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Oh Say, Can You C? Preparing For A New Era Of Legal Practice

by Marc Lauritsen

INTRODUCTION

If you expect to be practicing law for at least a while longer, here are some ideas and suggested readings in the spirit of continuing education. I'd like to draw your attention to some "C" words that will likely be central to many of our careers. The adage that C students are often the most successful might even take on new meaning.

CHANGE: EMBRACE THE NEW

One need look no further than recent issues of any legal publication for reminders of the dramatic changes facing lawyers and the profession. Multidisciplinary and multijurisdictional practices. Virtual law firms. Application service providers. Intelligent do-it-yourself legal software. We're being buffeted simultaneously by record-size waves of technological and economic transformation. The competitive context is mutating. You might say we're in the midst of a serious C change.

The past two years have seen a Cambrian explosion of new organizational life forms determined to play a role in the delivery of legal services. (For those of you who haven't read Stephen Jay Gould's "Wonderful Life," which recounts the original Cambrian explosion in biology, I highly recommend it (you can read an excerpt by clicking on this link: -- http://www.amazon.com/exec/obidos/ASIN/039330700X/thetechnolawyer.)

Hundreds of Web-based startups (upstarts?) have sought to execute novel business models aimed at what lawyers and law firms have traditionally done. Online dispute resolution services like CyberSettle, SquareTrade, and WebMediate. Reverse auctions like SharkTank and eLawForum. Self-help sites like MyLawyer and Nolo.com. Referral companies like i>path. Flat fee service providers like AmeriCounsel, LegalZoom, and MyCounsel. Exchanges like LawCommerce. Litigation funding companies like the LawFinance Group and ExpertFunding. (Other than an inordinate fondness for intermediate capital letters, these companies exhibit a diversity as broad as many animal phyla. And it's not just little newcomers -- goliaths like LexisNexis and West Group are busy growing, or buying, new organs.)

While many of these species will likely go extinct in the wake of the capital-crunch meteor that is still with us this year, some will survive and others will emerge. We've heard a lot of millennial talk about the New Economy, about how the world of business is changing unrecognizably. Much of that imagined change has sputtered. But despite the smugness of today's I-told-you-so new-economy naysayers, fundamental opportunities for transformative innovation in how law is done remain. Just when you think the Revolution has fizzled, its most significant chapters may be unfolding. Beware of post-bubble-burst complacency.

Lawyers need to be open to radically different ways of doing their jobs, and embrace change as an affirmative good. (If you're short on ideas, read Gary Hamel's Leading the Revolution for a few hundred.) Rattle your cage a bit.

Let me address three contexts in which lawyers have to do better if they hope to survive and prosper, rather than wistfully fan the embers of good days gone by.

CLIENTS: COMMUNICATION IS JOB ONE

Clients' number one complaint about lawyers is that they don't return phone calls promptly and otherwise keep clients informed. This common courtesy in client relations is rarely taught in law school or emphasized in practice. But communicative effectiveness -- both in telling and listening -- is an obvious touchstone of professional success. It is the foundation for genuine trust. Unless you're already sure you're an excellent communicator, I encourage you to go way overboard in that department.

While client expectations about being kept informed probably haven't changed too much over the years, there does seem to be a definite trend toward more client interest in being involved in the legal work being done on their behalf. The "unbundled" model of services, where discrete tasks like drafting, advice, court appearances, and negotiation are allocated as desired between the lawyer and client, versus the traditional, lawyer-does-all, full-service model, has a definite appeal and promising future. Many individual and business clients treasure the sense of empowerment and transparency that comes from their lawyers treating the legal work as a project undertaken in common. One manifestation of this tendency is the idea of "lawyer-client collaboratories" that I and others espoused in the early 90s: shared workspaces online, now showing up as law firm extranets, deal rooms, etc.

A more general extension of the loosening of the traditional legal services bundle is the participation of third parties. Many of the dot-coms noted above have positioned themselves as new kinds of intermediaries, performing collateral aspects of the legal service delivery process like engagement scoping, billing and collections, case intake, client education, routine document drafting, and case management. Even the capital to underwrite case expenses has become an ingredient that needn't come only from client or firm -- witness the litigation funding companies that have in effect created a secondary market in lawsuits.

The collaborative law movement likewise responds to these dynamics. There the parties agree in advance to eschew adversarial litigation as a process for dispute resolution, and commit to cooperative problem solving, centered around four-way meetings at which both clients and their attorneys participate. See http://www.collaborativelaw.org and http://www.collaborativelawcouncil.com.

