The Future Impact of Technology on the Legal Profession

Episode Notes

Transcript

Planet Lex: The Northwestern Pritzker School of Law Podcast

The Future Impact of Technology on the Legal Profession

12/14/2016

Intro: Welcome to Planet Lex: The Podcast of Northwestern Pritzker School of Law, with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away Dan.

Daniel B. Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex, podcasting from the Northwestern Pritzker School of Law from Chicago, Illinois. My name is Dan Rodriguez, your host.

It’s a special pleasure today. I am joined by a very special guest, Professor Richard Susskind, who is visiting with us for a too short amount of time as a Distinguished Fellow of our Center for Practice Engagement and Innovation here at Northwestern Law School.

Richard is a world-renowned thought leader, author on the future of professional services, and in particular the way in which information technology and the Internet are changing the work of lawyers and other professionals. He has focused on legal technology for over 30 years and leverages his expertise as an author, speaker, independent advisor to international professional firms and national governments.

Richard’s books include a number of bestsellers, with provocative titles and meaningful advice; ‘The End of Lawyers?’ and ‘Tomorrow’s Lawyers’, which many of our listeners will be familiar with.

Let’s get the book plug out of the way, his most recent book with his son Daniel Susskind is entitled, ‘The Future of the Professions: How Technology Will Transform the Work of Human Experts’. It’s a pleasure to welcome you here to our podcast, Richard.

Richard Susskind: Dan, great to be here and great to be at Northwestern. Thank you for hosting me over what has been a very interesting couple of days. And there’s no amount of plugging of the book that can be sufficient in my view.

Daniel B. Rodriguez: Good. Well, it will come up again. So as we say in the legal business, let me begin with a stipulation, just to put to one side what is a fascinating and important set of questions, but questions that you have addressed in this book and in others, which is the whether, not the weather outside here in Chicago, but whether this impact of technology, artificial intelligence, machine learning and the like will in fact have major transformations on law and professions. It’s an issue again raised in much of your work and quite interestingly in this new book.

But for the purpose of the limited time that we have, I would like us to stipulate that these changes will take place in important ways, just as you described. The technology is changing the way in which knowledge is distributed and indeed changing the larger pattern of professional expertise and it will have major changes on the professions. And indeed, as you and Daniel put it in the book, it may even reflect the beginning of the demise of the so-called credentialed professional.

And I want to get to the law part of what the implications of this change will be on what we do in law schools, in our law school, in other law schools as well. So if I could frame this as about, what are the implications for professional education, particularly legal education?

And just to get into it, so we are roughly about the same age, so we came to law school in our respective countries in the wake, as it were, of story about legal education and how it was done and how it ought to be done. And perhaps from our generation the most meaningful picture in the popular world was ‘The Paper Chase’, where the inestimable John Houseman stands there as Professor Kingsfield and marches to and fro at Harvard Law School and says, I am not going to try to do the accent, but you come here with a mindful of mush and you will leave thinking like a lawyer.

Richard Susskind: I remember that well.

Daniel B. Rodriguez: Right. So is it déjà vu all over again? Is the model of the Kingsfield and Harvard Law School model of legal education under attack if and insofar as you are right about the demise of professional?

Richard Susskind: I think it is. I suspect many listeners won’t remember that wonderful program, and at the same time I think ‘Elliot Law’ was on, and now we are more familiar with ‘Suits’ and ‘The Good Wife’ and so forth. And one of the things I always say to students is the future of law is not John Grisham, it’s not ‘Suits’, it’s not ‘Rumpole of the Bailey’; we are looking at something entirely different.

My main concern Dan, as you know, is that how do we teach and what we teach in law schools hasn’t sufficiently changed since we were at law school in the 80s.

Daniel B. Rodriguez: In the Stone Age.

Richard Susskind: Yes, indeed. And I think in the US there are a number of law schools, yours included, that are addressing my concerns, but certainly in the UK, and it pains me to speak ill of my home country, but very few of our law schools are taking the future seriously.

Daniel B. Rodriguez: Well, as the saying goes, I can’t help but remember the phrase, There’ll Always Be an England; maybe there will always be a torts and a contracts and a basic foundational. I mean, this is devil’s advocate of course, I agree with you, but maybe there is something about the core of legal knowledge and information, that maybe the pedagogy changes in the light of new technology, but there is still sort of a core amount of information and method of thinking that is very much like thinking like a lawyer, at least that would be the argument.

