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Table of Contents

1. The Framework

a. Winds of Change
b. The Pro Se Movement
c. The Accountants

2. Issues for the Future

a. In General: Challenge to Core Competencies
b. The Internet
c. Relationships
d. Capturing the Information
e. In Transition
f. Techonology Decision Support
g. Technology Support Programs
h. The View of the Outside World
i. Change Movement
j. Demographic Change
k. The Dakota Legend
l. Multi-Disciplinary Practice

3. The Call to Arms: A Challenge

4. Conclusion

a. Winds of Change

1. The Outside World: More than ever the legal profession is impacted by the outside world. Lawyers have traditionally isolated themselves in the "we are not a business" mindset, and carefully avoided any consideration of the outside business world.

2. The Comfortable Cloak: Usually, lawyers have cloaked themselves under the banner of "professionalism," claiming that adjustment of the practice in the face of a new competitive environment will somehow violate the ethics and standards of the profession.

3. The Challenge: Just as the industrial revolution changed the face of the blue collar world, the "intellectual revolution" portends a massive change in the white collar community. Tom Peters, internationally known business author of "In Search of Excellence" and "The Circle of Innovation", predicts that 90% of all white collar workers will be disintermediated from their jobs in the next ten years. My partner, Charles F. Robinson, reduces that percentage to 60%, but the impact is staggering. This 60 - 90% displacement includes law firms, their clients and much of the legal business world.

4. The Competition for Talent: Another key underlying element for this future world is the increasing competition for talent. Many of the most talented young people are being attracted by dynamic "dot" enterprises, who support the Internet and related technologies world. Now more than 25% of all Harvard and Stanford Business School graduates are not going to major companies, but are joining companies with less than 50, or 25, respectively, employees.

5. Multi-Disciplinary Practice (MDP): My background comments extend far beyond MDP issues. While identified as the key trend in the 1997 American Bar Association Seize the Future conference, it is now only a precursor to a much larger challenge. The reality is that this "legal visionary" (if that somewhat pretentious title is even remotely accurate) feels:

a. That multi-disciplinary practice is a reality, that the organized (oxymoron?) Bar cannot, or will not, be able to stem that trend,

b. That the unauthorized practice of law is an area unlikely to be challenged,

c. That much of what today's lawyer delivers can, and will, be delivered by non-lawyers,

d. That traditional jurisdictional boundaries will disappear (along with those jurisdictionally-based licensing requirements) and

e. That much of the existing core "database" of legal information will be readily available to the consuming public without the need for any law firm.

f. Bar associations and other control groups have had little success in opposing unauthorized practice of law.

g. The definition of exclusive legal services or products is being eroded both by technology products (drafting documents CD-ROMs) and by alternative service providers (real estate entities, banks, insurance companies etc.)

h. Clients are seeking solutions which involve disciplines beyond the practice of law.

i. MJP (Multi-Jurisdictional Practice): Perhaps even more daunting than MDP is the prospect of multi-jurisdictional practice.

For many years in Canada, there has been a concern about large national firms establishing practices in provinces not associated with such firm's primary office(s).

Similarly, in the United States there has been a concern about branch offices, in part because of competition for existing business, but often because of other management issues, such as escalating associates' salaries.

Now, in a global environment, with trans-border business needs commonplace, the expansion of legal practice into multiple jurisdictions is somewhere between reality and inevitability. The European Union provisions for practice outside of the lawyer's home country contain some restrictions (such as holding out under the home country designation), but those can be seen to fade in the future.

b. The Pro Se Movement

Another challenge to the legal business, as usual, is the increasing tendency toward individuals representing themselves in legal transactions and before the courts.

1. Pro Se's. In the State of Florida, 80% of all family law cases involve one party without representation.

2. More shocking is that fully 30% involve no lawyers at all. The Florida Courts have adopted rules of procedure specifically for pro se's.

c. The Accountants

The Big Five: Three of the top ten law firms in the world are associated with the Big Five accounting firms.

Anderson Consulting is now one of the largest "law firms" in Europe, with in excess of 1,700 lawyers, and those are NOT their tax practitioners.

Price Waterhouse Coopers has over 1,700 lawyers.

