Ten years ago, when we were at the dawn of the Internet era, I gave an SCL Lecture and speculated as to what might happen in the coming decade. A great deal has happened since. I would like to reflect on some of the more important developments. I should say immediately, however, that I still get more excited about the future than the past. Indeed, one of my underpinning themes is that, while much has happened in the last decade, even greater change is likely in the coming ten years.
I want to summarise my original position, the one laid out ten years ago and set out in my book, The Future of Law, which was published at that time.[1] I want to highlight the major leaps in progress that we have enjoyed over the last decade. I want to reflect upon the vital technology trends that are going to shape our future in the legal world. I want to introduce a new model, ‘The Evolution of Legal Service’ – which shows how the way in which lawyers work and the way in which clients instruct their lawyers will be transformed in coming years. The topics of access to the law and dispute resolution are covered on the SCL site.
My original position
My original position, as formally laid out in The Future of Law, had a number of aspects. One was what I called a change in the ‘information substructure’ in our society. I used this term to refer to the dominant means by which information is captured, shared and disseminated within society. I observed, as anthropologists have done, that you can see that human beings have travelled through four phases in relation to information substructure: the first being the era of orality, where communication was dominated by speech; thereafter the era of script; then came print; and then, and we’re in this transition now I believe, into the final stage of the world of information technology.
My next point, and I still strongly believe this, is that the information substructure in society dictates to a large extent the quantity of our law, the complexity of our law, the regularity with which our law can change, and those who are able to advise upon it and be knowledgeable about it. If we look at the way the law has changed throughout history, we can see transitions as the information substructure has changed. I argued that there was going to be a shift in legal paradigm; though now the notion of ‘paradigm’ is rather overused. By this I meant that all of our fundamental assumptions about the nature of legal service and the nature of legal process would be challenged by the coming of information technology and the Internet. So many assumptions that we made in the past about the way that lawyers work and the way non-lawyers receive legal guidance would change through technology.
But I also pointed out the ‘technology lag’. This was a lag between two forms of technology: data processing and knowledge processing. Data processing is our use of technology to capture, distribute, reproduce and disseminate information. We have become extremely good at this. Indeed, everyone who bemoans the information overload will say we have become too good at data processing. Knowledge processing is coming to the rescue. This is a set of technologies that helps us analyse, sift through and sort out the mountains of data that we have created and helps make them more manageable. Data processing has advanced well ahead of knowledge processing, but the gap, the technology lag, is going to close. When it closes, we will be fully in the information society. I believe now, and I believed then, that we are in a transitional phase between the print-based industrial society and the
I talked also of the ‘latent legal market’, and this attracted a lot of interest. This was the notion that many people in their social and in their working lives need legal help and would benefit from legal guidance but lack the resources, or perhaps simply the courage, to secure legal counsel from lawyers. I believe things have changed – on the Internet we now have vast resources available to people who, from the government’s 2,500 websites or the innumerable voluntary legal services’ sector websites, can obtain practical, punchy legal guidance. I believe there is not just a latent legal market for the ordinary citizen but also for major organisations too, when they find it difficult to secure legal guidance on all those occasions when they need it.
All of this led me to speak about access to justice in the sense that as citizens we should be able to find out easily and quickly what our legal entitlements are, and in so doing, we should be able to avoid legal disputes.
I also pointed to the phenomenon of ‘hyper-regulation’. We are all governed today by a body of rules and laws that are so complex and so large in extent that no one can pretend to have mastery of them all. I argued that hyper-regulation means not that there is too much law by some objective standard, but that there is too much law given our current methods of managing it. Of course I was creeping towards the suggestion that, with the coming of knowledge-based technologies, the volume of the law would be more easily managed with the assistance of our systems.
I also drew attention to innumerable emerging technologies that seemed likely, at the time, to be tremendously important. It is laughable in retrospect, but e-mail was one of them. When I suggested ten years ago that e-mail would become the principal means by which clients and lawyers would communicate, many people suggested I was completely crazy and that I did not understand anything about security or confidentiality.
A key point in all of this is that my view, as set out in my SCL lecture in 1996 and in The Future of Law, was a twenty-year view. While much has happened, much more is yet to happen. I believe that within ten years – it might be a little more, it might be a little less – we will see this technology lag closing. We will emerge into an era where we can have at our finger-tips, through the Internet and other facilities, all manner of legal guidance that was simply unimaginable ten years ago. And I suspect you will find some of what I say this evening as hard to imagine as the assembled audience did in 1996.
