Thompson Rivers University
In line with the theme of our discussions, one Canadian government body that had been stuck with its old ways, is now embracing technology for the benefit of all stakeholders.
Please read more here.
Recent socioeconomic trends have significantly accelerated the pace of need for change for the legal industry and the law firm business model. One of the big themes that our firm’s well credited visitors have pointed out is technology.
In the past, the legal sector enjoyed great comfort in the linear nature of progression. Students attended law school for 3 years, then articled, then became associates, then made partner and went down the path of success until retirement, but that seems to have changed now. There was an understanding between the law firms and their clients that good work costs money, and there was no surprise that billing rates were expected to rise, but that’s no longer the case either. One common indicator that projects the future of this industry is the emergence of technology, and firms which adapt to the changes are ahead of the game and will be industry leaders.
We’re a profession that I would suggest in the last 100 years has not done anything differently than how it has always done, and we are the only industry that is proud of that fact. The legal industry by definition looks to the past for finding ways of the future and that in my opinion needs to change. The comfort that comes with predictability and precedent is perhaps the main factor in postponing the realization of need for change for the industry as a whole.
For us as a profession not to embrace change and innovation, we are setting ourselves up for failure.
Almost 3 years ago, I started my first year of law school. Since that time, I have been hearing a lot about how the legal profession is changing. Many people have told me that the golden age for lawyers is coming to an end or that it already has. Technological advances are changing the way we practice law in almost every sense. Even as I began law school, the profession has changed from the way it was practiced before. The internet has completely altered how legal research is conducted. Information is at ones’ fingertips and there doesn’t seem to be a need to spend hours in a dusty library searching up case law book by book. At this current point of technological advancement, I’m comfortable with how things are because I grew up with these innovations and I feel fully prepared to integrate them into my future practice.
The problem is that things are continuing to change. The way we are being taught to do things in legal practice is in danger of being out-dated by the time we graduate from law school and are actually ready to practice the law. In this class, we have had many guest speakers talk to us about the constant evolution of the profession and how a majority of core legal work could be handled easier and in a more efficient way by computers. Considering what most of us have spent on our legal education, this is a frightening concept. What if we don’t end up making what we planned to? What if the number of jobs shrinks even more after we graduate? What if our loans pile up and we have to start working at Starbucks to make ends meet? These are concerns I’m sure we all have in the back of our minds and they’re creeping ever slowly to the forefront, especially for us third year students.
While these things do scare me as well when I think about them too much, I still believe that the overall big picture will remain consistent. People need lawyers to help them navigate through their legal issues and, in my opinion, no amount of technology will get them to the point where lawyers will not be needed. I think that technology will make things more efficient in the long run for both parties involved; lawyers and their clients. A program like Knomos for example, will help lawyers in their research efforts. The user friendly way it is organized even means that clients could use it as well to educate themselves on the pertinent legal issues before meeting with a lawyer. The Civil Resolution Tribunal is another example of innovation that helps the profession. While not really a technological advancement, it allows clients to resolve disputes online in cases of small claims and some strata disputes. This saves clients time and helps avoid backlogging the court system with these types of issues.
These are positive improvements that will not take away from the services lawyers offer. Despite the advancement of online resources, I believe that in general, people will always prefer to talk to people. Clients will want to discuss their important problems with an educated person who can respond like a human being. I think the value of this is understated these days. Whatever legal issues the client has, it is almost assured that those issues are of the utmost importance to them and they will not want to be filed through a system by a computer without human contact. It’s the same reason I punch the “0” button somewhere around 15-16 times when the Shaw automated voice comes on. I don’t want to press buttons to hear responses from a machine and I believe that I am not the only one who thinks this way.
So in the end, I believe that lawyers will always have a prominent place in the professional work force. Technology should not be viewed as a threat, but it should be embraced as something that can and will change the way in which we do what we do. We have to learn and grow with it to survive. It is an evolving tool at our disposal that will not take away from what we can offer, but instead open up our options so that we can offer more. We can efficiently manage our time and use the analytical skills gained from our education to better serve our clients. Further educating ourselves on these technological advancements will allow us to maintain our positions in the professional realm for now and in the future.
“[Canada is] increasingly failing in our responsibility to provide a justice system that [is] accessible, responsive and citizenship focused.”
