Full Article on “The End of Lawyers?” and creativity

“The End of Lawyers?” and the Power of Po

Much has already been written about Richard Susskind’s book “The End of Lawyers”. This article is not intended to serve as a review of the book, although for the record I found it to be well written, respectful if occasionally mischievous and cogently argued.

Instead, my purpose is to put “The End of Lawyers?” into the new emerging legal environment and to explore possible reactions to the book. I will be concluding that instead of seeing “End of Lawyers?” as heralding the end, it can, instead, enable us to move forward positively and creatively.

By way of recap, Susskind argues that the way in which legal services are currently provided is facing inevitable change. That change will be driven by an “Evolution of legal services” from the current conventionally Bespoke level, through to Commoditised services.

It is well worth keeping this whole spectrum in mind, as one response to Susskind’s argument has been to reduce it to a binary choice between fully bespoke service and a perception of remote, automated, online processes.

Susskind’s position is far more nuanced than that and it is within those distinctions that an array of opportunities can be uncovered.
So what responses, other than the binary reduction set out above does “The End of Lawyers?” evoke?

The Law Society’s Gazette carried a vitriolic and indignant reaction to what the author called Susskind’s “Doom laden prognoses.” You can read it in full here.

Thursday 06 November 2008
I was interested in Joshua Rozenberg’s article on the doom-laden prognoses of Richard Susskind, who apparently believes that, in future, ‘bespoke’ legal services will be the exception (see [2008] Gazette, October 30, 10).
With great respect, what utter tosh. The only examples of so-called ‘commoditised’ work mentioned are debt collection and drafting employment contracts.
While the former may be amenable to mass production (at least until the defence to the claim is served), any lay person who thinks he can draft his own employment contract, given the ludicrous complexity of the relevant law, would be mad.
I am reminded of the enormous fun I had in my articles looking at home-made wills and their invariably disastrous consequences. The simple fact is that, while candles can be mass produced, hence the disappearance of the tallow chandler, over a very wide area and in the vast majority of cases, legal advice of any quality at all cannot and never will be susceptible of standardisation to the required degree.
So I for one will not be buying Susskind’s book, nor losing any sleep over the prospect of being richly paid to untangle the mistakes made by lay persons trying to practise law online.
Clive Wismayer, Solicitor, Great Bookham

I think the letter demonstrates a fairly typical lawyerly reaction to the ideas Susskind promotes, namely that we will see a move away from fully bespoke services towards, ultimately, commoditisation.

This letter contains many reactions, such as indignation and anger, (“With great respect, what utter tosh.”) a refusal to engage in the debate, (“So I for one will not be buying Susskind’s book”) and a misunderstanding at best, an unattractive appetite at worst, that change or evolution will only bring the author “The prospect of being richly paid to untangle the mistakes made by lay persons trying to practice law online.”

It is naturally tempting to dismiss Susskind’s musings. Without a doubt, they present a very real threat to the profession if they were to come about. Many others choose to engage and entertain the ideas but cannot accept that technology will make any difference to them in particular. As Susskind writes at the very outset of his book, pg2-3;

“…lawyers say that they accept a shake-up in the legal profession is long overdue and that my ideas about the transformation of the legal services apply across the board, except for one vital area of legal practice – their own.”

We can choose to keep on doing what we have always done, and justify our self-deception with passionate, strident arguments as to why possible changes will not affect us. Or we can choose to engage in the debate, to read, or hear Susskind out, and consider how the arguments might impact us, our law firms, and yes, even our very jobs and livelihoods.

Richard Susskind’s book “The End of Lawyers?” has been shown to provoke strong, defensive emotions. However, we can choose to engage in the debate, to hear Susskind out, and join him in considering how the arguments might impact us, our organisations, even our very jobs and livelihoods.

It is likely to be a frightening journey, destabilising and challenging, but I wonder if those fears stem from what Susskind is saying, or whether Susskind is simply becoming a focal point onto which we project wider anxieties and concerns.

I set out below a list of legal news headlines taken from The Lawyer website over the last week:

• Latham revenues slump $400m during 2008
• More pain as UK 200 job losses near 2500 mark
• Hammonds redundancy talks end: 77 to go
• McDermott lays off 149 across US network
• Clifford Chance to cut partners in firmwide reshaping

And all of this is without even registering the impact on the small to medium firm that still makes up a large portion of the UK legal profession.

