primarily avoid the unnecessary duplication of legal work. The broader question for the reader remains, however, whether this is the start of a fundamental shift in legal practice as advocated by Susskind or simply reasonable efficiencies which any well managed business would seek to adopt.
Much of what Susskind writes about in respect of liberalization and advances in information technology is speculative and has not yet come to pass. Some of his ideas do, at times, risk being somewhat fanciful — in particular his championing of artificial intelligence and the potential for intensive collaboration between law firms beyond what is, perhaps, reasonable — but this is often the case with genuine big-picture thinking and it still adds much to the debate. On the whole, the breadth of Susskind's thought on potential developments is impressive and no doubt being discussed at partnership meetings where management continue to be focused on how to differentiate themselves from their competitors, what investment they need to make to ensure that they are always ready to deliver to the future needs of their clients and ultimately how to maintain the partnership's profitability.
Whilst Susskind is certainly not the first to note the challenge posed by web-based commence, he does highlight the particular vulnerability of the legal profession in the long term from the potential of the Internet to alter the delivery of services. He cites examples like LawHelp in the US, an online resource for people to locate free legal aid programmes in their communities, and Probate Wizard in the UK which provides an easy-to-use online service to complete the probate process. He also highlights the Legal Information Institute at Cornell University Law School which, since 1992, has been publishing free legal materials online to assist people in understanding the law.
These developments are certainly commendable for addressing access to justice issues. But the reality remains that, for commercial transactions at least, lawyers are often instructed not only for their legal knowledge and experience — but also because they have professional indemnity insurance and can be sued. For clients of a certain size, working on materially valuable transactions, this will remain an important motivation. Perhaps most importantly, it will lessen their willingness to undertake the same work themselves.
What is for certain, however, is that the broad forces of change that Susskind envisages in his book will almost certainly continue to come up against the self-serving instincts of a profession that has historically been successful at avoiding radical change. Susskind's greatest achievement may be in articulating the voice of change to the widest possible audience — through a persuasively argued, but always readable, book.