The Affordability Action Plan

By Bob Glaves | CBF Executive Director

Over the course of the past several months, I’ve used this blog to discuss four big issues our legal profession needs to address to carry out my 2019 Resolution: to tackle our affordability problem for everyday people. The common denominator on these issues is that the solutions to making legal services more affordable and accessible to the middle class are almost entirely within our power as a profession and court system. 

To paraphrase a famous saying, we have met the enemy, and it is us. The following, interconnected action plan can help us defeat that enemy and strike a major blow for access to justice in the process.

1. Changing the Way We Do Business

The first prong of the action plan is rethinking what we are selling as lawyers and how we are selling it.

We are not selling our time, we are selling solutions to legal problems. The value we provide is in our counsel and advocacy to help clients achieve those solutions in a fair and efficient manner, and we need to market, price, and deliver our services accordingly.

That means ditching the billable hour for flexible, value-based pricing models that more fully draw on other resources and expertise. As Mark Cohen recently put it in a column in Forbes,

Legal delivery is no longer about high-priced firm lawyers billing countless hours to solve legal challenges. It’s about integrating necessary expertise and leveraging it with appropriate resources—technological and ‘right-sourced’ human ones—to solve personal and business challenges efficiently, cost-effectively, holistically, and measurably.

Turning this into an action plan, however, requires us to recognize that most lawyers never learned or were asked to learn about how to do these things. As Dan Linna at the Northwestern Pritzker School of Law aptly states, we need to train and support T-shaped lawyers, i.e., attorneys who bring familiarity with key business concepts like process improvement, project management, and data analytics to go along with their legal expertise. I would add behavioral economics, essential “soft skills” like empathy, and pricing to that “T” as well.

These T-shaped concepts should be a core part of the law school curriculum everywhere, and the Institute for the Future of Law Practice (IFLP) based here in Chicago is among those helping to do that. IFLP is expanding to a growing number of law schools, but we need to recognize that schools respond to the market. Along with increased pressure from future corporate and law firm employers, adding these concepts to the bar exam would make a statement that these skills are integral to the modern practice of law.

Law schools are only one part of the equation; we also need to help the much larger pool of practicing lawyers make this shift. The CBF Justice Entrepreneurs Project and bar programs like the Colorado Bar Association’s Modern Law Practice Initiative are helping lawyers to do just that. While there are many other green shoots in this area, as a profession we still are just scratching the surface of creating the necessary training and resource infrastructure to support the modern law practice for lawyers serving the consumer market.

We already have seen that the “if you build it, they will come” model does not work for these programs though. The legal market for middle-income people is diffuse and does not have the same built-in drivers towards this kind of efficiency and innovation as the corporate and pro bono/legal aid sectors of the market. That is where prong #2 of the action plan comes in.

2. Changing the Way We Regulate the Profession

Our professional regulatory structure is too insular and needs to be more flexible so that market forces can better drive efficiency and innovation (and ultimately affordability) in the consumer legal market.

While our Rules of Professional Conduct rightly focus on protecting the independence of lawyers in the practice of law, they are too restrictive when it comes to the business of law. Rather than helping lawyers responsibly connect to everyday people who may need legal help and can pay for it, these rules help to create a confusing and distorted market that is not serving any of the key stakeholders well—lawyers, the public, or the justice system. And it is people in need of legal help who ultimately suffer most.

Other professions like doctors and dentists who serve the consumer market have more flexibility in their choice of business model. These more flexible practice models allow them to more easily partner with other professionals and entities to provide marketing and business expertise, services, and scale. While most doctors and dentists still work in more traditional practice models, these other business models create more options and improve the overall market.

Along with giving lawyers new practice options, modernizing our Rules of Professional Conduct to allow new business models and more competition will similarly improve the legal market for everyone, lawyers and clients alike. It is an absolutely essential prong in the affordability action plan.

3. Changing the Way Our Court System Operates

I laid out the action plan for the courts to simplify, streamline, and increase flexibility in our overly complex system in last month’s post. The unduly complicated court process adds many unnecessary layers of legal work that increase costs, and this problem is compounded by a system that is too often inflexible and stuck in the past.

Lawyers can only go so far on their own to making services more affordable and accessible, and this issue needs to be a priority from the top down at all levels of the courts as well as in the organized bar.

4. Getting Technology Right

The final part of the action plan is addressing the issue that permeates all the other prongs in the plan: the role of technology. While it too often is oversold as a solution on its own, technology is an integral part of making legal services more affordable and accessible.

The key is getting it right. That starts with understanding the first prong of this action plan: the unique value lawyers bring to people facing legal issues and what access to justice means to them. 

Technology can’t replace the uniquely human part of our services as lawyers when significant issues are at stake, but it can make those services more efficient, flexible, and accessible. And for simpler and lower-stakes issues where efficient resolution of a dispute is the most important goal, technology can be a great solution on its own. The same point applies for the courts.

The key is knowing the difference, and there are not always going to be bright lines. It is incumbent for us to challenge ourselves as a profession to help clients understand where those lines are, and then incorporate technology in the appropriate ways.

For these reasons, the framework for assessing where technology fits in I laid out earlier this year is the critical final prong of the affordability action plan.

Onward and upward

All of us in the legal profession have a role and a responsibility to make legal services more affordable and accessible to everyday people. If there is one thing we know though, it is that this is not going to happen on its own.