You note in the book and I wrote down this phrase about the professions. You and Daniel say the professions are unacceptably inscrutable. So we could say the same thing about law school. If you know it when you see it based on sort of how courses are taught. So why isn’t there still a role for foundational knowledge and traditional pedagogy in law school?

(00:05:01)

Richard Susskind: I think there may well be. The fundamental question for me is, what are we training young lawyers to become. And historically, we were training young lawyers to become one-to-one, face-to-face consultative advisory providers, who often charged on an hourly billing basis, but there is no fundamental. It’s very much the consultative model. We saw that in so many other professions.

Our research suggests, and you hinted at it in the introduction, that through the advent of technology we are finding fundamentally new ways of delivering professional services. And my starting point is always the client, the person who has the difficulty, who needs legal guidance, who wants to understand their entitlements and how to enforce entitlements.

And we identify these six different ways in which these entitlements might be understood better, in which service might be delivered in a superior way, and they require those who are involved in the delivery of services to work and think entirely differently. And so that, to pick one example, the idea of the Legal Knowledge Engineer, that’s the person who designs an online legal service that helps people understand difficult legal problems and might draft documents and might prepare them for appearance in court.

The skills required to put together the knowledge that has to be represented in such a system that allows people easily, intuitively to assess their own legal position; very different skills from the traditional advisory model.

Now, you might be right that the deep structure; we still need to understand contract and tort and constitutional law, I don’t want to take away from that, but my main fear is that law students are taking on debt and entering law school with no real conception of the different ways in which their knowledge will be applied in the future.

And so if one thinks one is going to a marriage as a lawyer in the manner of one’s parents or uncle or next door neighbor, I think they will be in for a great shock. And I don’t want to suggest, never have suggested that we should lessen the focus on core legal subjects, but what I do think in law schools is we should have the options for people to borrow extensively and want to have competitive advantage over others for seeking jobs, options to study issues like legal risk management, legal project management, legal knowledge engineering, fields that some listeners will be not entirely familiar with. The details are not crucial for current purposes. What I am saying is we need a new skill set as lawyers in the future, over and above, I think it’s essential that one has this deep grinding in law.

Daniel B. Rodriguez: Let me turn away from the core to what has been, to the credit of law schools in the United States and abroad, which is over the last really since the time we were in law school, the rise, indeed the advent of clinical education and the focus on skills training. So much so that law schools trip over themselves to champion the ways in which they are creating practice ready graduates.

So the model of clinical education of course drills down on this idea that given the precious time that we have for our students in law school, we really need to give them much more experiential education. On the other hand, as I am sure you would agree, much of what passes for clinical education in law schools is very much built on this paradigm of preparing trial lawyers, engaging in advocacy, writing legal briefs, doing moot court and the like.

So let me turn that into a question. Is there a way of rethinking the whole body of experiential education, which is such a key component part of the advanced curriculum, in a way that would address these new kinds of skills that you believe law students should have?

Richard Susskind: I think the first point to make is that you in the United States I think have gone far farther than in the United Kingdom in clinical legal education. So my suggestion to you is that you use the time and the effort and the energy being put into clinical education to prepare law students, tomorrow’s lawyers for delivering legal services in new ways.

So rather than perhaps spending 100% of time in the clinics, which is essentially preparing people to be 20th Century lawyers, we want to be devoting time to helping people understand how, for example, one would put together an online legal service, how one would conduct a dispute online. We perhaps should have some kind of exposure to the idea of how to manage a large legal project, whether it be a deal or disputes to using project management techniques.

We want I think to involve people in legal process analysis so that lawyers, when faced with the deal or dispute can break it down into its component parts and identify the best way of resolving each.

We want I think to teach people basic statistics and probability theory so they can take more sophisticated legal risk management. These are just a few examples that seems to me — of the kinds of skills that we could spend some time on instead of 100% of clinical legal education, presupposing that you will essentially be generating a new set of trial lawyers for the future.

Daniel B. Rodriguez: Well, just to give you a couple of examples of what we do in sort of modeling our fairly extensive clinical program is we take a lot of the attention away from sort of the models of trial lawyering without neglecting that as one important skill set and put the spotlight on transactional work, and through entrepreneurship, our entrepreneurship law program and other forms of transactional work.

