The Future’s So Bright, I Gotta Wear Shades

Jordon Furlong at Law21 is either a visionary or the Prophet of Doom, according to how strongly you desire to embrace a future where the law is no longer a learned profession, but just another service trying to keep its head above water.  Jordon views the commodization of law as inevitable.

Lawyers also are under regulatory pressure (in England & Wales through the Legal Services Act, in Canada by the Competition Bureau, and the Missouri lawyers suing LegalZoom for the unauthorized practice of law better hope their suit doesn’t produce the wrong kind of finding). But still we resist new competition through UPL restrictions, we seem to regard technology as a nuisance more than a service facilitator, we routinely warn clients of the dangers of going it alone, and we maintain (patronizingly) that we always end up fixing the messes left by unrepresented clients.

By analogy, Jordon points to what’s happening with realtors as a window on our future:

The Globe & Mail reports on a rising wave of sell-it-yourself home realty, prompted by both Canada’s Competition Bureau and its intention to deprive Realtors of their near-monopoly as well as technological advances that allow people to buy and sell homes without professional assistance. Realtors — and this might sound familiar — have responded by fighting the Bureau’s efforts to open the market, scaring homeowners with the dangers of proceeding without professional assistance, and confidently predicting that these amateurs’ mistakes will simply produce more work for Realtors in the end.

While there are some obvious differences between lawyers and realtors, there are also some obvious similarities.  We both provide services based upon specialized knowledge.  The fees for those services often appear unrelated to the benefits derived, as neither is a profit center and both are viewed as a drain on revenue.  Most significantly, many people are uncertain that our services are necessary, and harbor a belief that they could have (or at least, should have) been able to do just as well without us.

When Jordon highlights our resistance to “new competition through UPL restrictions,” it suggests that he sees the future of law disconnected from lawyers.  Whether this means that companies that sell legal forms are the future, or getting legal advice from unknown avatars on the internet, or unbundled services by undisclosed lawyers, is unclear.  Jordon’s point has long been that all these forms exist and are growing, while we sit in our offices pondering when the phone will ring.

The primary cause of discontent with lawyers doesn’t strike me as all that hard to figure out.  People perceive lawyers as doing a lousy job of it and charging too much for the pleasure.  The former aspect has two components, the first being that the nature of the law isn’t an exact science.  When we hire a plumber to fix a leak, his job is done when the leak is gone.  Law doesn’t work that way, and lawyers can’t guarantee that they can produce what the client desires. Whether in litigation or transactions, a lawyer can fight for his client’s interests and desires, but faces an opponent doing the same for his client.  Someone isn’t going to get what he wants.

The other factor is that there are a lot of incompetent lawyers, or lawyers who just don’t care enough to provide competent services.  We’ve got far too many lawyers, and our law schools keep pumping out more.  This can be addressed, but won’t until half the law schools are shuttered, and lawyers police our own ranks to rid ourselves of the bad ones.

Ironically, one of Jordon’s beloved futuristic cures, technology, is likely a significant culprit in the dissatisfaction with lawyer incompetence.  Internet marketing allows the most mercenary, inexperienced and/or incompetent lawyer to promote himself as the most experienced, competent, caring lawyer alive.  Suckers believe what the marketing promotes, to the consumer’s detriment.

The second primary cause of discontent is the cost of legal services.  The simple fix is just to cut legal fees in half, but it becomes a problem when lawyers aren’t charged half price by plumbers.  Even to those who have chosen to practice law because it’s what they want to do with their lives, there remains a desire to feed one’s family, buy the occasional pair of new shoes and put gas in the jalopy.  Practicing law should not require an oath of poverty.

We can certainly reduce some costs with adoption of technology, but I suspect that applies more to some smaller niches than law in general, and the savings is relatively inconsequential. It also involves certain compromises, which is clearer to those of us who practiced before technology was so widely adored.  Computers are great, but spellcheck isn’t a substitute for a human proofreader.  Chatrooms and listservs create a sense of community, but the tenor of discussion can’t be compared to sitting down with a bunch of compadres in the same room swapping stories and advice. 