The above was a statement by our Chief Justice Beverley McLachlin of the Supreme Court of Canada, about the inability for Canada’s families to obtain affordable legal counsel. The Chief Justice has also stated that “legal-aid funding and coverage is not available for most people and problems, and the cost of legal services and length of proceedings is steadily increasing”, and that “statistics show that people who get legal assistance in dealing with their legal problems are much more likely to achieve better results than those who do not.”
As Canadians, the majority of us believe access to justice is a fundamental right. Contrary to this belief, Canada is witnessing a gap between the fundamental right and the stark reality that the wealthy the are the ones that can afford a lawyer’s legal services. With specific reference to British Columbia, cuts to BC Legal Aid have taken a toll on access to justice, especially for those with low-incomes. A list of cuts from 2005-2010 can be found here.
In 2013 the Canadian Bar Association released the ‘Reaching Equal Justice Report’. The report states that there is a need for more federal funding for civil legal aid. It says that the Canadian Bar Association will reach its goal for Canadians living at and below the poverty line to be eligible for full coverage of essential public legal services by 2020. Additionally, the report puts forth that all law schools in Canada will have a student legal clinic to help low-income people by 2020. The Canadian Bar Association advises that all 31 targets mentioned in the report are expected to be completed by 2030. A video about the proposed legal aid system can be watched here.
It is important to note that change does not fall solely on governments or the bar association. As the report says, law schools and other stakeholders must be involved. It is obvious that “tinkering” or making a few changes here and there will not be enough. The report states that “the civil justice system is too badly broken for a quick fix. People fall between the cracks at an unacceptable cost. Injustice is too deeply woven into the system’s very structure for piecemeal reforms to make much of a dent.”
It is obvious that now is the time to use the resources we have, like our Canadian law students, to help improve Canada’s access to justice for low-income people. With 18 law schools in Canada teaching common law, these numbers have the potential to create a significant positive difference. If that is not motivation enough, pro bono work by law students helps not only those who find themselves facing a legal conundrum, but also the law students involved. The students typically receive training to be more understanding, companionate, and patient, and in turn become more competent lawyers to enter the work force.
From what I could find, only one Canadian law school (Osgoode Hall Law School at York University) has what they call a public interest graduation requirement. If pro bono work by law students is part of the answer, why are we not making full use of this potential resource? Is it lack of resources, lack of incentive, or lack of an enforced requirement?
In correspondence with TRU Law’s Professor Dhand (who is currently the Project Leader on a Law Foundation Large Project Grant for a poverty law clinic), she informed me that the school is implementing the Community Legal Advice Clinic in 2016. The Community Legal Advice Clinic will assist low-income earners in the Kamloops and Interior region with legal problems – initially in the area of residential tenancy law and housing issues – with direct client services. The clinic will run approximately two to three days a week and can be found at the Centre for Seniors Information in Kamloops, BC. Additionally, Professor Dhand advises that TRU Law has the Legal Information Service, located on campus, where she supervises and mentors 60 student volunteers each year, who provide legal information, resources, and public legal education workshops in all areas of law. Lastly, Professor Dhand also teaches TRU Law’s Community Lawyering course where students receive instruction about the substantive and procedural aspects of community lawyering such as client interviewing, strategic litigation, legal research, and ethical issues.
It is clear that TRU Law is taking steps towards improving the ability for low-income British Colombians to access justice, well before the Canadian Bar Association’s goal of 2020. Are there additional steps that TRU Law and other law schools can take to facilitate access to justice for the low-income? Should TRU Law’s Community Lawyering class be a required course for students?
I thought this was an interesting read. The article focuses on the current law school debt crisis in the States.
http://www.nytimes.com/2015/10/25/opinion/sunday/the-law-school-debt-crisis.html?_r=0
Harry W. Arthurs, renowned Canadian labour lawyer and law professor, spoke to the University of Alberta Faculty of Law about the future of law schools and legal education in Canada in his address titled “The Future of Legal Education: Three Visions and a Prediction.”
Arthurs begins by outlining differing views of the core function of law school, namely the production of “practice-ready lawyers”, of “tomorrow’s lawyers”, and of being a leader in the “creation and transformation of legal knowledge, legal practice, and the legal system.”
