Lawyering for Tomorrow

Technology and the future of international law practice

by Marc Lauritsen

[As published in J. Drolshammer and M. Pfeifer (eds),
The Internationalization of the Practice of Law, 411–421.
Kluwer Law International: The Hague. (2001)]

“The Lawyer of the Future.” “The Future of Law.” Many lectures, seminars, books, and articles — but thankfully not movies or pop songs — have titles like these nowadays. Especially for lawyers, the issue of what is likely to happen to lawyers is a perennial favorite.

The centrality of technological change to accounts of the possible future is also not new. While the speed with which inventions are introduced that impact the content and methods of law has never been higher, we’ve already lived through centuries in which that speed was significant enough to assure interesting changes during one’s professional career.

Even the predominance of information technology in future scenarios is longstanding. Printing presses, typewriters, calculators, tape recorders, telephones, radios, televisions, copiers, and fax machines have all wrought substantial changes in what lawyers do and how they do it. The personal computer and the World Wide Web are but some of the latest entrants in an ongoing parade of increasingly impressive information technology accomplishments.

So, how is today’s “lawyer of the future” different from that of past futures? And what might these differences mean for international law firms?

Lawyers and futures

We often talk about “the” future as though it were a unitary, predetermined thing — something that might be known were we only able to transcend our time-bound human perspectives. Whether such a future “already” exists of course raises deep philosophical, theological, and scientific questions. Be that as it may, for our feeble human understandings the future is always a manifold of possible scenarios. It holds itself out to us like a bouquet of possibilities.

It seems fair to say that the near-term future of law practice will significantly be driven by information technology developments, broadly understood. Information is the lifeblood of law. Information technology has become a principal driver of change in the world of law, like most other arenas of modern life. One might think, then, that the law profession’s future at any given year might reasonably be imagined by current practitioners, once a particular technological framework was postulated. We would simply project forward in time, picturing ourselves using the new tools and interacting in the novel info‑environments they help us to establish. The future would be an essentially linear projection from the present. But our psychological and social lives in the law will be less obviously determined. The future is profoundly unknowable.

Two extreme possibilities seem quite unlikely: that things won’t change much, or that things will change beyond recognition. I doubt, for instance, that information technology will become irrelevant, like a passing fad, on the one hand, or that human lawyers will disappear entirely, on the other.

Likewise, any reasonably imaginable scenario will have all kinds of different lawyers in it. There should be lots of variation among lawyers: in their interests, goals, methods, clientele, specialties, and office arrangements.

There are lots of intriguing questions about the future of law and lawyers. What will the Net mean for the demographics of the profession, for firm size, for organizational forms? How will our laws and procedures change? Will societies become more or less just?

I’m especially interested in the ways lawyers’ everyday work lives and professional values will change due to the emergence of global interactive multimedia networks and the intelligent content that has begun to flow through them. What will the experience of lawyering be like as these technological waves wash over us? How will the content and context of a professional career be affected? What new modes of professional activity will be enabled along the way? What should lawyers be doing differently as these technologies come into place?

This essay presents some fragments of one vision of one kind of lawyer for one kind of future. I’ve tried to think in terms of a future circa the year 2020, and have focused on developments relating to the rise of computer-based knowledge systems. I’m concerned with tendencies and possibilities, so please read my occasional use of “will” to mean “might.”

I write as a lawyer and legal educator who has spent most of the past 15 years (over half of my career) neither practicing nor teaching in the conventional sense. My form of practice, rather, has become the development of practical information systems for other professionals to use in their work. And my form of teaching has largely become teaching computers how to be knowledgeable assistants to such professionals. As discussed below, I suspect that many lawyers will find themselves traversing similar paths through these untraditional modes of professional activity.

Cyberspace and legal institutions

In what general technological context will law’s evolution play itself out in the next several decades? It seems safe to assume that we will soon have all the information products and services we now reasonably imagine. Effectively unlimited bandwidth will be available at modest cost. We will see the unification of media, organized around the poles of one-to-one (telephone/fax/e-mail), and some-to-many (television/radio/newspapers/magazines/Web). New many-to-many media, such as robust computer conferencing and “collaborative filtering,” will start to thrive. The familiar desktop computer and other common items of hardware are likely to disappear as computing and telecommunications become more transparently and pervasively available.