Ernest Young has nearly 1,000 lawyers.

Smaller CPA's must be projected as potential legal service providers. While their legal services target may be different than the Big Five, there will no doubt be an impact on small and mid-size law firms.

A challenge (blessing?) for the judicial system is the explosion in ADR. All of the Big Five have devoted considerable interest in acquiring the most profitable of legal services-high value dispute resolution. (There seems to be an assumption among lawyers that only the transactional law practice is under attack by outsider providers - and it may be the opposite, the interest of alternate providers in driven by profitability, not the substantive practice area). Alternate dispute resolution will be offered as a solution to overcrowded dockets, high costs and delay. Within this framework, how viable is the current court system?

"The threat is not inefficiency, but irrelevance." Gary Hamel.

Planning: What is the legal system and the organized bar to do? If the winds of change have such extraordinary impact, what are the options? One, obviously, is to keep business as usual--and, if so, I hope the potential damage to the practice as we know it is enormous. Second is to react to the change, as it hits, in hopes of helping the profession in crisis--alas, too little, too late. Finally, the bar and its leaders can take the leadership role to help the profession not only survive the change, but to prosper from it!

Better, Faster, Cheaper: Perhaps fueled by the TQM (Total Quality Management) thinking of the 1980's, the solutions for many to the challenges posed are based upon doing what we have always done-just being more efficient and more effective. While there is nothing wrong with the approach, it is key to recognize that it is too little and too late for many, if not most, of the challenges.

"Incrementalism is the WORST enemy of innovation!"- Nicholas Negroponte, MIT

Trends: As an overlay to this background challenge to the profession, the following ten trends are, or will be, reality. HOW have you factored their impact on the administration and delivery of legal services? AND, the answer better not be--we haven't even thought about them! Oh, by the way, these are just some of the trends, not nearly all, that must be considered.

• The aging of the population - e.g., 74 million Baby Boomers are hitting the prime economic market. That means greater potential court case loads and for a longer periods of time to resolve disputes - among other things.

• The migration away from urban centers, and the attempts at renewal to reverse the flight. The more spread the "legal consumers," the much greater the need for the application of technology.

• The migration of population south (or to warmer climates). Is this an element in Canada? Will it be?

• The changing of population demographics, e.g., more women, more minorities, and variable demographic distribution patterns. There are different needs and approaches needed based upon the consuming public. Not to use gender-based stereotypes, but women may well prefer ADR approaches to dispute resolution versus traditional litigation.

• The impact of micro everything - biology, electronics, etc. By the year 2020, your $1,000-personal computer will have the processing power of the human brain. By 2030, we'll have the means to scan the human brain and recreate its design electronically.

• The impact of "information overload"--too much information availability with little time or ability to sort important from urgent. The legal system already has information overload-and you haven't seen anything yet!

• The globalization of everything. Local issues will fade into much larger trans-border issues.

• The ever-shortening delivery cycle, of everything! An impatient public will not tolerate delays in the delivery of the required legal services or in the processing of a slow judicial system. Mercedes Benz, as an example, faced with such a changed delivery cycle had to sift their corporate design/planning structure from three new automobile designs every ten years to ten new vehicles every three years. Could the legal profession adapt to that cycle change?

• Loss of privacy - everywhere and in every way. This is already a major legal issue - and, again, you haven't seen anything yet. Often this is cloaked in the mantle of efficiency and customer service, but is subject to major abuse. As electronic mail and cellular telephone use becomes even more dominant, what communications will remain private?

• The convergence of all technologies: computers, telephones, television, the Internet, entertainment etc. The mergers and acquisitions of complementary technologies (e.g., ATT acquiring TCI Cable Systems) reflect the merger of the technologies. The Microsoft strategy, whether we agree with it or not, should be noted: Anywhere, Any Time, Any Device, Anyone.

