A to Z: 26 trends for the legal profession

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This article was co-authored with Mélanie Raymond, then-Senior Editor of National, and appeared as the cover story in the April/May 2006 edition of the magazine.

The legal profession is turning upside down, and many of the familiar landmarks are disappearing or bring replaced by brand-new structures. There are so many changes afoot that National’s editorial team could match each letter of the alphabet to a development that presents a threat — or an opportunity — for lawyers. Twenty-six trends, 26 letters: which ones matter the most to you?

Associé (Partnership)

It’s always been the Holy Grail, the ultimate goal for lawyers starting out in private practice It has been considered the final step in a lawyer’s transition from simply an employee to a partner. But this is all changing, thanks to systematic and generational change.

Equity partnerships (partnership without capital investments or draws), salaried associate, permanent or advisory associate — new forms of quasi-partnership are born every year. The journey to the associate level is accelerated in some firms, delayed in others. Methods vary from one firm to another, from one individual to another.

And increasingly, there are lawyers who choose to not aspire to partner status at all — for whom client development, firm management, and the additional responsibilities that go along with being a partner hold little or no appeal. Will partnership become obsolete? No, but flexibility, rather than tradition, will rule this ancient institution from now on.

Runners-up: Asia, Latin America

Blogs

Forget the personal and political blogs you’ve been reading and hearing about — we’re interested in blogs solely as marketing and communications vehicles for lawyers. And what vehicles they are.

Weblogs allow lawyers to post their daily observations and insights into their area of law or the industry they serve. They help lawyers communicate informally with both current and potential clients on the Web, show off their expertise, and differentiate themselves
from their less visible competitors. Best of all, they indulge the wannabe columnist hidden away inside most lawyers.

In the short term, blogs will replace paper and electronic client newsletters, changing the way lawyers keep their clients updated and informed. Longer-term, they will both empower lawyers and require them to market themselves, to take their marketing fully into their own hands. Not only will lawyers be able to promote themselves every day in personal, hands-on fashion — that will also be clients’ basic expectation.

Runners-up: Billing, Billable hours, Biotechnology

Clients

This category was filled to overflowing — in addition to the runners-up below, we considered Corporate Counsel, Conflicts and Calgary. But how do you overlook the power of clients?

Clients are more demanding of lawyers than ever — they want fast results at low cost, and they have high expectations of how the law should solve their problems. Lawyers, by nature and training, are careful, deliberate, and usually reluctant to deliver bad news. Throw in lawyers’ erratic communication and archaic billing systems, and you have a potentially lethal mix.

The most successful lawyers in future will be those willing to adopt four Ps as the basis of their relationship with clients. They will be Positive (keep a good attitude), Proactive (initiate contact frequently), Professional (clients must stay within boundaries of respect and reality) and Partners (lawyers and clients share the steering wheel). Clients have power, but they need guidance. That’s the governing client relationship template.

Runners-up: Commoditization, Collaboration, China, Clementi Report

Diversity

Don’t think this is just another feel-good buzzword or politically correct concept. Diversity is a business imperative — just ask the large U.S. law firm dropped by Wal-Mart because the firm failed to meet the shopping giant’s demands for diversity among the lawyers handling its files.

For both demographic and global political reasons, Canada’s status as an immigration nation will only grow over the coming decades, which means the client marketplace will become even more diverse. Clients like to see familiar faces and hear their own languages at a law office — will you be offering them? Your firm’s diversity can easily become a competitive factor.

Diversity isn’t just about gender and skin colour, either — it’s also about background, age and life experience. In future, if you’re tempted to hire people who look, sound and act just like you, you might want to think again.

Runners-up: Demographics, Document management, Disaster planning

Ethics

At the ABA TECHSHOW last April, a panelist dropped an observation that resounded like a thunderbolt. “The biggest impediment to innovation in the practice of law,” he said, “is legal ethics.”

He didn’t mean that lawyers should throw away integrity and professionalism — he meant that our ancient rules about what lawyers can and can’t do could be blocking our ability to offer services in new, client-friendly ways. Non-lawyers are providing legal services bound by no rules except those of commerce, and the market is responding. Our ethics, rightly or wrongly, constrain what we can offer clients.

