Tuesday, January 15, 2019

Legal Professionals of the Future: Their Ethos, Role and Skills

(Thanks to Persuasive Litigator)

I have put up a new paper on SSRN titled, "Legal Professionals of the Future: Their Ethos, Role and Skills". It is part of a new collection being edited by Professor Michele DeStefano and Dr Guenther Dobrauz-Saldapenna, New Suits: Appetite for Disruption in the Legal World, to be published by Stampfli Verlag this year.

The abstract reads: The paper examines the nature of professionalism and knowledge that underlie the legal profession and others. I argue that despite the huge effects and consequences of automation, lawyers will always have a role as counselor and trusted advisor. This is embedded in the nature of professionalism, which means lawyers' tasks and roles can't be simply decomposed into sets of tasks as put forward by Susskind.

Keywords: lawyers, ethos, automation, AI, Blockchain, profession, professionalism


Wednesday, November 28, 2018

Barristers' Clerks: The Middlemen of the Law

Years ago, 1983 to be precise, a young and precocious academic published his first book. Barristers' Clerks: The Law's Middlemen has had a varied and storied life.

As it's out of print I have let it be downloaded for free from my website but that's out of action until I redesign it. So I have transferred the book to my SSRN page where you can download it.

If you don't want to do that, it's available on Amazon for £450! Here's the abstract from SSRN:

This is the text of the original book on barristers' clerks published in 1983. It is long out of print and Manchester University Press have assigned me the copyright.
This is the first piece of research I undertook in my academic career. It's an ethnography of a small but vitally important group of people who work in the British legal system. Most barristers work in units called chambers in which, though self-employed, they function as an organisation. In order to make this work barristers' clerks run the chambers. They do a variety of tasks: organise diaries, negotiate and handle fees, and advise barristers on how they should manage their careers, suggesting when to move into a new area of practice or become a Queen's Counsel (take silk).  
Barristers' clerks aren't formally qualified and have no legal training, but they know a lot about law and operate across the system to make the courts, trials, etc, work on time and in budget. They are experts in managing the system. I organise the book along the lines of relationships clerks form with salient others. These are their relationships with barristers; with solicitors; with the courts; and with each other which includes the role of favour banks.
The research is an anthropological study in which I spent time in a number of chambers observing and eventually participating as a clerk myself. Although the work predates computers and all, it still has relevance for the way the Bar operates. 
The book has had its own career independent of me. I first became aware of this, when on my return to England, I went to a Bar Council conference and saw some barristers' clerks on a panel. Struck by their thoughtful approach to clerking I asked for their help thinking I could update. I discovered they were using my book as the basis for their papers and moreover some were using it as a training manual for junior clerks. To have this kind of confirmation of the accuracy of one's work is unusual, but immensely satisfying. So I am making it available here.


Tuesday, November 13, 2018

Are professions merely a set of outcomes? Where Susskind got it wrong.

Richard Susskind has recently published a short paper arguing people don't want professionals, they want solutions and answers. The paper then criticises professions for being more concerned with themselves than the people they serve. All in all, there is little wrong with this except the hoped for outcome--an outcomes-based set of professionals--won't happen.

Susskind is first and foremost a lawyer and a technologist. He isn't a sociologist which is why I forgive him his sins. In the paper he takes an extreme instrumentalist point of view that sees professionals as problem solvers. If this were the only issue, the problem perhaps could be solved, but of course it isn't.

When we study work in society it is more than the sum of the economic returns it brings to those who toil. Work involves values, culture and social meaning. For example, there is a clear value choice, or even a moral one, between someone who elects to become a social worker or a teacher compared to someone who chooses private equity or hedge funds as their home. Neither is wrong but it's evident there is a clear distinction in values here that can't be explained only by outcomes.

Moreover, people join different groups because of the cultures of those groups. One of the successes of the British army compared to the US army, according to some sociologists, is the adoption and strength of the regimental system. It creates a common culture among different groups; they have a common totem if you like, which has thrived over many years. Doctors also have this in the distinctions between surgeons and internists. Each group has distinct historical roots and has undergone different struggles to be where it is today. To talk only of outcomes is to collapse and telescope hundreds of years of history and social development.