It’s unlikely that Jordon would disagree that public use of online legal forms, or free internet advice, or unbundled services, have their faults and downside.  They do, however, provide an alternative to costly, and possibly incompetent, legal services.  In many instances, these lawyer-substitutes will end up satisfying people’s legal needs, or at least do no harm in the process.  In some instances, they will result in disastrous consequences.  

So what is it that Jordon would have us do to greet this future?  Some have suggested we dumb-down the law to make it comprehensible to anyone with a third grade education, thus allowing regular folks to circumvent lawyers and have a fighting chance to figure it out for themselves.  People of good will believe that their positions are reasonable and just.  So do their adversaries.  Do the math.

Will this result in “anarchy and blood in the streets,” as derided by Jordon?  Maybe some, as it happens occasionally now.  It will, I believe, result in increasingly greater dissatisfaction with the law and the processes developed over the past millennium to resolve disputes and defend the rights of individuals against the sovereign.  If using lawyers sucks, going it alone sucks worse when you’re on the losing side.

Eventually, someone will come up with the concept of a group of individuals, specially trained to provide legal services to individuals, vetted for competence and empowered to hold themselves out to the public as being capable of serving them in a legal capacity.  I wonder what we might call such people?

Maybe the public won’t appreciate why lawyers came into being until they’ve had a chance to duke it out without lawyers and see how everything goes.  In the meantime, it doesn’t seem like such a great idea to either succumb to half-baked demand for lawyer-lite, cheap but unfulfilling. 

If that’s what being a lawyer is reduced to, I would prefer to be a plumber.  At least then I would feel the satisfaction of knowing that I stopped the leak.

8 comments on “The Future’s So Bright, I Gotta Wear Shades

  1. Venkat

    Good points – technology has had positive effects on the practice of law, but we don’t often think about the downsides. Well you do, but most people don’t.

    Your closing paragraph is on point:

    If that’s what being a lawyer is reduced to, I would prefer to be a plumber.

  2. Carolyn Elefant

    The spell check analogy is brilliant. Spell check may not substitute for a human proofreader, but it does cut down on the time required for a human to check for errors. Moreover, the errors that are left in a document after spell check finishes it are generally those of context or word choice, which is something that a human can do, not a computer.
    Same with routine legal services. A computer can take a first crack at a will or an incorporation. A real lawyer can then scan it and ask a few questions to see whether the form produced meets a client’s goals and satisfies legal requirements. But at least the reviewing lawyer doesn’t have to start from the ground up.

  3. Adrian Dayton

    There are obvious advantages technology adds to the practice of law. Legal Zoom is able to gain those advantages while taking lawyers completely out of the picture.

    I agree with Carolyn that the real opportunity for the great lawyers is to design a system that is at least as efficient at creating documents as Legal Zoom with the added value of brilliant attorneys.

  4. SHG

    You have to earn the right to have an opinion on this subject. You haven’t.  Don’t opine on subjects you know nothing about. 

  5. Nick42

    SHG,

    I wonder how or why you think lawyers are different from say teachers or programmers, both learned professions that can have themselves struggling to keep their heads above water. Or perhaps interior designers would make a better analogy, as they likely lawyers, strive mighty to use the law to protect their profession from outsiders.

    IMHO, and this is largely conjuncture, the reason people are less satisfied with lawyers has to do with how much more of our daily life is hemmed in by legal matters than it used to be.

    What percentage of the US population is currently involved with the criminal justice system? Prosecutors are now filing charges for being mean on the Internet. How many Americans have to deal with the clean water act / endangered species act / ADA when renovating their homes? What about patent trolls at the office?

    Also, you mention dumbing the law down so that average people can understand it. I don’t see a problem with that – at least as far as reducing or modifying legal terms of art the defy the common meaning of the terms used to define them. The details of M&A may need to be highly technical. But if we expect the populace to obey criminal law, I think it should be written so that it can be readily understandable.