(00:09:49)

Now, whether and to what extent that means that we are training lawyers to be traditional transaction lawyers is of course the heart of the question. But in doing so, in bringing the spotlight down on transactional work we are bringing our law students directly into connection with folks who are training to become clients.

So for example, we are working in programs with our colleagues in the business school, we are working in programs with our colleagues in engineering and others, to replicate, to the extent you can replicate, the world they are going to enter into, where the silos between just what is defined as a legal problem and what is defined as a business problem are properly being interrogated.

Richard Susskind: I think that’s very helpful. Very few clients that I speak to, existing rather than prospective clients, very few clients find that their problems are neatly labeled as legal problems, financial problems, consulting problems. They have difficulties and they need professional guidance, because there is issues beyond their range of knowledge and experience, and hopefully you are producing a generation of lawyers who can help more widely than simply very clearly delineated legal problems.

But there is a mindset issue here. We are living at a time of greater and more rapid technological progress than our world has ever seen. And what I want to inculcate into our students is some sense of the excitement, frankly the privilege of entering the profession at a time when one of the responsibilities is not simply to help clients, but actually to help change the profession.

We suffer I think globally in the legal profession, certainly from _______ dispute from offering a service that for most people is too costly, is too time-consuming, is often too combative, is unintelligible for the layperson. And the joy it seems to me, the great opportunity of the new technologies is that, as never before in certainly my 35 years of thinking of the future of legal services, we have within our grasp new ways of offering far greater access to justice, new ways of supporting major businesses that have legal and compliance difficulties, and the excitement we should want to encourage our young students to enjoy is that they will be part of changing the way in which legal services are delivered.

And so rather than simply taking the baton over from the person a couple of years ahead, and certainly in the spirit perhaps of one’s parents or neighbors, as I said earlier, these are pioneers, and we are wanting, and I think this is our legacy, people of our generation to pull through a group of young lawyers who are equipped for and enthusiastic about bringing this kind of change.

Daniel B. Rodriguez: I am so glad you raised that. There is a danger or a risk in drawing from, not only your ample work on this, but a lot of the — I would say more of the op-ed sort of quality of work that’s in this tradition, and that danger is this, is sapping the excitement and enthusiasm from young lawyers and from law students, who would point to your famous charts and say, bespoke legal services, I wish I was around for that era. And so in tomorrow’s lawyers you have this wonderful chart in a chapter entitled New Jobs for Lawyers that lists a number of new jobs for lawyers, the Legal Knowledge Engineer, the Legal Technologist, the Legal Process Analyst, the Legal Project Manager, et cetera.

And when I am teaching about these new careers and using your work to develop it, I really hope to communicate, although I am less successful frankly than you have just given as an account of why these are exciting careers. Now, there is a footnote to that, which is whether there are immediately lucrative careers is a different question.

I wonder if you would say a word or two about whether you expect or predict that young lawyers will be coming out and making the kind of incomes that will warrant their investment in law schools. The high investments that we expect them to make, particularly in the United States.

Richard Susskind: Yeah, it’s clearly an issue. Just to go back to that list you mentioned. What’s interesting is I have just finished a second edition of that book and there are new jobs to be added. And so this is not a static matter, it’s very dynamic.

For example, the Legal Data Scientists, I think since I wrote that book in 2013, the whole area of big data and machine learning has burgeoned, and I find it exciting, for example, when I say to students there are now systems out there that can predict the outcome of disputes more accurately than human lawyers using essentially predictive models, statistical analysis of past court behavior, giving students some sense that actually that answers the question that many clients ask, which is what are our chances of winning, and suggesting to students there might be different ways of solving these traditional questions that clients ask.

But as to your specific question about earnings, it is difficult, isn’t it, that people take on such large loans and to pay back these loans they will naturally gravitate towards the large firms that will remunerate them appropriately, and this may distract many from pursuing more exciting, interesting, innovative careers.

What struck me very notably over the last few years is how we have moved from a world community of having a couple of hundred legal tech startups to having about 1,500 legal tech startups. Now, in the manner of startups many will fail, but many will succeed, and I suspect those that do, and those who run those businesses will enjoy rewards that are equal to, if not greater than, the awards that we would take home at major firms. That’s a riskier, more entrepreneurial course, often by disposition many law students are not inclined to take that course.