When these groups are together they form tight social units that share common language, habits and values. It doesn't matter if we disagree with these values and habits, they are there. They are what give groups, professions, their strength. I don't just choose to become a lawyer or a doctor. I will actually think about what sector do I want to join, where will I fit best, where will I make the best use of my talents. It doesn't mean values, etc, don't change, they will.

Back in the 1980s Thatcher attempted to enforce her ideologies on the professions. She was successful in starting a movement that essentially diminished self-regulation in favour of external and hybrid regulation. She may have been successful in enforcing improvements: for example, the conveyancing market was opened up; opticians' monopolies were busted open. And outcomes were improved.

My counter-argument would be that it is good to improve outcomes. We only have to think of the introduction of checklists in medicine (how many scalpels in and out) to see mistakes decrease, or the abolition of any item of clothing or adornment below the elbow to see hygiene improve. But professions need more than this if we are to attract people into them and make satisfying careers there.

Let's assume the Royal Society, the OECD, and Osborne and Frey are right that many jobs will be lost to automation. And Adair Turner asserted the new jobs will be less productive so reducing overall productivity in society. Then the outlook is bleak.

Every attempt to make work accountable, quantifiable, verifiable reduces our joy and our meaning in work. This outlook fits with the economist's view that work is essentially a disutility compared to leisure (utility). The current moves to financialisation of life emphasise this approach. We are reduced to units of economic value--labour, land, capital. It's a subservient view of labour, similar to De Sousa Santos ideas of subaltern globalisation.

The single most important aspect of the professional that Susskind has neglected is the role of the trusted advisor. In a way such people don't deliver outcomes. They present views, interpretations, they make connections, they produce ideas from left field. They counsel us because they have a world view (Weltanschauung) that exceeds ours. Without this we would be impoverished.

I know there is plenty wrong with professions. I have spent many years discussing the legal profession in its forms. But I also know, as an academic, that new graduates coming through earnestly desire to improve the lives of others. We need to equip them to do that and also engage them in discussions about the best ways to achieve their ends, not as a calculus on a balance sheet, but in a way that continues to inspire the love of their chosen field, that makes learning desirable, and that ensures they will do the best for their clients or patients.

It saddens me that in the 90 years from when Fritz Lang's Metropolis showed a dystopian view of society that we may be doing our utmost to reproduce it in the present. Measuring work by its outcomes only denies the value of the human input and creativity. If not careful, views like Susskind's will take us there.


Monday, November 05, 2018

Professions, Machine Learning, Blockchain...revised

After receiving many kind comments on our paper, "Professions and Expertise: How Machine Learning and Blockchain Are Redesigning the Landscape of Professional Knowledge and Organisation", I have substantially revised it and put the new version on SSRN. I want to thank in particular Professor Laurel Terry of the Dickinson Law School at Penn State University. I hadn't realised how many convoluted sentences I'd written until she pointed them out and she came through with many new sources for me.

The paper is extended and deepened. The deepening came about through my reading of Harry Collins' work on the sociology of science. He explained how acquiring expertise and knowledge is as much social as it is intellectual. The role of tacit knowledge is deeply embedded in social systems. And it is tacit knowledge that takes us from the idiot savant to the fully fledged member of a knowledge group.

I have also included two 3D figures that illustrate knowledge acquisition which are derived from Collins' research at All @ SEE: The Expertise Network. It's well worth fossicking around in.

Finally, I have extended the discussion of the contribution of blockchain in law and legal organisation. I have tried to imagine a law firm as a distributed autonomous organisation.


