JILT 1997 (2) - Bill Onwusah
The Investment Conundrum
Keywords: Opinion formers, European Law/IT, Information Technology, Survival, Competition, Woolf Report, Feminisation, Deskilling, Process Reengineering, Case Management, Profits.
|3.||What lawyers really think of IT
|4.||Why invest in IT?
|5.||Competition between firms
|5.2||Structural blocks on investment
|5.4||Who is the investment for?
|5.5||Position within the market
|5.6||Who's in control?
|6.1||A European approach
|6.2||Things must change
|6.5||Woolf at the door
|6.6||No room for the loner
This is a Commentary article published on 30 June 1997.
Citation: Onwusah B, 'The Investment Conundrum', Commentary, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/ITpract/97_2onwu/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/onwusah/>
This article argues that there is a looming crisis in the law that will lead to a shakeout in the profession. This crisis will mean that lawyers will be forced to invest in information technology (IT), in order to survive into the next century. It looks firstly at the history of IT investment in the legal profession along with lawyers' perceptions of the importance of IT. I then propose to examine the potential effect of competition on the profession, together with the way the partnership model of management imposes cultural barriers that prevent investment. Finally, it analyses the degree to which the skills base of the workforce will determine the nature and composition of the legal profession in the future.
I have tried to avoid rehashing the usual texts and have instead opted to reflect comments and responses from legal practitioners themselves. These include regular questionnaires undertaken by outside organisations, such as accountants Robson Rhodes, along with annual figures and reports collated by the Law Society.
The law is a growth industry, but there are signs that the law is no longer the cash cow that it once was for all lawyers. By July 1996, there was an increase of 5.1 per cent in the numbers of lawyers on the roll of the Law Society, the controlling body of the law profession (Report 1996). This figure, however, masks the underlying problem of uneven distribution of profits. For sole practitioners, the average profit per equity partner was £46,000 but, significantly, 25 per cent of sole practitioners made a profit of £21,000 or less (Report 1996). The larger the firm, the more profit is earned. For 5-10 partner and 11-25 partner firms, the average profits were £66,000 and £88,000 respectively. Smaller firms, however, make up the bulk of the industry (80 per cent) (Chambers 1991).
These figures appear to highlight the nature of the problem which is that lawyers are under pressure to tender for work at lower rates than in the past, or have new, lower, rates forced on them by clients. The way to survive is to invest, but many smaller firms are struggling just to survive, and it would appear that the money is simply not available to pay for the necessary investment in IT.
The twin problems of size and investment are highlighted when two of the major reports on the subject are examined. According to the Law Society's Report (Report 1996), 80 per cent of all lawyers have a PC on their desk. This is supported by Robson Rhodes' figure of 74 per cent of all fee earners (Rhodes 1996). The report also highlights the fact that amongst smaller firms (10 partners or less), more than one third do not provide fee earners with workstations. In addition, spending on hardware and networks had fallen by 50 per cent against the previous year. Larger firms, however, continue to invest heavily in their hardware infrastructure. The lack of investment by smaller firms is, potentially, storing up problems for the future.
The responses above should be treated with some caution because the term 'PC' has become a catch-all phrase for all types of computer. Consequently, the respondents may well be including dumb-terminals, providing accounts information, as PCs. As the Robson Rhodes report found, the main use of computers by fee earners is to access practice management information (43 per cent) and internal e-mail (27 per cent).
Lawyers have, in the past, been more enthusiastic about computerising back-office functions such as accounts than have other professions, but these moves do not directly affect lawyers, as they are seen to be part of the office infrastructure. Where lawyers are directly involved in front of office functions such as word processing and case management systems, they have been far more backward in their use of front-office IT. 90 per cent of all firms have a Client/Matter database but only 43 per cent use internal e-mail.
The annual Robson Rhodes survey has charted the progression over the past seven years of the 'one per desk' policy. The growth in PC use disguises the fact that although the computer may be on their desk, lawyers are just as prone to 'corporate jewellery' as any other group, and they may not actually be using it. The sale of software 'suites' also clouds the usage issue. Many lawyers have the Microsoft Office suite, but this does not mean that they use all the components of the package. Brennall in his BILETA paper (Brennells 1997) tells the story of the legal practice where use by partners increased dramatically when the menu for their dining room was put on the system.
