Jersey & Guernsey Law Review – February 2009

The End of Lawyers? by Richard Susskind. Oxford: Oxford University Press. 2008. ISBN 978-0-19-954172-0

1       This is not a title to which the editor of a legal journal would naturally respond with enthusiasm. But Richard Susskind has never been afraid to confront legal orthodoxy, and his latest book is as challenging to the mindset of the legal profession as any of his previous publications. And he is not a mere iconoclast. Professor Susskind has an impressive pedigree. Since 1998 he has been IT Adviser to the Lord Chief Justice of England and Wales and, if one is permitted to say so in the same breath, Consultant to the Jersey Legal Information Board. He is an Emeritus Professor of Law at Gresham College, London, and was chairman of the Advisory Panel on Public Sector Information between 2003 and 2008. He was one of the consultants to Lord Justice Auld whose magisterial Review of the Criminal Courts of England and Wales was published in September 2001. His views are entitled to respect, even if one does not necessarily agree with all of them.

2       Susskind’s general thesis is that the practice of law is going to change dramatically during the next decade or two whether lawyers like it or not. The uptake and development of information technology, and market forces will present challenges for lawyers which they have never before had to face. The comfortable assumption that there will always be a need for lawyers, and even for an increasing number of them, is but an illusion. This does not always make for comfortable reading, particularly if you are a lawyer. In Jersey and Guernsey, where the number of advocates and écrivains seems to rise in an exponential curve, it gives pause for thought. This is, however, not an entirely negative assessment of the future. There is hope, but not much for the dinosaurs. The challenge will be to deliver legal services more quickly, cheaply, efficiently, and to a higher quality. Why?, the dinosaurs might ask. Lawyers have never been particularly popular. As Shakespeare’s Dick the Butcher put it to the rebel Jack Cade, “The first thing we do, let’s kill all the lawyers”. [1] Indeed dissatisfaction with lawyers has an even older tradition. St Luke writes “Woe unto you, lawyers! for ye have taken away the key of knowledge”. [2] After centuries of hostility, why should the legal profession not be able to ride out the IT evolution ?

3       Susskind begins by expressing four musings. (1) Could lawyers fade from society just as salters, mercers, wheelwrights and other leading craftsmen of the Middle Ages faded when their skills were superceded? (2) Lawyers, he writes, seem increasingly to deny their existence, and to down play the fact that they are lawyers. They form trust companies, and engage in the management of wealth. Even judges are becoming case managers. (3) Which law firms, or law schools, are planning for the future? No-one looks beyond the term of office of the managing partner, or worries about the fate of the next generation of lawyers. (4) Increasingly people talk about the delivery of legal services by others, high street banks and supermarkets, for example. The delivery of legal services would be a very different business if financed and managed by non-lawyers.

4       The author develops his points under six chapter headings; the path to commoditisation, trends in technology, disruptive legal technologies, the future for in-house lawyers, resolving and avoiding disputes, and access to law and justice.

5       “Commoditisation”, i.e. the packaging and ultimately the delegation of routine legal work to non-lawyers has already begun. Standard form documents, templates, and precedents are garnered and stored on IT systems. They can be used at first by legal assistants and clerks within the firm, but then they are used directly by clients, usually across the Internet. Later “commoditised” legal products can be sold just like sacks of sugar or barrels of oil. Amongst the recent trends in technology, Susskind notes the blog and the wiki. Legal blogging came of age in 2006 when a conference at Harvard Law School was devoted to “bloggership”. Young academics no longer have to wait months or years for their ideas to be ventilated in a legal journal. Now they can put them on a blog. Some blogs are now being syndicated and grouped on Intranets. The wiki [3] is best known by reference to the Wikipedia, the free on-line encyclopedia that anyone can edit. Legal wikis open the door to knowledge sharing, particularly amongst students, or as part of a legal information scheme for the public. Alarmingly, they could also be used by clients.

6       The author takes his theme on disruptive legal technologies from the (occasionally fatal) failure of some good, large companies to recognize the innovations that fundamentally transform products and ways of doing business and to embrace them. What are potentially disruptive legal technologies for lawyers? Susskind cites, inter alia, automated document assembly systems which can greatly reduce the time spent by lawyers (and therefore the chargeable hours) on drafting and producing documents. They already exist for leases and employment contracts, for example. He cites what he describes as “relentless connectivity”, or the inability wholly to escape from clients, supervisors or colleagues unless one switches off the machine. But if you have switched off, perhaps your competitor has not. E-learning, on-line legal guidance, legal open-sourcing, and workflow and project management will be the new challenges. The hourly billing model, which rewards slow and inefficient firms, is disappearing in parts of the USA.

7       The future for in-house lawyers enables Susskind to examine some of the basic attitudes of lawyers in law firms. It is rare that the cost consciousness of the client is matched by that of the legal adviser. There is an enduring tension between the desire of the client to see the job done quickly and painlessly, and the hope of the lawyer that some really juicy piece of complicated work is in prospect. Large companies are increasingly prone to seek to reduce spending on external legal fees. The American firm Cisco now gets more than 75% of its legal advice on a fixed fee basis. Even its commercial litigation is conducted for a fixed annual fee. Knowledge sharing has been one result of the drive for greater efficiency from some powerful clients. In 2003 the major banks persuaded five leading law firms to join in pooling their insights on new legislation, recent court decisions etc, on a new website available to the banks, rather than having to cope with a deluge of separate client briefings.

8       In the final chapters on dispute resolution and access to law and justice, Susskind laments the failure of the UK government to invest adequately in IT for the courts and the judiciary but, ultimately, for the public. Video conferencing, computer aided transcription, electronic presentation of evidence, electronic filing, and many other courtroom technologies which enhance the efficiency of the courts and improve the delivery of justice are there, but not used to anything like the same extent as in some other countries. In Jersey, I fear, the same complaint can be made. The author writes interestingly of ADR, Online Dispute Resolution (ODR) and of dispute avoidance. I shall leave his prognosis for the future of lawyers to those who buy this stimulating and fascinating book, for it is an investment which will pay handsome dividends.

9       When I took up the office of Bailiff in 1995 there was no Internet and personal computers were still in their relative infancy. No-one communicated by email, and the Blackberry was still only a summer fruit. My far-sighted Greffier, Michael Wilkins, persuaded me to place a PC on my desk and, eventually, to use it. In 1998 we created the Jersey Legal Information Board, and its website [4] was launched in 1999. During my term of office we have lived through a technological revolution. Susskind’s general point is that the revolution is not over, that exponential change is just around the corner, and that lawyers and the legal profession must keep up. The Channel Islands would do well to heed the warning.

Sir Philip Bailhache has been the Bailiff of Jersey since 1995. He has chaired the Jersey Legal Information Board since its inception in 1998, and has been the editor of this Review since its foundation in 1997.