In 2019, Forbes published "What's A Lawyer Now? Law's Shift From Practice To Skill." the theme of the piece has to do with legal skills, but it is also a dismissal of the "practice of law." The author posits that there is a significant "distinction between practicing law and engaging in the delivery of legal services." He explains that the latter is "the business of law."
I have heard that lamentation more than once. The last generation has lectured my own repeatedly about the demise of professionalism. They find indicators in the diminished collegiality and cooperation. They perceived less sense of community and mutual support in the legal community. There have been mentions in this regard of lawyer advertising, proliferation of law schools, intrusions of technology, and more. I hear stories from lawyers about how they do not agree with perceptions of change, while others insist the "practice" is diminishing.
The Forbes author notes that the practice of law has evolved. The traditional interrelationship of attorney and client remains. But, he contends that "a wide range of . . . prospective industry stakeholders" have been added to the mix, as have various "allied professional programs." He characterizes the changes in legal practice to be "a tectonic shift." The author describes an evolution from a profession "to a tech-enabled, process and data-driven, multi-disciplinary global industry," the "business of law."
There is discussion of changes being affected in lawyer's careers and expectations. The manner in which they engage clients and deliver services is likewise perceived as transforming. The "legal practice is shrinking and the business of delivering legal services is expanding rapidly." In this regard, the author suggests that law schools are inadequately preparing graduates to compete and thrive in the new paradigm. Some would argue that those schools did a pretty poor job of preparing students for any paradigm. What lawyer got a management, marketing, or finance class to prepare her/himself to run a small business?
This indictment is not for education alone. The Forbes piece proceeds to criticize both the appreciation for and adaptation to, the new paradigm among "traditional law firms." Though he concedes some law firms have exhibited at least passing appreciation for the demands and opportunities of a broader approach to legal services, he believes they have learned that such a transition is "easier announced than delivered." He blames this on the firm leadership who is steeped in the structure and practice of the past. Thus, he contends, the law firm partners are struggling to adapt to a broader context business model, distinct from the billable hour and leveraged associate attorneys.
The article provides an overview of the three "main elements of practice" ("legal expertise, judgment, and persuasion") and the "several elements" of persuasion: "emotional intelligence, credibility, command of the legal craft, and earning trust." The author contends that many lawyers have lost touch with these elements as they have become insulated from the actual client in large firms. He believes many such lawyers became "bored" and "disillusioned" in the process: "high-priced, well-paid cogs in the law firm wheel."
No one wants to be a cog. A job-posting website published a funny advertisement years ago featuring young people expressing their career goals. Among the best quotes: "I want to climb my way up to middle management," "I want to be underappreciated," and "be replaced on a whim." These are funny but poignant. How about being replaced by a computer? Or, finding that the skills in which you have invested are of limited market value? The realization of those lawyers that find themselves "cogs" may be tempered short-term by the "well paid" adjective. Then, they may become more than disillusioned.
Ask yourself if you remember a time when each lawyer had multiple staff assigned. That seems to have evolved. I know lawyers today who practice without staff support. Others work in firms where multiple lawyers share the support of one staff person. The secretarial functions have diminished it seems as technology has empowered us all. Dictation has faded from the skill set. Books and libraries have become rare. Evolution is around us.
The result, according to this article, is clients "migrating work once performed by law firms to new provider sources." The consumer is driving a market change with the support of technology and access to information. What remains, he contends, is a "narrow band of practitioners" in the legal profession who are working "on the highest-value client matters." Other practitioners are not likely to draw the highest earnings. In some jurisdictions the trend is to deregulation of services, allowing more non-lawyers to perform formerly "legal work." In other instances, the author says that "corporate clients are narrowing that list on their own."
This article advocates for "customer-centric, digital, data-based, tech-enabled, diverse, agile, multidisciplinary, and cost-effective" platforms for the delivery of legal services. While this is a change, the author cautions that it is not without precedent. Indeed, he contends that this is merely returning the practice of law to "what it meant to be a lawyer before the ranks of the profession swelled and law firms became highly profitable, undifferentiated big box stores." He contends that the practice of law "is once again becoming the province of those lawyers best equipped to engage in it.
In terms of education, the suggestion appears to endorse obtaining excellent legal skills such as analysis and expression. However, the author suggests that lawyers also develop skills in varied fields such as:
- project management
- data analytics
- deployment of technology
- process design
These are not substitutes for legal knowledge, which is nonetheless required. However, these are amplifiers or compliments of that legal knowledge. How many lawyers ever received training in these fields in law school, continuing education, or even from a law firm mentor? The answer may not be zero, but it may be close. Lawyers simply do not tend to receive big-picture business acumen in school or practice. In my experience, some law firms care about nothing but today, the receivables generated, and collections made. As Puff Daddy reminds, sometimes "it's all about the Benjamins."
The author contends that now lawyer skills and knowledge will be brought to bear on commercial and other challenges through client retention of large and diverse entities. In those, he sees the collaboration of lawyers, "engineers, data analysts, consultants, technologists, and other allied legal professionals." Through these collaborators' interaction and experience, there is the contention that challenges may be met in a multifaceted approach with a persistent focus on "customer-centricity," and appreciation for the big picture.
That is perhaps not a real distinction. I had clients with such focus decades ago, they simply brought those perspectives to bear on problems themselves, and I was just one that was brought to the table. The change in this new paradigm is perhaps more from the standpoint of consolidating the perspectives from a unified source. Some might see a potential for such a unified team to become an echo chamber through isolation. Others might question whether such a conglomeration might drift towards its own best interest rather than the clients. Of course, there have been those who said the same about law firms already. It is a challenging set of considerations.
The author contends there remains value in the skills and knowledge of attorneys. However, he sees those skills more ideally focused in multi-disciplinary businesses that can deliver perspectives and solutions in the business and company setting. It is striking that these novel paradigms seem to ignore the spectrum of litigation attorneys. Certainly, in-house legal decisions may alter the manner in which litigation is assigned, managed, and compensated. Those have been trending for decades. But, do you want a "big box" to be your face in front of a judge or jury as opposed to a local lawyer whose law firm with community roots? Perhaps the actual trial of cases (not the majority of even the best litigator's time) will remain the practice of law?
Even so, it appears that litigation will also continue to evolve in the larger picture. Consider the list above and how knowledge of, compatibility with, those elements would enhance the efficacy of a litigation practice. The world is increasingly dependent upon management. That is driven by efficiencies, specializations, technologies, and marketplace trends. As those who practice law, particularly in litigation, consider the future, there is much to consider. Will the litigators take a page from this discussion and pursue the ancillary skills to enhance their ability to bring value to the client, and thus prolong their practice?