One of the few studies to ask lawyers at length what they think about IT, was prepared by the Law Society in 1995. (Solicitors Attitudes to IT 1995) If the study had a flaw, it would be that the interviews for the study were based solely in the leafy Richmond area of Surrey. This area was chosen primarily because there is a comparatively large number of solicitors in the area, and on the grounds of cost. The study did have the advantage of in depth research, as each respondent was interviewed for at least 1½ hours.
The results echoed my own feelings that when looking at lawyers, it is also necessary to consider lawyers not as one amorphous mass but as a stratified group, based on turnover, number of branches, number of fee earners or number of staff. A typical response from the smaller firms was
'I don't think anybody is saying IT's a bad thing and we want to kick it out the window. The trouble is... it's another 'us and them' divide between the firms that are fully integrated, scanning in their documents and having everything on the computer [and smaller firms].'
A positive finding of the survey was that many people were uncertain of the advantages of IT, but they still expect their use of IT to grow. Likewise, its inevitability was not accepted with widespread acclaim. The suggested reason for this reticence was that the perceived advantages of IT were vague but the costs and inconvenience as a result from investment were tangible, immediate and up-front.
The view that computerisation of small firms was not necessarily seen as a good thing could provide one explanation for the current fall in investment in IT by small firms. The result was that they also realised that there was no point in introducing IT without a change in working practices to make the most from the investment.
A telling point revealing underlying marketing problems, was that when looking at the positive side of IT no respondent suggested that it was advantageous to the client. The advantages always accrued to the lawyers (such as improved profitability) and the client was not considered to be a relevant part of the equation. In fact, one respondent who did mention the clients suggested that the move of small firms to computerisation was a negative one because it would actually reduce the quality of service to the client (Rhodes 1996).
IT must take into account human nature. Respondents suggested that whether or not people were happy working with a computer directly on their desks often depended on their personal attitudes and working style.
The cost of introducing IT was seen to be a major hurdle. The respondents accepted that the investment could be justified if there were clear benefits, but as we have seen, many firms are short of money and cannot afford to invest large amounts, even if there are obvious benefits. A related factor was that, even if the system itself were not expensive, training and management time could impose significant costs.
In the light of the perceived lack of IT knowledge expressed by many people in the study, they also showed a marked cynicism when it came to advice provided by outside consultants. Their main criticisms levelled at the consultants were that they did not understand how lawyers work, were too expensive and used too much jargon.
Surprisingly, considering that the law is a service industry, when we look at reasons for investment in IT the reasons for investment given by lawyers are entirely self-serving - not client led, as would be expected. According to Robson Rhodes, of the five main reasons for investing in IT, the primary reason given is the need to improve financial and management information. The four next most popular reasons are client-based, such as the need to reduce overheads or to react to clients' demands for quality of service.
Firms feel that they are being forced to invest in IT as a purely protective measure. Lawyers have looked over the garden wall at accountants and have realised that all is not well. An unwelcome recent development is that an increasing number of high profile accountantcy firms are now being sued by former clients on the grounds of of allegedly incorrect advice. Already a number of law firms have been sued on the same grounds, and other firms are taking precautions.
Lawyers have realised that, like accountants, they are in the business of selling advice to their clients. Consequently, many law firms invest heavily in library systems that assist them to fulfil this function but, more importantly, the systems allow the lawyers to provide accurate and up to date information to their clients to minimise the possibility of a negligence suit.
Lawyers invest time, and therefore money, in legal research, but in many firms this knowledge is wasted as the same research is repeatedly undertaken for other clients. Storing this knowledge and making it available throughout the firm has a two-fold advantage. The wheel is not being continually reinvented and, secondly, training costs can be dramatically curtailed because the knowledge of how to perform a particular function can be passed onto other colleagues.