Lawyers, judges, and legislators will thus find plenty of subjects about which to perform their characteristic advocacy, decision making, and policy making jobs. The kinds of work lawyers do will certainly change. There will be more attention to alternative forms of dispute resolution like mediation and arbitration. Personal and business life will become more legalized as transactions and relationships become increasingly virtual and intangible. Elaborate new opportunities for tax minimization and estate planning will undoubtedly arise in a world of digital cash and transjurisdictional enterprises. Some kinds of legal activity may even be pursued by some as a form of entertainment, and lawyers may find themselves promoting esoteric legal procedures the way some doctors now promote cosmetic surgery.

But just as information technology provides new contents and contexts for legal work, it also supplies new tools and methods for doing that work. A mature global cyberculture could catalyze some major transformations — transsubstantiations — of familiar legal institutions. Here are five:

The courthouse. Most of the solemn ceremonies of the law still take place in physical buildings. That is where judges and juries judge, witnesses testify, lawyers argue, and observers watch — for the most part. But courts are about to become much more intangible.

Nowadays, at least in the United States, the general public has become more familiar with trial procedures due to the intense media coverage and gavel‑to‑gavel television airing of major criminal trials such as the O.J. Simpson murder prosecution. (Whether these exotic trials offer a fair or socially productive view of the legal process is open to debate.) People are coming to expect significant legal dramas to be viewable from their living rooms — or at least journalistically covered — as they happen. “Open to the public” may increasingly mean “reported online in real time.” Many courts have already begun to utilize video conferencing and data networks in aid of efficient administration. Radical publicity of judicial activity may be unleashed as a side effect of operational reengineering.

As a natural correlate of electronic filing, courts have begun to make their records available over the Internet. Even though all such material that will eventually be so provided has long been open to the public in principle, in reality the barriers to access (distance, specialized knowledge, cumbersome retrieval) have been so high as to make it impracticable for all but the most determined. Now, it seems only a matter of time before virtually all current filings, and perhaps much historical material, will be universally available. Except where administrative costs or privacy considerations are prohibitive, there seems every likelihood of court records and proceedings blending seamlessly into the digital public domain.

The law library. Although laws and legal materials have theoretically been available to all in modern, open societies, the average non-lawyer has not had an easy time getting her hands on relevant information. Nominal collections in local public libraries are often incomplete and out of date. Unless you work for a law firm or corporation, comprehensive access to legal sources has required a trip to a large university or government library.

Today various commercial, academic, governmental, and other organizations are rushing to make primary legal material (statutes, regulations, cases) available at low or no cost on the Web. Most significant legal texts will soon be instantly available freely or inexpensively to everyone who needs them. In a sense, every home and office will have a complete law library.

Publishers and other actors are starting to post interactive or “smart” models of that material. Simple legal expert systems use formalizations of well structured legal rules to drive question-and-answer tools, available online, that consumers and businesses can consult for basic guidance on their rights and duties. Publishers will market sophisticated systems like this, and there will be an escalation of even more sophisticated development inside some law firms. Some of these systems will find their way to a broader market because it often makes economic sense for holders of this valuable intellectual capital to distribute it widely.

Basic improvements in the performance and reliability of the Internet will continue to accompany these developments, resulting in perhaps as little as ten years in the availability of interactive legal content that is nearly ubiquitous and effectively instantaneous. Lawyers and non-lawyers alike will have ready access to this vast library of legal knowledge, embellished by increasingly useful indices, maps, commentaries, and other kinds of “metacontent” that provide orientation and interpretation. (Of course, there will inevitably be many differing, and even contradictory, accounts of “the” law.)

The Web now offers all kinds of astonishing information services for free, such as sites that will draw a detailed map of any neighborhood, and that provide step-by-step directions for driving from one location to another. How long will it be before someone starts to provide analogous maps and directions for getting from one legal situation to another? “Where do you want to go today?” Routine legal guidance is being given away for free, paid for by advertising.

Lawyers’ privileged access to legal content is necessarily eroded by these developments. Basic forms of legal information and redress are becoming available to citizens without an intervening priesthood. As this disintermediation proceeds, some lawyers who have simply been middlemen will join cars salesmen and bank tellers in the unemployment line. (Some of them may find low-paying work as “checkers” who review the transcripts of online sessions in which consumers receive computer-generated advice and documents.)

