Tomorrow’s Lawyers: An Introduction to Your Future

Richard Birke

Richard Birke

Written by Richard Susskind
Reviewed  by Richard Birke

In his book Tomorrow’s Lawyers, Richard Susskind writes, “Tomorrow’s legal world, as predicted and described here, bears little resemblance to that of the past.  Legal institutions and lawyers are at a crossroads, I claim, and are poised to change more radically over the next two decades than they have over the last two centuries.”

Susskind sees three major forces driving change in how legal services are provided.  The first is something he calls the “more-for-less challenge.”  As the name suggests, this driver involves clients asking lawyers to deliver more services for less money.  One simple example of this principle is found in large corporate clients who demand that their in-house counsel reduce expenses—sometimes by as much as 30 to 50 percent—at a time when the amount of compliance work and due diligence is increasing.  Susskind sees this as a factor that will “irreversibly change the way lawyers work.”

Tomorrow's Lawyers: An Introduction to Your Future

Tomorrow’s Lawyers: An Introduction to Your Future

The second driver is liberalization, non-lawyers doing work formerly done exclusively by lawyers.  Accountants, real-estate brokers, insurance adjusters and others have long been doing work that was once the exclusive province of members of the bar, and Susskind sees this trend continuing.  Banks will take over work, lawyers’ assistants in Second World and Third World countries will take over work and legal “partnerships” involving many non-lawyers will take over lawyers’ work.

The third driver is information technology.  Computers have already revolutionized the way discovery is handled, and document searches are now more likely to be conducted by electronic means.  Many legal documents are available online, and with the continued growth of computing power, it is likely that pseudo-legal reasoning will soon become part of the future of technology.

However, despite the potentially dire future predicted by these three drivers, Susskind is not entirely pessimistic about the future of lawyers.  He sees a world in which most lawyers will occupy different roles in the future than those they had in the past.  In Susskind’s world, new lawyers will guide clients through form filling more often than form creation.  Lawyers will sell and provide more routine services than they will create novel approaches to the resolution of common and age-old problems (like writing a will or renting an apartment).

In the midst of this rather unexciting world of form filling, Susskind sees some remaining role for lawyers to act as negotiators and researchers.  He describes transactions and litigation as “decomposed.”  Transactions decompose into nine categories:  due diligence, legal research, transaction management, template selection, negotiation, bespoke drafting, document management, legal advice and risk assessment.  Litigation similarly decomposes into nine categories:  document review, legal research, project management, disclosure, strategy, tactics, negotiation and advocacy.  It is notable that only legal research and negotiation appear in both realms.

No one is left untouched.  There are cautions and advice for educators, older lawyers, newer lawyers, managers of law firms, consumers of legal services, paralegals and others.  For the older lawyers, the advice is simple:  Change or die.  For the younger, the advice is stark:  “You will find most senior lawyers to be of little guidance in this quest [to shape the new practice].  They will resist change and will often want to hang on to their traditional ways of working, even if they are well past their sell-by date.”

And then, in the next-to-last line, Susskind reveals the last bit of advice he has for tomorrow’s lawyers.  He says, “In truth, you are on your own.”

The book is short, fewer than 170 pages.  It’s challenging, to existing practices and the future of law.  It’s well-written and entertaining.  But is it accurate?  Certainly, the trends Susskind has identified are real, but there’s no certainty that the future will come as quickly as Susskind suggests.  But one thing is certain, it’s worth the short investment in time that it will take to discover Susskind’s prognostications.  Even if 10 percent of them turn out to be right, that represents a huge change.  Personally, I think the ideas are right on target, but I think the timeline is a bit too short.  Nonetheless, Tomorrow’s Lawyers is well worth reading.

This article was originally published in the JAMS Dispute Resolution Alert Newsletter, Summer 2014 edition.

 

New Mediation Law in UK Geared to Divorcing Couples

By Richard Birke

Richard Birke

Richard Birke

Despite the efforts of a group of 6,500 mediators and millions of pounds spent by the government on advertising and diversion efforts, divorce mediation languished in Great Britain.  The London Times reported that “only half of 4,000 adults surveyed would even consider an out-of-court solution to resolving their disputes.” [emphasis added]

A new law will require that divorcing couples with disputes about children or property will be required to attend a “mediation information and assessment meeting.”  The couples aren’t required to mediate, but merely to consider mediation.   There, they will be informed that the average mediated case in England costs 500 pounds and takes 110 days to resolve and that the averaged litigated case costs 4000 pounds and takes 435 days.   Presumably, they’ll also learn about how mediation works.   Surely, some couples will mediate who would not have without this nudge.

These small changes to the court’s approach to family law may be a harbinger of things to come.  It was certainly the case in the U.S.  that the earliest and most enthusiastic adopters of mediation in the U.S. were the lawyers and judges who worked in family law courts.   They successfully lobbied to have mandatory mediation programs in most all counties in the U.S. It wasn’t long after their success that the idea that mediation was a superior way to resolve many disputes penetrated deeply into the legal culture – into courts rules, laws, and the minds of lawyers and clients.

Lest this seem like news that the Brits don’t mediate, there’s evidence to the contrary.  Mediator friends in the U.K. report that business is brisk and that practicing lawyers understand the value of self-determination over the outcome of a dispute and a dedicated and skilled neutral.  I am always pleased to hear about mediation working well and I hope their practices continue to thrive.

