Past imperfect, future tense

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Is that a threat in your BlackBerry holster, or an opportunity?

Everyone knows a smartphone is more than just a way to call, surf, and play Angry Birds.

Still, the stunning advances in technology represented by these ubiquitous devices could turn the legal profession’s whole value proposition on its head, Slaw.ca founder Simon Fodden writes in a backgrounder prepared for the CBA Legal Futures Initiative.

But there are a few caveats: first of all, the profession has to see the need for a new value proposition; secondly, it has to learn to play well with others, and share some of its traditional ground with competitors – computers, as well as non-legal and para-legal professionals.

In his study of what Canadians are saying in social media about the future of legal practice, Fodden identified four vectors of change, three of which – globalization, the economy, technology – are external pressures on the profession. The fourth, conservatism, is a pressure from within to resist the course the other three seem to be demanding.

The past is an important touchstone for lawyers, says Fodden – laws are matters of history – and predictability is a desired trait. Plus the old ways of doing things have “rewarded them with power, prestige and fortune.”

To be fair, he adds, it’s not simply a matter of complacency – even legal professionals with a genuine desire to change are uncertain about the best course of action.

Other mitigating factors include the inertia that comes from having multiple jurisdictions without a strong national authority, compounded by the nature of a profession where every practitioner essentially has his or her own practice, “(making) it difficult to engender a useful, stable sense of community among lawyers in Canada.”

Reams have been written about the impact of globalization and the economy. But it’s the rapid-fire pace of development in the field of information technology that “is being marked as the disruptive force in the legal market.”

No one is saying a computer can replace a good lawyer, says Fodden. What they are saying is that machines can make us question what “good lawyering” means. Some of the work currently done by lawyers “may be done skilfully by those without full legal training, both with and without the aid of computers.” Clients know this and will demand this kind of work be done at the lowest appropriate cost, “which will in almost all cases mean not by a lawyer and certainly not by a lawyer using the billable hour.”

Some jobs currently done by lawyers can be done – and done better – by current software. Legal work will continue to be commoditized and routinized until “an irreducible core of ‘true’ legal work remains,” Fodden says.

And the path to that core can be seen as a threat or as an opportunity. Fodden argues for the latter.

“As we will see, creativity will be an essential characteristic of the successful lawyer and of the profession too, if it wishes to prosper. Despite the nostrum that necessity is the mother of invention, fear makes a lousy seedbed for creativity.”

New businesses such as My Legal Briefcase have already begun nibbling at the “bottom end” of the legal market, offering cheaper ways of carrying out routine tasks, but shouldn’t be ignored just because they’re picking off the low-hanging fruit. Fodden cites Clayton Christensen, author of The Innovator’s Dilemma, who points out that in other industries, innovators offering low-end technologies were able to bring more powerful competitors to their knees because they made themselves attractive to people who could afford them, and those people outnumbered the rich and sophisticated clients of the older companies. The start-ups prospered, grew – and improved.

Fodden ends by noting that the demands of the marketplace aren’t the only reason why the legal profession must adapt to changing times – social factors are also important. The profession needs to do more to include women and historically marginalized groups in its ranks, he says, because “any bias, structural or otherwise, against certain groups in society deprives the legal profession of a source of talent and imagination.”

“One of the reasons the commercial practice of law in Canada requires the profound re-examination argued for by the commentators has to do with its view of itself as ‘other’ (I will not say ‘more important’) than the rest of legal practice. By letting itself become infatuated with profit and power, it has forgotten its base” in social values, Fodden says.

May 21, 2013 |
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