The Future Ain’t What It Used to BeSeptember 29, 2016
By Bob Glaves | CBF Executive Director
The legendary Yogi Berra was the source of so many great quotes that they became the source for a whole book, and his quote about the future is a very fitting title for my concluding post in the legal future series I kicked off back in January.
When it comes to the legal profession and access to justice, the future surely does look a lot different than it would have even a few years ago, and that is largely a good thing. While many of us face new professional challenges today that were not present ten years ago, we all have promising opportunities that could fundamentally change access to justice for the better while making for a happier, healthier and more effective legal profession for many years to come.
Another sports legend, Wayne Gretzky, offers us great advice as we look out towards that future: skate to where the puck is going, not where the puck has been.
That is exactly what we need to do as lawyers, judges and other legal professionals. We already have a pretty good idea of where our puck is going, and we also have a number of trailblazers who are showing us how to get there. This isn’t like the Jetsons where we’re imagining some far away future, it’s the here and now, and we need to move posthaste beyond talking about it and join the few and proud who already are doing it.
Over the past eight months I’ve shared some of my thoughts about the roadmap to this future, and below are a few of the high points to frame an action plan:
As technology continues to make it possible for people to do more and more on their own, we need to rethink our roles as lawyers. There are several types of core value lawyers provide for clients that transcend all of the changes happening around us, including our roles as: distillers of knowledge; trusted advisors to properly diagnose a client’s legal issues and counsel them towards the best solutions; and advocates who guide clients through complex or emotional legal situations and proceedings.
By focusing on these core services that we provide for clients that technology or other solutions cannot replace, our services will become much more affordable, accessible and efficient for a lot more people and entities who need them.
Even for these areas where the role we play as lawyers is irreplaceable, technology increasingly is making it possible for us to do our work better and faster, and for our services to be more accessible to clients who need them. We need to fully embrace these advances and make technology an integral partner in our work. That goes for process improvement as well, which makes it possible for us to do our work more efficiently and effectively.
We might think of it as a hybrid approach, where lawyers provide services with much more robust assistance from technology and other professionals. A recent Wall Street Journal article noted the potential for this hybrid approach in the financial field, and the title said it all: Your next financial adviser might be a centaur not half-human, half-horse, but half-human, half-machine.
Homing in on the core value we provide as lawyers and using technology and process improvement to make those services more efficient, effective and accessible will be of great benefit to access to justice for clients at all income levels. For that to happen in the consumer and small business markets though, our pricing needs to align with the value we’re delivering to those clients, and the billable hour is a big problem there.
In most sectors of the economy, when the cost of production becomes cheaper and better, that translates into more affordable products or services at greater scale (i.e., they are available to more people). The steps I’ve described above make it possible for lawyers to do just that: deliver services much more efficiently and effectively so that those services are more affordable and more widely available to potential clients who aren’t getting the legal help they need today. But for the many areas of the consumer and small business markets where the billable hour remains the prevalent pricing mechanism, that is very difficult to accomplish due to the perverse disincentives it creates for efficiency and innovation.
While there is no one-size-fits-all solution, there are a variety of value-based approaches to pricing that are better for everyone. The billable hour, on the other hand, is a one size fits none approach in the consumer and small business markets, and the sooner we retire it the faster we’ll get to a better future for both access to justice and our profession.
Market-based solutions and better pricing approaches have the potential to transform access to justice for the millions of moderate income people who can afford to pay something for legal help. For low-income and disadvantaged people, we need to ensure that there is sufficient free legal help available as well, and we are falling woefully short on that front today.
As lawyers and legal professionals, our pro bono and financial contributions are one important way to help bridge this gap and they are needed more than ever. Closing this funding gap is ultimately a government responsibility though, as it is fundamental to making the justice system fair, accessible and efficient for everyone regardless of their income or circumstances. Our legal community needs to prioritize using our influence to make that case to our representatives at all levels of government in the same way that we already prioritize pro bono and giving. Government is falling far short of meeting its responsibility at all levels, and if we don’t take the lead in making this case, we cannot expect it to change.
A key corollary to making legal help more affordable and accessible is to make the courts and legal system more user-friendly and accessible for people who do not have lawyers.
We all should look at the court process from the first point of entry all the way to its conclusion and aftermath from the standpoint of the people who are using the system from the time someone gets served with papers or visits the court website to see how they can file a case, to the final order in a case and what happens to the parties after that point, and everything in between. This is almost completely within our power as lawyers and judges to simplify this process for the bread and butter cases in the system, and all of the other interventions to improve access to the system will be far more efficient and effective as a result.
As noted in last month’s post, the number one reason people aren’t connecting to lawyers is that they aren’t recognizing that they have a legal problem in the first place.
All of us should think more creatively about how we can better connect to the large numbers of people who have legal issues and don’t even recognize them.
For lawyers in private practice in particular, it also is really critical to understand that when people do recognize they have a legal problem, it is not always obvious to them what value a lawyer would bring to the situation or whether they can afford the services. All lawyers can think about ways to better explain the value they are delivering for their clients and potential clients, offer unbundled service options whenever possible, more clearly link their pricing to the value they are providing for clients, and make their pricing options more transparent and predictable.
As we take all of the steps above and technology continues to make new things possible, perhaps our most critical role as lawyers will be properly diagnosing legal issues that clients are facing and helping them identify the right level of assistance they will need to most effectively resolve them.
Knowledge management systems, client portals and algorithms all will be of great benefit in this process and should become an integral part of all law practices. In the end though, our diagnostic role is one of the most fundamental roles a good lawyer plays for clients, and it will become increasingly critical to serve as trusted advisors for clients as options for them to handle all or part of their issues on their own proliferate.
As we look to the future, let’s spend a lot less time looking back to what once was, no matter how good we may remember it to be through our rose-colored glasses. Instead, let’s focus on the many great opportunities looking ahead and how we can help make them a reality today, both in our own day-to-day work and throughout the profession and justice system. Because the future is now, and it brings us a tremendous opportunity to make a better legal profession and a fairer, more accessible and more efficient justice system for everyone.