But it seems that there’s still massive growth potential and it may be on the horizon.  Where the family courts go, so goes the dispute resolution culture.  After the divorcing couples have good experiences in a mediation they would not otherwise have considered (and a great many will have good experiences – that’s part of the magic of mediation), these same divorcees will go back to work running and working in companies that may have disputes – disputes that they would not have previously considered appropriate for mediation.

Family Justice Minister Simon Hughes summed it up perfectly when he said “Mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontational and stressful experience of going to court.”  Let’s hope that divorcing couples have a superior experience than court and that Minister Hughes’ commitment translates into a cultural cascade in favor of increased employment of mediation.

A World in Balance- At Least in Terms of the Number of Arbitration Courts

By Richard Birke

Richard Birke

Richard Birke

In the past few weeks, Russia has abolished its main commercial court and Singapore has announced its plan to open one.  The events appear to be unrelated, but it seems likely that the ripples from each may reach the other.

On November 28, the Financial Times printed a headline that read “Moscow Abolishes Commercial Court.”  The paper reported that the “Federal Council, the upper house of parliament, yesterday changed the constitution to allow the merger of the Supreme Court of Arbitration into the Supreme Court.”  The move was not uncontroversial with a reported “80 law firms oppos[ing] the changes in an open letter.”  The letter was directed towards fears of politically-motivated reprisals at businesspeople like Mikhail Khodorkovsky, a jailed “business magnate turned politician” (who, incidentally was recently pardoned by President Vladimir Putin  – according to CNN).

Meanwhile, on December 3, Agence France-Presse reported that “Singapore to Open New Commercial Court to Leverage Arbitration Strengths.”  The Singaporean government has recognized that the economies of Southeast Asia are booming, with GDP for the region likely to triple by 2020.  Certainly, the volume of disputes and the need for prompt resolution will see commensurate growth.  And Singapore is already strong in this field.  The December 3 story reports that “The Singapore International Arbitration Centre, set up in 1991, last year handled 235 disputes worth US$2.87 billion….It is considered the fourth most preferred arbitration institution in the world, after similar bodies in Paris, London and New York, according to a survey by international law firm White & Case.”  You can read the whole report at http://www.scmp.com/news/asia/article/1372280/singapore-open-new-commercial-court-leverage-arbitration-strengths

Surely trade between Russia and Asia will rise as Asia’s economy continues to grow and given the proximity of Russia’s natural resources and Asia’s need for them. Will some Russian business disputes end up in Singaporean arbitration?   Only time will tell, but it would be no surprise if the closing of one arbitration court will result in new business for the one that’s opening or another someplace else.

Books I’ve Loved (Which Can Be Applied to Your Practice)

Richard Birke

Richard Birke

By Richard Birke

With daylight savings upon us, we’re now back in the dark season, or as I prefer to think of it, the season of reading. Those of you who have read my book reviews and followed my work know that I am a big fan of psychology and neuroscience. After all, if you want to know how to negotiate better, you need to understand how to make better decisions and what’s going on for the decision-makers across the table.

Against the Gods

Against the Gods

In that vein, I highly recommend Peter L. Bernstein’s Against the Gods – subtitled, the Remarkable Story of Risk. Bernstein brings journalistic gifts to bear when he teaches us how Daniel Bernoulli discovered that we bet more when we are losing, how Amos Tversky and Daniel Kahneman advanced that study into a Nobel Prize winning theory of loss aversion, how former decision theorist-turned Pentagon Papers-author, Daniel Ellsberg, taught us why we prefer known risks to uncertain ones and more. It’s a must read for anyone trying to value a case or claim, whether working with or against anyone’s deity.

The Accidental Mind

The Accidental Mind

Another great book is David Linden’s The Accidental Mind. This book is a neuroscientist’s explanation for everything from love to religion to dreams and more. The first half of the book is a primer on the brain and the second half goes into applications. Doctor Linden revived my interest in science by writing an entertaining and educational work that helped me understand the automatic processes of the mind and how they shape our perspective on our wants and desires. Nothing accidental about this recommendation.

Stumbling on Happiness

Stumbling on Happiness

I also love Daniel Gilbert’s Stumbling on Happiness. Gilbert is a Harvard Psychology Professor who has studied why we are so bad at predicting what will make us happy.  He discusses such fun concepts as “experience squishing and expansion” in which a person who couldn’t possibly be as happy as we are (think conjoined twins) must take the range of happiness from 1-10 and expand it into a larger space. The twin must actually experience a true range from 1-7 (Gilbert nor I actually believe that the twin is less happy) and stretch it to make it a 1-10. This book tells us why it’s so hard to reach a durable settlement and why we are so prone to buyer’s remorse. Read it – you’ll be happy you did.

Let me give you more that I think are great – no lengthy explanations– just strong recommendations.

Deepak Malhotra and Max Bazerman – Negotiation Genius (how to negotiate better)

Robert Axelrod – The Evolution of Cooperation (how cooperation can emerge in competitive environments)

Cass Sunstein and Richard Thaler – Nudge (how to get people to do things that are good for them)

David Eagleman – Incognito (how the subconscious mind controls our lives)

Joseph LeDoux – The Emotional Brain (how the brain creates emotion)

Paul Ekman – Emotions Revealed (the art and science of facial recognition)

Marco Iacaboni – Mirroring People (the neuroscience of empathy)

So there’s a nice collection for you – each one entertaining and stimulating at the same time.  If you read one every few weeks, that ought to take you through the darkness and back into the light, in more ways than one.

Happy reading!