Consider this: ethics rules (and Supreme Court decisions) have made it very difficult for lawyers to represent clients in potential conflict-of-interest situations. But some law firms are now nationwide giants, and many clients are multinational beasts: conflicts are becoming unavoidable. Very soon, legal ethics are going to collide with marketplace realities. Which will win?

Runners-up: E-discovery, Extranets, Elder law

Facturation (Billing)

An unavoidable fact of legal practice, some lawyers relish the billing process, but most others see it as a necessary evil at best. Partly that’s because trying to get paid is rarely an exciting or fun process, but mostly, its bad reputation is thanks to the billable hour.

Increasingly an artifact of an era who time has passed, the billable hour remains the standard measure of a lawyer’s productivity, failing to deliver real value to the client and steadily encroaching on the lawyer’s private life.

But change is finally in the air, thanks to growing client pressure and the rise of a younger generation. Alternative forms of billing — project-based, fixed-fee, capped fees, result-based, to name a few — are slowly winning converts. New billing methods will require lawyers to re-examine and re-engineer their work processes, including billing by teams or practice groups.

There are any number of obstacles to progress in this area, but there’s also a lot of momentum behind it. Lawyers prepared to be innovative today will reap the rewards tomorrow.

Runners-up: Law faculties, fairness

Globalization

Thanks to political, market and technology forces, the world’s economies and cultures are growing closer, more intertwined and more interdependent. That means that eventually, legal service provision will cross borders.

It could be a threat: your competition won’t be just the firm down the street, the paralegals across town or the Grand & Toy selling do-it-yourself-will CDs — it’ll also be any lawyer anywhere who can offer services and advice to your clients over the Internet.

Or it could be an opportunity: selling your services to a worldwide market. You could specialize as narrowly as you like in your favourite area of law, and you’d still have a huge client base. Your imagination might be all that could limit your reach.

But for clients, what it will really mean is that they can negotiate the best service possible from a planet full of qualified lawyers. And that’s what you call a whole new ballgame.

Runners-up: Google, GATS

Home

Home is also where lawyers want to work. Especially in large urban centres, the daily commute is a brutal, multihour and increasingly expensive grind. Thanks to telecommuting and remote access, lawyers don’t need to be in the office every day to do their jobs. It’s going to become difficult to explain to these lawyers why they should be.

Home was irrelevant to North American work culture over the last 50 years; it’s going to be central to that culture over the next 50. To stay ahead of the curve, start figuring out ways to integrate lawyers’ homes into your law practice’s business model.

Runner-up: Human resources

Intellectual property

Intellectual property is exploding. The Internet and globalization have pounded traditional understandings of IP — from pirated DVDs in Mexico to cloning labs in South Korea, from genetically engineered mice in Boston to genetically engineered wheat in Saskatoon, from Research in Motion’s headquarters in Waterloo to any downloaded music collection in your own home.

There are literally trillions of dollars at stake in IP fights worldwide, and lawyers will be at the forefront of these battles. What’s more, our whole understanding of who is entitled to use whose creations, and for what purpose, is now up for grabs. IP lawyers are going to help change the world — how many practitioners can say that?

The Internet, of course, was the obvious choice for this entry, but it’s just too big to handle in 150 words: it encompasses many of the entries on this list all by itself.

Runners-up: Internet, Innovation, Industry groups

Journalistes (Media)

Lawyers and journalists have maintained, at best, a relationship of distant respect; at worst, one of outright mistrust. But in an increasingly connected world in which courts are called on to settle social debates, lawyers and the media will meet more and more frequently. Friction will also increase, unless a new relationship template can be forged.

Increasingly, lawyers are coming to understand that they have more to gain from collaboration with journalists than from confrontation. The primary interest of lawyers must be protecting the client’s interests and upholding the administration of justice. But that interest would be better served by clear, balanced, and publicized information, than by a denial of the crucial role media plays in our society.

A better understanding by lawyers of public relations in an Internet media age would only advance the cause of justice. Lawyers and journalists have much to learn from each other.

Runners-up: Justice, Jurisprudence

Knowledge management

If you read “Knowledge uprising” in our January/February 2006 issue, you already know how important KM is becoming to law firms of all sizes. Knowledge management allows lawyers to access a vibrant, constantly refreshing database of information, experiences, trends and wisdom, individually and collectively drawn from their colleagues.