The comparison with accountants is not flattering. Research on 100 law firms conducted by Warwick Business School (Reed-Jones 1997) estimated that law firms are up to 15 years behind their accountancy rivals in the deployment of IT. Although the survey was based on responses from law firms nationwide, the majority of firms surveyed were single office practices. The findings emphasise the difficulties small firms have with implementing IT.
There will always be a process of technological leapfrog as a result of competition between firms, showing the classic lifecycle of a new product. The innovators will be the first in the market, paying a premium for the product. They are followed some time later by the mass market and, lastly, by the laggards as the market is saturated. However, by this time, the innovators will have moved onto something new. For example, a product life cycle that is still in play involves the move from DOS to Windows, from Windows 3.1 and Windows 3.11 to Windows 95. Windows 95 or Windows NT represents the next target for the innovators. Ultimately, there will always be a levelling-out of investment in certain areas such as IT until something new comes along and innovative firms will attempt to move away again, to try and differentiate themselves from the pack.
Accustomed to competition from other lawyers, the legal profession now finds that competition is now coming from other professions. Accountants Arthur Andersen began the trend three years ago, followed by Price Waterhouse, by having an 'attached' firm of solicitors that looked after their clients' legal matters rather than go to an external firm as they did before. Coopers and Lybrand have, similarly, announced plans to acquire a medium-sized legal practice later this year (Coopers 1997). As it is, accountants already compete with lawyers in areas such as tax and insolvency. It now seems that not only do legal firms have to emulate the success of the accountants, but some firms may find themselves competing head to head with them as well.
Lawyers are hostages to their clients and there is a perennial battle to win them and keep them from changing firms. IT is just one of the weapons in the war. In the past lawyers were supreme, being able to dictate their own terms to the client, who was not in a position to refuse. In the cold wind of competition the lawyer is no longer so dominant.
In today's market place, there is always a firm willing to take on another lawyer's caseload. The client's perception of 'value' is driving the move away from the traditional cost-plus basis of billing to a perceived value for that service, which produces a cost protocol, based on what the client thinks that their lawyers should be charging to perform a particular task. Unfortunately, for the lawyer at least, the clients' perception of a fair price is almost certainly less than the lawyers would like to charge for that service. Larger clients, in particular, retain the upper hand because of the volume of work that they can generate. This means that the lawyers can generally comply with the protocol but only at the expense of a much reduced profit margin.
Lawyers realise that to return to the previous profit margin something must be cut, hence the investment in IT together with a consequent fall in labour costs and expected improvement in volume. The resulting infrastructure allows firms to employ less qualified, and therefore cheaper, staff to run the cases. Fewer secretarial staff are necessary to support fee earners and a greater throughput can be achieved, all of which contribute to a lower cost base, allowing the practice to comply with the client's protocol.
Superficially at least, as we have seen there has been an increase in investment in technology and firms have benefited from its introduction. The word processor is now king in an area dominated by the manual typewriter for so long. The Robson Rhodes report found that 99 per cent (Coopers 1997) of all respondents were now using word processing. This can be compared with a figure of 75 per cent (Chambers 1991) of all firms in 1991. Due to the document-centric nature of legal documents, it is surprising how long it has taken the law to embrace the word processor over the manual typewriter.
The reluctance of lawyers to invest in IT may be due to two reasons. The first is the rigidly stratified nature of the law office, with equity partners at the top of the pyramid and secretaries at the bottom. Secondly, the of 'us and them' culture, whereby investment in 'them' is kept to a minimum.
Traditionally, lawyers dictated their documents onto tape or secretaries took shorthand and it was felt that a PC was unnecessary. The only hardware seen by a lawyer was a Dictaphone. It is only as a result of the changing ratio between secretaries and lawyers and the introduction of the word processor that lawyers have had to be able to type.
The fact that there is a direct relationship between what partners draw from the firm and the level of overhead, acts as a brake on investment. Investment in IT is not a cheap option but when a partner knows that it will directly affect the amount they are taking home it is easy to take a short-term view and reject further investment. This aspect of 'self-reflecting investment' is inherently dangerous; creating a climate for internal tensions which are endanger for survival.
