To most people interested in the field of the future of law, Mark Cohen and Richard Susskind have a legendary status. They’re among the founding fathers of the discipline, and, ever since, regular contributors to developing legal innovation, with their prolific writing and insight delivered at conferences. And now, at the invitation of another “legal tech institution” – Legal Geek – those industry luminaries shared a (virtual) stage during The Uncertain Decade webinar. The event on April 30th 2020 was the first in a series. It covered the topics of:
“Legal life after COVID-19 – a very new normal”
“When courts close, what will half the world’s lawyers do?”.
The Blog’s Team had the pleasure of taking part in this webinar. If you missed it, want a recap or are considering attending the future events in this series, read on. Below, we’re sharing notes from the event (they proved handy, given the events are live and not recorded to be released). You’ll find out about:
- issues covered during the webinar;
- impressions, comments and practical tips, in lieu of a review;
- The Uncertain Decade series [remember: it’s free of charge and still open for registration for future webinars].
On behalf of the organisers, the session was chaired by Beth Fellner. After a warm welcome, we moved swiftly to the core issues.
[PLEASE NOTE: the content presented below is based on notes, not any recording. Therefore it does not provide full minutes of the webinar. I present the points duly written down; omissions and gaps are my own. The order of speaking and natural candour of a live event have mostly been preserved. The only minor adjustments are for reading clarity, such as presenting the questions together, under a separate heading.]
PART I: LEGAL LIFE & COVID-19 (BY MARK COHEN)
Mark Cohen began by posing the question “What legal life will look like after COVID-19?”. In a lawyerly fashion, he set the scene by searching for precedents – examples of crises from which the law bounced back – such as (1) the global financial crash; (2) the dotcom bubble and (3) 1987 Black Monday. These were different, as they initiated fundamental, although partial, rebuilds in the law dynamics. They meant changes in the migration of work, disaggregation. In turn, we witnessed the birth of legal operations, the division of the practice of law vs the business of law and the creation of ALSPs. Yet, other parts and so the legal ecosystem as a whole did not change much. Legal education remained largely the same as before, courts did not modernise, access to justice did not improve.
The current crisis, caused by the COVID-19, is different in that it affects every part of the legal life, including those which resisted change before. All legal work has turned into working from home. Law schools moved to online learning. In a brief period of time, everyone realised that technologies making remote work possible do exist and can serve the law sufficiently well. The model – of swanky downtown offices, meeting clients etc. – has sharply changed.
So, what will happen after COVID-19?
Are these changes temporary adjustments to the emergency or are they to stay?
The future of the legal industry is being reimagined.
Law is a knowledge business, so it turns out there’s largely no need to go to a physical place to deliver it. To assess the impact on the legal stakeholders, let’s look at general counsel. GCs, as the closest to the business, frequently prove to be the bellwethers. We’ve seen GCs experiencing the “more for less” challenge, burdened with greater responsibilities and expectations to become more proactive, turning into business collaborators driving value. This is different than the traditional legal paradigm.
There’s also the digital transformation. In this context, the consumers are now driving the legal bus. The consumers’ impact is going to increase, post-COVID. The legal industry will become more of a platform market. Metrics, such as customer satisfaction, will gain importance, replacing the pedigree. Legal providers will become more customer-centric.
The academy will understand that legal education is a life-long pursuit, not just a process of obtaining a diploma or topping up some CLE points. The curriculum composition will turn more interdisciplinary and marketable.
All this, to the legal market stakeholders, represents an opportunity to re-proof and re-cast themselves.
PART II: THE NEW NEW NORMAL (BY RICHARD SUSSKIND)
Richard Susskind took over the stage, adding that the realities of lockdown and working from home might be prolonged, perhaps keeping on an on/off basis for a while. This likely seems to be the new new normal. Therefore, we shall move from the current, short-term management thinking into more long-term leadership thinking. Leaders need to look into the future. In search of the equilibrium, we need to look at what will emerge, in terms of both the adaptations, as well as some radical changes and improvements.
