Architects of our future

Rather than cries of outrage, those gathered in UF Law’s Chesterfield Smith Ceremonial Classroom simply listened with rapt attention.

To hear Richard Susskind tell it, the future looks mighty bleak for present and prospective lawyers. At least at first glance. His predictions are filled with yawning chasms of uncertainty broken only by more definite indications of lawyers being replaced by modern technology. Even the title of Susskind’s 2008 book — The End of Lawyers? Rethinking the Nature of Legal Services — paints a less-than-rosy picture.

However, as Susskind and other experts point out, change may hurt the bottom line at big law firms, but the end result will likely be beneficial to the public at large and to lawyers ready to surf the coming waves of technological and organizational change.

A receptive audience

Susskind traveled from his homeland in the United Kingdom to speak Sept. 12 before a receptive audience at the Levin College of Law. Dean Robert Jerry wants to incorporate technology and legal futurism concepts into more law school classes, while Susskind’s own writings have been distributed among faculty and they are required reading in the new Introduction to Lawyering classes for 1Ls. The pivot toward the future is evident in technology-focused legal research classes and in the Electronic Discovery Project and courses by William Hamilton, adjunct UF Law professor and partner at Quarles & Brady LLP.

Susskind commended UF Law for a progressive approach to legal education — adding with a smile that including his books in the curriculum was key to successfully preparing students.

“In many law schools, the law is taught as it was in the 1970s,” Susskind said.

He said taking the legal revolution in stride requires law schools to focus on teaching students to be flexible rather than simply prepping them for traditional careers at law firms.

In fact, the legal profession was well represented during the all-day symposium as The Florida Bar also is taking Susskind’s prophesies seriously. Florida Bar Executive Director Jack Harkness (JD 69) attended with the immediate past president, current president and president-elect of The Florida Bar — Gwynne Young (JD 74), Eugene Pettis (JD 85) and Gregory Coleman.

Under Pettis, the bar is seeking to keep lawyers on the cutting edge with its Vision 2016 Commission. The commission, composed of thought leaders in the bar, community and industry, will study four areas of law — technology, legal education, bar admission, and pro bono and legal services — with an eye to help the bar and its members continue to meet the demands of clients with maximum efficiency. Pettis said there will be opportunities for all Florida Bar members to have input as well, through public hearings and other means.

“It is critical for lawyers in The Florida Bar to be architects of their future and not just reacting to it,” Pettis said. “We have to look at the practice. What do we want it to look like going forward?”

End of the world as we know it?

richard-susskind-photo-fullSusskind argues that today’s law firms handle many tasks for clients that don’t actually require the expertise of a bar-certified lawyer. Although lawyers are certainly required for complex legal issues and advocacy, firms waste billable hours on work that could easily be done by less costly laborers.

So clients are increasingly looking for alternatives to traditional bill-by-the-hour, personalized legal advice. Websites like Legal- Zoom are already providing these consumers with tools, like standardized forms, that allow them to handle basic legal matters on their own. Companies like Axiom Law, which employ veteran lawyers, offer clients alternatives to standard law firms and the freedom to pick and choose which tasks are handled by lawyers. Even online auction site eBay is providing its customers with an electronic means to sidestep traditional lawyers’ fees with its online dispute resolution system.

Susskind pointed to the United Kingdom’s Legal Services Act of 2007 as an engine for change. The act, which allows nonlawyers to own and run legal businesses, means traditional law firms are now forced to compete with companies that treat legal advice like a commodity to be produced and sold more than a personalized, individually tailored service. Susskind believes similar change is on the horizon for American lawyers.

David Vetter (JD 84), whose position as legal counsel for Florida-based Tech Data requires him to weigh the costs and benefits of legal services offered to his firm, sees the differences in the way associates are deployed. “Outside of the United States we find more firms that tend to be open to that dialogue,” Vetter said.

But leaders of The Florida Bar argue there are good reasons for maintaining tight self-regulation and a ban on nonlawyers owning law firms, which has been one result of the UK’s legal services liberalization.

Young said The Florida Bar’s current rules on the unlicensed practice of law have an impact on the implementation of new technologies and alternative legal services.

“I’m not a person who says that you just need to throw out regulation of lawyers,” Young said. “I also think regulation is best done, as it is now, by the Supreme Court. That’s not to say that on a case-by-case basis we shouldn’t look at aspects of the regulation of lawyers to see how they might need to be changed in order to better serve the public.”

