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.

 

Three Lessons about ADR

Hon. John C. Cratsley (Ret.)

Hon. John C. Cratsley (Ret.)

By Hon. John C. Cratsley (Ret.)

Having recently completed a manual about the ADR process, there are three features of mediation that jump out at me as noteworthy, but are often overlooked by the practitioner. First are the multiple opportunities for the alert attorney to engage opposing counsel in a mediation of a pending court case without seeming too eager to mediate. Second is the value to counsel of participating in one or more pre-mediation conference calls, whether joint or individual, with the mediator. And third is the necessity for counsel to keep up with the law on the enforcement of mediated agreements.

Starting with the multiple opportunities for scheduling your mediation, most state and federal courts now have some version of an early intervention event, shortly after the issues are joined, when mediation can, and in some jurisdictions must, be discussed with the court. These are mandatory events when counsel can freely evaluate and choose mediation, under the watchful eye of the court, and without the pressure of having to initiate the conversation cold with an adversary.

Often more appealing, due to the need for discovery and motions practice, is the opportunity to engage opposing counsel in mediation at the final pre-trial conference or even in the days just before trial.  Most court rules, including those in Massachusetts, require counsel to report on the status of settlement discussions at the final pre-trial conference. This allows mediation to readily enter the picture and the trial date to be adjusted accordingly. On the other hand, persuading a judge to continue a trial at the last minute to permit mediation takes a skillful appeal to judicial economy and, to succeed, should be accompanied by a joint commitment to a particular mediator and date so the trial can be appropriately moved ahead.

The value to counsel of one or more pre-mediation conference calls with the mediator cannot be overstated. While Judge Lynn Duryee’s recent JAMS blog on the value of the pre-mediation brief is required reading, the ability to engage the mediator in a discussion of issues in the brief as well as to answer the mediator’s questions is invaluable. Many mediators will hold a joint pre-mediation conference call, and some will make the content quite mechanical (names of attending parties, time constraints, etc.). This is no reason to miss emphasizing points made in the brief. Of particular value is the opportunity provided by some mediators for a follow-up private conference call. The mediator will usually have a specific question or two based on the brief or on the joint conference call, but again, counsel can use this opportunity to stress particular points.

Counsel is wise to keep up with the fact patterns of new appellate decisions because in Massachusetts, and generally, the basic principles of contract law apply to the enforcement of mediated agreements. Recent decisions, just in June 2014, enforcing or remanding mediation agreements include CEATS, Inc. v. Continental Airlines, Inc. (mediated agreement enforced despite mediator’s failure of disclosure), and Patel v. Patel (mediated agreement remanded on issues of authority to sign and ambiguity). Additional ways to keep current include the ADR Cases section of Dispute Resolution Magazine published quarterly by the American Bar Association and the Dispute Resolution Alert published quarterly by JAMS.

Hon. John C. Cratsley is a JAMS neutral based in Boston. He recently published an ADR Practice Guide for the state of Massachusetts, published by LexisNexis. He can be reached at jcratsley@jamsadr.com.

Mediation of Insurance Coverage Cases

Bruce A. Friedman, Esq.

Bruce A. Friedman, Esq.

by Bruce A. Friedman, Esq.

Resolving insurance coverage disputes through mediation requires careful assessment of three unique elements:  the insurance policy, the rules applicable to the application of the policy and the cases construing the policy.  Evaluative mediation provides the best approach for resolving these disputes.  It requires parties, counsel and the mediator to evaluate the strength and weaknesses of coverage issues, and it provides for input from the mediator as to possible outcomes of the case.  There are also other issues unique to insurance coverage cases that must be addressed in the mediation process.

Why the Evaluative Approach?

More than any other type of case, the outcome of an insurance coverage dispute relies heavily on precedent.  Counsel must educate the mediator regarding both the policy provisions at issue and how court interpretations of those provisions apply to the case at hand.  The evaluative approach provides the most appropriate mechanisms for doing just that.

Choice of Law

Different states’ legal precedents can have a significant impact on the interpretation of a policy; therefore, choice of law issues should be addressed in the mediation brief and discussed in the mediation.  California, for example, has a rule that requires the insurer to prove that it has been prejudiced by late notice of a claim or suit.  Other states may enforce the notice provision of the policy without regard to prejudice to the insurer.  Another issue may involve the issue of waiver of coverage defenses.  The California Supreme Court has adopted a rule that the insurer does not waive coverage defenses not mentioned in the initial denial or reservation of rights letter.  Other states have a more policyholder-friendly rule that provides that coverage defenses are waived if not specifically raised by the insurer at the outset of the claim.  Law and precedent regarding other key issues arising in coverage disputes, such as the standard for rescission of an insurance policy or the application of an exclusion for a known loss, also differ significantly from state to state.

Burden of Proof

There are also different burdens of proof as to the coverage grant in the policy and the exclusions that must be addressed in the mediation.  The policyholder generally has the burden of proof to establish that the risk is covered under the coverage grant of the policy.  The insurer bears the burden of proof with respect to the applicability of exclusion.  This shifting burden of proof may have a significant impact on the coverage analysis in a duty to defend context.  Here, if the insurer is relying on an exclusion, it must be able to demonstrate that there is no possibility that the claim may fall outside of the exclusion.  If it cannot do so based on a summary judgment standard, the insurer must defend the case.

For the rest of “Mediation of Insurance Coverage Cases,” please read the full article from Law.com by clicking here.

Developmental Negotiation: Preliminary Stage

Alexander S. Polsky, Esq.

Alexander S. Polsky, Esq.

by Alexander S. Polsky, Esq.

Developmental negotiation involves a plan and execution of the development of all five stages to maximize the likelihood of a beneficial outcome.  The five stages are preliminary, preparation, information, negotiation and closing.

Let’s take a closer look at the first stage, preliminary.  In real time, your client has met with you and has been signed up, and you are considering approaches.  When signing the client, you developed a thorough understanding of the client’s needs, interests and capacity for risk, both financially and emotionally.  Now you have initial decisions and recommendations to make.

Should there be an initial and early effort at negotiation?

There are many interests to be balanced here.  One is whether protracted litigation will adversely impact the client’s reputation, business interests and/or ability to fund the case if you are not trying to negotiate.

Another centers on your assessment of the quality of the case and client.  Imagine a situation where the client does not present well, has a greater than 50 percent chance of an unsatisfactory outcome and cannot otherwise afford to litigate.  This client needs an early resolution process, perhaps pre-suit.

Let’s examine a claim for sexual harassment, hostile workplace and wrongful termination.  The claimant is a 48-year-old who has been with the company for 10 years; the respondent is a large department store chain.  You represent claimant.  This person is angry and has a bent for vengeance and for creating procedural changes to better address complaints.  When you analyze the interests of the respondent, what do you consider as possible motivating factors for early resolution?

  • The impact of protracted discovery will be disruptive to the business;
  • The impact of protracted discovery could bring out other complaints;
  • A favorable judgment could bring out even more claims;
  • Insurance considerations.

To continue reading Mr. Polsky’s discussion on the prelimary stage of mediation for successful negotiators, please read the full article from Law.com by clicking here.