Access to Justice and the Future of the Legal Profession

January 25, 2016

Some Good Food for Thought from Other Disciplines

What do a high-end hotel chain, the medical profession, or behavioral economics have to do with the future of our legal profession? And when it comes to access to justice, what difference does it make?

Being the know-it-alls we tend to be as lawyers and working in a legal system fundamentally framed by precedents and a “this is how it’s been done in the past” mentality, adapting to change and finding wisdom from outside of the law do not come easy for us. Yet it’s no secret that big changes already are afoot in our profession and are about to accelerate rapidly in the next few years. There’s a lot we can learn from other disciplines that also are confronting a changing world where technology plays an increasingly integral role. While I wasn’t consciously thinking about it in these terms, three seemingly unrelated things I read over the holiday break got me thinking more clearly about the way forward for law and justice.

My first “aha” moment of inspiration came from a relatively short Chicago Tribune article on the Four Seasons and the hotel’s now legendary commitment to customer service that runs through the very DNA of the company. The entire article was very interesting, and of particular note to me on the issues at hand was the following quote from Kristen Klus, head concierge at the Four Seasons Chicago: “Technology has changed the concierge role from the keeper of knowledge to the distiller of knowledge,” Klus said. “Guiding people who think they know more about the city than you because of their Google search can require a delicate touch.”

In similar ways for lawyers, technology has forever altered our traditional roles as “keepers of knowledge,” and thinking of ourselves as distillers and expert guides is more in line with the greater value we bring to clients and the broader community.

My second jolt of inspiration came from a great book about how we look at the end stages of life for ourselves and our loved ones, Being Mortal by Atul Gawande. If you have not read this book yet, I highly recommend getting it onto your hot list—it’s one of those rare books I have read that I can honestly say transformed the way I think about one of life’s fundamental issues. I bring it up as part of this discussion for a reference Gawande makes to an article from more than 20 years ago entitled Four Models of the Physician-Patient Relationship.

That article was written by Drs. Ezekiel J. Emanuel and Linda L. Emanuel back in 1992, before most of us had ever heard of Dr. Zeke Emanuel and his now famous brother Rahm. The Emanuels review four models for the physician-patient relationship: paternalistic (guardian), informative (competent technical expert), interpretive (counselor or advisor) and deliberative (friend or teacher). While both Gawande and the Emanuels give due consideration to the the paternalistic “we will tell you what’s best for you” approach as well as the informative “here’s the information, you decide” approach on the other side of the spectrum, all three authors ultimately conclude that neither of those approaches is typically best for a patient.

Gawande suggests the interpretive approach is best, while the Emanuels favor the deliberative model. The common denominator is the medical professional ideally plays an active role in educating and helping a patient who isn’t always seeing the world clearly at that point to come to a decision that aligns with the patient’s values and goals.

Again, I see a lot of parallels with our present and future role as lawyers. At our best and most valuable, we aren’t just providers of information, we’re actively providing counsel and strategic guidance to clients to help them manage challenging situations and make what are often complex and daunting decisions.

My final holiday inspiration for the future of our profession came from another good book I am still in the midst of reading: Misbehaving by Richard Thaler. Misbehaving is the latest in a series of books and articles from the growing field of behavioral economics, written by one of the seminal voices in a field that has a lot to offer for most every part of our lives as individuals and as a country. Thaler convincingly debunks the traditional economic theory that if people are just given the right information, they will make thoughtful and rational decisions.

As human beings, there are all kinds of ways we (often very predictably) do not make objectively rational decisions, on both routine and very important matters. Sometimes our “irrationality” is so predictable that “nudges” can be developed in policies or incorporated into technology that may be enough to help guide us in the right direction. In other circumstances, having guidance or assistance from a trusted advisor makes all the difference.

Once again I see a lot of parallels with the law and the justice system. In addition to the behavioral economics foibles we all share even on our best days, people facing legal issues often bring a whole range of associated emotions to the table that can cloud their ability to make the right decisions on their own—anxiety, fear, anger, anguish, hurt, and all the others. Thus came the famous adage that “the lawyer who represents himself has a fool for a client.”

To summarize the lessons of these three unrelated works, even with the ever-improving access to information, resources and “self-help” alternatives that technology increasingly is making possible, lawyers continue to play a critical role in people’s lives and in the justice system. It is just an evolving role, focused more on “distilling,” educating, counseling and guiding people towards the right solutions for their particular legal issues.

And while it does not flow as clearly from my three holiday readings, there is one other key role lawyers continue to play that is no less critical: the role of advocate. We know that advocating on a client’s behalf in legal proceedings and negotiations has a big impact on the outcome, particularly in complex matters or situations where there are uneven power dynamics where the lawyer helps level the playing field.

As we look ahead to the future near and far, focusing on these critical roles lawyers continue to play in providing value to clients rather than viewing technology and innovation as threats will make a better future not only for our profession, but for the public and the justice system.

This will have a profound impact on access to justice as well, an impact that will be overwhelmingly positive if we play our cards right.

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