Somewhere over the rainbow

The notion of an independent practitioner brings many benefits and is, in my view, the strongest USP of the profession. However, it can bring unintended consequences and risks. I guess the problem really lies in wanting to present, above all else, the sense of independent practice and not wanting to act in any way as a ‘corporation’.

In some ways, barristers’ chambers already do publicise themselves or act as collectives: almost every set I know wants to promote to potential clients the ‘unique’ collegiate nature of its members; the brand that some sets want to promote does affect the nature of work its members undertake; and the financial success both of the collective brand in bringing in work and of individual members does impact upon the levels of financial contributions to chambers required of each individual. All of these, to some degree, affect the purity of the independence of individuals’ practice.

Given that barristers and their chambers, in these respects, acknowledge the benefits of operating collectively, why is it that there seems to be almost no provision for research and development (R&D) either in chambers or in the barristers’ representative body (woefully underfunded, in my view), the Bar Council?

A few sets have significantly improved their capacity for marketing but continue to use this almost exclusively in the sense of promoting ‘what barristers do’, rather than using resources more proactively to gather market intelligence and become a driver for their business. Whatever ‘trend-spotting’ goes on is usually limited to identifying further markets or targets for the work they already do. I am in no way belittling these efforts – indeed, I wish that all chambers would pursue them vigorously as part of a coherent strategy – but these are only a small part of the R&D picture.

Where are the disrupters?

I cannot think of a business sector in which the concept of disruptive technology (essentially, something that is going to shake up the established state of affairs) is not attracting substantial interest and investment, and that includes the legal sector – but not, it seems, the Bar.

Although the term is relatively new, coined in 1997 by Harvard’s Professor Clayton M Christensen, the concept is not, and sits at the heart of market capitalism. The political economist and another Harvard professor, Joseph Schumpeter, wrote about ‘creative destruction’ in 1942, drawing also on analysis of Karl Marx’s theories. Whilst cloud-computing and social networking may be examples of ‘disruptive technologies’, so too are tinned food and mass-produced cars. Whatever the term, these creativities and technologies always come with a cost: for others to benefit, some people lose out. The Bar needs to acknowledge this.

I should stress that I am not talking about what I (and Prof Clayton) would call ‘sustaining technologies’, those built on existing technologies and practices to improve what we currently do. Even here, the lines are blurry – the technologies that give the ability to ‘go paperless’ in chambers and in court sustain rather than disrupt the existing practice of barristers and chambers, even though they might disrupt the copier/printer and paper businesses.

"Of course, the threat is not just from law firms (or the Law Society) choosing to fund tech start-ups and university research… We have also seen the arrival of the Big Four accountants in the legal services sector."

Whilst it is essential to explore and invest in the sorts of sustaining technologies in areas such as marketing and business development, knowledge management and case presentation (discussed at the YBC’s 2018 workshop, see Rick Hoyle in Counsel July 2018, and credit to the YBC for doing this), I want the Bar to focus on the emerging technologies that could threaten your business. It is true that the great majority of things that barristers do cannot be achieved by technology – yet. At the point when many of these things can be done more cheaply and considerably faster by technology, and can be done to an acceptable level of accuracy when compared to some assessed average of human accuracy, then the role of the barrister will inevitably be reduced. Law firms with such technology may also increasingly look at bringing more of ‘the advocacy function’ in-house. The potential risk of each such technology to barristers and their chambers along with the appropriate action to be taken must be considered. It doesn’t have to be universally bad news, but just staring at the garden in front of you, rather than having an eye also on the horizon, the rainbow and beyond it, is unlikely to prepare you adequately. However, focusing only the day-to-day work and how you currently do it, rather than properly engaging with innovation appears to be the standard model for the Bar.

Incubating LawTech

Innovation and a competitive advantage are the basis of any successful law firm’s strategy, critical to the business’s ‘bottom line’, and it is therefore no surprise that very many law firms across the world are increasing their own R&D activity and collaborating with universities and private-sector businesses (and other law firms) as LawTech ‘incubators’. (For the purposes of this article, we’ll assume that Legal Tech and LawTech are the same thing.) Just a few examples with a UK flavour are:

• Barclays’ Eagle Lab, in collaboration with the Law Society, several law firms and the University of Liverpool and UCL;
• Manchester University’s interdisciplinary collaboration with Freshfields and DWF – the latter through the firm’s own R&D business, ‘DWF Ventures’;
• Dentons’ ‘legal-technology accelerator and innovation consultancy’, NextLaw Labs;
• Oxford University’s collaboration on its research project ‘Unlocking the Potential of AI for English Law’ with, amongst others, the Law Society, Slaughter and May, Allen & Overy, Thompson Reuters and (yay!) two barristers from South Square Chambers;
• A&O’s LawTech incubator of its own, Fuse;
• Kennedys’ new business, Kennedys Kognitive Computing; and, perhaps most famously,
• Mishcon de Reya’s multi-stranded LawTech incubator programme, MDR LAB, now in its third year. One of its many intriguing projects is LitiGate, which plans to provide ‘an arguments-analysis solution for dispute resolution using advanced AI algorithms’.

