The changing (declining?) fortunes of lawyers have been much in the news recently, with the anxiety caused by a contracting domestic job market exacerbated by reports of increased legal outsourcing. In an attempt to peek over the horizon, my dean asked me to read Richard Susskind’s The End of Lawyers? Rethinking the Nature of Legal Services (Oxford 2009), and report back to our Strategic Planning Committee on Susskind’s predictions. Having read the book, I figured I should write about it, so I put together a review essay titled The Knowledge Guild: The Legal Profession in an Age of Technological Change
, which will be published this winter in the Nevada Law Journal.
Susskind spends little time on outsourcing, which in my mind has the genuine potential to upend settled patterns of legal employment in this country. Instead, his book is a technophilic prophecy of radical upheaval through automation. He predicts that lawyers will suffer the fate of other guild-members—the artisans and craftsman of an earlier age—who saw their livelihoods wiped out by the potent mix of technological advancement and market forces that is modernity. He argues that the commoditization of legal services will make much traditional legal work unnecessary, dramatically reducing the demand for the one-on-one client service that has sustained the growth of the legal profession.
I just don’t see it. Susskind’s thesis rests on an assumption that the work of lawyers is analogous to the work of the mechanical craftsmen of earlier times. Yet he offers no evidence to support his claim that greater automation of legal work will result in less demand for human legal services. In fact, the evidence suggests that productivity increases in knowledge industries increase demand for those knowledge goods. And he never even considers professional considerations such as malpractice, conflicts of interest and confidentiality that serve to reify the traditional order and limit the transformative power of technological change. All guilds are sustained through inherently fragile rent-seeking, but wheelwrights and masons did not have legislatures and courts stocked with members of their own guilds to preserve their privileges. In the near term, at least, legal and political factors will severely impede change.
Now, will underemployed American lawyers start moving to India to find their outsourced fortunes? That I don’t know.
The full essay is here.
I have an altruistic view of a lawyer as being one that the client comes to for help when they have a problem. While true that there are many aspects of the law that can be automated to a large degree, ultimately the services provided end up being largely personalized. I can rely on TurboTax to meet the majority of my tax needs but if I were to inherit a large amount of money or win the lottery the computer program will do nothing to help me figure out the best way to protect my windfall, I need a tax lawyer and a good wealth manager.
Lawyers are often sought out to do work that a client could do but does not want to, has the interest or the skills to accomplish. Most people buying a home could do the title search themselves, however, most will rely on a lawyer to do that work for them just to be really sure there are no surprises. When it comes to a negotiation or mediation clients could represent themselves but many chose not to. They may not feel comfortable when the other party replies ‘no’ to one of their demands, is too emotionally attached to appropriately deal with the situation, their time is best spend elsewhere, or a myriad of other reasons.
In theory everyone is expected to know what the law is, the reality is that in our society law has become so complicated that you often need an expert to figure out how your particular situation stands. In a highly litigious society I do not know of many people willing to gamble their money, reputation or personal freedom hoping their lay understanding of the law is sufficient.
I will agree however with the view that increased use of technology will help alleviate some of the more tedious and time consuming work that lawyers do. As a law student I can’t imagine having only books as a way of doing research for my briefs, now with a few clicks I can search hundreds of sources and get relevant results in seconds. However, technology is a double-edged sword. I can’t imagine anyone involved in discovery is willing to say their job is easier or less time consuming as more and more information is digitized.