What will it mean in the future to be a lawyer?
For an excellent, sweeping view of the future, read Richard Susskind’s The End of Lawyers?. On his website, Susskind asks “what elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality using different and new methods of working.” He answers
“that the market is unlikely to tolerate expensive lawyers for tasks that can be better discharged with support of modern systems and techniques [and that] the legal profession will be driven by two forces in the coming decade: by a market pull towards the commoditisation of legal services, and by the pervasive development and uptake of new and disruptive legal technologies.”
Two recent E-discovery (EDD) items instantiate the issues that Susskind discusses. My colleague Babs Deacon wrote a great Integreon blog post, Early Case Assessment – The Emperor Has No Clothes. She explains that early case assessment (ECA) is a process, not a software application, and a process that takes significant skill and thought. She notes
“If litigators are beginning to agree that e-discovery is really just part of discovery, then all litigators will have to have some level of comfort with e-discovery management — from Information Management at the far left of the EDRM framework through Presentation. No litigator, or even an attorney in another practice area, should be truly free from the responsibility of attaining basic competence in this area.”
She notes that comparatively few lawyers have the requisite skill. This means that lawyers (A) should learn more and (B) rely on professionals who know ECA. She continues “don’t sideline ESI attorneys as ‘nerds’ and push them off of the partner track — a fear I’ve heard articulated more than once from junior associates.” I too have heard this and seen how lawyers who branch out from skills beyond the most basic, core, traditional law practice are penalized, not praised.
Well-known EDD commentator Craig Ball comments similarly in Show No Fear – Lawyers need to — and can — learn the language of e-discovery (Law Tech News, 1 June 2010). Ball asks “How many times have you heard a lawyer tell a court that he or she doesn’t ‘understand computer stuff’?”. He acknowledges the challenge of learning how to understand digital data relative to paper but argues lawyers must do so.
I agree with Babs and Ball that lawyers should learn EDD. A handful of AmLaw 100 firms also agree, the ones that have e-discovery practice areas. Lawyers in these practices do understand the law as well as the bits and bytes.
The challenge with lawyers learning more about EDD, however, as I see it goes to skills, training, and perhaps most importantly, mindset. Lawyers learning EDD is not the only solution to the problem fortunately. As Susskind and other commentators point out, we are in age of unbundling and disaggregating legal services. Just because lawyers have been the putative masters of discovery in the past does not mean that must be true in the future.
Perhaps there is a better solution than lawyers learning EDD, especially if the following points are true:
- The mindset of those attracted to law school does not favor the skills and ability to handle EDD; these skills include technology, process, and quantitative analysis.
- Law schools have little interest interest in teaching EDD. Granted, there are signs of change but progress in the first decade of EDD has been glacial.
- BigLaw does not have the cultural or organizational mechanisms to evaluate much less truly value skill sets not taught in law school, at least as attended by the partners who now matter. If law firms continue to focus on rainmaking on the one hand and reading cases and writing briefs or transaction documents on the other hand, wither EDD?
Richard Susskind emphasizes the question mark in the title of his book; he recognizes lawyer will have a continuing role. The future role of lawyers, however, depends on what lawyers and the institutions training and supporting them choose to do today. In my view, individually and institutionally, with respect to EDD, they have until very recently put their heads in the sand. That may be fine; it just may mean the future scope of what lawyers do is that much further narrowed to its original, pre-20th century (much less 21st) conception.
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