This post originally appeared as an article at Slaw on December 16, 2007.
If you’ve ever ordered an item from Amazon, you know that every time you log back in to the website, you’re greeted with a list of recommended books, CDs and DVDs. Amazon compiles this list based both on your product purchases and the pages you’ve recently browsed. Essentially, Amazon alters its understanding of and relationship with you every time you use its services — whether browsing, adding items to your shopping cart, or actually purchasing something. Every point of contact between you and Amazon is another data point that redefines the relationship’s fluid dynamic.
There’s a lesson here for lawyers, and with technology continuing to evolve at an astounding rate, it’s a lesson that lawyers can start implementing right now. Lawyers already can — and someday, they all will have to — tailor their interactions with clients in the same way.
In the Amazon.law era, all types of client behaviour and activity can be automatically recorded and used to create and constantly improve a multi-dimensional profile of the client. This profile in turn can guide the lawyer’s interactions with the client, from billing and communication to service delivery and business development. To some extent, the technological tools to do this, from database software to customer relations management, already exist.
How would this work? Let’s start by breaking down client activity into that which involves the lawyer and that which doesn’t. Let’s further break down the former category (lawyer-centered actions) into explicit and latent activities. These three general groups would look something like this:
1. Explicit lawyer-focused activity. Here, at the most basic level, we’re talking about the client’s direct interactions with the lawyer: her phone calls and e-mails to the firm, the inquiries she makes, the tasks she assigns, and the decisions she makes on the choices the lawyer places before her. This information forms the foundation of a client profile that allows the lawyer to understand his client more fully and to tailor the form and content of his dealings with her.
For example, a client inquiry about offshore tax shelters is noted and logged by the system, which draws the reasonable conclusion that this client will likely also be interested in developments in foreign tax rules and Canada Revenue Agency announcements about the treatment of such shelters. The client’s profile is accordingly updated and the client is added to an e-mail distribution list on both subjects, without the lawyer having to lift a finger. The client receives the e-mails and appreciates the lawyer’s thoughtfulness and proactivity.
There’s also an opportunity to draw upon the content of other client profiles in the firm’s database to see what clients with similar cases or interests have gone on to do. When a client seeks advice on rezoning land for a commercial real estate development, her profile is not only updated, it can be cross-tabulated and compared with profiles of other clients, some of whom later asked about public-private partnership opportunities in the province. The system would then alert the lawyer to contact this client in a couple of months’ time to raise this very issue. (Lawyers in smaller firms or sole practices with fewer clients might contribute to a secure and anonymized database of other small-firm lawyers’ clients to achieve the same ends).
Nor is it only the content of a client’s inquiries that can help customize her profile. The system can be designed to record every instance of a client phone call, fax or e-mail, and would notice that one client in particular tends to call and write more often than others do. The system might infer that this client needs more frequent contact and reassurance about her file, and is more prone to alienation if regular communication is not maintained. The system therefore prompts the lawyer to send updates to this client more often than usual.
In all these ways, every time the client makes contact with her lawyer, she adds another data point to her profile, filling in a more and more accurate portrait of who she is and what she needs from her lawyer. But the client can also add to this picture without ever picking up the phone or sending an e-mail.
2. Latent lawyer-focused activity. The lawyer can learn a great deal about a client, and can customize client service even more, by analyzing how she deals with the firm in more ancillary ways. This includes how and how often the client pays her bills, what pages she lingers over on the firm’s website, and what articles she reads in the firm’s e-newsletter.
For instance, if a client is consistently late paying her legal bill, her invoices might be automatically adjusted to add a 5% penalty for late payment (or, if the lawyer prefers honey to vinegar, a 2% discount for early payment). If a client receives a general business and corporate e-newsletter but only clicks on and reads the articles pertaining to entrepreneurship while ignoring the items on competition law, her copy of the e-news can be automatically customized to include more of the former and less of the latter. Not only that, but the client’s browsing interest is added to her profile and could prompt a phone call from the lawyer inviting her to a venture capital seminar.
It’s difficult to overstate what a deep impression this can make on a client. While the client might not necessarily believe the lawyer can read minds, she will already be surprised and pleased that her lawyer is “thinking of her,” even if it’s actually the lawyer’s system that’s doing the thinking. And the client’s delight only increases when the lawyer’s suggestions are directly relevant to what she’s working on or thinking about at the moment. In truth, that’s probably the only way the lawyer is likely to actually get the client’s attention at any given time.
I remember a speech given a couple of years ago by Francine Swanson, Senior Legal Counsel with BP Energy in Calgary and then-President of the Canadian Corporate Counsel Association. Addressed to law firms and their managing partners, it included the sobering news that most of the newsletters and articles firms helpfully sent her way were only glanced at or went unread altogether. She was so overwhelmingly busy that unless a particular article happened to deal directly with an issue that was on her desk right that moment, she ignored it.
The fact is, all clients are busy, and they don’t have time to flip through the mass-mailed FYI-type missives that still constitute most law firm newsletters. Give them something directly relevant to them right now, however, and you’ll make them sit up and pay attention to you. E-news customized according to the client’s actual behaviour can deliver that result.
