A Hobbit's View on the End of Lawyers

In The Lord of the Rings: The Fellowship of the Ring, the hobbit Frodo Baggins receives a disconcerting glimpse into the future from a prescient elfin queen.  As he peers into the queen’s silver basin, Frodo is told that the mirror “shows many things . . . things that were . . . things that are . . . and some things that have not yet come to pass.”  At first, Frodo sees pleasant images from the past of he and his hobbit colleagues relaxing at a bar, perhaps during a hobbit happy hour.  Soon, however, the mirror shows a far less hospitable world.  In this glimpse of the near future, hobbits are forced to work in large sweatshops run by unfeeling Orcs who focus solely on the bottom line.  The Orcs constantly pressure the hobbits to increase their productivity, on pain of permanent downsizing.  After Frodo pulls away from this nightmarish vision, the elf queen warns him, “I know what it is you saw, for it is also in my mind.  It is what will come to pass if you should fail.”

In The End of Lawyers, attorneys and law students receive similarly disconcerting warnings about the future of the legal world from noted author Richard Susskind.  First published in 2008 and rereleased in 2010, The End of Lawyers predicts that the Internet will force lawyers to provide services far more efficiently and economically (read, cheaply), or else become casualties of disintermediation.  Many of the book’s predications have already come to pass, and many of its observations seem almost trite today, at the end of 2012.  Nevertheless, The End of Lawyers continues to provide valuable fodder for any lawyer, law student, or legal consumer with an interest in the law and the market for legal services.

For his basic premise, Susskind argues that information technology will commoditize legal services, thereby allowing consumers to force down the price of legal services or handle legal matters themselves at little or no cost.  For example, the Internet will allow clients to unbundle legal work, and cut costs, through a combination of in-sourcing, outsourcing, relocating, subcontracting, and offshoring.  Moreover, document assembly programs will allow consumers to write their own legal documents, or so routinize the task as to eliminate the need for expensive lawyers.  Likewise, automated checklists, procedures manuals, and regulatory alerts will help to ensure that legal consumers comply with the law on an ongoing basis, without the need to consult a lawyer individually.  As any practicing lawyer can attest, many of these changes have already occurred, to one degree or another.  Any lawyer who has not adjusted to these developments is likely nearing retirement, whether voluntarily or involuntarily.

In some respects, therefore, reading The End of Lawyers today feels like reading Democracy in America, in which Tocqueville predicted (in 1835) that America would become one of the world’s superpowers.  We can give the author a deserved pat on the back for his prescience, but since we know how it all turns out, one wonders whether reading the book now is time well spent other than as a historical curiosity.  Do we really need to read Susskind to learn that “information satisfaction will steadily increase in coming years, even though the bodies of data and information that are stored are increasing at a stunning rate,” that “the performance of our systems, in their delivery of information to us, will improve over time,” or that “mobile telephony, texting, instant messaging, video calling, and immersive telepresence will provide lawyers with a wide range of communication channels that are a far cry from exchanging letters via the postal system”?  As the saying goes, any first year law student knows these things.

Still, much of the book’s continuing interest lies in Susskind’s predictions of some things that have not yet come to pass – and in how those failed (so far) predictions may allow lawyers to escape Susskind’s bleak prophecy.  Of particular interest to law firm lawyers, Susskind predicts that an electronic legal marketplace will replace “beauty contests” and RFPs as the preferred means for legal consumers to hire outside counsel.  According to Susskind, these online sites will allow legal consumers to select lawyers through online auction sites that provide reputational ratings and price comparisons – sort of an eBay for legal services.

Contrary to Susskind’s analysis, such legal auctions have not yet replaced beauty contests and RFPs (Requests for Proposal).  As Susskind himself acknowledges, one possible explanation is that wills, briefs, and contracts are not bushels of corn or wheat.  In other words, some legal services are not exactly fungible commodities.  Slight or perceived differences in legal expertise, experience, quality, style, as well as personal relationships, all can affect the legal consumer’s choice.  These sometimes subtle differences can allow lawyers to differentiate themselves, at least for certain types of work.

Susskind also predicts that legal consumers will share legal information freely through online legal “wikis” and online legal open sourcing.  As Susskind notes, in many other fields, professionals have collaborated to create programs and databases accessible at no charge to others.  Susskind points to the Linux operating system and to online medical communities in which doctors share information on optimal medical treatments.  Extrapolating from these other professions, Susskind predicts that legal consumers, particularly in-house lawyers, will upload briefs, contracts, and other documents onto a common website.  Such a development would, of course, create competition with lawyers attempting to charge for such documents.

While there is no doubt that in-house lawyers share documents with one another, legal wikis and open sourcing have not yet developed as robustly as predicted by Susskind.  There are reasons to doubt whether they ever will.  In certain respects, legal issues, unlike medical issues or programming issues, are a zero-sum game.  All doctors (presumably) would be happy to see all patients live long, healthy lives, even if the patients are not their own.  Lawyers are not so altruistic – more dwarf than elf.  A Google lawyer who develops airtight language for a covenant-not-to-compete may not want to freely share that language with a lawyer for, say, Facebook.  This legal self-interest may constrict the free sharing of legal information, contrary to Susskind’s forecast.

Some of Susskind’s predictions may yet come to pass.  For instance, Susskind notes that “Legal education is ripe for a digital overhaul.”  For law students, especially part-time students, online legal courses could reduce the costs of a legal education, perhaps dramatically.  With thousands of law students entering the work force year and with many more young lawyers unemployed or underemployed, there is every reason to promote ways to reduce the financial burden of law school.  For non-lawyers, such as businesswomen with an interest in the law or the need to have an understanding of a particular area of law, online legal courses could allow them to handle basic legal matters themselves.

Susskind also discusses technology’s ability to expand access to the justice system.  Of course, by increasing the availability of legal services and knowledge, information technology lowers its costs.  More particularly, Susskind predicts that the Internet will allow more individuals to fulfill their basic legal needs for matters such as estate planning or housing disputes.  Today, many companies advertise that they can offer individuals legal tools inexpensively online.  The Internet also allows individuals to seek pro bono assistance and advice more easily.  It would be very interesting to know how many previously underserviced individuals are accessing basic legal information and tools through the Internet.

Finally, Susskind offers some practical guidance and advice for practicing lawyers who must confront the challenges of the Internet.  In a word, he says, adapt.  He advises lawyers to embrace new technological tools and use them to market new products and services to clients.  Rather than attempt to cling to old business models, law firms should offer lower prices by unbundling legal services and routinizing their processes.  Embrace the assembly line.  As an example, Susskind points to a consulting company that developed a popular software product to service clients and, after repeated requests, eventually sold the software itself to its clients.  Although the consulting company worried that it was selling the golden goose, the company continued to make money by deepening its relationship with its clients.  Susskind encourages lawyers to do the same thing sooner rather than later because, he predicts, these changes are coming, like it or not.

 For these reasons, The End of Lawyers remains an interesting and useful guide to the legal landscape.  Susskind has identified a number of broad trends that continue to change the ways in which legal consumers expect and receive legal services.  Many of Susskind’s predictions have already come to pass, and given Susskind’s track record, no one should be surprised if the others come to pass as well.  Perhaps one day soon, legal consumers will receive bids on legal work, or at least routine work, through the Internet, and law students will take Property and Torts through online chat rooms.  The End of Lawyers suggests that lawyers should embrace and may even profit from many of these changes