Progress over the last decade
I want to look at this under four headings. First, what about
I think it is fair to say our world has moved on. As we gather here this evening, there are now 600 billion pages on the World Wide Web. There are over 1 billion users of the Internet (the average age of users is 41; while 52% of users are female which rather refutes the claim that the Internet is just toys for the boys). There were 37 million users ten years ago when I stood here. 9% of
The reality is that, in a variety of ways, the Internet and information technology have transformed our communication practices and our information-seeking habits, and increasingly are transforming the ways we secure all manner of services too.
I join others in asking: Why are we not more amazed? Although we are in the middle of a revolution, people are not generally marvelling at it. Humanity is taking the Internet in its stride. Why? Psychologists refer to ‘hedonistic adaptation’ – the idea that people adapt very quickly to good news, and I suspect this what we are seeing. We take on board these amazing facilities that are changing and enriching our lives without being fazed by them.
But have lawyers moved on? I can go from optimistic to pessimistic in a matter of seconds on this. On the optimistic side, we can be in no doubt that there are amazing pockets of excellence, particularly in the English jurisdiction. Some law firms have embraced technology, whether it be online legal services, document assembly or deal rooms, or a whole bundle of other developments that I write about in my column in The Times every three weeks. It is revealing that I have easily had enough material and case studies to hand to write 100 columns on all manner of fascinating and innovative applications of technology within the legal world. But, if I’m really honest, and this is where the pessimism can creep in, they remain exceptional. Like the rest of the world’s, lawyer’s lives have been transformed when it comes to communication and transformed when it comes to research for information. But, by and large, most lawyers have now got their Blackberry machines, they Google regularly and they think that they have arrived at their final destination, technologically speaking (although I know that most SCL members don’t think this way). My argument is that what lawyers have so far is just the plumbing. The infrastructure is in place, but the really exciting stuff that will go to the heart of legal service and the heart of legal process is coming in the next decade.
We should step back for a second. How do we predict what is going to happen over the next ten years? Method is important here. I will give you a sense of how I go about predicting how legal life might unfold.
I do not think it is helpful to be fixated by the past. There is the danger here, as others have put if, of ‘walking backwards into the future’. Through technology we are surely going to experience a number of discontinuities. We cannot simply extrapolate from current and recent behaviour and thus identify what is going to go on in the year 2016 when it comes to legal practice.
I think listening to most lawyers is also a mistake. There are all manner of vested interests at play when lawyers speak of the future, given that they are – cliché though it may be – inherently conservative and not disinterested observers.
You need to do two things. You need to look at market trends – and I want to do that under the heading that I mentioned earlier – ‘The Evolution of Legal Service’. But even more importantly we must look at technology trends; and I do not think I am hereby saying that the tail should wag the dog. There are some fundamental and remarkable technology trends of which we should take careful note and see what they mean for the legal world. I will draw a whole bundle of conclusions this evening that some of you will agree with and some will disagree with, but I think both market trends and the technology trends are fairly clear -.
Technology trends
I have chosen six of these: exponential growth of technology; information satisfaction; community and collaboration; the net generation; multi-media; and disruptive technologies. I will concentrate on the first three.
I and others believe there is an exponential growth in the progress of technology. The best expression of this that I have encountered is a compelling and exhilarating account of the development of technology in a recently published book by Ray Kurzweil – The Singularity is Near.[2] Much of the book is about nanotechnology and robotics and genetics but Kurzweil also analyses a whole range of information technologies and notes the rapidity with which they are changing. He argues not just that the rate of growth is exponential but that the rate of exponential growth is itself increasing exponentially. He looks at the number of Internet hosts and the volume of Internet traffic; bandwidth; the performance of processors and the number of transistors in each microprocessor and also at random access memory. All of these and more, he points out, are progressing exponentially.
By way of illustration, I am going to offer a crude over-simplification of what he says about processing power. You may be familiar with
Kurzweil makes a more general point graphically. He refers to the exponential curve, whose shape you will all know, and he argues, and I think this is a great way of putting it, that we are currently but at the knee of the curve. That is to say there has been a notable increase in, for example, processing power and all the other phenomena I have noted, but we have seen nothing yet. We are poised, he says and I am with him all the way on this, to take off and we are about to take on board technological power that is almost unimaginable in scale. He refers, for example, to the number of computations per second by the brain as against the computer. The average human brain, he says, handles about 1016 calculations per second. By 2020, a piece of kit on our desk that costs about $1,000 will have that same sort of computational capacity and by 2050 – this is the exponential, exponential point clicking in – the $1,000 machine on our desk will have more processing power than all of humanity put together.