Young said The Florida Bar handles the discipline of lawyers as well as providing the services that are offered by a professional association. The bar’s focus, Young said, is to ensure clients get the best service possible. This goal is complicated by nonlawyers who enter the legal arena and may be beyond the reach of the bar’s disciplinary arm.

Lack of disciplinary control may not be the only reason for the hesitation to deregulation.

Roger Blair, professor at the University of Florida’s Warrington College of Business and an affiliate UF Law professor, said lawyers are feeling the pinch of a down economy just as much as other professions. Lean times mean lawyers are likely to cling to restrictions on competition that could result in even slimmer pickings.

“I think monopolies very rarely are going to give up their monopoly power,” Blair said.

Efficiency’s upside

Susskind said growing liberalization could have another positive effect on customers by lowering the cost of legal services.

“The cost of lawyering has become too high,” Susskind said. “Most people find it difficult to afford the services of lawyers.”

Susskind said future legal matters will be routinely broken into parts, with the basic, routine tasks handled quickly and cheaply and only the most specialized areas still given individual attention by lawyers.

“For any deal or dispute, we can analyze it and break it down,” Susskind said.

As for why firms are so hesitant to modernize their business models, Susskind said it often comes down to pride. Law firms have a monopoly on the market that they are unlikely to give up without a fight.

“It’s hard to convince a room full of millionaires that you’ve got your business model wrong,” Susskind said. Some of the technological and organizational efficiencies that Susskind is talking about already are apparent in legal practice — including in Gainesville.

Court reporting companies, which traditionally have provided services firmly grounded in the ink-and-paper realm, are now offering higher-tech options allowing lawyers to increase their efficiency. Cynthia VanLandingham, of VanLandingham Durscher & VanLandingham in downtown Gainesville, said the company installed videoconferencing equipment about four years ago that links lawyers with clients, witnesses and opposing counsel.

Phil Beverly (JD 83), a practicing Gainesville attorney, uses VanLandingham’s videoconferencing to reduce costs for clients. Instead of traveling for meetings, witness interviews and certain depositions, which represent billable hours, he can go next door inside the Seagle Building and engage in a video conference.

However, Beverly said, there are other situations in which a lawyer needs to be able to read a witness, from facial expressions and tone of voice to body language — a skill Beverly referred to as the lawyer’s “sixth sense.” Those readings are nearly impossible to do when the subject of a deposition is miles away.

“We’re in a people profession,” Beverly said. “A lot of it is translating nonverbal communications.”

Beverly said current technology still can’t completely replace face-to-face meetings, but the future could hold changes that seem impossible now.

“If you told me 10 years ago there would be something like the iPhone, I wouldn’t have believed you,” he said.

Courtroom alternatives

experts-discuss-legal-practice

From left to right: Pettis, Young, Blair, Knake, Porcelli, Hamilton, Vetter

Perhaps nowhere are the soaring costs of legal services more apparent than in the courtroom. Going to trial is an extremely expensive option that simply is not available to a majority of the population.

Judge Anthony Porcelli, federal magistrate judge of the U.S. District Court for the Middle District of Florida, said alternative dispute resolution, which helps parties reach agreements without the time and money expenditures associated with litigation, is slowly supplanting trial litigation as the preferred method for settling disputes. Such alternatives to litigation would have an obvious impact on the demand for the services of trial lawyers — and, by extension, judges.

“I joked when I met Richard that he should have named the book The End of Judges?” Porcelli said.

Scary though they may be for lawyers and judges hoping for job security, these changes represent an opportunity for Americans to obtain legal aid in ways that were previously unavailable. The model of civil law suit leading to judge or jury trial is shifting toward less costly alternative dispute resolutions.

Florida statutes, for example, require some civil suits, including medical malpractice and family law cases involving children, to go to mediation before trial. Robin Davis, director of UF Law’s Institute for Dispute Resolution, said most civil disputes will be sent to mediation at some point in the legal process, and it is increasingly common for contracts to include clauses requiring mediation or arbitration of civil disputes.

UF Law, meanwhile, hosts a robust alternative dispute resolution program that is ranked among the best by U.S. News & World Report and which includes nationally recognized scholars such as Leonard Riskin, who this year won the American Bar Association Section of Dispute Resolution’s award for Outstanding Scholarly Work.

Experts say these shifts should not mean fewer jobs for those educated in the law. Hamilton, UF Law’s e-discovery guru, argues that lawyers with knowledge of technology and a willingness to dive into new opportunities will continue to provide value to their clients.

“Let’s not look at our skill set as only being relevant for working at a law firm or in-house counsel,” Hamilton said.

