Book reviews: The End of Lawyers?
Date: 24 April 2009
Issue: Vol 159, Issue 7366
Categories: Features
The End of Lawyers?
Richard Susskind
Oxford University Press, £24.99, ISBN: 9780199541720
Richard Susskind has earned a great reputation as the leading expert in the computerisation of law. His latest book has wider ambitions: it marks the development of his thinking towards a comprehensive evaluation of the place of lawyers in society, especially in its economic aspects. Yet it remains grounded in his interest in the use of technology to aid and even replace the human element.
His thoughtful analysis almost overcomes my prejudice against his approach. Nostalgia for the shabby, sociable offices of my youth dims my appreciation of the mechanised efficiencies of modern commercial culture. I like to think I am in a caring profession not a business.
Yet reality must be confronted. Susskind's focus, and indeed his experience, is in the world of the large solicitors' firms and their corporate clients, many of whom employ in-house lawyers as well as outside firms. The revolution in speed and cost of communication has stripped away much of the mystery with which lawyers have long protected their market. Clients whose interest is to achieve the best assistance at the lowest price now have easy access to the information they need to evaluate the services the lawyers can offer. If we don't deliver what the market wants, we will not survive.
A matter of survival
Susskind says he was prompted to question our prospects of survival by four thoughts.
● The first is the disappearance of once important trades, such as the mercers, whose past glory is reflected in the elegance of the Mercers' hall in the City of London. A side effect of progress is obsolescence.
● The second is the habit of lawyers to deny the legal content of their work. They tend, says Susskind, to claim that their job is really about other tasks: negotiation; wise counsel; project management; making deals. He concludes this is because they have lost confidence in law as legal expertise. Maybe they are just embarrassed that they belong to an unpopular profession.
● His third thought is that the long-term future of lawyers is not sufficiently examined—perhaps because it is so unpredictable.
● The fourth thought is that the introduction of non-lawyers as the potential financiers and managers of legal services will change things. They will be less tolerant of practices justified only by tradition.
Of course computerisation has made dramatic changes in the day-to-day organisation of legal services and his examination of these is valuable. Some he calls “disruptive” in the unexpected sense that they subvert the traditional lawyer's role. The introduction of simultaneous transcription of evidence, video recording, e-mail, and the management of documentation has, he suggests, reduced costs by up to one-third. Yet Michael Zander's review of the Civil Procedure Rules (NLJ, 13 March 2009, p 367) invites scepticism towards the alleged cost-saving effect of procedural reforms. Susskind is proud of the technical advances introduced with his assistance by Lord Saville in the Bloody Sunday Inquiry. Without his hypothetical one-third saving the 10-year marathon—still unfinished—could have cost another £90m on top of the £182m already spent on it by November 2008. But he fails to reflect that common sense can cut cost as well as technology. Saville could have saved millions by restricting the level of legal representation. When I attended the tribunal in the minor role of solicitor for a witness, there were at least 20 overpaid barristers present, mostly taking no active part in the proceedings.
Financial crisis
The book was written before the global financial crisis which is reinforcing already severe cost-cutting pressures. Susskind foresees the decline of bespoke legal services provided by what he calls “the expert trusted adviser”. (Isn't that how we all think of ourselves?) This traditional lawyer will be too expensive in the brave new world. Standardised and computerised services will play a bigger part, planned and managed by lawyers. Others will be more concerned with helping clients to avoid legal risks and there will be more room for those who include some specialised legal knowledge among predominantly business skills. Susskind seems optimistic that lawyers will continue to find employment, albeit at the cost of their independence.
Notwithstanding the bias of his background, the author recognises that there is a world outside commercial law. But he has no comfort for legal aid lawyers. The yawning gap in help for the disadvantaged will only be filled by technology and non-legal advice and representation. The majority cannot presume to expect the services of “trusted legal advisers” even though their opponents—the corporations and institutions—will continue to have the resources they choose.
If Susskind is right—and his well-researched book must be taken seriously—the future of the independent legal profession is bleak. Its destiny could be to follow the mercers into oblivion.
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