Now it seems to me that with more processing power than all of humanity put together on your desk, then lawyers might think that their working patterns are up for some change. To think we have reached the finishing line in technology is entirely to miss the point.
Let us move on now to ‘information satisfaction’ – a phrase I have recently coined. Many of us in our information-seeking habits are not satisfied or are only sometimes satisfied. My crude definition of information satisfaction is that we are satisfied when we receive all but only what we want in our quests for information.
Sometimes we are searching for something that we know is there. Isn’t it absolutely fantastic when you have heard there is a consultation paper or some new article and you know a couple of details about it and within two seconds of making a simple search request you are downloading it? That is just about complete satisfaction. Ten years ago we were not even sniffing that, so it is remarkable.
Then there is the fishing expedition – where we are not really sure what we are after. You are interested in a topic and you Google and away you go; you link and you jump and you come across all sorts of interesting Web sites that you had no idea existed and come away with all sorts of fascinating insights too. I think our information satisfaction there is often quite high.
Where information satisfaction is far lower is in relation to what I call personalised alerting. Ten years ago, I perhaps talked about the notion of the ‘Daily Me’ – a newspaper that would be constructed every morning just for you. Although there are all sorts of feeds and services and alerts that aspire to this today, it is not yet quite personalised enough. None of these services know quite enough about what we want. We will need a whole bundle of better technologies to meet this challenge and, not least, systems by which we can analyse our ongoing click-streams. We will achieve information satisfaction in respect of personalised alerting only if the services that are advising us or bringing information to us can – by finding the patterns in our previous searches – know the kinds of things we are interested in rather than just rely on the profiles we provide.
As matters stand, we are quite a way away from information satisfaction when it comes to personalised alerting. But that is what many lawyers and their clients want. They want news of recent developments, all but only the recent developments that apply to them, in a punchy, practical way. They do not want lots of potentially relevant documents and then have to sift through them. They want personalised alerts. I do not think that we will have that fully optimised within ten years but we will be well on the way. Search theorists are suggesting that, even using Google, we are now only 5% of the way in developing our search facilities in as sophisticated a way as we would want.
A fourth sort of information satisfaction may come in relation to problem-solving, and a variation of what some people call ‘perfect retrieval’. Problem-solving searching would simply involve typing in a question and out would come the answer. A whole host of things need to go on technically for that ever to happen, but again we will edge towards this in the next decade.
Perfect retrieval might also be when we are looking for the single best document that is available and we do not know what that document is. You have perfect retrieval when that document shoots straight into your face. We will be creeping towards that kind of information satisfaction too over the next ten years; in fact, I think we will be moving fairly rapidly towards that.
My third trend is the notion of community and collaboration. In a sense, this is even more important than the exponential growth of technology and information satisfaction. I have always said the Internet is three things: global e-mail, the World Wide Web and online community and, for the last decade, have said that online community is going to be the most important of all – since it is in its very early stages, we cannot really know how it is going to end up.
But what I have been observing are a number of related and exciting phenomena. I have recently been trying to make sense of them collectively. Napster was an amazing idea. Forget the legality of the system for a second. It is an amazing idea that we are all connected, as some people would say, to the same Big Machine and on this Big Machine we can all exchange music files with one another, dipping into, as it were, one another’s stores of files. The fact that these are music files is incidental; technically, peer-to-peer networking (almost) is a phenomenon that really has no precedent. That we are all connected to one another across the globe and we can share files is mind-boggling.
Add to this the whole notion of Open Source. You have to forget for a second that the great successes of Open Source have been in system development (most notably Linux and Apache). These complex systems have been developed voluntarily by a whole bundle of people spread across the world who came together in what looks like an unstructured project and they developed and delivered operational systems that underpin much of the World Wide Web as it functions today. What is going on here, when all these people can collaborate online from a distance without any traditional, overarching structure to guide them?
