Legal practise is changing.
That is banal. But it was not always like that. Legal practise has historically changed very slowly. Lawyers have tended to retain dress codes, language, customs and institutions long after the original reasons for them have been largely forgotten. Lawyers in some jurisdictions still use archaic dress, language and mannerisms, at least in courts. But outside the courtroom the work lives and business models of lawyers has radically changed. Lawyers from the 1970’s, except perhaps in New York, likely wouldn’t have described themselves having work lives or business models or business models but would have spoken of legal practise. It was in late 1980’s that many of the changes now affecting lawyers all over the world began in the United States. Richard Susskind, has been writing about these changes for decades – I have heard him admit to always rewriting the same book but a he pointed out he has had to continually update the book because of rapid changes and because the across the world the leaders of the legal profession have been rather flatfooted in their response to the changes. Susskind identifies three ‘drivers of change’; the more-for-less demand, liberalisation and technology. Lets look at just of one of those disruptive factors, technology.
Word processing software enabled (and thus by a strange mutation) required lawyers to work longer hours, cellphones enabled lawyers to be easily reached by clients, effectively eliminating the distinction between work and leisure. More recently Internet connectivity enables lawyers to be more productive but also more distracted. In 2007 I was the only lawyer working on my laptop while waiting for my turn on the role in courts in Gauteng, recently some of those courts installed wifi.
If technology has tended to change the way lawyers in practise experience time – what Douglas Rushkoff terms ‘temporal compression overwinding —the effort to squish really big timescales into much smaller or nonexistent ones’ then it also changes the geographies of law.
Secular law has always relied on geography, the spatial boundaries of a secular legal regime are referred to as ‘jurisdiction’ the same term used to describe the ontological boundaries of that regime. These changes tend to put into a category called ‘globalisation’ that includes global partnerships, outsourcing and cross border legal issues.
Outsourcing, when practitioners in one jurisdiction have aspects of work done by practitioners or even non practitioners in other jurisdiction, usually because it is cheaper, raises concerns about quality but also less tangible issues such as maintaining a particular professional legal culture. Corporate clients rely globally distributed value chains, so the lawyers who advise them need access to lawyers skilled in different jurisdictions, through various kinds of alliances and even global firms. These raise questions about the independence of practitioners and their responsibility as officers of domestic courts. Many practise areas have become trans-jurisdictional, there was a time when only multi-national corporations needed had to deal with cross border issues but now everyone who runs a website must face potential with a cross border issues.
If time compression and globalisation haven’t disrupted lawyers lives another there is another technologically mediated change that will likely be more disruptive: automation. As Charles Wheelan (the Naked Economist) said: ” If your job can be done by a machine, then it soon will be.”
What do these changes mean for law schools? The obvious answer is that law schools must change, what is not obvious at all is how law schools should change.
Wheelan added to his warning “So try to be the guy who sells the machine.” In other words if your job or aspects of your job can be automated, they will be, so try to become the people implementing the automation. One mistake for law schools to make would be to make formally training lawyers to use the current proprietary technology an answer to the disruptions brought about by technology. That would be to train lawyer as customers who buy the machine that automates their work. Instead future lawyers should be trained to both participate in the automation and to critically evaluate and set boundaries for automation.
Future lawyers should be trained to think about how technologies affects legal practise, what values are embedded in technologies and how those technologies can serve justice. Yes justice, it may come as a surprise to some readers that I have used the word justice instead of efficiency or perhaps skill but if so it is because a previous generation of lawyers failed to interrogate existential changes brought about by a managerialist Zeitgeist.
The changes to lawyering being brought about by technology are existential. They require a deep response.
One place to start is in systems theory. Law students should learn to think about legal systems as systems. Systems theory is equally useful to future commercial lawyers who must understand the effect of overlapping legal regimes on the operations of their clients and public interest lawyers parsing ‘new, partially unprestatable, strategy spaces for actors within the system’.
How do you think that law schools should change?