Ch-ch-ch-ch-changes
Turn and face the strange
David Bowie
I recently read Jordan Furlong’s excellent piece entitled Forget Everything You Think You Know About Law Firms. Jordan, one of the most insightful thinkers in the legal space, believes that law firm leaders need to better understand and react to changes, changes that are already altering the legal landscape. The challenge leaders face, says Furlong, is recognizing and accepting these changes. Says Furlong, “The future has arrived without you noticing.”
He cites examples like:
- Husch Blackwell’s virtual office growth from 50 legal professionals to 700 in just four years,
- The plan of another firm to quadruple its productivity by only doubling its workforce, and
- A Scotland firm moving to a four-day work week.
These examples evidence some law firm leaders understand that traditional management may not cut it and new ways of thinking are in order.
Furlong asks law firm leaders to think first of what a law firm was like 20 years ago—lawyers in offices every day billing away by the hour. And he challenges them to imagine what a law firm will be like ten years from now. He asks a series of questions focusing on “What may no longer be true of law firms in 2035?”
What will litigation look like in 10 years versus what it looked like in 2004?
Wither Litigation?
This got me thinking about my specialty, litigation. What will litigation look like in 10 years versus what it looked like in 2004? The litigation business is indeed changing right before our eyes. Like law firm management in general, future litigation section leaders and practice group heads need to ask themselves how their teams can best succeed in the future. In Furlong’s terminology, what will no longer be true of litigation in 2035?
- Will most litigators and clients be relying on data analysis to better evaluate cases, predict results, and drive settlements? Most cases fail to settle because one side either doesn’t have the information the other side does or has it but ignores it. Data analytics can better ensure both sides have the same information. Access to information will lead to even more and perhaps faster settlement (and for defense firms, fewer billable hours). Perishing for lack of information is a relic of a bygone era.
- Will clients, on the other hand, be using data analytics and artificial intelligence to prevent claims from occurring in the first place? Will they use analytics to predict situations that will lead to problems claims, ensuring early intervention? Will technology eliminate lawsuits? All these developments will mean fewer cases, at least of the kind we see now. I recently listened to an interview with John Morgan, founder of the giant plaintiff’s firms Morgan and Morgan on the podcast Legal Speak. Morgan talked about threats to his business. Morgan believes that innovation and technology could eliminate certain types of litigation: self-driving cars could reduce the number of accidents and, hence, the amount of car wreck litigation that was the bread and butter of many lawyers for so long.
- Will Generative AI reduce and streamline work and workflow to the point that the billable hour model no longer works for litigation on the defense side? Will defense lawyers convert to alternative fee models and become incentivized to dispose of cases quickly with less time, just like plaintiffs’ contingency fee lawyers? What does this do to the litigation process?
- How will automated and online dispute resolution change litigation and litigators? If both plaintiff and defense firms have the same incentive–get to the finality of cases sooner since that will maximize financial return–will automated dispute resolution become a viable tool for resolving cases or at least easily resolvable cases? And what will that do to the volume of claims if ease of filing and a less complicated path to resolution that may not involve lawyers are available?
- How will we train new lawyers for this brave new world where there are even fewer trials than now? How will they get the skills in a more automated litigation world? How do we train young defense lawyers to move from a more is better mindset to a mindset that evaluates the costs and benefits of tasks? Can we take lessons from plaintiffs’ lawyers on how to do this?
Certainly, the fundamental skills of good litigators will still be in demand
The Challenge
Pondering these questions and more suggests that litigation will be shaken to its core, especially for defense lawyers. Indeed, Furlong, in an earlier post asked the legitimate question: What happens to litigators if people find ways not to litigate?”
I asked Furlong about this recently and he told me that the problem is that litigators too often think of themselves as litigators not finders of solutions. “People want solutions and settlements more than they want litigation”.
Certainly, the fundamental skills of good litigators will still be in demand:
- Empathy
- Understanding human emotions and feelings
- Putting together a compelling and convincing story
But the tools to maximize the use of these skills will be different (they already are). Where and how litigators use these skill will change as well. There will be fewer of the traditional cases and less hands-on learning opportunities. There will be new ways of resolving disputes and different incentives litigators will need to take advantage of. The successful litigators of tomorrow must focus on the changes and think of lawsuits as problems to be solved, not buckets to put time into.
As Furlong puts it:
“Don’t assume anything! Push aside the invisible guardrails of what’s been done before. Don’t take for granted any “normal” aspect — positive, negative, or neutral — of how your law firm looks and behaves, how it’s constituted, who it serves, who works there, how it creates value, how it competes, and how it makes money. It’s all up for grabs.”
Photo Attribution: Photo by Museums Victoria on Unsplash