And look at Wikis. The idea is that, working collaboratively and online, we can build up shared bodies of knowledge – one person contributes an article or the like, another refines that and adds more, and an evolutionary model of a particular area of knowledge develops. Wikipedia is the best example here. It has more than 4 million articles. It is a global project to create an online encyclopaedia, to which we are all able to add voluntarily; and others can edit it; and, in a sense, it is self-regulating. While I know that there are lots of debates about its quality, I am less interested in the specifics and more interested in the general phenomenon. People are getting together, often beyond the scope of their conventional work, and their knowledge sharing and collaboration practices are wildly different from anything we have seen in the past. People talk about social software as the technology that underpins this. Others talk about the network effect. It is a new world of collaboration enabled by the Internet.
Now consider instant messaging. Look over the shoulders of your teenage children who are communicating online, maybe with ten people at the one time, and perhaps collaborating on school work in ways that our brains do not seem to be wired to be able to do. Here is yet another illustration of new and significant patterns of collaborative behaviour.
And in the background – not so much in the
All of these phenomena – peer-to-peer networking, Open Source, wikis, instant messaging, new thinking about IP and many more – combine to point to what I believe will be the most fundamental change in the next ten years and that is in the way we collaborate, communicate and operate together online. We are going to see the emergence of entirely new attitudes to collaboration, entirely new attitudes to knowledge sharing and entirely new resources available at our fingertips as a consequence of the new mindset.
At the same time we have got to bear in mind the net generation. This is my fourth major technology trend. Ten years from now, my older son – and I can proudly say he is sitting in the front row – will be 28 and in the thick of it; but if he had a glimpse today over the shoulder of most lawyers up and down the land, he would be horrified at the antiquated ways in which information processing and knowledge sharing is conducted by them. It does not reflect what is going on in schools nowadays. It does not reflect the online socialising and interaction.
I distinguish between those of us who can remember a pre-Internet world and those who cannot. And I am afraid those of us who can remember a pre-Internet world are always stuck in a particular mindset: much of this contemporary information sharing, collaboration and instant messaging seems slightly beyond us. We can do it but it seems slightly unnatural. A whole generation of young people, and indeed young lawyers, are coming through for whom this will be second nature and for whom the kinds of working practices that have underpinned legal work for centuries will seem bizarre. Unless those of us operating in the legal world begin to put in place structures that support the way that the net generation are operating, thinking, functioning and collaborating today, we simply will not be meeting their needs.
Fifthly, we have got to embrace multimedia. A lot of us have been disappointed so far with information technology, but a lot of what we have been doing is putting text on screen or libraries on screen. One of the joys of
Finally on technology trends, consider the notion of disruptive technologies. Clayton Christiansen of
The evolution of legal service
I have just argued that we are moving to a world which is entirely different in terms of the information technology that underpins it. At the same time, I think we are also seeing major changes in the way in which legal service is evolving. With that in mind, I now want to introduce to you, in summary form, a new model that seeks to explain and predict the way in which legal service is evolving. As also depicted in the diagram, I will describe a progression through five steps that I believe capture the evolution of legal service.
The first step in legal service, I believe, is bespoke legal service. The one-to-one, face-to-face, consultative advice, the piece of work that is crafted from scratch, the advocate in the courtroom who develops and presents his arguments – these offerings all are, in a sense, lost in the ether and not reused. Bespoke service is often associated with complexity; many people in the legal world feel comfortable providing this kind of tailored service, honed to the specific needs of specific clients. Off-the-peg legal service – the very idea!
However, when work becomes recurrent, to use bespoke service again and again is to duplicate effort, and so we evolve to the second step – standardised service. We standardise service in two ways. We standardise in terms of process and we standardise in terms of substance. In terms of process we might use checklists, flow diagrams or procedural manuals; a consultant might have a methodology or two. What you are doing is laying down guidelines for good practice. To standardise in terms of substance you might use standard paragraphs of text, or standard form documents or precedents or templates, so that when you are drafting a document, for example, you do not start with a blank sheet of paper.
With
The fourth step is, for many lawyers, a step too far. I call this packaging. Much of this was implied but not expressed in this way in The Future of Law. I think it has given rise to the most confusion about what I was suggesting would evolve. I believe that, at a certain stage, legal knowledge, legal information and legal systems will no longer simply be used internally within law firms but will be packaged for external use. There will come a time, for example in relation to document assembly, where the law firm will recognise that the clients themselves could answer the series of questions and, more importantly, there will come a time when clients will say that they would like to sit in the driving seat and use the systems themselves.