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2. Issues for the Future

a. In General: Challenge to Core Competencies

The reality of today's legal world is that existing core competencies have a very short shelf life. Many current substantive practice areas are under attack from a variety of forces, e.g., insurance defense practice, plaintiffs' personal injury practice, family law, estate planning and tax work. If a legislature decides in its infinite wisdom to restrict the ability to charge a particular fee structure, what impact will there be on law firms? I suggest that they will be challenged to recreate a revenue stream. If American Express financial services or a major insurance carrier decides to bundle estate planning with their other services, how severe will be the impact on estate planning lawyers? Almost overnight existing areas of law could go away as viable business opportunities. Therefore, there is a critical need to build quick-changing core competencies. This will serve practitioners changing or adding practice areas.

1. Technology offers another answer to the challenge to core competencies with knowledge management. Capture of core competencies' information, its retrieval and utilization is the response to building skills and knowledge quickly. But by 2030, we'll have the means to scan the human brain and recreate its design electronically. Is this Clarence Darrow in a box? Perhaps not, but it means not only the capture of the knowledge, but also the analytic skills in a personal computer.

2. "The problem is never how to get new, innovative thoughts into your mind, but how to get the old ones out." Dee Hock, founder of VISA.

3. "There's going to be a fundamental change in the global economy unlike anything we have had since the cavemen began bartering..." - Arnold Baker -Chief Economist, Sandia National Laboratories, New Mexico, United States.

b. The Internet

How important is the Internet in your thinking or planning? "Where does the Internet rank in priority? Number 1, 2, 3 and 4." Jack Welch, CEO of General Electric. It is a source both of a more informed legal services public and of a pipeline for development of agility in changing directions in substantive practice for the profession.

1. Electronic Filing. My home state is the first in the United States (to my knowledge) to commit to a state-wide electronic filing system (using the Internet). While restricted to Colorado attorneys at the outset, it does contemplate out-of-state counsel and pro se individuals later in the process. Initial objections or concerns were:

a. Documents being susceptible to change after submission-which was solved by using a ".pdf" Adobe Acrobat format, which is readable, but not changeable.

b. The hours for filing of documents would extend beyond standard "open" hours for the Clerk-which was addressed by the recognition that our statutes contemplate that the Courts are open 24 hours a day, even though no one is physically present at all hours.

c. The system would discriminate against those lawyers not participating, but since all standard filing processes still remained available, this objection was deemed moot.

2. Certainly, the 'Net should be the hub for information access for everyone, both members of the Bar as well as the general public. There is no reason that all public information should not be accessible by an Internet driven inquiry. I am aware that this imposes some issues of cost and staffing to accomplish such a feat, but it is a future imperative.

3. Docket control, case setting and calendar control should be accomplished by Web-based connections. With a futurist's mindset, a project management component should be able to access the Court's schedule, as well as the schedules of all counsel to clear the first available date. While this will severely handicap those lawyers who choose to play games with the Courts on availability, it will expedite the judicial process.

4. Presently, video teleconferencing is less than viable because limited bandwidth results in a quality so low as to be unacceptable. Plunging costs for xDSL, cable-based, (and to a lesser extent, T-1, T-3, OC-3 etc.) broadband services means that the Internet may one day prove to be an affordable, even economic, mechanism for conducting conferences by video. Initially, those would be a mere extension of the current telephone-based conferences, but ultimately could expand to full trial setting.

5. If this is a "wave of the future," then the conjunction between broadband access and virtual reality creates another future vision of the trial process.

a. At the entry level, not all witnesses would have to have physical presence, but could be a "projection" from another location.

b. A larger level might allow (assuming appropriate "control" components could be imposed) the presence of jurors by virtual reality.

c. In the most expansive vision, ALL parties would be capable of participation remotely, with the actual "meeting spot" (i.e., courtroom) being a computer host system joining the holograms of all involved parties.

6. Yet another future technology trend is voice-over IP. Voice will be transmitted using Internet Protocol. It may well drive a stake through current long-distance telephone services, because all such communications will involve merely a local telephone call. The possibility of linking with remote clients will become even more plausible.

7. The VPN (Virtual Private Network) involves using the Net to create an extranet, which is more secure than the current process. Using broadband services provided by telecommunications vendors, multiple locations will be linked together in a secure environment-essentially a low-cost WAN (Wide Area Network).