The only other group that seems to be comparable with lawyers are accountants, who have been major investors in IT for many years. This may well be due to the fact that the accountancy profession is dominated by the 'big 6' firms who control the lion's share of work. In the accountancy sector, there is also a predominance of American companies who import American business culture into a British business culture.
By comparison, the legal profession is almost parochial, being dominated by a few multinational firms who are still British in their approach and practice. It is easy to get a skewed view of the law by looking at the top 30 companies who are investing heavily in technology and are not representative; the majority of lawyers are either sole practitioners or in small partnerships.
A potential answer to the problem of under-investment is to change the structure that causes the problems: the partnership. To a certain extent this problem has been realised and the Law Society has liberalised the partnership structure to allow legal practice to become multidisciplinary, permitting other professionals, such as accountants, to become partners. This should, in theory, provide the impetus to push the practice into investment in IT to take lawyers into the next century. I remain to be convinced.
In the long-term it is in the interests of a partnership to make any investment that will lead to an increase in profits. Attitudes may well be different where the view of investment is from a micro rather than a macro point of view. From a macro viewpoint, in a firm of 100 fee earners who charge £50 per hour a saving of five minutes per day over a 48 week year represents a saving (or extra billing) of £100,000 per year. At a micro level, all the fee earner sees is another five minutes per day gained by the partnership, with more pressure to bill the time saved.
The pressures on lawyers put them in an invidious position. Lawyers in a department that is going to computerise its processes are not in the best position to object to the move. Similarly, it is likely that secretaries will feel threatened by the move, fearing that their jobs may be in jeopardy. In reality, if the investment goes well, the result may well be the opposite. The aim of investment in IT is to increase the number of cases being dealt with by the same number of people in a more efficient way. Workload is likely to change, with secretaries doing more varied, non-standard work replacing the repetitive processes that they formerly performed.
American business culture is starting to make inroads into the larger legal firms and this management philosophy will determine the future direction to be taken with the help of IT. IT can lead to a fall in overheads which can be realised by taking higher profits or lower rates. An alternative approach is to reposition a firm in the market place. IT could be used as a way of demarcating a firm so that it looks less like other firms and develops as a niche practice. Market segmentation allows a firm to charge more rather than less, and reap the benefits of investment.
In comparison to other white-collar workers, the professions have been remarkably free of management controls from above and have been symbolised by the freedom that they have enjoyed as part of their work patterns. The freedom to organise their own workload is disappearing as more controls are exerted over lawyers by higher levels of management. Case management software makes management more aware of what work is being done, by whom and when.
There is also another level of control or supervision much closer to the operator, which is exerted at the machine level. Most large firms now have a network to link together all of their workers. It has always been possible to monitor what is happening on a network in terms of who is logging on and the files that they are working on. Supervision is now becoming more pervasive and possibly invasive as remote control software such as Landesk is used more frequently. Using Landesk it is theoretically possible to take over and run a user's PC, even from another continent. Other software, such as Win What Where, records activity in such detail that it is possible to measure the number of keystrokes, total distance of mouse travel and number of mouse clicks of any user.
Taken to the worst extremes, allied with Organisation and Management methodology, it is feasible to work out who are the more efficient workers in an organisation with possible 'Big Brother' overtones. Little, if any, analysis has been conducted into how the professions react to technology, and, in particular, whether professionals make good users of IT In one way, lawyers are being empowered as they now have control of their own typing but the overall organisational structure and philosophy still keeps them in their place.
To date, investment in IT has played a supporting role in areas such as libraries or accounts, which could be hidden away in the bowels of the building. IT was rarely seen on a desktop. This is now changing as more firms are embracing the concept of 'one per desk'. Lawyers now have power on their own desks, but what use are they making of all this power? To make effective use of IT existing processes should not be mirrored but improved upon. Current work practices are still mirroring their paper-based origins. To use IT investment properly it is necessary to take a step back, consider how existing practices work and whether existing practices can be improved. But how do we define improvement? Initially and superficially, this can be gauged by an increased throughput of cases leading to lower overheads. A long-term approach should be different. In particular, the question should be asked 'Is it possible to do the same job in a different but more efficient way?'