Lawyers are part of the 21st-century vanguard of “knowledge workers” who will revolutionize the global economy. The problem is that lawyers are among the least efficient and effective knowledge workers around, thanks in large part to how they’re managed and how they sell their services.

KM is the first important step towards a new and truly collaborative model for legal service production. As KM software becomes more sophisticated and the process becomes automated, KM will form part of the seamless fabric of lawyers’ workday. Like all great advances, it will become so indispensable in our work lives as to be unnoticed.

Leadership

There are two subjects here. First, more law firms will come to recognize that managing partners can no longer effectively operate complex, multi-million-dollar businesses and practise law at the same time. Do insurance companies allow their CEOs to sell policies in their spare time? Leading a law firm requires multiple full-time professionals — not all of them have to be lawyers.

Secondly, the practice of law itself also requires leadership. Lawyers have often been accused of driving a car by looking in the rear-view mirror: the reliance on precedent discourages innovation and forward thinking. Numerous initiatives to reform legal services and benefit both lawyers and clients have starved to death in partnership and committee meetings, not primarily on their merits, but because lawyers resist change.

No industry would benefit more from a willingness to innovate than this one. The stage is set for a pioneering firm or lawyer to step up and lead the way. Who will emerge?

Runners-up: Law schools, Legal research, Laterals, LLPs

Médiation (ADR)

It’s not a new development — mediation has taken the legal world by storm over the past 15 years — but this trend is not close to done yet. From its origins in family law and building upon its great success in the business world, ADR will continue to redefine how the public really accesses justice.

In the past, mediation was considered an extra-judicial conflict resolution method. But now, in a growing number of jurisdictions, mediation is now a part of the official process of bringing a case before the courts or administrative authorities.

In fact, the growing popularity of mediation, arbitration, collaborative law, negotiation, and other forms of facilitation mean that very shortly, we’ll have to rethink our terminology. How soon until ADR becomes “SDR” — “Standard Dispute Resolution” — and courtroom litigation is considered the “alternative”? Maybe we’re already there.

Runners-up: Mentoring, Managing partners, Mobility

Niche

General law practice in Canada is in tough. Many GPs have seen their bread-and-butter work taken away by non-lawyer service providers; few new lawyers are decamping to rural Canada; GPs are older than average and may not have succession plans in place. But even aside from that, general practice is falling victim to the relentless drive towards specialization.

Most lawyers, it seems, need a niche: a distinct segment of a practice area where he or she can set up shop and attract ever more specialized clients. Without a niche, it’s more difficult for a lawyer to differentiate himself or herself from the competition — and thanks to the Internet, niche marketing is easier than it’s ever been.

Ten years ago, who would have foreseen today’s video game practice groups or genetic engineering lawyers? Who can foresee what 2016 will bring? Niches are the future of lawyers’ careers.

Runners-up: NAFTA, Networks

Outsourcing & Offshoring

Every industry eventually learns a hard truth: work migrates to the lowest-cost environment. Garment workers, auto manufacturers and telemarketers are among those who’ve received this economic crash course. Lawyers are the latest students.

As a feature article in our June issue will describe, legal work is being outsourced from North American law firms to countries like India. Millions of ambitious, well-educated, English-speaking Indian professionals are already doing legal research and basic legal tasks for North American clients — and they won’t be content with low-level work for long. Check out the world-class Indian technology industry if you’re skeptical.

Most Canadian law firms don’t differentiate themselves in terms of quality of service or work product, at least as far as clients are concerned. So those clients look to price as the difference maker — and Canadian firms simply can’t compete with Asian competitors in this category. We’ve only just seen the tip of this mammoth iceberg.

Runners-up: Open-source, Outside counsel

Practice groups

Our article “All for one,” on p. 42, lays it out. Any firm of a certain size will eventually have to restructure itself to accommodate practice groups, often in the form of industry and client groups. Increasingly, these groups will run their own affairs, hire, promote and compensate independently, and take responsibility for everything from rainmaking to marketing.

But look behind the trend, and you’ll see the force driving it: clients. Practice groups have evolved to their present form because they suit clients’ interests, offering focused, well-organized teams of professionals geared to increasingly specific demands.