Of course, the threat is not just from law firms (or the Law Society) choosing to fund tech start-ups and university research. Revenue from the UK legal services market is forecast to continue grow over 2019 and 2020 and beyond (although the rate of growth may well be damaged by a no-deal Brexit) and there is increasing investment in law firms from outside the sector, including private equity. We have also seen the arrival of the Big Four accountants in the legal services sector – or, perhaps that should be ‘we have also seen parts of the legal services sector becoming part of a broader services offering provided by the Big Four’. These mega-firms can afford to take multi-million-pound risks in the development of their legal service businesses and artificial intelligence. The appetite for risk amongst established businesses in the legal sector is somewhat subdued in the current market, but even these understand the need to continue to innovate in order to develop, and that requires investment in research to ensure that further investment in development isn’t speculative, and eventually turns a profit: change is constant; investment is essential.

Many members of chambers will point to the potential cost. However, many law firms involved collaboratively in LawTech do not have the turnover of some barristers’ chambers. The cost of not investing is, I would argue, potentially much higher.

Challenging orthodoxies

In a recent Counsel article (March 2019), Wilberforce Chambers’ Nick Luckman emphasised the need for ‘understanding what the future looks like’. A number of years ago, a progressive, innovative and commercially savvy QC and I encouraged a set’s management committee to ‘challenge orthodoxies’. Both these obvious concepts should be adopted by chambers, along with the realisation that not only can technology help you do better what you already do, but some technology might replace, to some extent or completely, what your business provides. This doesn’t come just from the substitution of some clerking services by Robotic Process Automation or the use of data analytics to process vast amounts of data far more quickly and accurately than any human (both available now), but from the knowledge that ever-smarter and more capable artificial intelligence will be embedded in all existing and developing technologies. ‘Predictive technology’ may not fully replace the need for human lawyers in litigation or advocacy, but it will almost certainly have a significant impact on the services provided by the human barrister.

The lines between the service offering of solicitors’ firms and barristers’ chambers have been blurring slowly for decades but the pace is increasing. As law firms or the legal departments of multi-service businesses continue to seek to maximise their return on investment and above all else improve (or simply maintain) their profit, any ‘third parties’ used in the provision of their legal services will come under increasing scrutiny: these need to adopt practices and processes that match the firm’s; they need to be sensitive and responsive to the firm’s commercial pressures; and they need to demonstrate that they are collaborative partners in a turbulent market; and recognise that if their input can be achieved most profitably in-house instead, it will be. Similarly, if one set of chambers can take work from another, it will. Your barrister buddy from another set with whom you share all your LinkedIn contacts is also your competitor, and is likely to become more of one in the future.

Is survival optional?

To close, a few questions to ask yourselves:

• What inhibits innovation within your chambers?
• Who drives technology within your chambers/the Bar? Is ‘Tech Leadership’ from the top?
• Does your chambers’ strategy address technological development? (Does your chambers have a strategy?)
• Would being seen by clients as innovative and embracing technology give you some competitive edge?
• And, as asked by a chambers’ manager at a training event, ‘at what point did we decide that not spending money in chambers was a good thing?’

Realising the potential of LawTech investment is some way off, but we are at the early stages of an eventual explosion in this sector. You don’t have to blaze a trail, but, if you want to join the happy little bluebirds and fly beyond the rainbow, you need first to dare to dream, and then commit to (even modest) R&D. If you don’t see the need to adapt, or if you don’t adapt properly or soon enough, you may find you no longer have a business. You have the choice to act – as the legal strategist Stephen Mayson once said (referring to boiling a frog – just Google it!) ‘survival is optional’.

Robin Jackson is the Co-Chair of the Legal Practice Management Association, the Chambers Director of 3 Verulam Buildings and a Vice-Chair of the Bar Council’s Bar Representation Committee. The views expressed in this article are his own and are not necessarily representative of the views of any of these organisations.

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