Neil Cameron at the Society for Computers and Law and Case Management Conference (Case Management I 1996) looked at the history of case management from its roots in debt collection, conveyancing, mortgage repossession, personal injury and medical negligence. He concluded that lawyers expect a lot from case management software and many advantages are expected to accrue from its introduction.
It should be possible to provide reports for clients detailing who is working on a case, what they are doing and how much the whole process is going to cost. The client also needs to know what stage a case has reached in the legal process.
Case management software improves lawyers' supervisory functions within the firm. It should be easier for the supervising partner to scrutinise any fee earner's work. In the case of illness or holiday the supervising partner can reallocate individual tasks, or the whole matter, to another person in the department.
The software allows management functions to be accomplished before a problem actually arises. It provides management with an overview permitting them to keep a check on the volume of casework undertaken by any particular fee earner so that they can anticipate if a fee earner has too many cases, some of which can then be reallocated to others.
At the same conference, Brian Capstick, Senior Partner of Capstick & Co., claimed that his firm's 20 per cent (Case Management I 1996) compound annual growth is attributable to his own case management system installed in 1982. His firm has been particularly successful in the field of medical negligence and Capstick said that a firm should establish excellence 'through what you do well. Firms can claim to be providers of good service, to have the largest department of specialists or simply to be the cheapest.' Capstick's chose to undertake research in relevant areas and identify means by which errors could be reduced by changing processes.
A further speaker, Nicholas McFarlane-Watts, another proponent of case management, claimed that the software was 'a panacea for the legal profession' and stressed the importance of using valuable information for the benefit of all fee-earners.
Whitfield-Jones, J.M. Jaffe and Professor S. Mayson (Whitfield-Jones 1996)examined the idea of process engineering in the law and came to the conclusions that law firms must redesign the way in which they market their services, service their clients and manage and administer their practices. To do this lawyers must re-engineer what they do, so that they provide exactly what the clients want, which is not necessarily what they have provided in the past.
Lawyers must reinvent what they are selling to their clients. They must now appreciate that they are selling their knowledge and they must organise this knowledge in a way that it becomes marketable to a potential client. To do this lawyers must focus their initiatives externally and focus on their clients and their clients' needs.
As stated earlier, to date IT has been used primarily to speed processes up rather than to improve them. An example of improvement used by Whitfield-Jones, J.M. Jaffe and Professor S. Mayson (Whitfield-Jones 1996) is a document assembly program called HotDocs. HotDocs replaces a highly labour-intensive process and puts in its place a value-added product, whilst at the same time reducing turnaround time; thereby producing a higher quality product at lower cost to the client.
In spite of the increased number of PCs being used, training in the use of computers is woefully inadequate. On average, less than half a day's training per partner per year was provided by firms in 1995. In larger firms (6-10 partners), 25 per cent averaged more than 2 days training. The figures for fee-earners are similar to those for partners. Secretaries received around 1½ days training per year, rising to 3-4 days in two-thirds of those firms with 100+ Partners (Rhodes 1996).
It is a false economy to skimp on training for employees. Lack of training means that the firm will not realise the best from their expensive investment in IT Also, as responsibility is devolved to employees further down the chain of command, they are doing more involved and varied work where the likelihood of something going wrong is greater, as there are fewer precedents to act as a guide.
The EC has also been investigating how law is practised in Europe and how it can be improved. A study is currently being undertaken via the Coolfin Partnership based in Ireland. Its initial, but as yet unpublished, final report (Onwusah 1996) concluded that the majority (70 per cent) of all work, could actually be performed by non-legal staff and lawyers should concentrate on performing 'legal' work. The other finding was that of all industrial and professional sectors the legal profession has fewer common standards than any other business classification and produces documents in the most inefficient way possible.
Coolfin felt that the signs that the current systems were not working was further reinforced by a 2,700 per cent rise in the Legal Indemnity Fund since 1976 and by the fact that the Solicitors Complaints Bureau receives over 4,500 complaints per year and costing £9m per year. Coolfin blames these problems primarily on a lack of administrative or practice management software to control caseloads, diaries and court dates. They are firmly of the belief that process re-engineering is necessary to improve practice methods and are in the process of recommending changes, including the breaking down of the demarcation between front- and back-office communications and the introduction of a hardware standard to permit this goal to be achieved.
