Professor Richard Susskind said lawyers need to get used to the world of non-legal process outsourcing.
When UK legal futurist Professor Richard Susskind came to Melbourne in May, he wowed audiences with tales from the technology frontier.
He spoke of desktop computers with the same processing power as the human brain by 2020, of data exhaust which can yield valuable insights and having a 3-D holographic telepresence at conferences.
He spoke of the brute processing power of AI, of affective computing which can detect and express human emotions, of social networks of users of legal services.
“There is no finishing line to these technologies, they are just getting better and better. No one is saying ‘that’s enough’ in the world of technology. This technology will transform all our lives, judges and lawyers alike. Change for the legal world is inevitable,” Professor Susskind said.
Professor Susskind said online courts are an example of how technology is revolutionising the law. The traditional court system is “too costly, too slow, too forbidding, unintelligible, combative” for low value disputes.
“The expense, the anxiety, the time taken is disproportionate to the value of the disputes at issue. And there’s massive amounts of unmet legal need with people not even entering the system because it is too expensive, beyond their understanding and out of step in an internet society.
“This is the fear we have for the future of our justice system, a system that doesn’t allow citizens to come together and in a sensible way use the court system to resolve their differences. Civil judge Lord Dyson, Master of the Rolls, put it well when he said any system that has a 2000 page user guide has a problem.”
Professor Susskind’s 2015 report on online dispute resolution (ODR) in UK courts recommended Her Majesty’s Online Courts for low value civil claims, a three-tier system – electronic guidance (dispute avoidance), case officers (dispute containment) and judges.
“It’s turning on its head the normal conception that the state should only be investing in one thing to resolve disputes and that is judges assembling in court in the traditional way,” he said, adding it is better to “put a fence at the top of the cliff rather than an ambulance at the bottom.
“Fewer cases would reach judges. We acknowledge that this technology is not suitable for all cases. But it is for tens of thousands of cases that frankly are clogging up our system.”
The idea was inspired, in part, by the UK Financial Ombudsman’s Office which resolves most disputes online.
In 2015, UK Treasury announced a £730 million investment in the modernisation and digitisation of courts, including online courts, in coming years.
“But at the same time, lawyers will have to change how they work as well. The challenge above all else that many lawyers face is the more for less challenge.”
Clients of large law firms are under pressure to reduce their legal spend, yet there is more legal and compliance work to do than ever before, Professor Susskind said. “The only way of coping with this is to find new ways of doing the routine, repetitive work in law offices. Clients tell me they don’t mind paying for senior lawyers for their creativity and expertise, but so much of what goes on in the law is process-based. It’s document review, legal research, due diligence.
“What we need to do to identify the routine work is decompose, break down legal work into component tasks – document review, legal research, project management, electronic disclosure, strategy, tactics, negotiation, advocacy.
“There are nine tasks involved in litigation. In my research I asked leading law firms around the world which of these nine are you uniquely qualified to undertake? The answer in the UK was two and in the US it was three, including advocacy.
“The rest can be undertaken at lower cost and often higher quality by non-legal providers, the world of non-legal process outsourcing, the world of technology.
“No longer should law firms deal with legal work as indivisible lumps of stuff that is done by practitioners in expensive buildings in expensive cities. We have to think of ways to break down and identify work that is more routine and have lower cost people or systems do it. Otherwise, our work is unaffordable.”
In 2009 Rio Tinto announced the transfer of due diligence and document review work to India. Other law firms said it wouldn’t work. Within six months they were saving $14 million on their legal spend.
“We also need to move on and diversify as other professionals have done. We have to move away from being traditional legal counsellors whether we are advising on disputes or deals or in a general advisory capacity. There’s new fields emerging; legal risk management, legal processing, legal project management, regulatory compliance, consulting.”
Carolyn Ford attended the Future of Courts and Legal Services: Sir Zelman Cowen Centenary Oration by Professor Richard Susskind at Victoria University. VU’s Law and Courts in an Online World conference is on November 10-11.