From this address there are several points I would like to comment on. First, Arthurs strongly critiques the view that law schools should be producing “practice-ready” lawyers, assuming that “practice-ready” equates to omni-competent. As the legal field is highly specialized and stratified, Arthurs suggests that no law student will ever be “practice-ready” upon graduation from law school. While I agree with the assessment that no law student (or lawyer for that matter) will ever possess all of the substantive knowledge to be competent in every legal field, I disagree that is what is necessary to be ready for practice. While an understanding of general legal principles and substantive law are required competencies in one’s practice, they are attainable when one possesses the appropriate skills listed in Chapter 3 of the Code of Professional Conduct for BC (i.e. legal research, analysis, application of the law to the relevant facts, writing and drafting, problem solving, etc.). It is my opinion that the possession of these skills and competencies is what makes one “ready” for practice. In addition, I believe that law school is exactly the place where we should be taught these skills.
Arthurs goes on to argue that skills-based training is not enough to prepare students for legal practice, and a “preparation for practice” based curriculum is far inferior to one that emphasizes “thinking skills, theory and inter-disciplinarity”. While intellectual ability is certainly a coveted attribute, it must be applied practically to accomplish anything. Even Arthurs agrees that lawyers must “think like human beings” to avoid harming “themselves, their clients, the reputation of the bar and the effectiveness of the legal system.” Lawyers need to be relevant, relatable, and able to apply their intellectual training practically. It is my opinion that including some form of skills-based training in law schools helps accomplish that.
Finally, I would like to address Arthurs’ proposals regarding changes to the structure of law school. He proposes a model in which general practitioners can obtain a “stripped-down two-year ‘basic’ degree”, and “higher level lawyers” would take a four year enhanced degree. Arthurs’ argues that this would save time and money for general practitioners while fitting the diverse needs of students wishing to practice in more specialized fields. While this restructuring surely has its benefits, I suggest that it might have adverse affects on “access to justice”, an increasing problem. Creating a hierarchy of lawyers may decrease costs to individuals with basic legal problems, but may simultaneously increase the divide between litigants who can afford high-level lawyers. In other words, this hierarchy has potential to further the gap between those who can afford specialized legal services and those that cannot.
In addition, I wonder as to how these changes might impact the servicing of small, rural communities. These communities are already underserved, and those that do set up practice in these areas are typically general practitioners. Why would we make it harder on them to serve their communities by limiting their scope of practice? Canadians are already abandoning legal problems that they cannot afford to address; wouldn’t these changes only exacerbate this problem for rural individuals that would typically only engage with general practitioners?
Arthurs is certainly correct to say there are many changes in store for Canada’s legal paradigm. Subsequent changes to the way we educate future lawyers will certainly be more necessary than ever if lawyers are to remain relevant in society. More than anything, I believe Arthurs is correct to suggest law schools must prepare their students “to think like lawyers, to contextualize and critically evaluate their legal experiences, to adapt to change and, especially, to learn how to learn”. A law student with that education must certainly be “practice-ready”.
Since the option of taking an equity investment in a client as a form of payment of fees came up in class today, I wanted to follow up with some information on this practice.
Here are a couple of interesting links. The first is a Wall Street Journal story from 2012, which notes that the practice has changed: in the “dot com” boom in the 1990s, firms like Wilson Sonsini would take stock instead of fees, but after experiencing some big losses when that tech bubble burst the firms, it seems, have switched to a practice of deferring or reducing fees (deferring fees would be more like a debt investment) coupled with taking the opportunity to invest (with the firm’s own cash) in the same manner as founders or venture capital investors. The second is a more technical article on some of the legal and regulatory considerations. Lawyers’ equity investments in clients raise a number of tax, securities, insurance and other issues. But taking on a bunch of complex issues and turning them into an opportunity is a favourite pastime of clever lawyers.
I’m not aware of any Canadian law firms that have done this, and – while obviously the specifics of tax, securities law and so on are different here – I don’t know whether there are any clear bars to doing this in Canada, for example under professional ethics rules. It might be an interesting question to look into.
Increasing access to justice has prominently risen to the forefront of reform discussions in the legal profession, serving as a catalyst for (slow) change. At the same time, technological advances and the increasing push for service providers to get “up-to-speed” in this digital era has raised some complex challenges for legal field. Issues of regulation, confidentiality, data/program management, costs, and an inherent cautiousness/skepticism in departing from the traditional system are just some of the factors influencing a resistance to change. However, it has also become clear that time is of the essence in increasing access to justice in an effective and efficient manner. Technological advancements have never occurred so fast, and the range of options has never been as numerous. This has seemingly created the “perfect storm,” justifying a departure from the traditional manner of practice.