The law office. Just several years ago we used to joke about the prospect of lawyers “hanging out shingles” in cyberspace. (There goes the neighborhood.) It was to be expected that some lawyers and firms would promptly take advantage of new forms of publicity available on the Web. This has happened in very substantial numbers. Now more and more lawyers are adopting cyberspace not merely as a medium through which to advertise their services, but as a place of business: a virtual work space, or tool shed, that is potentially open around the clock and around the world. Lawyers are finding and serving clients through the Net.

In just the past year, web-based initiatives have blossomed in the legal field. Large firms like Davis Polk, Linklaters, Clifford Chance, and Blake Dawson have deployed intelligent extranets with which client can interact to gain preliminary advice on an automated, 24x7 basis. And commercial players like USlaw, MyCounsel, Legalopinion.com, and AmeriCounsel have emerged to deliver substantially new forms of internet-based legal service delivery.

The law school. By some measures, formal legal education has changed quite a bit in the last several decades. We have seen an explosion of elective courses dealing with history, policy, and interdisciplinary concerns. Clinical fieldwork, simulation, and other kinds of experiential education have been introduced. Student bodies are much more ethnically and sexually diverse.

But in many respects legal education today is not dramatically different from that of the 1870s: groups of neophytes being taught with books and Socratic classroom dialogs to “think like a lawyer” so that they can enter a learned profession.

What would a “law school for tomorrow” be like? At least for the near-term future this essay has been discussing, it seems to me that it will need to pay much more explicit attention to the systems of knowledge within which and with which its graduates will necessarily practice. It will need to make change itself a focus of investigation and scholarship, perhaps even to the point that we feel comfortable talking about a “jurisprudence of change.” Legal education should be engaged with the realities of contemporary and emerging practices, both as subjects of attention and as ongoing sources of students. Law school will be a re-entrant phenomenon: people will study, practice, then study some more, then practice some more. Today’s episodic doses of continuing legal education should naturally morph into true lifelong learning, where lawyer/students are perpetually enrolled in one or more law schools.

Some law schools will certainly also need to become genuinely global, with multiple international campuses glued together by broadband networks. Law teaching will naturally be carried out with the tools, and in the groves, of cyberspace. We will have virtual campuses and classrooms, and seminar participation via telepresence.

At a time when traditional legal education may seem in danger of obsolescence, it may be offered its most important mission ever. If facility in codifying and systematizing knowledge indeed becomes the touchstone of professional success and a key enabler of the continuing rule of law, learning and teaching re-emerge as critical processes. (Learning, after all, is perhaps the most ancient form of knowledge capitalization.) Lawyers themselves will not only continuously learn in order to adapt to pervasive change: they will not get far without being able to instruct their advanced information systems. And the learning organizations we’ve heard so much about in recent years will be commonplace.

Software (or information system) design will come to be a significant part of legal education and practice. Part of what lawyers will be known for, will do, is design information tools, processes, institutions, and environments. What is now the province of “techies,” consultants, and other specialists may become the common experience of Everylawyer. Programming (perhaps known by a less off‑putting name) will become as common a means of communication among people and their intermediating machines, as writing has been throughout history. There may be some place for lawyers who refuse or fail to become proficient in this new communication skill, but there won’t be much of a place.

The legal marketplace. We can’t assume that information proficiency will spread evenly throughout the legal profession in quick order. Our practices do not have the same velocity of change as the surface technologies. We should in fact anticipate a growing lag between technological possibility and practical realization, and a growing discrepancy among lawyers in the degree to which they take advantage of new forms of knowledge systematization.

Consumers of legal services are of course also consumers and providers of other goods and services. Even if law practice technology lags behind other sectors, clients are noticing improvements elsewhere and expect the law to keep up. More and more clients are technology-literate, familiar and comfortable with abstract information management concepts and processes. They expect lawyers to be able to marshal relevant knowledge quickly, and find mere information frictionlessly.

There is more intense competition both within and without the legal profession. The globalization of businesses, including professional services like law, is becoming an accomplished fact. The market for legal information products and services will be a substantially more efficient one. The boundaries between lawyers, accountants, consultants, and other service providers will continue to blur. It seems likely that some lawyers will find themselves in a perpetual, worldwide auction for legal services.

Lawyering for tomorrow

Like the work of any profession, or indeed any practical human activity, law practice is naturally future-oriented. While inevitably rooted in the past, lawyers must focus on what is to come. Our clients consult us because they want to accomplish or avoid something that has not yet happened. What if future lawyers were to be even more future-oriented? How would such a lawyer for the future be different from the lawyer of today? Let me first mention two very specific concepts.