Thursday, August 09, 2018

Professional Expertise, Machine Learning, and Blockchain (and in Law too)

(thanks to supplychaintoday.com)

My student, Lachlan Robb, and I have put a new paper on SSRN. The paper is

"Professions and Expertise: How Machine Learning and Blockchain are Redesigning the Landscape of Professional Knowledge and Organisation"

The abstract reads

Machine learning has entered the world of the professions with differential impacts. Engineering, architecture, and medicine are early and enthusiastic adopters. Other professions, especially law, are late and in some cases reluctant adopters. And in the wider society automation will have huge impacts on the nature of work and society. This paper examines the effects of artificial intelligence and blockchain on professions and their knowledge bases. We start by examining the nature of expertise in general and then how it functions in law. Using examples from law, such as Gulati and Scott’s analysis of how lawyers create (or don’t create) legal agreements, we show that even non-routine and complex legal work is potentially amenable to automation. However, professions are different because they include both indeterminate and technical elements that make pure automation difficult to achieve. We go on to consider the future prospects of AI and blockchain on professions and hypothesise that as the technologies mature they will incorporate more human work through neural networks and blockchain applications such as the DAO. For law, and the legal profession, the role of lawyer as trusted advisor will again emerge as the central point of value.


Professions, automation, expertise, machine learning, artificial intelligence, blockchain, lawyers, legal services, law, accounting, medicine, knowledge


Wednesday, August 08, 2018

The Accountants Are Really Coming...this time....

(thanks to giant bomb.com)

I'm sure PwC, EY, KPMG, and Deloitte would like to be thought of the same way as these bands, but...dream on. Why are they there? A press release from Karl Chapman popped into my overstuffed mailbox saying Riverview Law has just been acquired by EY.

Despite the hype of press releases, this is a significant move in the legal services market. At bottom it shows two things: NewLaw is coming of age and is now attractive to others; the accountants, particularly the Big Four, are serious about conquering the legal services market. Law firms should be worried because I believe they are on borrowed time.

A few years ago I sat in a meeting at the Solicitors Regulation Authority (SRA) in London discussing how and if accountants should be given regulatory powers in legal services. The accountants said they only wanted powers for probate. They declared they wanted no other regulatory authority. Really? I thought to myself. Surely no one believes that. The lawyers at the meeting also asked the accountants for assurances this would be as far as they would go. The accountants said they aren't interested in anything else. Really? I thought to myself. I suppose you believe what you want to hear.

Riverview has evolved since its inception. It had a role in offering quick responses to general counsel who needed a lawyer at the end of the phone line to answer questions as they arose. Since then it has moved towards legal process work, or what is now termed legal operations. It offers legal departments the same sorts of resources available to HR and procurement departments, for example, along with virtual assistants.

To anyone observing the legal services market, it should have been clear that legal process outsourcing was on a short leash, and I include most of NewLaw here too. Partly because some of it was brought back onshore into law firms' offsite offices, and also because legal process outsourcing is tiny compared to business process outsourcing over which the accounting firms have some dominion.

After the failure of Enron and Arthur Andersen in the early 2000s, it was a matter of time before the accountants moved back into law. They are more canny this time making their legal deployment part of the professional services enterprise rather than merely standalone quasi-law firms.

The Big Four dwarf any major law firm in scale and size. And, moreover, they can devote resources to research and development, something which law firms are only just beginning to learn to do. Even with the discussions in Britain and the EU about whether the Big Four should be broken up, moves into law are an obvious extension to their business. Their only real competitors are the Magic Circle or top New York law firms. But how long will it be before they start thinking about merging?

At a global level, and globalisation hasn't gone away whatever Donald Trump thinks, the big global professional services firms are necessary conduits for modern capital, which means they must have the resources to handle all kinds of business. Expect to see many more of these M&As in the future.


Monday, June 25, 2018

How Courts Compete with Each Other

(thanks to rechtspraak.nl)

It can be a harsh world in the world of courts today. Competition is intensifying. Courts not only have to pay their way, they now have to face challenge from equivalent courts in foreign jurisdictions. What might have been a cosy sinecure in the past is now cold and clinical.

International arbitration is the prototypical competitive scene as Stockholm, Paris, New York, and London slug it out for disputes. Countries pass legislation according arbitral communities all kinds of rights in order to help them succeed. Creating competitive courts is a much harder process.

Courts are creatures of government who must use tax monies to fund them when there are many other claims on those pounds, dollars and euros. But to consider them mere cost centres would fail on several levels. If the rule of law is central to society and the economy, no country should skimp on its courts and judges.