This level of integration will only grow — as extranets and secondments become more common, the day will come when it’s difficult to tell the in-house department from the outside counsel practice group.

Runners-up: Podcasting, Practice management, Pacific Rim

Quasi-lawyers

The large and growing field of non-lawyer legal service providers includes independent paralegals, notaries outside Quebec, immigration consultants, title insurers, and the makers of do-it-yourself will kits. If you want to stretch the definition, it also encompasses unrepresented litigants.

What they all have in common is that they compete against lawyers for clients’ legal business; generally speaking, quasi-lawyers have fewer qualifications than lawyers and charge a lower price. Lawyers’ responses have fallen into two categories: (a) prosecute or (b) ignore. The former is expensive and has few successes to show; the latter is becoming harder to do every day.

Even the most diehard defender of the legal profession would agree that the days when lawyers monopolized the legal services market are over. Savvy practitioners will partner with or co-opt these quasi-lawyers into their own practices, allowing them to offer more services in a wider price range; they will accept that these competitors are not going away.

Runners-up: Qualifications, Qualité

RSS

Really Simple Syndication emerged from blogs, but this technology’s impact will go far beyond. If blogs replace newsletters and perhaps even newspapers, RSS might someday replace blogs and even email itself — completely transforming electronic communications in the process.

RSS is a technology that automatically informs your computer every time new information is posted on Websites for which you’ve requested updates. You no longer need to constantly visit those sites — your computer quietly assembles the latest information and waits for you to access it whenever you want. Unlike email, which constantly interrupts your daily workflow, RSS is a silent servant.

In the short term, lawyers will adopt RSS to keep their clients informed of new developments. In the long term, they’ll use RSS to learn the latest court decisions the moment they’re posted and to subscribe to customized news and information from numerous sources. Three small letters; a world of change.

Runners-up:
Reward systems, Retirement, Risk management

Self-governance

In 2004, former Bank of England Deputy Governor Sir David Clementi recommended a series of reforms to a British legal profession that had become unresponsive to client concerns. Legislation enacting these changes, including the near-total overhaul of lawyers’ self-regulatory and disciplinary systems, could be proclaimed there within nine months.

Canada is unlikely to experience this sort of upheaval, thanks to stellar work by our law societies, but there is no guarantee that self-governance will continue unopposed. For instance, heavy-handed attempts by lawyers to try to beat back non-lawyer service providers might well gain the attention of competition commissioners, who take a dim view of perceived attempts to maintain monopolies.

Moreover, if public respect for lawyers and the justice system does not rebound, the risk that lawyers could someday make easy political scapegoats will rise. In short, the legal profession will have to be doubly protective of its independence in future.

Runners-up:
Sarbanes-Oxley, Solos, Self-represented litigants

Télé (Telecommunications)

It’s a long-distance world. Today, we cannot communicate professionally without using the telephone, participating in teleconferences, telecommuting to work, or telecommunicating with clients and colleagues. And let’s not forget television and teleconsultation.

Thanks to laptops, cellphones and PDAs, distance is increasingly unimportant in a lawyer’s life. Practising law in several towns at the same time, collaborating with colleagues across the country, doing legal research without leaving your office chair —none of these could have been imagined 20 years ago, but they are necessities of practice today and will be indispensable tomorrow.

The real impact is coning soon for those who live outside of Canada’s urban centres — both for the lawyers who can better serve their far-flung clients, and for a legal system that has always relied on “in-person” meetings to dispense justice. Can we truly administer justice without standing face to face? We may soon find out.

Runners-up: Technology, Temp lawyers

Unbundling

Unbundling isn’t new — for years, lawyers have been carving off discrete parts of their legal service packages and offering them on an individual basis. What has changed recently is the public’s surging appetite for pick-and-choose legal services, and lawyers’ gradual adoption of new business models in response.

As clients grow more sophisticated, there are more things that (rightly or wrongly) they feel they can do themselves with simply a lawyer’s assistance, rather than paying the lawyer to do it all. So, a litigant may decide to represent himself or herself in court, but with legal research or procedural advice provided by a lawyer. Unbundling is lawyers’
response to clients’ new willingness to trust to their own skills or luck.

Eventually, unbundling could evolve into a true give-and-take partnership between lawyer and client, with each playing to her strengths and concentrating on her preferred aspects of the solution. It represents a whole new type of lawyer-client relationship.