(00:14:54)

What I see in tomorrow’s lawyers though, and maybe this helps is that at least for now it does make sense, even if one has ambitions, for example, to start up a legal tech company or to perhaps invent some business that allows us to deliver legal service with new ways, if you have gone as far as taking your law degree, I think it’s important to qualify.

So it’s not a bad idea to spend two or three years in a major law firm in any event. So maybe during that period one can learn one’s trade, establish oneself credibly as a legal provider, pay back some of one’s loan, and after that, with a little bit of client experience under one’s belt, one can venture into the world of more entrepreneurial legal tech or legal service provision startups.

Daniel B. Rodriguez: Well, absolutely, but let’s — and this coming of course from a law school dean, let’s not let us totally off the hook, that is American law schools need to address the business model. This is a matter of economics and outside pressures and influence and it may be destabilizing, not maybe, it has already been destabilizing on the traditional business model, particularly of American law schools that as you know are incredibly expensive.

Let me return to a different subject and that’s about sort of interdisciplinary education. Just as the rise of experiential education in clinics has been one of the big stories about the evolution of legal education, another big story has been what we often call the law and movement, the penetration into the traditional law school curriculum of perspectives from other fields; business, engineering, the humanities and the like.

Let me present this to you. So there is a what I would call a modest to moderate rendering of that value and there is a more radical rendering. So the modest to moderate rendering is basically, it’s important to know other skills, and it’s important to, as a modern lawyer, to know something about accounting, to know something about statistics, for reasons you explain, to know much that would help have a perspective on technology, that’s to the greater good of lawyers.

The more radical account though is that interdisciplinary education and multidisciplinary education, other perspectives is important, because it destabilizes the silos that exist between areas of knowledge. And so the parallel story, it’s not parallel story, it’s a story embedded in your book, ‘The Future of the Professions’, is not only is professional credentialing becoming destabilized, but so is the way in which we understand knowledge.

I have said in other forum, I like your famous quote about email several years ago. I get a lot of eyes rolling when I say in 2030 approximately we will look back at universities and say, now, why is it that they used to have Schools of Business Administration, Schools of Law, Schools of Engineering, sort of completely siloed in important ways. So anything to that, do you think?

Richard Susskind: I think there is a lot to it, for all sorts of reasons. I think Abraham Maslow once said if all you have is a hammer, everything looks like a nail, and the problem is, if you are a lawyer, everything looks like a legal problem. And as I said earlier, for example, a person who is worried about a dispute will ask the question, what are our chances of succeeding; a lawyer asks things that’s a legal problem, but actually others would classify it in different ways. I think it’s not just significant, I think it’s absolutely vital that our lawyers are more broadly trained.

And I am struck, because I work also in my consulting practice, not only with the law firms, but with major accounting firms, and how well the accounting firms offer a multidisciplinary service. They assume their clients have a business problem and they have a range of potential providers and solutions within their businesses to solve these problems.

We come with a rather inferior toolkit. We are lawyers who can solve legal problems, and one of the challenges I think that faces law firms in the future is not simply to optimize that which they do well, not simply to transform those services that need to be radically overhauled, but also actually to diversify.

My first job many years ago was with what was Ernst & Young at that time, what it was called in the mid-80s. I finished my doctorate and I wanted to get some commercial experience and I went to what was then one of the Big 8 firms. And on the day that I joined the firm I noticed in the elevator this advert, nothing is terribly significant. It said, and this was an accounting firm, we don’t just help you add up, we also help you multiply. And this was signifying in the mid-80s, the move from accountancy firms being frankly accountants to be more general business advisors.

That’s been one of the great commercial success stories of the last 50 years are these accounting firms, four of them in combination now have the equivalent of the GDP of the 59^th largest country in the world. They have diversified and they have benefited and their clients have too. It’s the same thing I think for lawyers.

I think those law firms who simply want to provide very high quality, but very focused legal services will in the long run, in the 20s, will lose out to the practices that can provide a broader based business service. And we have to always remember that clients aren’t really inherently interested in legal problems. They have problems which might have legal dimensions. If they can go to one provider, if you will forgive me, one bum to kick, they find that wholly more convenient, by and large, than having to spread their problems around many different providers.

