We are well beyond the point at which there is any serious argument about whether the legal profession is in the throes of marked transformation. It is not a matter of if, rather when, how and how much. It’s a broad, complex and profound subject that is taken to task in the recently-published The Future of the Professions by Professor Richard Susskind and Daniel Susskind.
We have been here before. Bold predictions abound of how the Internet and technology revolutions will change the face of legal practice beyond recognition. Indeed, Richard Susskind has written and presented extensively on the subject before. Many observers point out that the title of his 2008 book “The End of Lawyers?” has not come to pass, to which his response has been that they have overlooked the all-important question mark in the title.
This background is reflected in the tone of the Susskinds’ latest book, which exhibits something of a defensive tone and you are never far from a “cynics might say…” or “to answer our doubters…” to illustrate this. Indeed, there is a whole chapter on “Objections and Anxieties” as well as a section entitled “Why we Might be Wrong”.
It is all the better for it. The net effect is that this makes for a more balanced, authoritative and ultimately more enjoyable read. This will no doubt disappoint those in the professions looking for fodder to dismiss as a dogmatic futurist narrative. There is more good news in that the book is written in a relaxed, flowing and easily-consumable style, which is no mean feat bearing in mind the complex nature of the matters addressed.
As its title suggests, the book covers “the professions” collectively, not just the legal profession, (which is my focus here). The definition is clearly not a straightforward one and it is inevitably explored in some detail. Examples specified include lawyers, doctors, teachers, accountants, tax advisers, architects and clergy.
There are benefits and drawbacks of approaching the professions in this way. It makes for a rich variety of illustrations, comparisons and perspectives. But differences in the characteristics of the professions erode the consistency with which the theories and concepts can be applied, and you can find yourself regularly thinking of valid exceptions. This does not diminish the value of the read but an open mind is necessary to be able to enjoy the journey.
The central thread is that the professions are beneficiaries of what is described as “the grand bargain”, a social contract by which they are granted a mandate by society for control over their fields of expertise in return for their exceptional knowledge.
Access to specialist knowledge is thus limited to and controlled by these “gatekeepers” to an extent, it is suggested, that is out of step with the sharing culture that characterises the 21st century Internet society and that is unsustainable in modern economic conditions.
This sets up convincingly the narrative that the professional monopoly in its current form is susceptible to erosion, through new and different ways of provision and consumption catalysed by increasingly capable and pervasive technology.
Most close followers of developments in the legal services world will not find anything to shock them. The unlocking of the “craft” historically nestled deep in the brain of the expert through standardisation, systematisation and externalisation is a process well under way in this market, even among some traditional service providers. The same can be said of the application of technology, the growth of knowledge sharing through online collaboration and the evolution of new service delivery models.
But there are some eye-openers. There is the concept of “embedded knowledge”, meaning the application of professional knowledge in a pre-emptive way embedded in systems and processes “upstream” of where you would traditionally expect to need legal services. This too is far from new in legal services, but could have scope for greater impact in the future when you consider the developing “Internet of Things”. The examples cited are tax and health and safety compliance systems that enforce processes in a real time “comply-as-you-go” manner, negating the need for costly representation post-breach. A less obvious example is the current wave of document automation tools ensuring robust, managed frameworks for corporate or commercial transactions, the presence of which might reduce the likelihood of litigation in the future.
Another area where I suspect we have not yet seen the full impact is what is described as “commons”, the free sharing of knowledge through open, online collaborative communities. One of the real benefits here is the ability to address latent demand, in enabling access to legal services for the many who can’t afford it. The challenge here is that there may be a considerable overlap between those who fall into this category and those who do not have the capability to make best use of “self-help” solutions or indeed to know they are in need of such help in the first place. The positive argument here is that some degree of access to justice is better than none at all.
Inevitably the question of Artificial Intelligence is addressed in some depth. Central to this is what is termed the “AI fallacy”, the common misconception that AI sets out to replicate and improve upon the processes of the human brain, when in fact it uses completely different techniques of volume data and brute force processing, with the aim of achieving the same or better results.
This technique has obvious strengths when it comes to key legal tasks such as those requiring mastery of large bodies of complex interrelated rules or evidence. But equally these characteristics make it unsuited to the amorphous nature of legal services, by which I mean a desirable outcome for a particular individual in any given set of circumstances is widely variable and often based on the irrational.
(I should add here that the authors rightly point out the tendency of professionals to opine that only professions other than their own are in need of reform, and that resistance to change is often articulated by reference to the atypical. It is hard to argue with this as a generalisation but it doesn’t negate the point that law typically has unique characteristics of this type).
The authors point to some genuinely amazing ground-breaking examples of the use of AI (including but going well beyond the well-documented achievements of IBM’s Watson) but law-related examples are limited to the ability to predict likely litigation outcomes in the US courts. This is of course very novel on the face of it, but hard to see it being of any practical use or effectiveness outside a very limited set of circumstances.
Then there is the challenge of consumer adoption. There is plenty of research to show that recipients of legal services often value the experience and process at least as much as the outcome. The appetite therefore of the current consumer for non-personal legal services through artificial intelligence is questionable. Technology is, we learn, moving slowly and uncertainly towards finding answers to this challenge.
It would be poor form for a book entitled the Future of the Professions not to try to give some measure of prediction as to what the future will look like. Much to the authors’ credit, I suggest it succeeds in doing so in a refreshingly balanced, structured and evidence-based fashion, free from the dogma and hyperbole often attached to such discussions.
There are no bold proselytisations of the tiresome “evolve or die” variety, nor warnings of imminent robot domination. There is frank acceptance of uncertainty and that much of the change depicted will take the form of incremental evolution over decades rather than overnight revolution. Yet there are plenty of powerful illustrations of the latter (I avoid spoilers here) that cannot be ignored, as well as the menacing but (axiomatically) unarguable suggestion that it is likely that the real game-changer for the professions has not even been conceived yet.
It is hard to prepare for the inconceivable, but it is a pretty good start to be fully-informed, to seek to learn from as wide a set of perspectives as possible and to accept there may be challenges in the future which look startlingly different to what you might expect. If you are looking to achieve this, then a read of the Future of the Professions is time very well-spent.