England and Wales have long been in the vanguard of promoting British courts and lawyers around the world, actively seeking cases from Russia, the Middle East and China. Indeed the Commercial Court in London built a new court house, the Rolls Building, just for this purpose. While the court fees of thousands of pounds might appear high, they don't deter clients from these areas. They prefer to use the British courts rather than their own, often to the dismay of their countries' justice ministers.

In part countries have attempted to fight back by creating flexible and accommodating arbitral centres, but there are always questions around sustainability and longevity of such institutions among the arbitration community. The only truly new arbitration centre to emerge is CIETAC in China, which speaks to China's international commercial heft. One country that has not sought overseas litigants is the US, although it has a thriving arbitration community.

Now a challenge has come from an unexpected quarter, namely, Paris. The French minister of justice has opened a new commercial court within the Paris Court of Appeal. The court fees are set at Euros 100, much less than the British Commercial Court. The court aims "to offer speedy resolution, transparent decision making and guaranteed enforceability of judgments throughout the EU."

This can be seen as part of the modernisation drive under Macron. His predecessor, Sarkozy, attempted to do something similar making Paris the litigation centre of Europe, but the proposal went nowhere. This is part of a portfolio of changes:
Nicole Belloubet, minister of justice, said the international chamber is one of a series of innovations aimed at creating 'clearer rules of play in tune with today’s global and digital economy’. These include the 2016 reform of contract law - the first substantial change for two centuries - and a measure allowing lawyers from non-EU states to practise as ‘foreign legal consultants’.
While applications have to be made in French, testimony and decisions will be in both French and English, and the judges will be bilingual. One hope is to attract US companies to use Paris as their European litigation centre (post-Brexit perhaps).

How flexible and user-friendly such a court will be is open. The Commercial Court has always been attuned to its users, especially with its Users Group. The Paris fees are cheap but they aren't the key issue. Paris has a thriving arbitration culture with the ICC in residence and its attraction for north-south disputes, but it is multi-cultural. Can the Paris court become the new 'court of pie powder'?

Much depends on how the big international law firms situate themselves if Brexit is successful--I hope not--as well as the financial institutions. Big commercial law is part of a matrix of institutions that includes consultants, accounting firms, law firms, banks and the like. Law firms and barristers' chambers that practise in these fields tend to have offices overseas and see themselves as cosmopolitan and international. I wonder if French avocats feel the same way. However they react it will be good to see some competition in the global legal order. As the English know the returns can be substantial. 


Wednesday, December 13, 2017

Why Do Lawyers Hate Their Clients?

I've been reading about my sociology PhD supervisor, Howie Becker. He's big in France, which is weird because he's the antithesis of theoretical. Unlike Bourdieu, Becker isn't sterile and formulaic. Instead he asks questions about how something is done. There's a rather nice article about him in the New Yorker, which for the English among you would be like being featured on Desert Island Discs. The reason for bringing up Howie is because he refers to his supervisor, Everett Hughes, the great Chicago sociologist.

Howie says, in the New Yorker piece:
“My dissertation supervisor, Everett Hughes, loved the idea that anything you see in the lowly kind of work is there in privileged work, too, only they don’t talk about it,” he says. “Later on, he went to the American nurses’ association and they hired him as a consultant, and he said, ‘Let’s do some real research: why don’t you talk about how nurses hate patients?’ There was a shocked silence and then someone said, ‘How did you know that?’

Of course, this applies across all professions. Doctors hate patients who come loaded with facts from WebMD who would rather self-medicate than take the doctors opinion. At least it looks as if doctors are doing something. You can get better with a doctor; you might even have a new heart.

Funeral directors aren't too keen on corpses either. An ethnographic piece on them (sorry forgotten the cite) showed how backstage FDs called burnt bodies, "Mr Crispy", and drowning victims, "Mr Blobby". And they were more emollient out front with the bereaved.

With lawyers it's almost the same but not quite. Yes, clients might do some research on what they need, but it is harder because legal language is so obtuse and strangled, even for lawyers. But more and more, clients are pushed into this position as legal services become expensive and over-priced for the majority of people. It's harder to see what it is that lawyers are doing for you. You could be free, but most likely you thought you were innocent anyway so no change there. Or, you have a nice, new, shiny fat contract that you can put into a draw and ignore.

