“Time is Money” wrote Benjamin Franklin in a 1748 essay titled Advice to a Young Tradesman. Franklin was a polymath—scientist, statesman, publisher, inventor and diplomat. Is it coincidence that he was almost everything except an attorney? Lawyers have a different take on time than other industries. The legal profession uses it as a price gauge—more is better. Lawyers rationalize excessive time as ‘attention to detail’-- and justification for a larger bill. The profession rewards input (time/origination) over output (efficiency/results). This is the inverse of Franklin’s view that time is a precious commodity to be apportioned prudently. It is also contrary to business where rapid risk assessment and decisive decision-making is the norm.
How have lawyers preserved a culture and tempo so asynchronous to the clients—and society—they covenant to represent zealously, competently, and within the boundaries of the law? The legal profession seeded and assiduously cultivated an ethos of “lawyers and ’non-lawyers’” that became the cornerstone of lawyer exceptionalism. Law is provincial by design; each jurisdiction has its own practice rules designed to keep out ‘interlopers.’ The profession constructed regulatory barriers to ensure that ‘non-lawyers’ could not compete for what lawyers deemed ‘legal’ work. Law was insular and operated at a pace designed to accommodate a ‘scorched earth’ approach to all tasks, regardless of value. This served the economic model of the traditional law firm partnership model.
Law has operated as a guild for generations. It controlled membership, licensure, practice rules, regulation, delivery, supply, pricing, and terms of engagement. Lawyers dictated how, by whom, within what timeframes, and at what price their services were delivered. Their economic model was built on leverage, high rates, exorbitant billable hours, and no ‘outside’ competition. The judicial process also operated at its own languid pace. Judges were loath to rule from the bench or chastise counsel for dilatory practices. If justice delayed is justice denied, then the judiciary is out-of-synch with a world that demands rapid, binding, and efficient resolution of disputes.
Guild Becomes Industry
The global financial crisis, rapid technological advances, and globalization have transformed the buy/sell dynamic across multiple industries. Law has lagged others, but it is showing signs of accelerated transformation. Legal practice is shrinking as the business of law-- leveraging practice skills and delivering legal services more efficiently via tech, process, and ‘the right resource for the task’ is expanding. The legal profession is becoming subsumed by the legal industry. Legal practice is no longer synonymous with legal delivery, and lawyers are not the exclusive providers of legal services. New expertise, organizational structures, economic models, delivery options, tech-driven solutions, knowledge management systems, process and process management, and financing for customer-centric solutions are hastening the sunset of the legal guild. Not only is the cost of legal services coming under intense scrutiny (even as law firms continue to raise rates and incoming associate salaries), but also the speed and efficiency of legal delivery is increasingly held to business—not legal—standards.
Sometimes It’s Not Just a Matter of Price
Cost is generally the focus of consumer disaffection with lawyers. That is one of the principal causes of the access to justice crisis in the U.S. and many other nations. But there are other reasons why the legal industry has such a high level of consumer dissatisfaction. Legal buyers are also frustrated by legal delivery’s languid pace, unpredictable cost, artisanal approach to even routine tasks, reluctance to digitize, lack of responsiveness, one-dimensional expertise, law-centric approach to business challenges, and excruciatingly slow judicial process. Law’s delivery cycle and the remnants of its artisanal approach lag the Warp-speed of business, and that is one of many reasons investment in legal technology (IT applied to legal delivery), legal operations, and the migration of ‘legal work’ from law firms to in-house legal departments and ‘alternative legal service providers' (ALSP’s a/k/a law companies) has accelerated during the past decade. ALSP’s—and that includes the Big Four and other global inter-disciplinary professional service giants-- have a DNA and modus operandi that more closely resembles business than law.
The confluence of the global financial crisis, accelerated advances in technology, and globalization has caused legal buyers to reject several legal myths including: (1) all lawyer-defined ‘legal’ work must be performed by firm associates; (2) legal work is intrinsically distinct from other business challenges; (3) lawyers—not legal buyers—determine the value and delivery cycles of their work; and (4) legal expertise is the sole element of legal delivery— legal, technological, and process/project management expertise is required. The asymmetrical knowledge and expertise that enabled lawyers to control legal delivery has been replaced by technological, business, and legal acumen. Legal delivery is no longer the exclusive purview of lawyers. In-house legal providers, ALSP’s and providers that focus on ‘the business of law’ are using technology, process, inter-disciplinary expertise, project management, capital, performance metrics scale, and ‘the right resources for the task’ to better align the speed of legal delivery to the needs of business.
