I very much doubt that Ben Elton would find the contents of last week’s meeting of the Commercial Litigation Forum to be suitable material for an episode of Blackadder!
My brief report on the subjects raised was in my post last week entitled “Litigating in the 21st Century“. Many of you will be familiar with the themes of the final series of Blackadder with Edmund and Baldrick in the trenches with Hugh Laurie and Stephen Fry’s Melchett and the wonderful “Darling” back at base. The frivolity and sheer fun is overshadowed throughout by the grim awareness of what is going to happen and a realisation that, for all their silliness, the men in the trenches are about to go over the top.
Are we witnessing something similar in relation to the legal profession? Richard Susskind clearly thinks it is possible and in his book “The End of Lawyers?” he offers the prognosis that the legal profession face the twin threats of the commoditisation of legal services and the development of new and pervasive (disruptive even) technologies.
You do not have to agree with the good professor to see that the recession has altered life for lawyers for ever. By this I don’t just mean those who have lost their jobs, but if you have any familiarity with the legal marketplace you will know that it is a very different place to what it was 5 years ago and, on the basis that you cannot easily put the toothpaste back in the tube, is likely to remain so. It does not matter if you are fresh from university, a trainee, a newly qualified, an associate or a partner. You will know that the pressures are immense and you will be aware of that (or you should be) well before the Managing Partner comes to call.
Just consider the list of topics discussed last week and set out in my post. To take a few of them, such as online dispute resolution, outsourcing or third party litigation funding, I think you will agree that none of this was foreseen 5 years ago by anyone apart from a few brave souls, such as Richard Susskind, who were roundly criticised and ridiculed for their ideas at the time.
What is undeniable is that Rio Tinto’s former General Counsel, Leah Cooper, struck a deal last year with CPA Global to outsource low level legal tasks to CPA lawyers in India so as to free up her internal team to deal with some of the more complex matters which otherwise might have been sent to outside counsel at considerable cost. The result was a saving of $14 million or thereabouts AND Leah has now left Rio Tinto to join CPA!!
If you still do not believe that anything much has changed, think about the client who has discovered the savings to be made from outsourcing, and ask yourself how that client can ever justify not putting the question to the test in the future. The genie is well and truly out of the bottle and cannot be put back.
When the chips are down Baldrick always comes up with a cunning plan, usually absurd and always treated with ridicule by Blackadder. Nonetheless, he keeps on coming up with ideas. In the final episode, with Capt. Blackadder preparing for the “final push”, he asks, “Why can’t we just stop sir? Why can’t we just say ‘no more killing, let’s all go home’? Why would it be stupid just to pack it in, sir? Why?” It seems that some absurd ideas are firmly grounded in commensense and a natural human inclination for survival.
The legal profession needs to keep thinking about its future because the option to stand still is not really a true option. The delivery of legal services has become too expensive with lots of routine and repetitive legal work being undertaken at great expense by junior lawyers and in any event, the development of technology allows for the commoditisation of legal services.
Remember my hope for 2010 is that lawyers will spend time thinking about strategy before they are up against it in terms of time or expense. Once clients have seen what the e-disclosure tools can achieve and the reduction in review costs as a result, will they ever go back to the old system of paper review? In the TV series Baldrick never gets to explain his final cunning plan to escape the trenches, as he is sent over the top before he can reveal it. Have you got a plan? If not, it might be a good idea to formulate one before somebody asks you to take a leap into the unknown.