Clients hate lawyers because they apparently fuck up your life (to borrow from Philip Larkin). They don't talk English. They talk down to you (because you are ignorant) and won't answer your questions. And all they want is your money but won't tell you how much until it's way too expensive, and you need to remortgage.

I use the example, with students, of going to buy an iPhone, and the Apple store clerk responding to your query about the price saying "I don't know. It might be anywhere between $500 and $1200, but by the time you get to the check out, I'll know and tell you." Not sure Apple would sell many phones that way, but lawyers with hourly billing think this is normal. It's normal for them but not for anyone else. There's just a hint of arrogance and hubris in that view.

If clients are cash cows to be milked for all they're worth, there can be nothing worse than a self-represented litigant. Now before decrying this crime against nature, try to realise that the SRL is probably there because (a) she can't get legal aid, and (b) therefore can't afford a lawyer. No wonder justice wears a blindfold. It's too painful to look at these poor victims being turned over by the lawyers and the judges who also hate them because they clog up the courts. For the lawyer it could be truly awful because the judge might direct the represented party to do the work for the SRL (for free).

It gets much worse, of course. With the move towards self-help, clients look for alternatives and now they are finding them. Legal technology companies are sprouting everywhere. Do it yourself divorce; do it yourself parking ticket appeals (with the help of friendly IBM Watson); do it yourself contracts, tenant agreements and more are all around us now.

To compound the errors these companies actually believe in User Experience and Design. UX is the opposite of what a lawyer should do, since it makes things intelligible for clients. How will you milk them if they control the milking equipment and can read the user manuals?

So there are plenty of reasons for lawyers to hate their clients. And I'm not excluding corporates here. General counsel have been getting far too uppity for their own good demanding budgets from their lawyers and, worse, bringing in their procurement departments to help price legal services.

I watched the Amazon Prime series, Goliath, recently. Don't bother as it's not that good and I only watched the whole of it for research. I'm good at suffering like that for my work. Usual thing of brilliant lawyer, a drunk, dropped out of his BIG law firm, and takes a client who is opposed by big corporate defended by said BIG law firm. Now the senior partner (William Hurt who must have been hurt to play this role) with many dark secrets and a Weinsteinish way with his female partners and associates, not only runs the case for his corporate client (nasty arms manufacturers) but commands the CEO and General Counsel not to contradict him. When the CEO and GC argue for settlement, Hurt simply says no and they roll over for him. It's fantasy but I can imagine many lawyers pining for the good old days when they commanded. Now they follow.

So, if you don't hate your clients, there's something wrong with you and you better get it checked at the local shrink. But don't worry he'll hate you too.


Saturday, December 02, 2017

Law's Missing Institution (Mind the Gap...) A Manifesto for New Ideas in Law

(thanks to meinhardtgroup.com)

This is a picture of Hong Kong Science Park in the New Territories. It's a tremendous place and I visited it in October while visiting at the University of Hong Kong Faculty of Law. I had gone to see a blockchain startup there, but the visit made me think about why there were no law startups or businesses in the park.

My thoughts here, then, relate to a legal education conference I'm attending at UNSW, an interview on legal education with the Australian Financial Review, and an earlier post on the uberization of law.

Let me start in the mists of time...when the American Bar Foundation was trying to articulate its rationale, the director asked the question: why isn't the ABF the Bell Labs of law? It's a great research institution but it's not Bell Labs, nor should it be. It doesn't create spinoffs and it's not a think tank. But we might need other institutions to take on these roles.

I don't know what to call such an institution, but I can tell you why it's needed and what it should do. We have a massive gap in legal education and it's not purely the fault of law schools. I lay the blame on legal regulators and the judiciary who have virtually no experience in education and therefore should have no role in it. But still they are deferred to whenever the topic of reforming legal education arises.

I should add that what I propose is different from Bill Henderson's idea of a College of Legal Operations, which is based around a series of boot camps to fill gaps. I think there's a much bigger gap to fill and it's not just to do with teaching certain skills although they are necessary.