The source of these improvements shall be the users of law. What can be heard from them is that “good enough is good enough!”. Clients frequently complain that lawyers typically go – or used to go – into too much detail and “engineering”. Now, this has been largely cut and yet there are no dramatic consequences. In fact, legal service provision is progressing well enough in these new realities. As a side note: on the other end of the spectrum, not progressing so well, is the mental health crisis amongst the legal community, deepened by COVID-19. This is what we need to be aware of and act to improve upon.
Prof. Susskind stated that what we’re experiencing is a shift in the paradigm, rather than a completely new paradigm in the legal service delivery. It is not a new business model, but a new way of delivering legal services. What will be a new paradigm, at some point in the future, will be a move from “law as a service” to “law as a product”. For now, we need to be more open to the new methods of delivery, which for the first time have shown – to both clients and lawyers – that legal work might be done differently. This has been a challenge for years, as pictured by the anecdote of the room full of millionaires. Speaking to managing partners, doing rather well, how do you explain that the system is broken and it needs to change? Those (only to some extent anecdotal) millionaire managing partners need a serious “shake”, to take an existential look in the mirror, to notice that we need to make changes. The platform is burning, so this is the time to speak frankly and act. There’s a need to build strong relationships and preserving ties, so this crisis turns into a time of the opportunity.
Here, Mr Cohen emphasised the importance of culture, which in law is frequently overlooked. Culture – understood as the way a group defines itself and how it ascribes priorities – in law has been largely defined by money, such as PPP (profit per partner) and business origination. Now, the true leaders of change and the future legal industry, need to redefine these drivers and add new metrics to the equation. This culture needs to evolve. Prof. Susskind, while agreeing on the importance of culture and the need for change, added that in his view the British legal culture is different than the American corporate law’s realities. In the UK there are also values at play. Yet, he remarked, to change the values underpinning cultures is a task akin to changing the wheels on a moving car. Returning to the topic of mental health, which is tied with values underpinning the culture, Mr Cohen reminded us that there are many signs of despair visible in the legal industry. Research shows that the legal profession treats its own people only slightly better than the coalminers. Economically, lawyers – as a group – do relatively well, but this does not translate to being happy. And yet, despite the access to justice crisis, there are many lawyers who are either unemployed or undermployed. Lastly, here’s much to be done in terms of the diversity of the legal profession.
PART III: REMOTE COURTS (BY RICHARD SUSSKIND)
Prof. Susskind presented the initiative of remote courts, now fronted by a dedicated website, expanding daily with topical news from around the world (currently from 40+ jurisdictions). It stems from searching for an answer to the crucial question of: “Is court a place or a service?”. Today, we are also searching for an answer to “When is it good enough [to replace physical hearings with remote hearings]?”.
During the pandemic, we are witnessing the emergence of remote court services provision. These, typically, fall into the categories of:
- (1) audio;
- (2) video;
- (3) paper-only hearings, as alternatives to a traditional court hearing.
This is a massive experiment, a pilot project borne out of necessity. For years, whenever talking about the idea of remote courts, Prof. Susskind was asked for the evidence to support his claims. Yet, there was no evidence from the future (as nowhere such courts had existed). So, the current reality is opening our minds and serving as such evidence. We now got a glimpse into the future of court activity worldwide. We are in the middle of a massive change which will further be dictated by access to justice, given that the costs associated with pursuing justice in the “brick and mortar” courts are frequently hard to justify, especially for small claims.
Early signs show the system is working better than expected. There’s now a recognition that we can deliver court services differently.
For example, there could be no presumption to physical hearings to make arguments, as a default setting one of the remote options (such as paper-only) could be used. This could be applied in some simpler cases or steps, such as applications for interim measures.
There are also many new offerings of ODR (or electronic ADR), now overwhelmingly provided by entrepreneurial entities, who aim to deliver low-cost, pragmatic solutions to business and legal problems. This is a whole new market which is booming.