Interestingly, Coolfin also believe that the legal profession is not solely at fault. It feels that suppliers to the profession are also partly to blame because they promote of hardware and software standards that keep the market fragmented by preventing access to data using different software or hardware.
Process re-engineering has important implications for the future structure of the typical law firm. The traditional structure places the equity partner at the top of the power pyramid, followed by salaried partners, senior solicitors, solicitors, paralegals, secretaries, and support staff. The new structure would be smaller -as fewer lawyers would be needed - and the distance from top to bottom would be shorter. The new structure would be staffed by highly motivated and legally expert partners, supported by IT and paralegal staff (Susskind 1996).
We must also remember that the reluctance to invest in IT is not a problem confined to the legal profession. It is an attitude that is prevalent within British industry as a whole. IT symbolises an ideological or even cultural barrier to British industry. In the U.K., or even elsewhere in Europe, spending on IT is not regarded as an investment but as a drain on resources and should therefore, be minimised as much as possible. To quote Jean Marie Descarpentries (chairman and CEO of France's Groupe Bull), speaking at European Symposium/ITxpo '96
'All my professional life, I received a bonus for decreasing IT costs.' (Borzo 1996)
The above symposium was looking at 'Intranets', i.e. ways of examining and using the internal knowledge of a company. Such initiatives have parallels with the direction in which many legal firms are also trying to move. Gerhard Schulmeyer (President and CEO of Germany's Siemens Nixdorf Information's Systeme AG) said:
'Technology-wise, we have everything it takes. We have to do more to encourage our European users. If we accept that we are a knowledge-based business, we have to connect our brains.' (Borzo 1996)
In the past, a lawyer was expected to have a broad knowledge of the law but the volume of legal material being produced today means that this is no longer possible (Webb 1996). This realisation has led to a change in emphasis in training from a broad based education to a skills based training. To reflect the changes in real legal practice, IT should simply be another skill to be learnt.
A major consequence of IT is that jobs which previously required highly skilled and expensive employees are now being de-skilled and can therefore be performed by less-qualified employees.
If KD Hughes (Hughes 1996) is to be believed, one of the major consequences in the law will be a marked move towards 'feminisation' of the workforce. Hughes examined the concept of 'feminisation' of white-collar jobs. He believed that in industries that became more computerised, there was also a shift to replacing the male-dominated workforce with women. This happened because women were more at home with the new technologies than the men they replaced. If this is true, it could have major consequences in the law. At present secretaries, who are still predominantly female, make up the bulk of non-lawyer support staff and will perform a wider, more varied role as a result of technology and therefore benefit from the investment in IT As a result of the de-skilling of lawyers and retraining of support staff, secretaries and legal executives and paralegals will take over roles currently performed by lawyers.
The current trend of admission to the law shows that women make up an increasing proportion of newly-qualified lawyers. At present, 69 per cent of solicitors with practising certificates are men, but of recently qualified lawyers (admitted less than 9 years) 70 per cent are women. (Report 1996)
In the long-term it would seem that should current trends continue, there will be pressure on men from the top and bottom of the profession. More qualified female lawyers combined with the process of de-skilling and feminisation of jobs, will lead to a female dominated profession.
The de-skilling of law is a major dispiriting aspect of IT investment. The professions as a whole have regarded themselves as being immune to the de-skilling that has been happening within industry generally.
Certain areas of the law lend themselves to the de-skilling process more than others. Areas that are prime targets for IT are those that are highly process-based and can be broken down into discrete processes, which can then be handled by case management software. This is leading to a schism within the law itself, where the lawyers who undertake 'high-profit, low-volume' work look down their noses at those lawyers who work on the high-volume low-profit cases, and regard them as not practising 'real law'. These people believe that the work they do is so unique, non-routine and high value-added that new technology is of no help to them.
