Sometimes I think lawyers forget what it is they actually do. I think it’s time for them to remember.
We live in a world where opinion polls can no longer predict elections. Societies divide and reform along unfamiliar lines and technology has created a yawning gap between the generations. The future has never been less predictable.
Against this backdrop of dysfunction, disarray and repatterning, Law is busily being reduced to a banal service-processing industry, lawyers apparently just marking time until Watson takes over.
Lawyers have largely failed to push back on the reductio ad processum – please forgive my Latin, alas I went to a Comprehensive School in the 1970s, and linguistic foundation for the unwashed masses went the way of free school milk – being forced on them by various legal services ‘gurus’, crusading in-house lawyers and technology companies determined to reduce law to Lego (nb. other plastic construction bricks are available…).
The slide of the legal profession into an ‘industry’ which increasingly defines itself by how many Pez-pellets of legal services utilisation it can profitably extrude is made worse, in my humble opinion, by the lionising of “the client” in the legal press and endless mawkish blogs.
This noble creature, a heroic arbiter possessed of powers to sense the “quality” and “value” of legal services, has attained an exalted status at conferences, around tables, behind lecterns and upon podia the length and breadth of the land.
Of course clients are important. Without them, you wouldn’t exist. They pay your bills. But just because they do doesn’t anoint them either with penetrating wisdom, per se, or with some kind of moral validity that the private practice lawyer (my client) lacks.
I mean, I’m sure that the developer of the next Angry Birds or the makers of silicon pectoral implants for men are adding meaningfully to the sum total of human endeavour but really… Really?
We are constantly told that clients want it faster. Clients want it better. Clients want it cheaper. Well, who doesn’t? I’d love to go into M&S every week and find everything cheaper when I do, but that’s not quite how the world works, is it?
There is even a theory that law firms themselves are obsolete, and are doomed to be replaced by the legal departments of their clients. God save us. Food companies already decide just how sick we will get from the amount of sugar and salt they sneak into our food. Car companies lie to us about emissions. Pharmaceutical companies bury research they don’t like the look of. The pursuit of profit neither signals virtue nor compels efficiency.
A tiny, tiny number of general counsel in big corporate organisations are doing amazing work with big data and outcomes and all the other things required to tie down slippery concepts like “quality” and “value”, but they are the exception, not the rule, and, meanwhile, the headlong pursuit of process poses a systemic risk to Law itself.
Law is not like other services. It is not like accounting (the “bean-counters” have their own detractors). It is not something which could be replaced by something else or be allowed to die off completely.
Oil rig explodes? Law. Poisoned water supply? Law. Territorial dispute? Law. Make sure you don’t get screwed on how this company works? Law. Promise you’d pay me this and you haven’t? Law. Want access to the kids? Law.
Law ultimately governs all the interactions between human beings in a civilised society. It is the backstop where all else has failed. It not only covers all the bases in disputes and non-disputes, it is the memory of society and of business, where governments and companies come and go.
The oldest English law firms have existed for longer than any of the political parties in this country, longer than virtually all of the modern states in the developed world, never mind the mayflies of the business world. Think of how important that is; the continuous existence of organisations across centuries of economic and political development. Yes, that.
Lawyers are the guardians of this system, the nearest thing modern societies have to the shaman. Break that, it’s not coming back.
And yet, before you run away with the idea that I have a head filled with wild romantic notions about hero lawyers, well I don’t.
I’ve been around lawyers for 25 years and learned that far too many of them are, well, not to put too fine a point on it, a bit crap. And a lot of the ones who aren’t crap are deeply average, and hence whatever they’re paid for doing whatever they do is too much.
Alas, like any guild, the legal profession is hobbled by the very thing which protects and enriches it. There is simply not enough reason for lawyers not to be average, and so – in the absence of external disruptors – a drive for process improvement and the ‘power of the client’ are doing the job of scrunching up legal services and sifting out the crap. Or that’s the theory.
But if law firms allow themselves to be degraded to the point where there are no large, well-resourced homes for true expert practitioners, then law will become just another commodity supplied and consumed by big business.
And in that scenario, just what happens to small businesses who can’t afford in-house legal departments? Where do they go for advice if law has effectively been dismantled and picked up by the big boys?
(You may think this is fanciful; but the narrative of BigLaw doom is silkily-persuasive).
Lawyers need to “man”* up. They need to remember their purpose, what they are actually there for, but without the arrogance that says “I can do this without having to explain why or how to you, lesser mortal”. Those days are gone.
They need to push back on people saying they should be cheaper not by bulling it out, but by working out what value they add and demonstrating it. And they should resist the idea that they are somehow less valid than the developer of a new app allowing your child to experience the thrill of running their own pizza restaurant, or the makers of new flavours of nicotine-laced water vapour or any number of ridiculous job creation schemes propped up by that most insidious of public subsidies, the Limited Company.
Lawyers will be the reason the tangerine toddler mysteriously elected to be Leader of the Free World will not get to turn the US into a banana republic. Lawyers will be the sanity in the Brexit process. Lawyers will ensure the contractors and architects and legislators involved in the Grenfell Tower fire will not get off the hook.
Lawyers make sure you don’t f*** up, and if you do, get you out of it or give you the framework to defend yourself against those who would cast you down. Price that up, why don’t you, procurement person? (sidenote: who’d be a procurement manager? I’d rather be picking litter off the highway).
Lawyers don’t charge “too much”, because the people who are buying the service all too often have no idea what they’re buying; but in order to avoid being ground into the dust of history, lawyers need to find new ways of telling clients why it costs what it does, new ways to demonstrate their value not just on the day-to-day stuff but also for those Black Swan moments.
And in the meantime, lawyers need to remember who they are. The last bulwark before human civilisation melts into chaos.
*with apologies to the significant proportion of the legal profession who are women and who are usually possessed of more cojones than most of their male counterparts!