The economic climate is having a massive impact upon the marketplace for legal services.

This is a changing marketplace that Susskind could never have anticipated when he started writing “The End of Lawyers?” and it offers us a different vantage point from which to perceive his book.
All of a sudden, Susskind does not present a threat, or at least any threat greater than the one that our profession faces. Instead, Susskind’s threat becomes more hypothetical, theoretical. That, on a relative basis, is likely to feel more comfortable than the predicaments posed by the economic downturn, which are undeniable and very real.

We can now choose to recognise that Susskind’s warnings are not a “doom-laden” prophetic vision of the distant future, some two to three years hence. Instead we can take stock of where we are now in which case, remarkably “The End of Lawyers?” is no longer the most immediate threat. It just might be the answer. How?

Seth Godin is a much respected writer on social networking and creativity. In his blog post “A grave new world” he writes;

“Creativity changes the game, whatever game is being played. “We’re going to run out of cash by the end of the year,” is accurate unless you count creativity into the equation. Then the accurate statement is, “Under the current rules and assumptions, we’re going to run out of cash…” Big difference.”

Edward De Bono, the founder of lateral thinking and prolific writer went so far as to create a new word to enable us to step out of the reactionary dismissal of arguments and suggestions so that we can better engage with them. The word he devised is “Po”. De Bono writes in his book Conflict;

“The word ‘po’ signaled that a statement was being offered outside the judgment system and specifically for its provocation value”

Po could be simplified to “What if” but I think it is stronger than that.

Po lifts us out of the normal patterns of thinking. It does not ask “Is this a good idea?” which invites a critical progression of “…And if not, why not.” Instead, po says “Let’s just accept that the following statement, however nonsensical, however illogical is a good idea. Now, what is good about it? What would work or how would it benefit our organisation, or our clients.”

The idea or the suggestion itself is put forward to stimulate the discussion. The idea can be discarded later once it has identified benefits or methodologies.

If we go back to the Law Society Gazette letter, above, we can see a reaction to Susskind’s hypothesis which comes from the letter writer’s judgment system which in turn stems from his experiences in the past. (“I am reminded of the enormous fun I had in my articles looking at home-made wills and their invariably disastrous consequences.”)

If we remain rooted to the past however, clinging to the way that we have always done things, then progress will be ruthless in passing us by. As Barack Obama stated, albeit in a different context, “The world has changed and we must change with it.”

So how can De Bono’s linguistic trick, this word “Po” help us to digest Susskind?

If we preface Susskind’s central argument that the prominence and demand for lawyers will be greatly affected by “A market pull towards commoditization and by a pervasive development and uptake of information technology” with the word “po” then the debate does not become a threat. Instead it becomes nothing more threatening than a fancy, or a hypothesis, a story perhaps to expand and improvise.
Accordingly we do not need to respond defensively or dismissively from our established world views. We can step into a more creative realm of thinking and discussion.

As Godin writes, we can look ahead to where the profession might be in 6 months time, or to Susskind’s brave new world and be afraid, because if those forecasts are right then the ramifications are terrifying. Or we can turn to creativity, which in itself will bring in change and the possibility of very different outcomes.

To conclude, the greatest irony lies within “The End of Lawyers?” itself. If we do engage with the book then we discover that Susskind is not waiting to dance, gleefully, on the graves of our profession. Instead, he comes across as a concerned and generous colleague, warning of the chicanes ahead.

He offers an incessant stream of ideas, provocations, business development starting points, new business models, new shaped services and platforms. There is a treasure trove of creative thinking starting points.

The book quickly swings from being a threat to a smorgasbord of ideas and professional services. Which ones we choose to graze upon, which ones we leave behind, and the ones that we use as a platform to go on and develop whole new feasts is down to us alone. But whatever you do, don’t choose to turn down the invitation to join in.

By way of epilogue, I can now move from Susskind, Godin and De Bono to a more centralised voice within this debate.

Meet the newly formed Legal Services Board.

