The more-for-less challenge

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In a paper prepared for the research phase of the CBA’s Legal Futures Initiative, noted expert Richard Susskind explains that many general counsel say they’ve been told to reduce their legal budgets by 30 to 50 per cent, while at the same time they have more legal and compliance work to do. “This gives rise to what I call the ‘more for less’ challenge – a phenomenon that, I believe, will underpin and define the next decade of legal service.”

The challenge will not be limited to in-house counsel, but will “extend evenly across the economy and society,” Susskind continues.

“(T)he more-for-less challenge seems to call not for short-term tactical fixes but for longer-term, sustainable strategies that will enable affordable legal advice to be more widely available.”

This sets up the tension between those who would streamline existing models to create efficiencies, and those who would turn the existing models upside down and shake them, to see what useful things might fall out – and maybe recombine into something better. Market conditions were just one of the six primary issues Susskind identified as having an impact on the future of the legal profession, along with diminishing access to justice; alternative sourcing; information technology; the role of in-house lawyers; and legal education. And Susskind notes that his list is hardly exhaustive.

Just as there are many pressures to change, there are many ideas about how to respond to that change. Many of them involve streamlining existing processes, services and functions; some involve rethinking, even redefining those processes altogether.

The legal services industry may be in need of an overhaul in general – there are arguments on both sides – but as far as the current pressure to change is concerned, the impetus (and the obstinance) is largely a question of cost – who’s prepared to pay how much for what.

Rethinking the processes, Susskind admits, can mean making some hard decisions. “The key issue here,” he says in a section on dispute avoidance, for example, “is whether citizens’ and businesses’ needs might be met in new and different ways, even if these are alien and threatening to lawyers.”

Dispute avoidance, or preventative lawyering, and legal risk management, which can result in less court time and less overall legal angst for clients, are all underdeveloped legal fields in Canada, says Susskind.

“It cannot be denied – although nor should it be overstated – that lawyers themselves can be the direct cause of the escalation of disputes,” he says, noting that when lawyers charge by the hour, it is in their interests to prolong rather than pre-empt a dispute.

“When the incentives are changed, then lawyers can behave differently,” he adds. Changing the incentives would be an example of disruptive thinking. Changing the incentives so that everyone wins – clients feel they’re paying a reasonable amount for a quality service; lawyers feel they are adequately compensated for the service they provide – would be disruption without pain.

“Even if only one half of the developments anticipated come to pass, then these of themselves will result in remarkable transformation,” Susskind concludes.

“The perspective urged here is to assess the trends and developments not by reference to the ways of lawyers of the past, but an open-minded, innovative spirit, that encourages lawyers to embrace and welcome change rather than resist and deny its necessity.”

Are you embracing change or hanging on to the status quo?

June 3, 2013 |
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