The CBA’s Access to Justice Committee recognized in its 2013 Summary Report, Reaching Equal Justice: An Invitation to Envision and Act, that “[t]echnology (including information technology) can be harnessed to improve access to justice….[although] [c]areful planning is needed to prevent technological innovations from creating or reinforcing barriers to equal justice.”6 ~ CBA “Legal Ethics in a Digital World”
With more communications options and varied practice management software than ever before, it is clear that piloting technological initiatives in rural and traditionally underserved communities must be embraced. The utility of technology (e.g. video conferencing, data/file management software) has the capacity to reshape the client experience in its entirety, as some of our presenters have noted. With costs (the dreaded ‘billable hour’) and a lack of practitioners in rural communities identified as key problems, a ‘partnership’ between technology and legal practitioners should serve as the foundation for a solution by : 1) reaching those traditionally under-served or not served 2) decreasing the costliness of services (e.g. fewer/no ‘office visits’). The CBA has recognized this opportunity, noting that:
“Providing legal services electronically (i.e. using email, social media, videoconferencing solutions or other telecommunication services to interact with potential or current clients) expands client development opportunities and has the potential to improve access to legal services by those underserved by the legal profession…Communicating with your client electronically, through email or other means, can cut costs and avoid delay, facilitating access to justice.” ~ CBA “Legal Ethics in a Digital World”
Rural and smaller communities traditionally seem to take greater interest in initiatives and change strategies for improving their communities. Investing in piloting new practice models by engaging with such entities provides for a strategic roadmap for greater change. Legal practitioners in rural/smaller communities often have unique practice and business model constraints (e.g. less office space, smaller operation budgets, fewer staff, few expansion opportunities etc.) in contrast to those in urban settings and ‘big firms’. The technological options currently available provide viable solutions to overcome or transform those challenges. As a result, it is clear that such stakeholders have an incredible opportunity to bring ‘grassroots’ innovation and change to the legal field.
Without a willingness and attitude of embracing change, the legal profession seems to be on a path to render itself to becoming the ‘Windows 95’ of service providers – slow, poorly equipped, frozen in time, and needing to be restarted to restore function.
To read the “Legal Ethics in a Digital World” Report, from the CBA Ethics and Professional Responsibility Committee, please click the link below.
Throughout my lifetime the expansion of technology has been remarkably vast. The implications are exciting and uncertain. It is easy to be infatuated with the possibilities that these advancements in technology may bring. But due to the way I approach everything in my life, my captivation about the “what ifs” does not come without a hint of skepticism.
In this instance I am referring to “robots” (facetiously referred to as “toaster” in the title) replacing highly skilled professionals such as lawyers. I like to think of this as an extreme exaggeration likely because if so true, the implications have a direct effect on my and many of my colleagues’ career path. Despite this, it is important to be objective and not let these biases give weight to the evaluation of this proposed technology because of the potential positives in respect to access to justice.
In a recent study by Winston & Strawn, the firm found that predictive coding software they recently implemented was more effective than human reviewers in sourcing relevant documentation in the initial stages of a claim (shrinking the process down to one-third of the time typically required). This could minimize costs for clients while freeing up the precious time of the lawyer to work on more complicated matters demanding of their skillset. This type of technological intervention is very basic and does not pose as serious threat to the legal profession. If anything, there is a mutual benefit to those working in legal practice. However, experts in the field do not expect it to stop there. Josh Blackman, an assistant professor at South Texas College of Law, predicts that software programs will be capable to advise whether to file a lawsuit, predict how it may be resolved, and draft portions of legal briefs. While this may be a relief to the public, there is some concern from professionals in the field, particularly new law graduates.
Another concern is determining who will be responsible for bad legal advice. There is potential for this technology to be misused in a way that is unfavorable both to the client and justice system. For example, Electronic Frontier Foundation has accused Warner Bros. of using software algorithms to file copious amounts of erroneous copyright-infringement notices without reviewing the files in question. WB tried to “wash their hands” from the error by claiming it was not a human error but a computer error. The courts however, disagreed and held WB responsible. Although some may find this comforting, there are still many uncertainties when technology increases in complexity.