8. "All these conversations today about the Web will appear so bloody damn silly and pedestrian ten...five...three years from now......." -Tom Peters

c. Relationships

"The customer is in control." American Express. In a time where competition for "traditional" legal services is intense, the best way for lawyers to survive is to build strong relationships with their clients to differentiate the law firm from other providers of legal documents or limited "quasi-legal" services.

1. While scarcely ground-breaking, one approach would be to help lawyers effectively use all tools of product generation via technology (e.g., document assembly, case management) to address the clients' needs for high quality "product" in short time frames to meet the base expectations of the clients.

2. The more important skill set would be to help the lawyers re-identify their role as "counselors at law." It might appear on the surface that this need would be adversely impacted by technology - more impersonal "automated" service. Often, the client wants assurance rather than a mere "canned" legal service. Technology allows for both prompt response to clients as well as current information, both of which demonstrate the concern of the lawyer. It will be essential to provide programs to educate lawyers in issues of client service to help the law firm differentiate their services from an alternative provider.

3. Some of the same technology tools referenced above can assist in building such relationships:

a. Video teleconferencing,

b. Access to information via an Internet connection,

c. Establishment of extranets to tie the lawyer and client(s) into a secure Internet "place" to share information,

d. And, the creation of collaborative tools (e.g., Lotus NOTES) to allow clients to actively participate in the process.

e. The key is: "Creative relationships, particularly creative, collaborative relationships...." - Michael Schrage, Author, Serious Play

d. Capturing the Information

Voice recognition should be a piece of the future (and not very distant future, at that) for the practice. Both L&H/Dragon Dictate and IBM's Via Voice provide decent (90%+) capture ratios for the spoken word. What will the impact of such technology be upon the practice? Well, at minimum, the role of the law office support staffs change. The delivery cycle for legal products can be dramatically shortened.

e. In Transition

If commodity practice continues to diminish as a viable legal business alternative (e.g., collections, small level estate planning, family law etc.), where competitive alternatives make success more difficult, law firms will be challenged to quickly differentiate their "commodity" products/services from other alternative providers, or even to transition away from the "commodity" practice. Unless those legal services or legal needs will cease to exist (which I doubt), then some other entity will step into the breach to provide them, with all of the implications that such a change implies for the law practice.

1. One such entity could be driven based upon strategic alliances between firms and those entities with special skills entities and/or alliances with normal competitors in the commodity area to offer a more complete client solution.

2. Another alternative could be law firms with new legal services based upon the active development of ancillary, and essential, legal services which can be "bundled" into a non-commodity product.

f. Technology Decision Support

Since we can identify both the explosion of technology and the ever-shortening delivery cycle, their conjunction is a certainty. The courts (and law firms) must consider technology acquisitions with ever-shortening ownership cycles.

1. Law firms must adapt to purchasing new technology in two- to three-year cycles (down from five- to seven-year cycles) with the cycle becoming shorter by the day. Though it can be asserted that personal computer costs have been reduced to a level where this is not a critical matter, the reality is that for all but the smallest installations, the number of systems to be replaced, as well as the increasing cost of the software (e.g., the Windows 2000, or its forthcoming 2001 successor), makes such a shorter cycle anything but trivial.

2. As greater levels of sophistication are available to the legal process, there will be a demand for those technology tools to utilize such advanced technologies. For example, do you access to the current and projected levels of bandwidth required to support new technologies?

3. Firms must create strategic planning for technology, specifically to avoid the shocks of major financial commitments without visible results.

g. Technology Support Programs

Another layer of anticipating the future, and its needs, involves the conjunction of the technology with very busy people and disparate technological skill sets. Therefore, an equally important area is the effective use of technology.

1. Most in the legal profession (law firms and courts alike) use only a small portion (often less than 50%) of their existing technology. New lawyers, paralegals and staff may be more comfortable with, and more demanding of, technology. Efficiency can be assumed, at least on some level, but effectiveness cannot. There is an ongoing need for legally specific programs/products on effectively using existing Microsoft Word, or Access, or Corel and similar products.

2. Second, there is a continuous and growing need to educate those who have acquired new technology. Despite years of warning, many law firms have cut costs by minimizing training costs, claiming lack of time.