So one of the great challenges, and again great opportunities, and for me, once more our law school should be preparing our law graduates for this is to provide a genuinely interdisciplinary service, so that lawyers become more general business advisors, risk advisors, strategy advisors and so forth.

(00:20:03)

Daniel B. Rodriguez: One of the developments that we are following and in many respects Northwestern has been pioneering this, is thinking about law schools as more generally about the training of folks who are going to go into professions for which law and exposure to law will be important, even above and beyond just training lawyers who will be credentialed in the guild as lawyers. As you have heard, our Master of Science and Law Program which trains STEM professionals, who are coming here for a year or two years, not to become — to be trained to be lawyers, with quotation marks around it, but to be trained as legal professionals.

Richard Susskind: Which is a fascinating, I heard a great deal about this course yesterday, fascinating development I think, more legally informed graduates in other disciplines, fantastic.

Daniel B. Rodriguez: You know, there are some evangelists even in the law firm world, it may not seem like it at times, who are actually making these kinds of commitments to think about supporting what are going on in universities to support technology.

I don’t know if you saw this, just the other day Peter Kalis, who is a particularly influential managing partner at K&L Gates, the law firm K&L Gates made a commitment of $10 million to Carnegie Mellon to support research in artificial intelligence and ethics, which is really remarkable in a way. It’s from the law firm scene, we have skin in the game, so not only are we going to be reactive to trends and technology, we need to invest in that technology, because of course, frankly, that’s money out of partner’s pockets to invest and support this.

Richard Susskind: Yes, it’s a superb commitment. And we mentioned in our book is one of the issues of our day, for example, the moral limits of our machines, as our machines are becoming increasingly capable, even if they can undertake tasks, are there not a range of tasks that we want to say, actually, we want to preserve some work or some activities specifically for human beings. I greatly support any law firm that makes that kind of investment.

Daniel B. Rodriguez: I mentioned the word guild, and here’s where there are some important differences between what’s going on in the UK and some other countries and what’s going on in the United States, and that is, we are a highly regulated profession, we are a highly regulated profession throughout the world, but in particular in the United States, and so some of the developments you mentioned, the rise of accounting firms providing full service through multidisciplinary practice, the availability of outside funding through alternative business investments that might support the use of technology, the limited licensed professionals, you go through this list of efforts to destabilize the profession, and looming in the background is the sheer fact of life that because of the American Bar Association rules, because of State Bar rules, there’s a very strong protectionist impulse manifest in the gilding of legal education. What’s your prediction about whether that will erode?

Richard Susskind: I don’t think there are efforts to destabilize the profession, it’s an interesting way of expressing it, I think at many competition, people would think of it this way, it’s the opportunity of offering greater choice, genuine choice to consumers of legal services.

I speak strongly against the ABA’s position, which has traditionally been to discourage liberalization, and it’s not because I have anything against lawyers; it’s just that I do want people to have better access to justice, to have more affordable legal services. I think the wheels of our economy would run more smoothly if legal services were more widely available at lower cost, and that much of legal service was demystified.

I know very few people who are anti-lawyers and who run the argument for liberalization because they don’t like lawyers; it’s actually that we can see there might be better ways of delivering legal services.

Point number one, as regards to liberalization, I think despite what many lawyers think within the US, I have been predicting for sometime, within the 20s at some stage, I think the US will liberalize as well. And I think what will happen if my prediction about the development of law firms is right, law firms will have to diversify, will have to set up new business structures to deliver services in new ways, because what I am saying is in the 20s, a very clear choice in a law firm, you either compete with machines or you build the machines by competing with the machines.

You would say that we are a law firm that undertakes many tasks that no machine can ever replicate, or you can say, actually, as we are seeing the world of tax, for example, systems technology is going to be fundamental to the delivery of these services, so we are going to be masters and leaders in that.

For those law firms who decide we want to be involved in building the machines, in developing these systems and solutions, they will find that the traditional partnership model, funded and organized as it is, would be appropriate, and they will set up new business vehicles.