Counsel for the future. You could think about the phrase “lawyer for the future” in the same sense as “counsel for the defense”. What if lawyers routinely felt some measure of duty to the future itself? If the future were a kind of client? Or if a lawyer for the future were appointed by the court in particularly important proceedings, the way that counsel is appointed to represent the interests of a child or an incompetent person in a guardianship action, or to speak up for the sanctity of a marriage in an annulment proceeding in the Catholic church. Such a lawyer would be responsible for looking out for the future’s interests, for arranging the future’s affairs. She would be obliged to consider the effects of a proposed course of action on the generalized future. (Some construction lawyers have begun talking about a “counsel to the situation,” who protects the interests of an entire building project, rather than any particular party.)

Chief Future Officer. Alternatively, as Michael Hammer suggested in his book Beyond Reengineering, firms might be well advised to create a new kind of CFO position — for Chief Future Officer (rather than Chief Financial Officer). Such a person would have the job of paying attention to the deep structure of change on behalf of a firm or other community of lawyers. While only large organizations may be able to afford to have a person dedicated full time to this activity, it can be a function explicitly discharged part-time by some designated person even in the smallest group.

But let’s talk more generally about a future-oriented lawyer. She would take account of the future in every transaction. She would ask “How can I structure my current work so that it makes me more productive or effective in the future?” “How can I reuse our existing knowledge artifacts?” She would be accustomed to anticipating, rather than just reacting to, the relentless change that seems to be the fate of our generation. (At least until change changes into relative changelessness, which has to happen some day.)

It is the client’s prerogative to attend to or ignore the future concerning his own affairs. But that principle is not offended by lawyers who balance present delivery with future preparation. Clients as a group would in fact be supremely better served by such a regime.

Time is on our side

Much of the organization, ethos, and exceptional prosperity of law practice in the past quarter century has been built around the relatively recent practice of hourly billing. Although it is still well entrenched, time-based billing is increasingly critiqued by clients and lawyers alike as producing all the wrong incentives. It seems to promote inefficiency. Value billing, task-based billing, and other alternatives are being promoted.

Billy Pilgrim — the protagonist of Kurt Vonnegut’s 1969 novel, Slaughterhouse Five — became “unstuck in time” and was thereby able to travel among such life-stages as being a prisoner of war observing the Allied firebombing of Dresden and living as an affluent optometrist in suburban New York. Lawyers need to become unstuck on time. Paradoxically, it may only be when time ceases to be the currency in which lawyers measure their service that lawyers will treat time as the scarce commodity we all know it really is. Oddly enough, faithfulness to the future reflects respect for the past. By organizing our professional lives so that current efforts yield continuing scaffolding for future tasks, we pay homage to our best values.

Lawyers in the future will be more concerned about the future. We will have different attitudes about time in general.

One consequence of the market for interactive legal content described above will be that “mere” expertise will become devalued. Not only will legal content have become a commodity, but expertise in analyzing and interpreting that content will begin to be commodified. There will be a new premium placed on expertise in systematizing expertise, and in exploiting systematized expertise.

There will of course remain plenty of other things for lawyers to do. Humans will continue for quite some time to be superior at advising and counseling clients about complicated or delicate matters, explaining arcane legal concepts and procedures, and advocating effectively before decision makers and in negotiations with opponents. Clients will want the human touch, lawyers who can empathize.

Once lawyers’ fixation on hourly billing has been dispelled, I believe that we, like many other professionals, will find our central challenge that of dealing appropriately with information overload. The quantity and complexity of societal information flow has long exceeded our ability to absorb or process it. And the very technologies that promise to help us manage this complexity are themselves revised so quickly that we can barely absorb them. Software vendors find themselves in a maddening spiral where profitability seems to depend upon pushing more and more features and versions into the marketplace all the time. How do we withstand this cult of innovation? Responsible professionals may be characterized by their ability to exercise wise choice in the face of information glut.

