Like a bullfight, this book has three parts. The first is an elaboration of the theses Susskind set out in his previous books on the future of the law, where he identifies and examines the phenomena – particularly information and communication technology, or ICT – which will transform (or perhaps deform) the legal industry into a radically different creature from its incarnation today. In Tomorrow’s Lawyers, Susskind says market liberalisation and cost pressures, as well as ICT, will force law firms (he concentrates on commercial firms practising civil law) to produce more work for less money. Lawyers will have to charge less, be creative in how they charge, and be both more collaborative and more efficient.
Susskind identifies two processes driving change: ‘commoditizing’ the law – making routine what was once handcrafted – and ‘decomposing’ legal practice by breaking down litigation, say, into its constituent parts of document review, disclosure, legal research, negotiation, advocacy, etc., and identifying the most effective ways of doing each (much like junior counsel are employed today because their rates are cheaper and they provide a better service).
The second part considers the new ‘legal landscape’ once these processes have done their worst. In short, Susskind sees a beefed-up role for in-house lawyers, fewer teams of junior lawyers providing profits for partners (generating a rectangular rather than pyramidal firm shape), and, yes, the pervasive effects of ICT in the courts improving access to justice.
Susskind’s peroration in the final third is to the young lawyers of the title. Unlike the bull in the tercio de muerte, the author is quite ebullient for their prospects. The decline in the conventional lawyer sees the rise in new roles for legally trained personnel. However, these sound much like what we have today (Susskind acknowledges this when advising qualification as a conventional lawyer first), whether as an ‘expert trusted adviser’ (retained counsel and solicitors), or an ‘enhanced practitioner’ (paralegal or legal executive), a ‘legal knowledge engineer’ (professional support lawyer), legal technologist (IT support), ‘legal project manager’, ‘legal management consultant’, or ‘legal risk manager’. I disagree strongly with one novel role: the ‘online dispute resolution practitioner’, or ODR, advising clients on how to use e-negotiation and e-mediation. Here, Susskind mistakes process for substance, as the capacity to e-file or use Skype is something every lawyer will learn to do. (For what it’s worth, I foresee the legally-trained working alongside and in every industry, just as those with the juris doctor degree do in the United States. You’d be amazed the number of bedevilled bankers who have these post-nominals.)
Susskind also touches on legal education at this point, reopening a familiar can of worms. His tuppence worth of advice to aspiring lawyers is, unsurprisingly, to be aware of the novel ways and places legal advice can be used – Tescos, online – and to be educated accordingly. Again, Susskind is thinking of common-or-garden lawyering, where private colleges churn out candidates who know the basic principles of contract and perhaps that Chitty might be the place to find out more. But these law students will not be educated in the moral and political environment in which the law is cited, let alone the commercial and technical contexts in which it is practised.
Susskind recommends a number of questions that young lawyers should ask potential employers. Some are sensible (what their long-term strategy is, if they have one, or what they imagine legal service should look like in the future) but others border on the bonkers: what are your preferred approaches to alternative sourcing? Do you have a research and development capability? If you could design a law firm from scratch, what would it look like? You can imagine how these latter questions would be received.
So what does this mean for the Bar? Annoyingly, Susskind almost completely ignores our profession (and legal aid-funded sectors like crime, immigration, housing and family), which means this book has limited applicability beyond Magic- and Silver-circle firms, and some regional entities with national pretentions. He refers to ‘trial lawyers and barristers’ only briefly to acknowledge us as a group “who often maintain that they will be unaffected by economic forces, liberalization, and technology”. This is complete tosh, as any reader of this august publication will know: barristers are fully aware that they will be affected and most in fact do try to adapt.
In all, Susskind’s thinking might be worth a read – but only if picked out of the bargain bin.
Peter Smith is a barrister in London