“The future ain’t what it used to be.” That is one of the venerable Yogi Berra’s best quotes, but when it comes to the legal profession and the practice of law, drawing on key elements of the way it used to be is the path toward a better future.
Yes, we know AI is going to change the way we practice and do business, even if we don’t yet fully understand how. There already are so many ways that technology has and will continue to enable us to deliver legal services more efficiently and effectively and to help people handle more routine matters on their own.
At the end of the day though, the uniquely human qualities of good lawyers will be as important as ever, and the core of what made our forebears in the profession essential is just as relevant today. By melding those historic truths with new ways of delivering our services, we have the recipe to be far more affordable and accessible to people in need.
The Reasons People Come to Lawyers are Largely Unchanged
When people seek out legal services, they typically are looking to solve a problem, manage risk, make a deal, right a wrong, navigate a difficult situation, or find peace of mind on an issue that is important to them.
While the types of issues that fall into those broad categories have become more complex over time, these are the same basic reasons people have been coming to lawyers since they sought out our most famous Illinois lawyer, Abe Lincoln, back in the day. And the core of what people need from lawyers is the same as well.
The Tried-and-True Qualities to Lead Us Forward
With knowledge of the reasons why people seek out lawyers, three key roles that our profession has played for centuries remain fundamental to access to justice: Counselor, Advocate, and Navigator. In a post a few years ago I expounded on each of these three roles and think it is worth repeating some of the key points here:
The Counsel Role
People facing legal issues often are nervous, emotional, or downright scared, and our role as counselors is critically important. Even when people objectively are getting a fair and proper outcome or think they know the answer, having that confirmed by a trusted advisor is an essential affirmation when the issues at stake are important to them.
There is a reason lawyers picked up the name counselor because that is at the core of what good lawyers do for their clients.
Perhaps someone can legally file a case or pursue a course of action with their legal issue, but should they do that? And when there is no practical legal solution, a good lawyer can objectively explain why that is the case, suggest potential alternative solutions, and perhaps connect the client with other resources.
The Advocate Role
Our advocacy role as lawyers is another fundamental one, whether we are talking about a court case, a transactional matter, or other legal situations where negotiation with another party will be involved…Studies show that having a lawyer in a contested proceeding makes a big difference in the substance of the outcome, the efficiency of reaching a resolution, and the client’s satisfaction and perceptions of fairness.
There are many reasons this is the case, starting with the fact that the lawyer can advocate with the objectivity of being a step removed from the situation the client is experiencing with its attendant emotions. As a skilled advocate trained in the procedure, a lawyer is better positioned to most effectively present the case on behalf of the client. And where power dynamics are uneven, the lawyer as an advocate plays a key role in leveling the playing field for the client.
Good lawyers bring these advocacy skills to bear to get better results for their clients, settle cases on better terms, and resolve cases more quickly, leading to more satisfied clients who have greater confidence in the fairness of the system.
The Navigator Role
Another key role we play as lawyers is as navigators. That is both helping clients navigate complex legal processes and procedures and helping them navigate the larger situation surrounding their legal issues.
An example of that second part is a client who is a victim of domestic violence. In addition to helping the client through the legal process, the lawyer can connect the client to counseling or social services assistance that are just as critical for the client to get to a stable place.
Beyond the more obvious role of guiding clients through the legal process itself, good lawyers help their clients understand and navigate both the legal process and the larger context of what is happening with their issue, counsel them along the way, and connect them to other resources, all of which play a big role in the client’s perception of the process and whether they are getting a fair shake.
A Key Business Lesson where the Past should be Prologue
Unlike the enduring value noted above that lawyers provide in the practice of law, there is substantial room for reimagination and improvement in the business of law and the delivery of legal services as we look to the future. But there is one big exception to this premise where the way it used to be is actually the better path: the pricing of our services.
If you are a regular reader of this blog, you know I am talking about the billable hour, which most lawyers talk about like it has always been the primary means of pricing. In fact, it was not until the 1970’s that the billable hour became the prevalent form of pricing, and it is a self-inflicted scourge on affordability in the consumer and small business market for legal services.
Prior to the 1970s, fixed fee pricing was the norm in the market. And while not everything was perfect, everyday people generally could afford legal services, and lawyers could make a good living serving middle-class consumers. It is no coincidence that once that changed, the growing affordability problem most people experience when they need legal help took flight as lawyers increasingly are moving away from serving this huge part of the market.
There are many reasons why the billable hour should go, and we can draw inspiration from our forebears to return to better forms of pricing so that our services are more affordable to everyday people and lawyers can sustainably serve this huge and growing gap in the market. To this day, the areas of the market where it is still the custom to use fixed or contingent fees function much better. As AI and other technology that enables people to solve things faster and more efficiently continues to take hold, the business model of charging based on time spent rather than value delivered will only become more unsustainable. Value-based pricing is the future!
About that Twist
While doubling down on the core of what good lawyers always have done should be the springboard to the future, there is no question we can do that all more efficiently and accessibly with the help of AI and other technology.
These new and ever-improving technologies make it easier to connect to people in need, to serve them more efficiently, and to improve the way we do business.
As I wrote earlier this year, there are also huge possibilities for AI as a self-help resource for people, particularly for the many less complex and lower-stakes legal issues people face in the legal system. It can make a huge difference as well in helping people navigate the still overly complicated procedural requirements of our system.
Focus on What We Do Best and Respect the Tech
Many in the legal profession fear that the onset of AI and other emerging technologies will encroach on the ability of lawyers to sustainably practice law or that we will all need to become technology experts to succeed in the future.
For that first fear, the antidote is to focus on those core roles that we as lawyers uniquely bring to our clients and price our services based on that value—going back to the future. These “right brain” qualities are going to dominate, as well-regarded writers like Daniel Pink and Geoff Colvin among many others have persuasively noted.
As to the second fear, there is no reason that we all need to know how to build or operate the technology to be successful. We just need to have a basic understanding of how we can effectively incorporate those tools into our practices.
As I have stated before, we also need to modernize the way we regulate the business of law and delivery of legal services to make it more realistic and practical for lawyers to collaborate with the people and entities that bring this technology and business expertise to the table.
All to say, we got this. Thanks as always for reading these musings, and please reach out with feedback or suggestions about these and other issues on the road back to the future and our promised land of a justice system that is fair and accessible for all. Happy holidays!