3. "So many of our technology projects take on a life of their own, but are mediocre successes." Tom Peters.

h. The View of the Outside World

Lawyers need technology products and systems designed for an overall view of the environment within which we all will practice. For example, if the active, legal-services-consuming public is growing more computer literate, what are the implications for the profession to address their related expectations and needs?

1. Trend: The law in a vacuum (if it ever was) is no longer operative. The legal profession can be relatively oblivious to the outside world, but this is a dangerous approach - the risk is not just reduced importance to the "outside world," but total irrelevance. While most law schools have not heard the message, the real world of practice now understands that outside factors have dramatic impact upon the practice of law and the judicial system.

2. Trend: A broader business focus will have increasing value. An outside "world-view" provided by non-lawyers and consumers of legal services will have increasing value to the profession, if only because the inherent diversity removes the danger of becoming too narrow.

3. Trend: All legal services must become client-centered - not just with lip service, but with a commitment to give clients great experiences with the law.

i. Change Management

Law firms and the court system also need to anticipate change and deal with it proactively, rather than reactively.

1. Trend: Strategic planning is (and perhaps always has been) increasingly important for successful legal organizations. It has been said that the law practice is the only profession where the professionals are trained to move forward by looking backward. It is difficult to contemplate change with that mindset, but strategic change management is an essential need for all lawyers.

2. Trend: A vital skill-set for all business, including the law, is agility. While a portion of this need is for lawyers to anticipate requirements in the firm from the mundane (e.g., changing office space requirements) to substantial (change in the whole mission statement of the firm), the larger challenge is to be able to quickly assess current position and change direction as required. "There is no correlation between size and profitability." Gary Hamel.

3. Trend: Lawyers are becoming increasing frustrated by the exponential rate of change. Success in overcoming that frustration is to train the process of effectively implementing change within the office, including human relations issues such as building a support structure to communication to allow the firm to understand and assist the implementation of the change(s).

j. Demographic Change

There is a need for programs/products keyed to changing demographics in the profession.

1. Trend: Law schools have significantly high percentages of female students. Presumably that should lead to a significant increase in the percentage of female lawyers/judges. While I do not believe that there should be gender- biased in any sense, the needs of these new female lawyers are not identical to those of their male counterparts.

2. Trend: Law schools now have higher percentages of minority students. Combined with changing demographics throughout the world, there is again an increase in the percentage of minority lawyers and in the community that may desire their support.

3. Trend: Diversity, not only in gender or ethnicity, but in mindset, is expanding. Little, if any, training has been provided to firms on the ways to integrate such new lawyers into the practice, on such diversity issues as styles of communication etc. The need is substantial, but remains largely unaddressed.

4. Trend: As reflected above, demographics of whole geographic areas are massively changing, e.g., portions of the Southwest United States may have a majority Hispanic population in the next 20 years. Therefore, the demographics of the client base of most firms is also changing, and the firm both as it exists now, and as it will reflect those changing demographics, should be used in development of effective marketing strategies.

k. The Dakota Legend

Are we continuing to ride a "dead horse" into the 21st century? There is a Dakota (Indian) legend which provides a wonderful analogy: When a rider discovers that his horse has died, the best strategy is to dismount. Alas, law firms often have other solutions:

1. They will buy a stronger whip.
2. They will form a committee to study dead horses.
3. They will visit other law firms to see how they handle dead horses.
4. They will come up with a slogan that horses are: "Better, faster, cheaper dead."
5. They will hitch up several dead horses for increased speed.

l. Multi-Disciplinary Practice

Whatever one might think of the MDP challenge, lawyers and courts must prepare a structure for totally new, multi-disciplinary legal services groups, as such changes become permissible.

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3. The Call to Arms: A Challenge

Is This All Negative? My remarks may seem to paint a bleak picture for the practice of law, but it is not all negative.

Lemons or Lemonade? This is the Best of Times and the Worst of Times, with apologies to the author. This is a time to curse our fate as the exclusive franchise to practice law is inevitably eroded. But, more importantly, it is a time to seize the opportunity to re-invent our profession.

Circle the Wagons? The natural reaction to the new competitive challenge is to "circle our wagons," defining very carefully the practice of law, and proscribing that everything within that ever-decreasing circle is the protected practice of law.