It is not a case of if this will happen but when it will happen. Packaging need not necessarily be implemented through technology. We can imagine some paper-based packaging. But I am mainly talking about online service – where legal knowledge and information, for example, the intellectual content required to produce a document or to offer advice or to offer some kind of research facility – is packaged and made available to the external world. It might be offered to the citizen who is seeking advice on a basic issue – such as what minimum age a babysitter needs to be – or it might be offered to the client of a major financial institution who wants to generate term sheets more readily and at less expense than in the past.
When I distinguish between packaging and commoditisation of legal service, I am largely making an economic point. I am putting forward my own definitions but I am entirely happy that others might define these notions rather differently.
One important point of difference here is that the legal package is usually a differentiating product. It is something that is quite forcefully branded, is usually strongly associated with the provider and, often but not always, generates revenue. It is to be distinguished from this final step, which is the one that makes most lawyers wince, and that is commoditisation.
Products like sugar, coal or gold are commodities when there is little to differentiate them other than price and they seem to be readily available in the market. To become a commodity, legal service has to go a stage further than being packaged. It may still be branded but often it is no longer distinctive. If, for example, two firms produce a system that generates employment contracts, you have a commodity situation – even though, originally, the first one to market was offering a package that differentiated and perhaps commanded a premium price, once there is more than one player in the market, what was a package becomes an online commodity. And I want to talk now about the underpinning financial implications of this, because this is key in trying to understand why lawyers do not like the idea of legal commodities.
Two reasons are given, more or less explicitly. On the one hand, there is the emotional/psychological one that commoditisation seems to devalue what one does as a lawyer; and I can understand lawyers feeling that way. The second reason, however, is more rational as an economic argument. To the left of the five steps in my diagram, at the bespoke and the standardised end, work by lawyers is based still on hourly billing. When you move towards the systematised and packaged stage, you move to fixed fees and, because it is increasingly an information product, the marginal costs of delivering repeat versions of the service reduce. The difficulty with commodity pricing, as with all information products, is that when there are competing products the price tends towards zero because the marginal costs of reproduction are almost zero. So, lawyers are correct to worry about the economics of commodity pricing because, once a legal offering becomes a commodity, there is a good chance it is going to have to be given away.
So the commercial aim, if you are providing online services, is to keep the bar so high that your package cannot be replicated by others and become a commodity. And remember, of course, that there are commodities that are not online services (although most are) such as standard form documents – look at the ISDA Master Agreement or the FIDIC standard form construction and engineering agreements which are already available as booklets and can immediately be put into play in a negotiation.
As you move to the right of my spectrum, in economic terms, you are facing new and increasingly formidable economic challenges. The style of service also differs. Towards the left, we have the bespoke and standardised work which involves the trusted advisor and thought leader, operating firmly within the legal comfort zone. As you move towards the right and you begin to systematise and package, you are becoming a bit of a shrink-wrap offering. You might still be strongly branded but you are in an uncomfortable zone for most lawyers. Most lawyers’ first impressions are summarised in this quote: “Our firm does mainly bespoke work and that is how it should be”. That is the fundamental principle that underpins most law firms’ work today and I want to challenge this.
I want to challenge the standard first impressions on three bases. First, let us consider client engagements. I am not suggesting that any piece of work, whether a deal or dispute, fits neatly into one of the five steps. What happens is that work can be distributed across the five steps. So, for a particular transaction, a law firm might say “we will do a bit of bespoke; but we have also got some standards in place so that will save some time and money; indeed we have developed some internal systems which will allow even quicker turnaround and consistency; and some of this work we can even package and ask you to do yourselves”.
No piece of work is all bespoke. Even the most complex will have elements in them that can be standardised and systematised and even packaged or commoditised. To say to a client ‘we only do bespoke work’ is a bit like saying ‘we only do the expensive part; get someone else to do the rest’. If you want to provide a full service to the client, you have to spread yourself across that whole spectrum. The key question is what is the optimum balance across these five steps for any given piece of work?