    Ahh really, most of the problem is regular lawyers. It’s those lawyers (and nonlawyers) that managed to get themselves elected to where they can write laws that are causing the problems.

  6. Jordan Furlong

    Scott, thanks very much for this excellent post and commentary. I think you’re right that when people try going without lawyers for legal situations, many of them will pretty quickly realize that lawyers deliver a lot more value than they thought. That’s a harsh way to market our services, but that may be how it gets done. For those who made the no-lawyer choice because they wanted a high-value result at a low-value price, or had an inflated sense of their own skills in this regard, I don’t have much sympathy: consumers make their choices and live with the results all the time.

    Where I do have sympathy is for the people who went without a lawyer because they didn’t have any other option. One witty Twitter response to my post went something like: “Representing yourself is like pulling your own wisdom teeth; you will suffer needlessly.” That’s very clever. But it also raises the question in response; “What if you can’t afford a dentist?” The teeth still have to come out, and you don’t have access to the best option. It’s no answer to that patient to say, well, serves you right if you try to do it yourself. Yet that’s the answer I hear a lot of lawyers (not you) give, as if it ends the discussion. And if the patient has to resort to a handful of Tylenol-3 and a pair of pliers, it doesn’t seem to weigh much on these lawyers’ consciences.

    I agree that lawyers shouldn’t feel obliged to reduce their prices just to improve access to justice. I do think that lawyers should reduce their prices if the market compels them to, and I think the market is close to doing just that. Is this a good thing or a bad thing? In the end, I don’t think it matters: it’s a thing, and it’s going to happen, and lawyers will have to deal with it whether we want to or not.

    I’m no visionary, but I’m not a Prophet of Doom either, because I do think we can, as a profession, deal with it when we’re forced to. We’ll lose some work to providers that can offer adequate quality at prices below what even an efficient and competent lawyer can charge, but we’ll keep work that others can’t deliver to an adequate marketplace standard. In a best-case scenario, the kind of work we really like doing, the kind that exercises our intellect and judgment, will be what’s left over after the market takes away the other stuff. That would at least postpone us having to sign up for plumbing lessons. But I have no idea if the best-case scenario will unfold, and I sure wouldn’t count on it.

    What do I think we should do? Figure out ways to deliver services clients need at prices they’re willing or able to pay, because we’re not doing that now. That’s the only thing the market cares about, and if we don’t do it, someone else will — maybe not as well as us, and maybe everyone will be the poorer for it, but it’ll get done.

  7. Doug Cornelius

    I have a problem with the over-generalization of the legal industry. What you do in criminal defense bears little resemblance to what I do in regulatory compliance or did in a real estate transaction practice.

    Internet and technology are changing all industries, including legal services. The impact on legal services is as varied as the type of legal services.

    Buying a house is a fairly standard process 90% of the time (maybe that is too low). You need a lawyer for rest of the transactions because their complicated. You probably need a lawyer to help you figure out whether you need them or not in the first place. It’s not always clear that the lawyer is helping. You just want to buy or sell the house, have few headaches and pay the least amount in costs.

    When the handcuffs are on, the analysis is very different.

    I used to be a residential real estate broker before the internet age. I made my money based on an inequality of information. I had access to market information. Buyers and sellers did not. Clearly, the internet has destroyed that information asymmetry and changed the way residential real estate brokers work.

    Most people can make better decisions about buying and selling houses if they have better access to the market information. Most people will NOT make better decisions if they have better access to the underlying law.

    Lawyers are not realtors.

  8. SHG

    From that perspective, nobody needs a lawyer until the shit hits the fan.  Of course, then it’s too late.  There’s the conundrum.  If you happen to be in unlucky 10% (using your number), you’re screwed.  While the numbers may be different, it’s similary in criminal law, where a person can chose to go pro se. 

    Everybody wants the best outcome.  Nobody wants to spend dead money on a lawyer.  Nobody wants to be the one who gets screwed.  These aren’t solutions, just rolling the dice and hoping you don’t happen to be the one in ten who gets slaughtered.

Comments are closed.