My annual suggestion, already made in recent posts, that UK law firms ought to attend US conferences about litigation practice, gets a last outing for 2011 just as the traditional law firm model is given five years to live.
A recent article by Richard Morrison in the Times identifies some expressions which remain in the language despite having lost any real meaning for today’s generation. Its starting point is that the longevity of modern paints mean that “painting the Forth Bridge” is no longer a task which must be restarted at one end as soon as the other end dries, so its use “by millions despairingly engaged on a task that never seems to end” ought to die. It will probably survive, he says, just as “you sound like a broken record” remains in use despite the fact that “almost nobody under 40 knows that needles used to stick in the grooves of scratched LPs”.
Until recently, promoting the subject of electronic discovery/disclosure has seemed a bit like painting the Forth Bridge. We are hearing rather less, however, of starter reactions like “You mean that an e-mail is a document?” and “My clients won’t pay for electronic disclosure – excuse me, I must go and print and read 4,000 e-mails” and have moved on to “My clients won’t want me to co-operate”, “What practice direction?” and “The judge won’t understand any of that”.
We do still get the broken record sound of UK and other non-US lawyers saying “Electronic discovery is something Americans do and look what an expensive mess they make of it”. The fact that this statement is not wholly without foundation is not a reason for ignoring the subject in the UK. Indeed, the rather brutal self-denigration (like ours, but bigger, as everything is in America) which characterises the US generally at the moment applies equally to eDiscovery. What the US has which we do not is a large body of players from all parts of the eDiscovery wood who engage in continuous discussion as to how to improve matters.
It is now my turn to sound like a broken record (“We know”, you say). UK law firms face the same issues as their US counterparts both at the lawyer level and with the people responsible for IT and for litigation support. The US rules and practice may provide some extravagant and (to our eyes) unnecessary loops, hoops and hurdles, and we may argue with the idea that they are “ahead” of us in any sense which bears on the true objectives of discovery/disclosure, but that is the very reason why we should take notice of what they do and say. If the processes and technology developed in the US are good enough for litigation under the Federal Rules of Civil Procedure, then we ought at least consider them. We can discard the bits we don’t like and still learn a great deal.
There is more to it than that, of course. The UK law firms which have survived and even prospered in the recession have been those who did not have all their eggs in one basket (there is another archaic expression which still has meaning). Most of the world’s economies, including the US, have taken a bashing, but you spread the risk if you look outside the UK and outside Europe for at least some of your work. No country is more litigious than the US and much of that litigation, to say nothing of the impact of regulators and other state authorities, is non-optional, recession or no recession. Furthermore, much of it spans jurisdictions, partly as a result of the globalisation of commerce, and partly because various organs of the US state like to think that our business is their business. You cannot pitch for US contentious work if you do not know something of the rules and if you do not measure up to the standards, not least in technology, that they expect.
That, though, is to look at one level only. Most US law firms are not the giants whose names appear in the legal business press but ones whose businesses, requirements, pressures and solutions are much the same as those of many medium-to-large UK firms. Some of the conferences are aimed at people who are grappling with the same issues as you are. We have no equivalent here of ILTA, the International Legal Technology Association, and its five day annual conference.
You are obviously running out of material, I hear you say. You were banging on about the value of going to ILTA only a few days ago. I was indeed, and my article of 1 September ended with a section headed “Why not go next year?” which included a reminder that there is a two-day London version of ILTA on 8-9 May 2012.
I sometimes wish that I could run out of material from time to time, and especially at the moment when interesting things rush in through every port-hole. Distillation of some of the threads from the last few days prompts me to repeat what I said but in a wider context. My previous articles focused on things both narrow and hard-edged – rules, case law, specific technologies – which one can learn about by attending educational conferences. Quite a lot has happened over the few days since then: I have sat listening to corporate counsel as they discussed the things which affect them; I spent a couple of hours talking with some UK barristers, with an appetite for new areas of work; like everyone, I have watched the world apparently moving closer to double-dip recession; and I have seen some gloomy prognostications for the legal profession – see the Legal Futures article Susskind: Five Years until Legal Market Reaches “Endgame” and Paul Lippe’s The Rise of the Non-Firm Firms, both of which predict plausibly that the traditional law firm model is dying.
I hope to come back to some of these things in other articles but mention them now because, as I say, they give a wider context to my narrow eDiscovery theme. The inescapable conclusion is that keeping up with the law is the least of the problems facing law firms over the next five years. The whole law firm model and that of those who instruct law firms is breaking, and we must reconsider every aspect of how we commission and deliver legal services, including fundamental questions like the nature of those services and the identity of the people who deliver them. It will not be by law firms as they presently exist.
Susskind repeats his long-standing predictions about competition from others for what have hitherto been thought of as the lawyers’ preserve. Lippe describes the advantages of the “non-firm firm” over the traditional US law firm, a model which is no different, in essentials, from that in the UK. Between them, these writers predict new “purpose-built” professional services models, and a further encroachment by the accounting, outsourcing and consulting firms. The businesses competing for these distributed functions will include Ernst & Young and its peers, and the likes of FTI Consulting, Huron Legal and Integreon who will be happy to leave the pure law to the lawyers whilst gradually supplanting them for everything else. Huron Legal’s UK managing director Nigel Murray was the first UK provider of eDiscovery services to attend ILTA some years ago. I asked him why he thought it was useful in the development of Huron’s business:
Having been to the ILTA event for the last 6 years I can say that it is the most valuable event of the year from my perspective. All the major “players” are there, from thought-leaders to key people within law firms as well as all the leading vendors in the space. What makes it stand out is the relaxed environment which a six day conference gives it. It gives the opportunity to bump into all the leading individuals, be they CEO’s of suppliers, thought-leaders and clients. It has an excellent education programme which is high on relevant content, and low on product placement. It tends to be in an environment where people socialise “on site” rather than scattering around a major city. We always win business from the show.
So the legal consulting firms are out there mingling with the people who are driving new ways of delivering business, with those law firms who are looking to the future, and with the technology providers who will be their allies in producing the tools for new ways of working. Shouldn’t you be there too?
I began with a reference to one bridge across a Scottish river and I will end with another. Shortly before 7:15pm on 28 December 1879, a train left St Fort station to cross the newly-opened Tay Bridge in a violent storm. Watchers on the south bank saw a shower of sparks as the train crossed the high girder central section of the bridge, and the train’s red tail-light suddenly disappeared. When the clouds parted briefly, the observers saw that the central section of the bridge had fallen, taking the train and all its passengers with it. There were many theories as to the precise cause of the collapse but little doubt that poor design, poor construction and inadequate maintenance made the bridge unable to withstand the violent weather. I will leave you to deduce the parallel with law firms in stormy economic times.