Why is that the key question? Because clients are pulling to the right. Lawyers need to rethink their position when it comes to bespoke legal work. Clients are pulling to the right for a variety of reasons. As suggested, it gets cheaper towards the right and the cost becomes more certain. There is a knowledge management argument too – if you are standardising or systematising you are capturing the collective experience and expertise of your organisation and reusing it and thus avoiding duplication of effort. This will give rise to the efficiency, productivity, quality and consistency benefits that knowledge management aficionados have always promoted. There is no question that, towards the right, if you are working correctly with your knowledge resources, you should actually be increasing performance; clients find this attractive.
How clients operate also affects their view. As clients’ products and offerings themselves develop and become packaged and commoditised they will expect a complementary and similar tone of legal service.
I have been doing a great deal of work over the last three or four years with clients, small and large, and there is no question in my mind that there is a pull to the right. And here we can see the fundamental tension in our legal world today: in terms of the evolutionary pattern, clients want to go to the right whereas law firms want to stay at the left. It is my view that, strategically, the law firms who incline towards the right are going to do themselves huge favours in terms of client satisfaction; and profitability.
But another phenomenon that of course impels law firms towards the right is the disruptive competitor. In some practice areas, there have been quasi-cartels of law firms, offering bespoke and slightly standardised service and collectively resisting systematisation or more. But some law firm may break rank and charge towards the right, undercutting prices within the market.
There are is also the chance of new entrants. I am not suggesting that you need to progress along each stage. You can jump in at any step. We now have some innovative publishers, for example, who are already offering packaged services and there are, say, in the area of legal risk management or in the area of compliance, others who can inject themselves at the packaged level and offer these services directly to law firms’ clients.
So there are many compelling reasons for challenging that first impression that all law firms do is and should be at the left-hand side. As a matter of fact, I think it is wrong. And as a matter of strategy, it is misconceived to suggest that we should not move towards the right because this fails to take account of what clients actually want.
So how should lawyers respond? The strategic options facing any law firm are quite clear. It seems to me there are only three. One might say “I’ll be a pioneer”. One might say, secondly, I am going to be poised and ready to respond should someone break rank. Thirdly, one might say I am going to resist. I believe resisting over the next ten years will mean commercial suicide. So, in what follows, assume we are moving to the right in some way.
How do you resource the move to the right? You might outsource some of the service in the other steps, as some law firms have done, or you might collaborate with others who perhaps can systematise or provide a packaged service at a lower price. But underpinning the move to the right will be existing and emerging information technologies and existing and emerging knowledge systems.
Before we get on to this in more detail and identify some key enabling technologies, I just want to say a little bit more about clientsWhat are clients seeking from future legal service?
One big issue is legal risk management – this idea of avoiding disputes rather than resolving disputes or, as I always say, putting a fence at the top of the cliff rather than an ambulance at the bottom. The fact that risk management is uppermost in most in-house lawyers’ minds and the minds of major clients, together with compliance and regulation concerns, relates to my earlier point about ‘hyper-regulation’. Is it not an indictment of our legal system that General Counsel in the largest companies in the world (who, one would imagine, have at their fingertips their own legal teams and external law firms of unparalleled quality) have as a major worry that they may not be on top of emerging regulations, that there might be rules and regulations of which even they are not aware. So, far from thinking that the notion of hyper-regulation has been sorted out over the last ten years, it remains one of the great problems of our day. Clients are concerned about that: how do we know what regulations apply to them and how do they ensure compliance?
What also comes back from clients is that these worries about risk management and compliance cannot be overcome or addressed through conventional legal service alone. You cannot simply throw more and more lawyers at the job, lawyers who work in the conventional (hourly billing) manner, lawyers who are trained to analyse all needs, continually looking out for legal risks and continually monitoring compliance. You need new tools and techniques. I believe that a new generation of tools is emerging which will help us there, a new generation of information technologies and knowledge systems.
Enabling techniques and technologies
I can only give a flavour of a few of these technologies.
Document assembly technology is and will remain forever a fundamental technology for the legal world. The heart of legal work is the production of documents and document assembly is an enabling technology that automates and streamlines that process. There is much technical detail that could detain us here but, fundamentally, I believe, we will move beyond the metaphorical cutting and pasting to the automatic production of documents. Document assembly will be vital at the systematisation step and also crucial for packaging and for commoditising.
We will also see the emergence of the phenomenon of real-time contract management. Many contracts are essentially a set of conditions – they stipulate that under condition X, certain consequences arise. Many people, who might have 5,000 or more contracts in place, are currently looking at the idea of having a database of all the conditions and having regular feeds in to these systems, so that, when specified conditions are satisfied, that fact is automatically flagged. You can automate the management of contracts in real time. The time at which to design that automation will of course be the time of original assembly of the document.
