I sold me a little cat and bought a little mouse

by David J Bilinsky

The fire on its tail set fire to my house

Gregson, Cumbrian Songs & Ballads
collected from mummers in Dorset by BBC

Your hands are sweaty and shaking from the nightmare that forced you awake. The details swirl before your eyes—a world where lawyers have been marginalized! Rather than employing solicitors, individuals are using standard agreements downloaded from the internet. Corporations have formed broad-based, cross-industry alliances calling for all contract or tort disputes to be submitted to mandatory mediation rather than litigation. Personal civil disputes are settled using internet-based mediation services or if that fails, referred to local community boards. Issues of divorce, custody and access are decided by a government agency involving social workers, teachers and members of the community—but no lawyers. All injury and product liability claims are submitted to and decided by a government injury compensation board. In this brave new world, lawyers have ceased to be involved in virtually every aspect of society.

A bad dream? Couldn’t happen? Or a foreshadowing of the future? Where is the Statute that states that lawyers must be part of the known universe? Let us examine the facts and contradictions inherent in today’s society that indicate a problem in how we vs. the rest of society, view the legal profession:

• Complaints over costs and delays of litigation vs. the increasing use of ADR before non-legally trained mediators and arbitrators.
• The drastic cutting of fees or costs and consequential growth in traditional industries such as banking or stock trading that resulted from the migration of these industries to the internet vs. the increasing numbers of self-represented litigants in court unable or unwilling to pay lawyers fees.
• The growth of international flows—of capital, information and knowledge vs. the entrenchment of the legal profession behind geographical/political borders or unauthorized practice statutes.
• The greater and greater numbers of lawyers being employed by large accountancy firms vs. the resistance to the legitimisation and formation of legal multi-disciplinary practices.
• Law graduates who arrive at the end of their formal training unskilled in the actual practice of law vs. medical graduates who start their training dealing with real patients in hospitals.
• The growth in immigration or business consultants vs. the growth in immigration or business lawyers.
• The number of newly called lawyers dissatisfied with long hours and low earnings leaving the profession vs. the huge demand for and salaries paid to new information technology professionals.
• Customer satisfaction scores for CISCO Systems for deals done via their internet site > customer satisfaction scores for deals done person to person vs. the fact that lawyers do virtually all of their deals person to person.
• Lawyers who are dissatisfied or disillusioned with their careers vs. people in other professions who feel they are working on satisfying “cool” projects.
• The sense of urgency in meeting client demand in other client-service industries (McDonalds or e-banking for example) vs. average time to resolve a matter in litigation.
• The disintermediation spiral happening in other sectors (real estate, for example) due to the internet vs. the rate of change in the legal profession.
• The increasingly informed consumer vs. the lawyers’ traditional role as a storehouse of knowledge of the law.
• The transforming power of new technology (witness the changes that were wrought in society by the railroad and then by petro-based transportation methods) vs. the rate of adoption of new technology in the legal arena.
• The drive to reinvent the practice of law from a consumer mentality vs. stare decisis and the “traditional” practice of law.

So where does this leave us? In law, I feel we need to develop a level of questioning of what we do and how we do it that hasn’t existed before. How much time has each of us spent getting better vs. how much time have we spent getting different? As lawyers, we need to spent a little time thinking of how the world could look like in customer time and customer space. Here are some of the questions we could ask ourselves:

• Why do we need bricks and mortar offices? They are big, expensive and perhaps not well valued by our clients. Our clients have offices, places of work etc.—it is not too difficult to visit them and carve out a private space for discussions. Criminal lawyers already do this—they need little more than an answering service, an appointment book and a cell phone to practice. Can this model be adapted to other practice areas?
• Do we need expensive libraries when on-line services can supply up-to-date research without the large outlay for bound volumes?
• Gary Hamel of Harvard Business School stated the real threat today is not inefficiency, but irrelevancy. Heritage is no longer destiny. “How do I protect what I have?” is simply not forward enough thinking. How much time have we invested in thinking about practising law in a world where time, space and material objects are no longer considered limiting factors to the business equation?
• Do we need a place to store large paper-based files with consequential staff and other systemic costs? There are several examples of complete offices that have become paper-free. All incoming correspondence is scanned and made available via the office network. The images are stored in electronic files. Evidence is scanned and originals can be stored for court purposes—but virtually all other paper-based communication can be eliminated as it is the information not the media that is important. Electronically storing the relevant information and communicating by email can cut down drastically on costs compared to transmitting paper-based information.
• Abandon sacred cows. Ask yourself what are the 5-10 things that you believe are true about the legal profession? Now, and this is the hard part, how many of these are toxic to the legal profession? It is clear that the law profession requires productivity gains—and these gains must come from breaking down one or more of the closely held tenets of the profession.

In the information world it is said that marketing is no longer by the Word of Mouth but rather by the Word of Mouse. Clicks are in— how many of us have found a way to use those clicks to beat a path to our door? Maybe we need to invent a better mousetrap….

Practice Talk Recommends
Andy Grove of Intel Corp wrote Only The Paranoid Survive—and if Intel feels it needs to be paranoid, what does this say about lawyers? Roberta Katz, a prominent corporate lawyer has written a book entitled Justice Matters—which speaks to rescuing the legal system for the 21st Century and offers a blueprint for a new structure.

David J Bilinsky is the practice management advisor at the Law Society of British Columbia.

This article originally appeared in the December 1999 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.