They have released their very first business plan and it is up for consultation at http://www.legalservicesboard.org.uk/news_publications/press_releases/2009/01_2009.htm.

The objectives set out a five year goal to achieve the following;

access to justice for all consumers, with the goal of beginning to bridge the divide for those whose incomes exceed legal aid thresholds but fall below the level required to purchase legal services;
greater competition in service delivery and the development of new and innovative ways of meeting consumer demand;
empowered consumers receiving the right quality of service at the right price;
an improved customer experience with swift and effective redress if things go wrong;
legal services professions which are as diverse as the community they serve and which constantly strive to improve standards of practice, quality and education; and
certainty and confidence in the regulatory structures underpinning the market.

For many, these objectives, quoted directly from the Legal Services Board press release will be exciting and challenging. For many however they will introduce further despondency and amplify the wailing moans and groans of those who want to preserve the profession and its charming ways for all posterity.

For the conservative lawyer, there is no refuge to be found in our regulatory and supervisory bodies.

The choice is simple and it is ours. We either engage with the debate and make a contribution, or we will get left behind. What is clear though is that the drive to changes nothing short of reformation is already well advanced. The momentum and size of the vehicle is massive and it will not be stopped.

Neil Denny

11 responses to “Full Article on “The End of Lawyers?” and creativity

  1. As someone with a legal background, I fully agree with Susskind and of course his observations are not ‘utter tosh'; they are insightful paradigms in relation to the future of the legal world.

    If lawyers learn to collaborate rather than polarise, to use their skills to create rather than separate, there will always be a place for lawyers, in a world where people still very much need to be supported and guided.

    The antiquated adversarial systems we have cultivated over centuries of legal practice in the UK have become outdated and too dispassionate to offer any effective recourse, especially within public and private family law.

    Solicitors could offer a one stop shop for giving their clients a host of resources to go to (because let’s face it, whilst lawyers are well versed in law, noone could rationally argue that they are also fully qualified accountants or counsellors) and barristers could provide the collaborative edge that is missing. A compassionate and eloquent mind could be devastatingly helpful in the legal arena.

    As a profession, like many others, lawyers are not very good at taking criticism; but this is one warning signal we should not ignore. To do so would be to our detriment.

  2. That’s a powerful second paragraph – Learn to collaborate rather than polarise and create rather than separate – sounds like a manifesto. I like it!

    I fear the profession is aloof and dispassionate. I wonder how newly shaped services will remedy that and move towards a one-stop shop.

    We can afford to step into criticism, I believe, because I think it is by listening to the criticism that we can best understand how we are failing the market and their changing demands.

    By meeting the criticism and responding to it, then we can truly start to make progress in the eyes of our potential clients and consumers.

  3. Pingback: Reformation : Binary Law

  4. Hi Neil, great post.

    I just want to make sure that anyone reading this gets access to a really great book to help creativity.

    It’s called Thinkertoys by Michael Michalko. (Cheap second-hand on Amazon but new is good too.)

    If solicitors are to “become what they think,” then helping the creative thought process is paramount.

    Many solicitors, (especially fee-earners) believe they should not have to develop themselves “for the firm” because they don’t directly benefit.

    As it is truly up to oneself how one develops, this only hurts the individual and not the firm. It’s a kind of mental self-harm.

    I know that “if it’s not your job, it’s your opportunity” is a positive way to frame things.

    And I just wanted to add this in to the discussion.

  5. Pingback: Thinking like a designer? « Enlightened tradition

  6. Neil — I just discovered your blog and your excellent article about the so-called “end of lawyers.” Very insightful and dead-on.

    We’re dealing with the same issues in the U.S. — traditional law firms are laying off partners and associates while they continue to raise rates, law schools continue to churn out new lawyers with staggering amounts of debt but without much promise of a good-paying job, and clients are increasingly skeptical of the uncertainty that clouds much of the cost of obtaining legal services.

    I heartily agree that the response to this situation cannot be to ignore or downplay it. Rather, we need to use it as a starting point for the next conversation — the one that starts with “what now?”

    We can believe in the importance of the law and the value of good legal advice without being wedded to an outdated model for delivering our services.

    I look forward to continuing the conversation.

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  11. There is a compelling need to read and understand the arguments that Susskind puts forwards.

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