Another vital enabling technology, for systematisation, packaging and commoditisation, is going to be multi-media. I have been experimenting for some time in my own teaching with the idea of web-casting, where one gives a tutorial or lecture over the Web or on an educational intranet. My experiments have been quite simple – head and shoulders on screen together with the allied PowerPoint presentation. We have done some research into the effect of this. This has been rather depressing for an author but, by and large, students say they prefer listening to a 20-minute presentation to reading a chapter from one of my books. One of the reasons knowledge management has disappointed, I argue, is precisely because it has, so far, been two-dimensional and text based. It is nothing like sitting down with an individual who has hopefully got the light in her eyes and who will explain to you how something actually works. In short, we are going to see a major move towards multi-media and towards e-learning (though that term is an oversimplification and much too narrow).
On the imparting of knowledge, I like to distinguish between just-in-case knowledge and just-in-time knowledge. Just-in-case knowledge is the kind of stuff we teach our students and our young lawyers. We take them off on courses or into lecture rooms, tell them a whole bundle of things, just in case at some later stage they might need it. But, of course, at that later stage they have probably forgotten it or have lost their notes.
Just-in-time knowledge is supplied when you have a particular problem before you – you receive a multi-media resource that addresses it directly. It will not be as good as being at a live presentation or discussion but having the best expert in your firm, or indeed in the country, on your screen and chatting through some basic issues will generally be much better than reading pages of text. There is little question – certainly in the minds of the students with whom I have discussed this and, I imagine, for that generation generally – that multi-media is a more palatable way of being introduced to complex ideas than simple text on screen. We are going to see, both for internal systematisation as well as for external packaging and commoditisation, multimedia being used in a substantial way.
We will also see far more use also of interactive collaborative tools such as wikis and blogs. These will become the heart of the knowledge systems used internally within firms. The highly structured, slightly artificial methods we have been using to try and capture and gather our collective expertise have largely disappointed. We did great work in most law firms in the 1980s, putting in place standard form precedents. But simply having them online through intranets has not really captured the imagination of most lawyers. Something far more informal and less structured, more experiential and more community-based, will be really fundamental to knowledge management in the future – and not just internally. We will have wikis on particular subjects – these informal, evolving bodies of knowledge, offering all sorts of insights in an easy-to-assemble way, and in multimedia too. We will have blogs which will perhaps relate to particular pieces of work or to legal developments or to clients, to all of which users within an organisation will have easy access.
Moreover, we will have ‘episodic knowledge management’. We won’t organise our knowledge according to conventional academic boundaries or departmental structures but along the life-cycles of the episodes in the affairs of our clients. So we will have knowledge, for example, about how to conduct an acquisition, structured and systematically laid out, with relevant pieces of resource tucked under each phase. It will not be an electronic analogue of the library; it will be an animation of the genuine life-cycle and experience of the clients’ activities.
And we will have personalised alerting which will be really focused, so that when you come into work there will updates that are directly relevant for you. Not over the next couple of years but within ten years, we can expect such alerting to be fully in place, internally as well as externally packaged and commoditised. That is how we are going to start helping clients manage risk and compliance because they will automatically be made aware of the rules and regulations that apply to them – we will have both the enabling technologies and the determination through our changes in knowledge sharing habits to make highly tailored alerts and updates available. We will also have far better problem solving and perfect retrieval available to lawyers, so that the searching for answers, as it were, and for the ideal document will, within ten years, almost be within our grasp.
We will also be embedding law within business processes. I gave one example of that earlier, in relation to building up databases of conditions relating to contracts. As organisations impose work flow and impose new business processes, the legal content will not be something separate but will be integrated with business process management.
We may go well beyond this. And here is where it gets really radical. I think we have got to respond to the ways in which clients are changing. Clients are beginning to collaborate amongst themselves in a way that was barely imaginable in the past. Look at the Banking Legal Technology Group: nine investment banks in the City who got together and asked five law firms to develop a common, online knowledge portal. The banks collective spend in the legal market is enormous; there was no doubt that the law firms would have to respond to this purchasing power.