Runners-up: United States, Université

VOIP

It stands for Voice Over Internet Protocol, which is essentially a high-tech term for using the Internet as your long-distance telephone. Basically, VOIP converts a voice signal from a telephone into a digital signal to travel over the Internet to its destination, whereupon it’s then converted back into a voice signal. Think of it as warp drive for your phone call.

VOIP’s immediate advantage for lawyers is that it can offer essentially free long-distance calling if you have a Net connection. It also improves lawyer mobility — you can use a VOIP-enabled wireless laptop as a telephone. This technology is in its infancy — there are numerous improvements waiting to be made in call quality, security and reliability, and the marketplace is still in a state of flux. But the time is coming when pretty much every lawyer will use the Internet for phone services, in the office and on the road.

Runners-up: Virtual law firms, Videoconferencing

Wikis, Wireless, Web 2.0

We just couldn’t decide, so we ended up with a three-way tie.

Wikis are collaborative Websites to which any group (public or private) can be invited to contribute and build a joint database or document. The most well-known is Wikipedia, but thousands of others, including numerous law-focused Wikis, are flourishing every day on the Internet.

Wireless access is revolutionizing communications: connectivity among people and computers without having to plug into a phone or Internet land line. It started with cell phones, but its current applications include computers, smart ID cards, and even signal-transmitting clothes. There’s almost no telling where it will go next.

Web 2.0 is a shorthand term to describe what many observers call an evolutionary step in the Internet’s development. The Net used to be about static Web pages; now it’s about collaborative tools that bring people together to create groundbreaking concepts, products and services. Keep an eye out for Law 2.0, too.

Runners-up: WTO, Writely

eXtranets

Okay, so we cheated a little here. Extranets are yet another high-tech application of the shifting ground in the lawyer-client relationship. Extranets are password-protected Websites set up to facilitate the exchange of knowledge and skills between a client and its professional service providers.

Savvy law firms began creating extranets for their clients a few years ago. Sometimes, they set up a small extranet for a specific project like a trial or corporate deal; sometimes, they create a large, multi-track site for a major client. Lately, however, clients have grown tired of waiting for lawyers to catch on and have created their own extranets, inviting valued lawyers to participate.

Essentially, extranets are virtual war rooms, securely locked down and open 24/7/365 to invitees only. They allow lawyers and clients to trade knowledge, ideas and perspectives at little cost. And they only presage better tools in future to cement a lawyer-client relationship.

Runner-up: XML

generation Y

The Boomers had kids — lots of them. In the U.S. alone, 72 million Baby Boomers produced 60 million children between 1979 and 1994, as compared to fewer than 20 million Gen-Xers. Generation Y ranges from 10 to 25 years old — which means that the leading edge is entering the legal profession as we speak.

The current generation of young lawyers has already thrown law firms for a loop, rejecting Boomer notions of devotion to work and financial success in favour of personal fulfillment, family and community interests. This vanguard foreshadows the even bigger cultural body blow that Generation Y is poised to deliver to the practice of law.

Nobody yet knows what kind of workers and citizens Gen-Yers will be. But within five years, they’ll be associates; in ten years, they’ll be partners; and in 20 years, they will own the legal profession.

Runner-up: Yahoo!

Zero hour

This final entry means, simply, that time’s up. These preceding 25 trends aren’t way off in the future somewhere: they’re happening today, and no law practice can afford to be unaware of or uninterested in them. These are 25 forces that are already shaping the legal profession, and they will continue to do so, with escalating force, in the years to come.

What can you do to stay ahead of this fast-moving curve? If your law firm doesn’t have a Chief Strategic Officer in charge of mapping out trends in the lawyer and client marketplaces, consider appointing one. Bring your younger lawyers into the strategic
planning loop and get them to advise you on the changes they see. If you’re in a small firm, match the trends that most affect your narrow focus and track them closely.

But if there’s one silver bullet available to help you cope with all these trends, it’s this: maximize the effectiveness of your client relations. Clients are driving many of these changes, while riding groundswells and wholesale shifts in the professional services landscape. Be aware, be adaptable, and communicate with your clients as much as possible.

The practice of law is becoming almost cryptographically complicated — clients are the codebreakers.

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