I would base this new institution in a Science Park, not a downtown office near the law firms. The reason is simple; I want the expertise of people who are dealing with ideas every day, not just those who are in business. They are important...yes.

The new institution must have three roles: first, it must engage in research and development (R&D). Law is terrible at R&D because lawyers and law firms have such short term visions about their work. When it comes to R&D in the cutting edge of law, especially technology and cognitive science and the like, law schools tend to fall behind. The reasons are that they are on the whole narrow minded about their remit, averse to interdisciplinary work unless it falls within a narrow remit, and find it difficult to think in "scientific" ways, which makes the interdisciplinary work difficult. I have reviewed countless numbers of law research grant proposals to American, Australian, Belgian, British, Dutch, and Danish research councils (which means I've forgotten the others). There have been tremendous ideas for research therein, but when they fail, they fail for a particular reason. They can't do methods. Lawyers go all wobbly when they think of methods and it shows. Lots of work to do here.

Second, the new institution must be a think tank. And by this it must engage in public debate and put ideas into the public forum. There are some organisations that do this. For example, UCL's Constitution Unit. But there's no equivalent in law of Brookings or Chatham House, and I suspect this is because lawyers think they have such close connections to power and the state that they simply don't need institutions. They do and so do the public. Policy must be informed by research that challenges conventional wisdom, so we need to go beyond the remits of law reform commissions into areas that potentially don't yet exist but will. Rights for robots is one such area. Will autonomous drones that kill civilians be able to invoke the Geneva Conventions? Caring robots in Japan will want to inherit property and not be switched off. What about land mine detection robots? Can we countenance their injuries? Stupid I'm sure to some, but...

Third, it must teach and impart new skills to law and other graduates for labour markets that will be very different from the closed and monopolistic ones that currently exist. In some ways this bit is close to Bill's college. Ideally though this should be an institution for all levels of the legal market or law, from junior to senior. The senior cadres of law are some of the most restrictive and repressive elements in law. Senior partners in law firms have virtually no incentive to change anything, especially if it involves investment. That means making less money this year...anathema. Admittedly, institutions like Harvard Law School's program for law firm leaders is waking them up but in fact it perpetuates the status quo rather than challenge it. That's not to say law firm leaders don't return home with new ideas, but I have yet to see a law firm truly and really change. Adapt yes, but what if there's a Cambrian explosion?

All three segments of the new institution must cooperate with each other. And, in fact, I'd make the faculty engage in all three sectors.

Some will say I've been on the fringes too long, in wacky programs like Law Without Walls, The Legal Forecast, and Legal Hackers. Certainly I have colleagues who think that way and place me beyond the pale. I disagree of course. We are living in interesting times: blockchain is about to fundamentally change our interactions on the internet; quantum computing will make security an even more hazardous environment; and artificial intelligence is already having deleterious effects on associates' training (or otherwise known as: what training?).

Let me put it the other way. Too many legal academics and lawyers have not ventured into the outerworlds. They are frightened of encountering savages so perhaps a dose of soma is preferable. I'm not sure we can change their minds. If not, then don't waste time. It's time to create new cohorts. But I'm reminded of an earlier story than Brave New World (1932). It's E M Forster's The Machine Stops (1909). In this 12,000 word story Forster shows what happens when people unthinkingly rely on technology to live their lives. It is chilling and prescient. Both Huxley's and Forster's stories are warnings about not facing up to challenge and new ideas; they are stories about conformity versus radicalism. And conformity doesn't come out too well.

For too many years lawyers and the law has enjoyed a monopoly. Has it justified that monopoly. Maybe at times, but not now. Technology is providing us with new ways to create, practice, and consume law, and lawyers don't have to be the only players.

I have a manifesto. I want to break law out of its current antediluvian mindset. Yes, I could move incrementally, but I believe we are in the same position that Europe was in 1848. Revolution is necessary and new institutions are essential to guide the way.

Disclaimers: I own cryptocurrency. I advise blockchain and legal startups. I am a proud Estonian E-resident.