In light of these predictions, a concern that comes to mind is whether this is the type of relationship the public, our clients, desire from their legal services. To me the legal relationship has always been about trust. In the simplest of terms, people seek those they trust when in need of every day advice. The optimal situation is that the client will have full faith that his legal representative is going to do everything in her power to find an outcome that serves his best interests; even if this means late nights, long hours, and getting creative to reach that solution. Ideally this dedication derives from the lawyer’s passion for the law and a genuine care for the client’s well being. This bond that arises out of certain relationships is what causes people to naturally prefer putting their faith in, well, other people. This preference runs true within our evolutionary roots. Of course this system is not perfect and it may even be a fallacy to think that it provides the best results (just look at politics). However, it’s a system that people are comfortable with.
Since the implementation of the pyramid structure in law firms the legal profession has shifted away from this model of close interpersonal relationships between clients and lawyers. Under this structure there is often a disconnect between the client and the lawyers at the bottom of the pyramid who are working on the file. Many of the lawyers who are swimming in paperwork may never speak with the client directly.
I am not convinced that clients are satisfied with current legal representation where firms have adopted this pyramid structure. Without the bond that is created in these special relationships they might not believe that their interests are being represented. This might result in clients feeling like they’re being ripped off or unsatisfied with the end result. Furthermore, this disconnect may only grow larger with the introduction of legal advice produced by a robot without a face behind it. Alternatively, it may be the case that this distrust and uneasiness in the new technology is just an initial response to change. Regardless, whether or not this technology is accepted in not-so-far-away-future it cannot be ignored. Especially since this technology would improve access to justice. I just hope that in the end we don’t all end up getting burnt.
Mitch Kowalski said something during his visit to our firm a while back that I feel is worth remembering.
A member of our firm questioned, legitimately so, whether the introduction of ABS would unduly chip away at the ability of smaller firms to retain clientele and keep the lights on. Mr. Kowalski replied that the purpose of law is not to provide a living to lawyers. Such a sentiment is difficult to argue against, despite the fact that we maintain an interest in making sure there is ample opportunity in this field to sustain us with a comfortable living.
It is no secret that there the traditional way of doing things is being disrupted, and that this disruption will not abate any time soon. Indeed we at L21C understand that we must adapt. In order to adapt what better way than to tackle the problem of how we price our services? The method of billing clients for the amount of time put into a file is, simply put, inefficient. Clients want to pay for a result, not time. Is it any wonder why jokes about lawyers are so prominent? Or why people dread having to hire a lawyer?
The billable hour has faced criticism lately as pitting client against lawyer. More can be read about that here and here.
As a response to growing criticisms of the billable hour, numerous proposals have been forwarded. Alternative fee arrangements (AFA’s) have sprung up and what they all have in common is that they are rejections of billing for time spent on a file.
While thinking about this problem, I considered the manner in which construction jobs are priced, which, as the vignettes point out, is generally done on a cost-plus basis. The problem, of course, is that litigation can be wildly unpredictable, and to quote based on anything resembling a flat fee might be extremely unfair for a lawyer.
When it comes to solicitor work, though, especially the kind of legal matter that is extremely cut and dry (at least, as basic as a legal service can be), I think that charging a flat fee would in fact be more in line with attacking the access to justice problem. It would provide clients an ascertainable way to know what a given legal service will cost them.
So in answering Mr. Kowalski’s question, it can be said that no, law is not there for the purpose of giving lawyers a way to make a living. But the law would not be robust, strong, and capable of helping those who need recourse to it if did not provide those working in the field with at least a decent standard of living. Great minds otherwise drawn to the practice of law might sadly not even consider it because of the prospect of low earnings.
One thing is for certain: things are going to change. Perhaps the change is not directly on the horizon. It will, sooner or later, however, arrive. We at L21C have learned about technology-driven legal service alternatives and, this being 2015, these types of information technology products will increase in their quantity and accessibility. If we wish to adapt in a way that welcomes the inevitable wave of change, we have to rethink and perhaps even discard some things seemingly held sacred in our profession, and the concept of the billable hour seems ripe for such rethinking.
What do my fellow L21C firm members think? Does anyone have any innovative idea about how we should bill clients, given the fact that the “billable hour” is reported as being a barrier to people seeking legal help?