Pay attention to opportunities for closer client (and even "opponent") involvement in the legal work. Be alert to aspects of that work that can be done less expensively or more effectively by someone else. Sign up to provide services through one or more of the online exchanges. Think of your job as that of a trusted advisor through which your client's legal needs are cost-effectively met through the whole process.

COLLEAGUES: SHARE YOUR KNOWLEDGE

Communication and collaboration with colleagues can obviously also be improved in most law offices. Knowledge management initiatives, still so much in vogue, frequently founder on the unpreparedness of lawyers for sharing their work. Our personality types and institutional legacies tend to promote self-reliance and competitiveness. Our billing and compensation practices often reward wheel-reinvention and knowledge hoarding. Not a recipe for thriving in a world of Big-Five (Final Four?), dot-com, and other nimble new competitors.

Collegiality, of course, does not stop at the walls of your organization. Lawyers have a proud tradition of cooperative work through national, state, and local bar associations. Nowadays e-mail discussion groups and Web-based forums provide endless opportunities for fruitful exchange not only around substantive law issues, but legal technology and other practice management topics. If you're not already doing some of this, start. Get active in the ABA's Law Practice Management, for instance.

One of the most ambitious collaborative projects I've been involved with is the Open Practice Tools initiative, which seeks to apply open-source software concepts to the world of law practice automation. The basic idea is that some technologists, lawyers, librarians, knowledge managers, educators, and computer scientists join in an open, cross-organizational, international conversation about common dimensions of their work. They settle on some standard ways to think about and implement legal applications. Practice area by practice area, participants evolve shared "concept maps" that identify the typical data elements, rules, and processes involved. They contribute practice software examples and components to a common repository, while also following OPT principles in their own private or commercial applications. The anticipated result is an upsurge in legal technology innovation, productivity, quality, reusability, and interoperability. (For one compilation of short essays on the OPT project, see http://www.capstonepractice.com/OntoOpen.html.)

CHARACTER: STAY COMMITTED TO THE BIGGER PICTURE

After many years of tilting at these windmills, I'm more convinced than ever that it all comes down to personal values, habits, attitudes, and mindsets. No amount of brilliant business planning or space-age technology will produce enduring improvements in the legal services delivery system unless enough people in that system embrace the need for personal and organizational change. And that's largely a matter of culture, character, ethical maturity, and emotional intelligence.

The more lawyers find ways to live satisfying and balanced lives, the better off the rest of humanity. Take time to attend to your personal transformation, to "sharpen the saw." Become the change you want to see in the world. (Stephen Covey's classic, The Seven Habits of Highly Effective People, deserves regular re-reading. You can read an excerpt by clicking on this link: -- http://www.amazon.com/exec/obidos/ASIN/0671708635/thetechnolawyer.)

CONCLUSION

I would close with a call to openness, if that were a C word. We need to open our minds, our relationships, and our practices to new kinds of connections. Parties prepared to be open about their authentic needs and interests can often obtain superior solutions through collaborative lawyers than they can through traditional litigators. Lawyers who are open about what they know (and don't know) stand a better chance of seeing knowledge management systems skyrocket their organizations' effectiveness. Legal software designers who observe open source principles in some aspects of their work will likewise reap the benefits of collective expertise. The unbundling of law practice into discrete tasks that can be allocated more flexibly among lawyers, clients, and third parties parallels the componentization of software into interoperable, reusable modules. Both processes thrive on a certain degree of openness and creative deconstruction.

The Web has shown us what wonderful, unexpected things happen when an open infrastructure is put in place. Cheap and ubiquitous broadband will usher in a second, more dramatic round of connectivity-catalyzed developments. We are privileged to be present at a point in history when similar dynamics may be afoot in the workings of the law. Today's technology and business innovations are powerful solvents, dissolving historical bonds and boundaries, breaking old and enabling new connections of all sorts. It falls to our vision and courage to make the most of this fluidity.

Change. Client focus. Communication. Collaboration. Collegiality. Community. Common ground. Connectivity. Components. Culture. Character. Focus your mind on these critical concepts. And don't get too distracted by e-this and e-that, B2B, P2P, etc. You'll feel much better.

C? I told you.

(Originally published in Law Practice Quarterly: Marc Lauritsen, Oh Say, Can You C? Preparing for a New Era of Legal Commerce, Law Practice Quarterly, August 1, 2001.)


About The Author

Marc Lauritsen, a Massachusetts lawyer and educator, is President of Capstone Practice Systems, which helps law firms and other organizations build knowledge systems. In 2000, he also served as "Chief E-Legal Officer" for Internet startup AmeriCounsel.com. You can contact Marc via telephone (978-456-3424) or e-mail marc@capstonepractice.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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