The AICPA Vision Project. The American CPA organization committed $20 million (U.S.) to redefine their profession. They chose to look outside their usual and somewhat protected auditing circle and redefined the accountancy profession as much more inclusive, rather than exclusive.

Now Is the Time. This wonderful profession needs, no, demands, leadership, NOW. As the leaders of our profession, we must commit not to wasting our efforts in stemming a tide driven by consumer (and our clients') needs, but rather to redefine, reinvent and revitalize our profession into the innovative practice that we can be.

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4. Conclusion

a. The new competition is here, now! Lawyers and their law firms must develop systems and technologies to support the needs of the legal profession in a much more competitive environment.

b. Technology is not just a footnote in life--it is profoundly changing the way we function! Lawyers must develop systems which will support the profession in a much different technological environment.

c. The practice of law is in danger of becoming irrelevant! It is critical that law firms develop systems which will allow all lawyers to "reinvent" their individual practices, and, more importantly, the definition of what constitutes a "legal service," in responding to our clients' new needs.

d. We did not create the world, nor are we running it! To say otherwise is merely ill-informed arrogance.

e. The organized Bar, and its leadership, should take a leadership role in advocating for the reinvention of the profession. There is nothing wrong with the Bar advocating on behalf of the profession.

f. No clients = no business! Develop mindsets to help lawyers and firms become more client-centric.

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Phil J. Shuey is Past Chair of the Law Practice Management Section of the American Bar Association as well as an Inaugural Fellow of the College of Law Practice Management. He is a five-time Chair of the ABA's TECHSHOW™ and has been a speaker at every TECHSHOW conference since inception.

He serves as Chair of the LPM's New Media and Internet Board, Vice Chair of the Futurists Committee, and is a member of the ABA's Standing Committee of Technology and Information Systems (SCOTIS).

He is President and CEO of Shuey Robinson, an international change management and technology consulting group. His professional practice is split between consulting and general law practice.

He received his B.A. from the University of Colorado (1966), and a J.D. from the University of Denver College of Law (1969). Mr. Shuey has written for many publications, including the National Law Journal, the New York Law Journal, Legal Economics, Law Practice Management, The Compleat/Complete Lawyer, The Practical Lawyer, Law Technology News and various state and local bar publications, and has been quoted in the American Bar Association Journal, MSNBC, The Denver Post, The New York Post and the Wall Street Journal. He has lectured regularly for the American Bar Association and state and local bar associations, throughout the United States and Canada.

More About the Author: Phil J. Shuey has been in private practice in the metropolitan Denver, Colorado area since 1969. He is President and CEO of Shuey Robinson, an international law office technology and change management consulting group. He now divides his time approximately 70% - 30% between automation and change consulting and at general solo law practice.

Bar Association Background: Mr. Shuey is a Past Chair of the Law Practice Management Section of the ABA, and a five-time Chair or Co-Chair of the ABA's TECHSHOW™ conference. He is Vice Chair of the planning committee for the ABA/Lotus Seize the Future conferences. He is a member of the Standing Committee on Technology and Information Systems (SCOTIS) of the American Bar Association. He is an inaugural Fellow of the College of Law Practice Management.

He is the Past Chairman of the Law & Technology Committee of the Colorado Bar Association and Co-Editor of the Law Office Management Column for the Colorado Lawyer, the official publication of the Colorado Bar Association. He has served as a member of the Colorado Supreme Court Committee on Electronic Filing Standards.

Writing and Speaking: Mr. Shuey has written for many publications, including the National Law Journal, the New York Law Journal, Legal Economics, Law Practice Management, The Compleat/Complete Lawyer, The Practical Lawyer, Law Technology News and various state and local bar publications, and has been quoted in the American Bar Association Journal, MSNBC, The Denver Post, The New York Post and the Wall Street Journal. He has lectured regularly for the American Bar Association and state and local bar associations, throughout the United States and Canada.

General: Mr. Shuey will be happy to discuss any questions you may have. He may be contacted at SHUEY ROBINSON, 5445 DTC Parkway, Penthouse 4, Englewood, Colorado 80111-3059, (303) 699-4744 or at shuey_p@msn.com.