I have been speaking to a number of in-house lawyers across the world who work in various industries and they are similarly coming together in new ways to help one another manage their own legal activities. They consider a lot of legal risk management to be non-competitive, and so they are prepared to pool resources and use their collective purchasing power. Sharing resources raises interesting IP questions but when a law firm undertakes, say, a multi-jurisdictional review of some particular issue, the client might say, “That work product will become our property and we want to be able to make it available to our own community”. The time-honoured notion that lawyers perform a review for one client and then provide a similar review at a similar cost for many others will disappear. In the new world of collaboration, such a review will probably be plugged into some wiki which relates to legal risk management for in-house legal departments. It would evolve and be built upon in the Open Source spirit. In this way, we will evolve massive bodies of legal documentation that will be readily and freely available, purchased once perhaps by one client and then made freely available to the client community generally. briefserve.com gives an idea of how this might happen – it has taken many of the briefs that have been put prepared for Supreme Courts in various jurisdictions across the
These resources will become commodity. A lot of the legal work that is done today by law firms for clients will immediately become a commodity available to others, and it will not simply be a question of searching to see if there is a document ‘out there’ that is potentially relevant. We will have the improved retrieval that I have talked about; so we will have tailored alerts. We will also have this idea of the community building up, in a wiki-like fashion, evolving bodies of guidance into which will be plugged these free resources of an Open Source type. Eventually, this resource will begin to be able to solve problems, using AI techniques and so forth (although this will be beyond ten years); it will begin to be a source for direct problem-solving and certainly for perfect retrieval of directly applicable documents.
The client who currently has to decide whether to undertake work within the legal department or put it to an external law firm is going to have a third option. There is going to be Open Source. This will be legal commodity on a grand scale. It is scary for law firms, this vast resource of past legal advice that will be generally available, and will affect not just major client organisations but all of us in our social and economic lives when we need legal help and guidance.
What about the technologies that got away? I have in mind technologies like auctions for legal services and deal rooms and case rooms and online reporting, and even the idea of a generic hub (an exchange that all clients and law firms would use together for the exchange of information). Many people say all of these have failed; but that is a bit like saying that the Internet failed because the dot.com bubble burst. We are now seeing a second wave, the Web is coming again, as is reflected in the remarkable usage statistics and the exponentially developing technologies that I mentioned earlier.
Initial failure for the legal technologies just noted does not mean they will never be back. My view is that people tried to append many new ideas to bespoke service. It is only when the move to the right in the evolution of legal service has come about that these tools begin to make sense; when we use them to complement systematised and packaged services. I have every confidence that auctions for legal service will be prevalent within ten years, not be for bespoke work but for more packaged work. Deal rooms and case rooms too will re-emerge, again to support systematised and packaged services; and similarly with online status and financial reporting. I still believe that some kind of generic exchange will also emerge (it will probably be virtual), so that clients will be able to go to one single place to monitor all the work that has been undertaken for them across a range of law firms.
Summary
To recap finally, I believe that we are seeing an exponential growth in technology. I believe we are going to see increasing information satisfaction, as I have defined it. I believe online community and collaboration will come to dominate the way not only that we share knowledge with one another but the way we develop service. The net generation coming through will expect nothing less. We will move from being text only to being multi-media and these and other technologies, as we have seen in relation to dispute resolution, will not simply be complementary and sustaining; they will be fundamentally disruptive. That is what I anticipate for the next ten years.
But I do express very clearly that this is a ten-year process and maybe more. I agree with Bill Gates, who says that less happens in two years than we think when it comes to technology, and more happens in ten years. If you look at any two-year slot in the last ten years, I think this observation applies most aptly. But if you look over the ten-year period, the changes as I have described them have been fundamental. They have been changes to society generally. In the next ten years, in turn, I think we are going to see fundamental changes to the way in which legal work is conducted.
My very final point, however, draws on a quotation that is sometimes attributed to Peter Drucker, and sometimes to Alan Kay. The quotation is: “The best way to predict the future is to invent it”. And this leads me to put a proposition to you. Things may evolve in the way I suggest or may evolve in other ways, but in many ways the direction we take is in your hands. The speed at which these technologies are brought on board and the level of the changes are very much up to you. I can only stand here and say, “Here’s what’s possible.” I often say I lay out the buffet. It is time now for you to start choosing from the buffet and making it happen within your own organisations.
So I see massive changes in the next ten years. I encourage all of you to enjoy and take onboard emerging technologies to the benefit of the organisations in which you work and for the benefit of society as a whole.
