Lightfoot's argument is that the most expensive piece of real estate is between the ears and so it has to be deployed carefully and profitably. And there are two elements to it. There is the technical ability to draft, to be an advocate and so forth. While it's necessary it isn't sufficient for the role of super lawyer. To be that you need something more indeterminate, soft skills that allow lawyers to be active in divining what the clients might want.
Some will recognize the the technical/indeterminacy phrasing from an article written on the French university-hospital system in the 1970s by Jamous and Peloille. The balance of the ratio determined the status and preserve of the occupation/profession.
If the technicality aspect was favoured then the work would lend itself to routinization and standardization and could be subsumed under bureaucratic control easily. This is often what defeats occupations that attempt to professionalize themselves. William Twining's idea of the lawyer as plumber or Pericles shows how this could play out. In many respects this is the sort of future Susskind sees for many lawyers by virtue of the widespread use of IT.(*)
On the other side of the ratio is indeterminacy which is intangible but not quite ineffable. It is mythical, rhetorical and hard to pin down. But err too far on this side and the work is hard to protect from incursion by others. The clergy don't have the power they used to in administering the spiritual care of their flocks. Much of that work has been medicalized and is done by psychologists or therapists or even psychoanalysts. Although in law the role of the wise counselor still plays well. Many lawyers are lauded for their "judgment", even though it may not appear to be evidence-based.
Of course it suits Susskind's argument to push the technicality scenario as inevitable and ineluctable. Lightfoot is trying to imagine a new creativity for lawyers that embraces both aspects of the ratio. It won't be available to all but it will cut across many fields.
I think there is an assumption in Susskind that bespoke legal work will only occur at the high-value corporate end. This is a big mistake. If anyone has heard Clive Stafford Smith or Shami Chakrabarti speak, they will understand where I'm going with this. Clive heads up Reprieve which tackles death row and Guantanamo Bay cases. These cases make inordinate demands on lawyers who have to display imagination, creativity, and subversive thinking of the best kind. Clive asks law students in his lectures two questions:
- How many hours a week do you work in law school?
- How many hours do you spend thinking about what you will do after law school?
There are many areas of legal work that will require the best legal skills. We just haven't acknowledged them yet, because ultimately Susskind's argument hinges on money. Money is the lure and the trap. Bill Henderson's work on the bi-modal distribution of starting salaries clearly shows that students face a harsh world. But it is not one that sees the possibilities.
Lightfoot has her heart in the right place but it is geared towards a uni-dimensional kind of lawyer and laweyring. There is more out there. We need to locate it, map it and make sure our students know about it.
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(*) Andy Boon's critique of Susskind's book, The End of Lawyers? is now in the Legal Profession section of Jotwell.com. It's entitled "Armegeddon for the Legal Profession?" (Declaration of interest: I'm one of the section editors, so it's worth reading all the time. We have a great selection of contributing editors.)
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