The future is now

Susskind, himself, sees his predictions as presenting an exciting opportunity for the forwardthinking lawyer. During his Sept. 12 presentation, he showed slides illustrating how technology would revolutionize the way lawyers meet and interact with clients.

“The future has already arrived, it’s just not equally distributed yet,” Susskind said, quoting science fiction author William Gibson.

Improving technology, in particular, will drive down the costs of legal work by allowing lawyers to focus on complex legal issues while computers handle simpler tasks. Susskind cited Cisco’s Telepresence video conferencing system, which uses immersive highdefinition video to simulate an in-person meeting with a client who could be on the other side of the globe.

“The table’s configured so you feel like you are in the same room,” Susskind said. “You will very rarely see clients in person.”

Porcelli also predicted video conferencing technology would continue to seep into courtrooms and depositions, areas that have historically been limited to face-to-face interactions.

Susskind pointed to other ways in which technology-conscious firms can embrace new innovations to maintain relevance. He pointed to Google Flu Trends, a pandemic-tracking program that uses Google searches for illness symptoms to pinpoint the geographic spread of disease. Susskind hypothesized that similar monitoring could help connect lawyers with potential clients. Likewise, social media networks are helping those in need of legal advice to find lawyers.

Firms that are unwilling to embrace these tools, Susskind said, may be plagued with the problem of “irrational rejection.” He spoke of partners at prestigious firms who scoff at the idea of using Twitter as a valid legal tool, despite the service’s 500 million registered users.

“Are you waiting for it to take off?” Susskind quipped, to laughs from the audience. ”We’re living in some kind of La La Land, it’s remarkable.”

At the Levin College of Law, embracing technology is not a new initiative. Professors at the school have worked to incorporate social networks into their classes. For example, Professor Michelle Jacobs utilizes the online world of Second Life as a virtual classroom to teach criminal law and illustrate legal concepts through the program’s pixelated simulations of real life. Meanwhile, Hamilton’s e-discovery program has just produced its own software to assist document review.

The rate at which technology is advancing means the impact on the legal profession is still hard to predict. Susskind cited the writings of Ray Kurzweil, a proponent of Moore’s Law, which states that the processing power of modern computers will continue to grow exponentially.

“By 2020, the average desktop will have the processing power of the human brain,” Susskind said. “By 2050, the average desktop will have more processing power than all of humanity put together.”

By leveraging this massive data processing power, Susskind said, law firms will eventually eliminate the need to spend clients’ money on routine but time intensive tasks like legal research.

One of Susskind’s predictions is that not all of his predictions will come true. But Susskind recalled that during the ’90s that he forecast email would become a major mode of communication in the legal profession. This bit of foresight was greeted with much derision.

Putting the future to work in your legal career

bw-photo-in-tabletLawyers may be required to change their mindsets about what it means to work with clients. Indeed, they must adapt to new technology while still managing day-to-day business.

Legal futurist Richard Susskind likened the problem to “trying to change the wheel on a moving car.” Here is his advice for bridging the divide:

• Take a “blank sheet” approach: Step back and try to imagine how the legal profession would be if it were created today;

• Chart a course for where you want your practice to be in five years, taking into account technological innovations and staying flexible about reaching your goal;

• Embrace new technologies like Skype, videoconferencing and online legal services;

• Start using social networks such as Twitter and LinkedIn; and

• Realize change will happen gradually, rather than as a single “big bang” revolution of the legal profession.

Law students may be in a better position to evolve and adapt with the changes than are practitioners. Susskind said law schools should focus on teaching students to be flexible rather than simply prepping them for traditional careers at law firms.

“In many law schools, the law is taught as it was in the 1970s,” Susskind said. This, Susskind said, is where the Levin College of Law sets itself apart from many of its peers. He commended UF Law for taking a progressive approach to legal education — including, he added with a laugh, placing his books in the curriculum.

Ways law students can take the legal revolution in stride and prepare themselves to enter a new-look legal profession, drawn from Susskind and Michigan State Law Professor Renee Knake include:

• Immersing themselves in the literature projecting the profession’s future;

• Researching online to discover emerging technologies;

• Becoming conversant in new professional options that interest the student;

• Leveraging a background in technology, business, computer science or engineering as a selling point to employers;

• Taking electives like project management or supply chain management in the business school; and

• Reading books like Reid Hoffman’s The Start-up of You and Daniel Pink’s To Sell Is Human to better understand the commoditization of the legal profession.