This is not to say that other areas of law cannot benefit from computerisation, but there will be a difference in application. On the larger cases, technology is more of an aid to help speed up processes and sort information, but even these types of cases can benefit from case management to organise cases and workload, to improve management performance within a department, and as part of a firm-wide reorganisation of methodology.
The main aim of the Woolf Report, published in July 1996, (Woolf 1996) was to increase the efficiency of the law profession and streamline many of the routes to and within the law. The report provides the potential for one of the greatest shake-ups the law has seen for many years. One of the major planks of the report was the use of technology, both at lawyer and court level, to speed up the processes of law. The report recommended the wholesale use of different technologies both in the courts and in legal practice including case management software, spreadsheets, databases, multimedia booths and even the Internet.
The major feature of the de-skilling process is the demise of the cult of the individual, who will be supplanted by the group, as represented by departments or skill centres. The individual will no longer have the freedom that they formerly enjoyed, as their day's work will be controlled from the centre. Automatic diaries, closely supervised by management, will control a day's events.
The de-skilling process is also symptomatic of the decline of the lawyer within society. In the past lawyers were considered pillars of the community, but the current rash of anti-lawyer jokes emanating from the United States would appear to voice what society now thinks about the profession. Morale within the profession is probably at its lowest point for some years. These factors, when combined with a generally negative press, suggest that the general perception of the law cannot get any worse.
Richard Susskind's (Susskind 1996) admittedly speculative view of the future is one where lawyers are no longer information advisors, but have reinvented themselves as 'information engineers' and the firms are now 'information providers' where billing is decided by the market value of the information, not on an abstract hourly rate. The whole system is underpinned by technology; indeed Susskind's future is only possible by use of technology. Susskind only touches briefly on the social implications of the great contraction of legal services, concentrating only on the positive aspects, but Susskind's viewpoint represents a radical view of the law of the future, a future that can only be achieved by an upheaval of the profession.
It must be remembered that the law is, by its very nature, labour-intensive. Process engineering is an attempt to move away from this position. In spite of this, lawyers' practices will be composed of both hardware and software where the lawyers perform the role of software. We must never forget that people underpin the whole process and thus can never be completely removed from the equation. In particular, we must always be aware that changing one part of the equation may well affect other variables. This means that we must never forget the sociological implications of the introduction of technology. Susskind seems to have forgotten the human side of the law in a pursuit of a glossy, brave new world of law; derived primarily from the endeavours of the computer. In spite of the increasing power of the computer and even artificial intelligence, the computer can never completely replace the lawyer, as the computer cannot replicate the spark of humanity or the illogical action that represents human action or reaction
This paper is primarily based on the realities of life in civil legal practice as reported over the past 5 years, representing a major period of technological upheaval in the law, allowing me to hazard a guess at the future direction of the law.
For many years the law has been seen, above all else, as a profitable profession. Figures now show that a discernible gap in profitability has opened up between large and small practices. Whilst the larger firms are making increasingly large profits, smaller firms are having difficulty in keeping afloat.
A major factor in the profitability of the larger firms has been their ability to invest in IT to fuel their growth. Because the turnover of smaller firms tends not to be not large enough to put money aside to invest in IT, they are falling further behind the larger firms in the race to computerise.
For those firms that do manage to fund the investment, the future will be significantly different as the traditional management structures change. The potential for promotion to partnership will diminish as the partnership structure flattens. For the remaining lawyers, the future will also be mixed. There will be fewer jobs for the traditional lawyer as IT will promote the de-skilling of the profession in favour of the para lawyer. There will be significantly more women lawyers and eventually more female partners than at present.
The ultimate threat to today's lawyer is that if they do not invest today, they may not be around in the future to rue the decision. If they do invest, they may still rue the situation of a profession that will be radically different from the profession that they joined as a trainee.
Brennells P (1997), 'The Achievable Law Office-How Law may be Practised in 1998 and Will be Practised in 2002', 12th BILETA Conference - The Future of Legal Education and Practice
Susskind R (1996), The Future of law, Oxford University Press, Oxford, UK, ISBN 0 19 826007 5