Companies like LegalZoom (LZ) deploy technology to expand legal access to millions of individuals as well as small and mid-sized companies. LZ provides consumers a range of service options running the gamut from chat bots, self-serve lawyer-vetted documents, ‘low-touch’ lawyer involvement (brief, low-cost consultations focused on specific questions), and full-blown engagements. Not only is access expanded and cost reduced, but also the speed of service is aligned to the contemporary world. Legal consumers no longer search for a lawyer, negotiate terms, await the results of a conflicts check, and sign a retention letter. That can now be done online in a matter of minutes. Likewise, answers are provided quickly. And while this process may not satisfy some legal purists, consider that Legal Zoom has a sky-high net promoter score that far eclipses large law firms.
Realigning Law and Business
What can legal professionals do to better align the pace of legal delivery with business? Technology is certainly a potent tool provided that: (1) it is designed and deployed to address material challenges in ways that benefit legal buyers and the public; (2) it is a ‘team sport’ that involves lawyers that provide the use case and application for its use, technologists to design it, users for whom it is ‘friendly,’ and end-users; (3) it is not regarded as a panacea but as a tool and means-to-an-end; and (4) that legal culture recognizes technologists—like lawyers, other professionals and paraprofessionals-- are all ‘legal professionals’ committed to collaborating with other human beings and machines to improve access to and quality of legal services.
Technology can accelerate speed, reduce cost, and mitigate risk of legal delivery in a legion of ways. Data filtering, review, and synthesis; ‘self-serve,’ just-in-time digital learning tools, chat bots, AI applications that enable real-time preparation and negotiation of contracts, research tools, SaaS platforms, block chain, and other applications are already transforming the speed and accessibility of legal delivery—and demystifying it. Technology will not replace lawyers but it will alter when, how, by whom, with whom, and at what price they are engaged.
The judicial process, like lawyers, has been slow to adopt technology. This too is changing as online dispute resolution services, virtual courtrooms, and other tech-driven dispute mechanisms are slowly reconfiguring a judicial process that is severely backlogged, slow, and out-of-synch with the pace of life in the Internet age. The court of public opinion, fueled by social media and its instantaneous global reach, is threatening to marginalize courts of law.
Technology is a tool for accelerating the speed of legal delivery, but its efficacy is dependent upon the relevance of its application, the willingness of providers to adopt it, and its benefit to legal buyers. Harnessing the potential of technology will require a cultural shift by the legal industry. It starts with reengineering legal education and training. Law schools must augment traditional doctrinal courses—training students to ‘think like a lawyer’ with ‘practical practice’ courses—client interaction, drafting contracts and pleadings, settlement negotiations, and other core skills. The curriculum must also expose students to the marketplace and the new skills it demands--project management, business basics, data analytics, and how technology is used to deliver legal services. These tools will enable legal professionals to work more efficiently and accelerate the delivery process.
Law schools—and their ABA accreditors—must take steps to reduce the crippling cost of legal education and compress programs to two years of ‘classroom’ courses and one devoted to experiential learning/legal residency. Flipped classrooms, self-help tools, and webinars will reduce cost and foster agile, just-in-time learning. Law schools would benefit students, themselves, the industry, and consumers were they to forge alliances with the marketplace and to teach the skills it demands. Fewer graduates will have traditional ‘practice’ careers, but there are expanding opportunities for ‘T-shaped’ legal professionals. The industry—and consumers—will benefit from a more diverse pool of legal professionals.
Some Practical Steps for Accelerating Legal Delivery
There are several practical steps that legal professionals can take to accelerate delivery. The list includes: plain language (no ‘legalese’), concise communication, responsiveness, answers instead of equivocations, proactive practices, risk assessment, the appropriate resource—human or machine—for the task, people skills, focus on net promoter score (NPS), not profit-per-partner(PPP), diversity in the broadest sense of the term, a holistic approach to problem solving, and meaningful performance/ delivery/customer satisfaction metrics. Legal professionals must collaborate, appreciate the speed of business, embrace process and project management, utilize technology, and view challenges from the client perspective, not a narrow lawyer’s lens. Delivery of legal services must be accelerated to mirror the speed of business--and life.
The legal industry has the tools to expand access and improve the delivery. The ‘profession’ will continue to provide differentiated legal knowledge, skills, expertise for matters that demand it. The industry--‘business of law’-- will be dominated by providers whose delivery capability responds to the pace and needs of business. Traditional delivery paradigms, notably law firms and corporate legal departments—many of whom still operate like law firms, not businesses—will either be reengineered or become marginalized by a new breed of ALSP that is culturally and operationally aligned with business. The recent ‘rebadging’ of hundreds of legal professionals from GE and DXC to UnitedLex, a global service provider, is evidence that some corporate departments recognize what matters is expertise and results, not pedigree and bluster.
The new face of legal delivery is emerging. It has a different profile than its predecessor, one that more closely resembles business than the legal guild it is replacing. Providers that consistently deliver services with speed, value, and results will dominate. As business knows, ‘time is money.’
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Articles by Mark are also published at Forbes and on his platform LegalMosaic.