Many litigators had not yet noticed the seismic shift happening. New, internet-enabled, advisory services are emerging. There will also be an emergence of new companies and individuals who do understand online disputes (which are very different from the brick and mortar court trials). Remote hearings require a completely different skill set than those of current litigators. These will involve, amongst others, online communications skills (for example an ability to effectively negotiate online, not always orally, but sometimes in written form such as dedicated forms or emails) or graphic skills (to convey messages in ways based on graphs, pictures etc.).
Similarly, for years, resistance to remote courts came from the establishment and many judges and academics. In looking at remote courts we need to start from the fundamental question of “What is the courts raison d’être?”. The answer: to interpret and apply the law. However, in fulfilling this function, there are many barriers which effectively deny access to the courts for many. The whole process must be reimagined. Along, we shall be asking: “Who is the judiciary serving?”.
The process of reimagination and then, reconstruction, of the legal function delivery needs to be based on outcome thinking and client-centric.
The goal is to serve the public, not the lawyers.
PART IV: Q & A
Amongst the questions from the audience addressed by presenters were:
- In the realities of remote work, how can law firms provide appropriate supervision (and on the job training/development) for their associates?
By way of answering, the speakers acknowledged the remote work will necessitate changes and touched upon the topic of legal education. It needs to change, becoming a joint initiative [between the educational institutions and the employers]. Education and training shall have a more multidisciplinary approach, to deliver services required to solve clients’ problems, not what lawyers think of as their problems. It was mentioned that, also, we will realise that the business of law does not always require a JD handling the task for clients. At the same time, lawyers will need to acquire new, augmented, skills, such as project management, data management and analytics and technological fluency. All this will amount to creating a new legal education curriculum.
- Will some security incident send us back to the office, triggering a retreat of the remote working?
Security is not an “either/or” situation, there are no knock-down objectives. Cyber-attacks might get (to some extent) normalised and definitely we work on minimising them. Therefore, however likely it is that there will be some big, front-page news, security incident, it will not send us back to the office cubicles. If anything, potential and real cyber-attacks will improve our systems and upskill our professionals.
- What is the role of the regulator in this re-imagining of the legal function?
The regulators can and do go in different directions. For example, in England, there is de-regulation and liberalisation going on. With the introduction of ALS, there is the new entrepreneurial spirit injected into delivering legal function, new competitors. Ultimately, whatever the path the regulators choose, lawyers shall thrive because they bring value to the society not because they are a monopoly.
Overall, we recommend attending. Especially if you are:
- a legal professional (not only a lawyer);
- new to the field of legal change and innovation (so you get some condensed introduction to it);
- a seasoned legal innovation practitioner or a fan (so you stay up-to-date with the particulars of the discussion by the discipline’s thought leaders);
- interested in the broader (helicopter) view of the changing legal industry, including strategic directions at the time of accelerated change;
- looking for a summary or introductory remarks regarding the future of law and the legal industry vis-a-vis COVID-19-turbo-charged technological and cultural shifts;
- hoping to experience the legendary Legal Geek’s conference vibe and enthusiasm.
WHY SHOULD YOU ATTEND
Your time will not be wasted. You will learn a thing or a few, more likely. Everyone will surely get something useful out of The Uncertain Decade‘s webinars. However, the general impression and value of the webinars take-home messages depend on your level of familiarity with the legal innovation movement.
To me, the session proved valuable, although most of the information provided was far from novel and, in my opinion, on a more general level.
However, this is neither surprising nor disappointing, given that:
- As the blog’s team, we are avid followers of both presenters. We joke that there is no post in which we wouldn’t quote either Mark Cohen or Richard Susskind. We’re more than familiar with their work, hence we might not be the best representation of “the average attendee”.
- Personally, I believe that in order to break the echo chamber and popularise the ideas of the legal tech/innovation movement, there shall be events which are accessible and accommodating, rather than very specialised and intimidating with the jargon for those freshly joining the conversation. As for those who are knee-deep in the field, for whom the core message might be well known, there are other benefits of participation. Things are changing so fast lately that you’re surely set for some novelty.
And so, to me, what was the most valuable were snippets of practical information, such as the behind-the-scenes particular experiences and deeper insights, especially from the development of remote courts. In this light, the presentation provided expanded and updated additions to the presenters’ work we regularly devour.