Implications for international firms

Stephen Armstrong of Paul, Weiss, & Rifkind in New York and I addressed our attention to some of these issues in a recent article[1]:

As the market for legal services becomes more competitive, law firms are realizing that they will have to work harderand smarterto improve the basis on which they compete: their lawyers expertise and effectiveness. As a result, firms are focusing on two aspects of their internal environment that, only a few years ago, most regarded as no more than peripheral to their success. First, they increasingly find themselves serving as institutions of higher education, both to compensate for the lack of serious practical training in law schools and to address the need for life‑long learning by practitioners. Second, they have come to recognize that much of their competitive advantage depends upon how well they capture their lawyers collective knowledge and distribute it throughout the firm by advanced information systems.

Large firms are dealing simultaneously with at least four major challenges: (1) size and complexity of operations, (2) competition for business, (3) innovation in legal and business practices, and (4) competition for talent. Firms’ training and information technology functions should be collaborating to design a unified approach to enrich a firms intellectual capital, joined together in an interdisciplinary coalition that tackles the foregoing challenges more intelligently and energetically.

We recommended that firms consider taking the following steps to begin this process:

< Form a cross‑disciplinary team to work on integrated knowledge support over time, composed of leaders of the firms education, technology, and library functions. Their goal should be not just to coordinate these functions, but to re-invent the firms approach to providing information and education. Involve other firm leaders and senior practitioners on at least a rotating basis. Engage a independent specialist with legal experience and solid grounding in several of these areas to widen your perspective.

< Conduct an inventory of programs, materials, and systems, looking for areas in which there is already a foundation for an integrated approach.

< Sponsor some sessions with thoughtful practitioners to draw out nuanced descriptions of what they know and need to knowindependent of any particular educational or technological project. Encourage them to pay attention to the differences between their official information needs and their actual work habits.

< Undertake a few pilot projects in which educators and technologists can gain experience in the kinds of collaboration, mutual critique, and cross-training this article describes.

< Trumpet these initiatives to clients, and invite news about comparable efforts in their own companies.

On the Road

I believe we may be entering a golden age of legal knowledge systems. Billing and compensation practices will begin to promote, not impede, the development and use of such systems. If our confidence in the blind genius of free markets, continued technological advance, and the resourcefulness of lawyers is justified, both the future of law and the lawyers of the future will be bright.

Let me close by hazarding a few predictions about the 2020s: We will still need lawyers. We will still want lawyers. We will still have lawyers. Lawyers will adapt and thrive. With some luck, their reputation may even improve. With little doubt, their professional lives will offer plenty of interesting challenges, plenty of new issues and ideas. Operating in the increasingly rarified world of pure information — of symbolic commerce — lawyers will be routine consumers and producers of sophisticated knowledge systems. I find myself basically bullish on lawyering. I don’t see us as an endangered species.

In sum, I suspect a major part of law’s future in the next several decades will be driven by the following dynamics: The availability of better tools and media for capturing and distributing legal knowledge will lead to their widespread development and use. The resultant devaluation of “mere” legal information and routine expertise will force lawyers to the higher ground of knowledge systematization and lifelong learning. This in turn will open opportunities for new forms of legal practice and education, which will seized by some forward-thinking academic and commercial entities. In all of these contexts lawyers will find themselves more conscious of and attentive to the future than ever — both as a wellspring of inevitable change and as an orchard in which to harvest the fruits of past investments. Knowledge markets, learning organizations, future centeredness — these are a few powerful ideas that will shape the path of the law on the road ahead.

Lawyers bear a peculiar responsibility for two fundamental values of civilization: preservation and progress. We are guardians of orderly processes by which these often conflicting values are reconciled. As architects of normative systems, as information workers par excellence, it falls to us to master new techniques of knowledge optimization.

Should we be optimistic about lawyers’ high-tech future? I am inclined to say yes.

I don’t see us working in glittering, social-problem-free technopolises. But in the coming re-shuffling of what lawyers do and how they do it, I see the germs of a new professionalism, a greater humanism, and even new opportunities for advancing justice.

— — — — — -

Earlier versions of parts of this article appeared as “Ein Jurist für die Zukunft: Rechtsanwendung auf dem Weg nach Vorn” (A Lawyer for the Future: Lawyering on the Road Ahead) in the collection Der Jurist am Infohighway (Mayer-Schönberger and Schneider-Manns-Au, ed., Vienna 1997) and as “How Technology May Shape the Future of Lawyering” in Law Governance Review, Summer 1998.

[1] Stephen V. Armstrong and Marc Lauritsen. Working Smarter to Help Lawyers Work Smart: Linking Education and Information Technology. Law Firm Governance, Summer 1999.