The difference in the UK when we do that is we can take external funding, we are regulated, they are still regulated, but these businesses work in a new way that’s far more — it’s supported rather than inhibited by the regulation. And what I think many law firms will find is that they are at a competitive disadvantage globally in the United States, because, and in particular, they can’t seek external investment and can’t attract people to their organizations, topnotch people from different disciplines, who won’t necessarily require some different kind of career structure, one that a traditional partnership can’t provide.

(00:24:54)

So I think as ever, the great Wayne Gretzky who said, that he is such a great ice hockey player because he skates to where the puck is going to be rather than where it once was. My strongest advice to those who are policymaking in relation to liberalization is not to think about, does it make sense to liberalize in 2016, but to fast forward to say 2022 and think, what will the world be like, what will clients’ expectations be, what will technology be doing, what will the new providers look like, what will economic conditions be like, and then it makes sense I think to think of a more liberalized regime. It will be counterproductive in the long run simply to pull up the drawbridge and say only legal work can be done by lawyers.

Daniel B. Rodriguez: Well, as we see liberalization, certainly in the law firms we have a natural experiment, the market will teach us whether this liberalization and the incentives that it generates among law firms and businesses will yield better outcomes in just that way, and we are starting to be able to test that.

To bring it all the way back to legal education, where we started, we don’t see that market test in legal education, by and large, because our existing educational model and business model is developed around a highly regulated scheme of professional education.

I got myself in some hot water about a year-and-a-half ago when I co-penned an op-ed in the New York Times.

Richard Susskind: I live in hot water.

Daniel B. Rodriguez: Exactly! So come on in, the water is fine.

Richard Susskind: Join me.

Daniel B. Rodriguez: Yeah. And I made the point about — this was about the question of whether law school should be two years and more abbreviated, and I made the point that, well, I wouldn’t recommend that for our law school or for nation’s great law schools, why not let the market decide, let the ABA deregulate law schools to that degree and if there’s a way to provide legal education on a one year model or entirely on an online model in a very different way, then students, like voters, will vote with their feet, and they will make those particular decisions.

I would like to see that test in parallel with the liberalization of the legal profession to see whether or not there’s a better way of doing business.

Richard Susskind: But others think that the market doesn’t offer sufficient protection to the vulnerable, both vulnerable law students, as well as vulnerable clients, and that is why, in a slightly paternalistic, but I think broadly justifiable way policymakers will say, well, we need to put these regulations in place, because in the long run it’s in the interest of the profession, it’s in the interest of those they advice.

But I am with you on balance. It seems to me we need to be slightly more experimental and unless we allow ourselves the opportunity to rethink and deliver legal education in new ways, unless we allow ourselves the opportunity to deliver legal services in new ways, first of all, we run the risk of running stale as a profession. And secondly, it seems to me we will be eclipsed by other providers, who in one way or another, once, and this is a long story in its own right, but once you believe, as I do, in the idea of decompose, you can break legal work into various tasks, many of which don’t require lawyers, and therefore aren’t regulated in the same way, once you have that mindset you will realize, it seems to me that there won’t be as much left for lawyers to do, and the alternative providers contributing greatly to major deals and disputes in new and different ways will provide a quality of service that clients will be screaming out for from the lawyers.

So to that extent I think you are right, I see it already with general counsel, once exposed to new ways of working, they are hungry for more, and eventually they will turn around and say, why are we not generating law students who are prepared for this kind of service.

Daniel B. Rodriguez: And I welcome that pressure and welcome the opportunity to talk. So much to talk about and so little time, so let me let me bring this to a close by thanking our guest Richard Susskind. His ideas are available in multiple forms, old-fashioned ways, like the books he writes; newfangled ways, like Twitter and social media, and before I close let me allow you to make a little infomercial on your behalf.

Richard Susskind: Well, I am not sure I want to do that. Actually I want to do an infomercial on your behalf. It has been a wonderful visit to Chicago. I think what you do in your law school here I wish so many other law schools in England can see this. But it’s terribly important it seems to me to have deans, to have leaders; it’s not just leaders in legal education, it’s leaders in the legal profession actually and the judiciary as well actually seizing the opportunities and driving ahead and I think convincing colleagues that the future won’t look much like the past, but actually maybe an attractive future.

Daniel B. Rodriguez: Well, thank you for listening. I am Dan Rodriguez. I want to thank Richard Susskind for being our guest today. And we are signing off from the Northwestern Pritzker School of Law.

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