Hence, in sum, it was a valuable presentation which left me craving for more in-depth information and curiously looking forward to participating in the next webinars. I believe it will be useful to most attendees.
MORE DIVERSITY WOULD MAKE THE SESSIONS EVEN BETTER
As a user comment (aka room for improvement): a bit more diversity of perspective, please.
It’s a tricky request, burdened with many caveats. For starters, by no means, it is a proposal for different speakers. I recognise that when we, the users, want to learn from the most respected names in the industry these are the presenters to hear from. Secondly, I am also aware that the presenters – being white, male etc. – are not from the underrepresented groups and am not calling for any kind of positive discrimination either. What I am, though, proposing for consideration is the presenters injecting some more diverse perspectives in terms of the geographic and legal system representation.
This is an event aimed at the global audience, presented by an organisation committed to diversity. The first webinar was attended by over 1300 people from 60+ countries. Just from the maths, it’s highly unlikely to be only common law users. Again, I understand this is not a regional event, and so this is not asking for going into country particularities. I also understand that in the (up until COVID-19) globalised world, especially in the domain of the business of law, we are largely dealing with the same issues.
And yet, despite all the caveats above, I am hoping that in the next webinars we could hear some more diverse examples and insight. It is undoubtedly possible – given the presenters have broad expertise – and most likely needed – not only by us from the exotic 😊 region of CEE, given the global attendance.
PRACTICALITIES FOR ATTENDEES
Some practical tips for future attendees:
- remember you must register as the link you will receive is singular to each registered participant;
- each last Thursday of the month until July reserve 1,5 hours of your time;
- in advance prepare questions in writing to be pasted into Q & A box (this is the only way of directly interacting with the presenters, that is if your question gets noticed and upvoted to be answered);
- vote in polls – if you want to shape the discussion pay attention to the screen where a poll question will pop up and you have your 10 seconds to cast the vote on what the audience wants the presenters to talk about (this is an efficient way of leading the discussion, given that the first event had over 1300 participants and so the Q&A gets quickly barely decipherable);
- on a semi-professional note: there was no need to get out of those lockdown tracksuit pants nor wash one’s hair. Cameras and microphones work only one way 😊 In regard to this one-way stream: in a typical Zoom manner, the backdrop of impressive libraries and artwork of the presenters was widely appreciated by the audience!
ABOUT THE UNCERTAIN DECADE
Legal Geek – organisers of legal events with a mission – like most, have now shifted its activities online. The Uncertain Decade series is one of the flagship offerings, in fulfilment of a “mission to prove that online events don’t need to be boring”.
The premise of the series is simple:
“Richard Susskind and Mark Cohen debate the future of the legal industry.
At the dawn of a new decade businesses face unprecedented challenges in an ever-changing, global market. To help the industry adapt to a new landscape, we are bringing together two of the most respected names in the industry for a series of four live online events.”
Webinar 1: “Legal life after COVID-19 – a very new normal” and “When courts close, what will half the world’s lawyers do?”
Webinar 2 (Thursday, 28th May at 3.00 PM UK time): “What clients want and need” and “Alternative legal suppliers – hope or hype?”
Webinar 3 (Thursday, 25th June at 3.00 PM UK time): topic TBC
Webinar 4 (Thursday, 30th July at 3.00 PM UK time): topic TBC
Sign up and take part in the discussion.
Looking forward to comments and questions – get in touch! Thank you for reading 😊
P.S. If I missed or misrepresented anything, let me know. I was hooked to my screen and headphones, but…
Thanks to my colleague, Theodora – who also participated in the webinar, for adding to this text 😊 Mistakes are solely mine (Karolina’s).
Karolina Jackowicz is a (re)inventor. With analytical mind – lawyer by education. As curious and empathetic spirit – mediator by profession. At heart, driven by creative urge with a get-go attitude – a habitual process improver turned manager, serving as legal tech start-up’s CEO. When not on the road: swimming, reading or walking basenji Amiś.