3. Universal client activity. Up until now, we’ve talked about what’s in the realm of the currently feasible. That most lawyers don’t take these sorts of steps to automatically build profiles of clients, and thus customize their client dealings and offerings, is a function less of technology and more of lawyers’ reluctance to invest in innovation. But in the future, we might very well see the emergence of a third level of client customization, made possible by further advances not just in technology, but also in our notions of privacy and in the nature of the lawyer-client relationship itself.
Computer futurists talk about “context aware” computing, where the system takes note of the complete environment within which a person operates and maximizes the efficiency and effectiveness within which that person’s wants and needs are anticipated and met. In this scenario, the computer fades into the background, becoming as ubiquitous and taken for granted as household electrical wiring is today. That sort of inconspicuous computing can serve as a kind of model for “inconspicuous lawyering,” in which the lawyer is a permanent but largely unseen part of the client’s day-to-day life. This really constitutes the ultimate stage in the lawyer-client relationship.
Consider what would happen if a client were to grant her lawyer permission to access some or all of her day-to-day personal and/or business dealings. The lawyer would have already proven himself capable of using the client’s explicit and implicit dealings with the law firm to customize his service delivery and anticipate her current and future legal needs. Based on that success, the client might be ready to open up more of her activities and dealings outside the legal sphere — with employees, suppliers, service providers and others.
The lawyer could apply the same analytics to the data gleaned from these third-party interactions to improve the quality and nature of his advice and services to the client. For example:
–> Frequent e-mail reminders from the client to her employees about proper conduct could prompt the firm to offer the client’s company a seminar on governance.
–> An increase in budget and approval rates for R&D projects might mean the client will soon need help with patent applications.
Repeated difficulties with an overseas supplier might indicate the client could use a primer on the enforcement of contracts in that supplier’s jurisdiction.
–> By casting a wider net with the client’s permission, the lawyer could collect even more data and start building a truly powerful profile of the client’s needs, interests, preferences and goals — any or all of which the lawyer could go some way towards meeting. The lawyer will have positioned himself as the client’s tactical partner and advisor, and will have become an indispensable part of the client’s life, while the client will be receiving an unprecedented level of tailored counsel and expertise.
Pretty clearly, this is not a scenario likely to play out between lawyers and clients anytime soon. The technology has a ways to go yet, but mostly, it’s two human elements that still stand in the way of this type of innovation. The first is the degree of comfort we all have in sharing the most fundamental details of our businesses or especially our personal lives with others — privacy is still an overriding concern for most people, although I actually think that concern will become less pressing in the years to come as we understand the conveniences and efficiencies for which privacy can be traded.
But even more important than that is the key element to any successful lawyer-client relationship: trust. In order to reach a point at which a client is willing to share this level of private information with her lawyer, the relationship between them must be so outstanding that trust is implicit in everything they do together.
Books have been written on the importance of trust between lawyers and clients. Some people, and I’m among them, believe that the ability to earn and keep trust is the single most important element of the lawyer’s professional identity. Fundamental to trust is transparency, which is why I think we could go a long ways towards Amazon.law by giving every client an extranet — not just one for each of her matters with the firm, but one for the client herself. The sort of constantly evolving profiles described above would have to be fully accessible 24/7 to the clients themselves, so that they can see and understand what the lawyer is learning about their own behaviour.
Lawyers have a bad habit of keeping to themselves the information they’ve accumulated about their clients. In future, clients won’t put up with that: they’ll come to realize that this information belongs to them, and they are fully entitled to see it and review it whenever they choose. When both the client and the lawyer come to the point where they’re willing to trust each other with the information they’ve acquired in the course of their relationship, then we’ll be on the verge of a new paradigm in client relations.
At that point, it won’t seem the least bit strange to build client profiles that reflect the evolving reality of clients’ lives and that dictate the kind of customized service that they receive. Viewed in this light, the whole idea of Amazon.law — the concept of a lawyer adapting and tailoring his services to the fluid reality of each client’s life — is nothing more than an exercise in applied trust.
I think we’re looking at a continuum of legal services along a spectrum of trust. Lawyers who offer rote or commoditized services that don’t require any more than a fleeting relationship with the client won’t need to adopt any of the suggested tactics outlined in the article. These lawyers are also the ones at greatest risk of losing their livelihoods — to title insurers, sophisticated do-it-yourself will kits, pro se litigants’ forums, or the next version of Blue Flag. These are the lawyers to whom I think Richard Susskind is referring in The End of Lawyers – lawyers whose work product could be duplicated at least in part by software, systems or simple entrepreneurs. And you know, there are a lot of those lawyers out there.
We’re at something of a turning point in the evolution of what it means to be a lawyer. Lawyers today are busily engaged in many services that have little of “the law,” as many people would understand the term, in them. How much law is involved in issuing a solicitor’s opinion on title? How much legal skill, analysis and judgment? How many lawyers rely on “precedents” and “checklists” when drafting wills, contracts or separation agreements? I’m not for one minute saying that any Joe off the street could do these tasks as well as a lawyer, without risk of errors both slight and serious. But I am saying that the fewer high-end legal skills you employ in your practice, the greater the risk that a non-lawyer (person or machine) can mimic or duplicate what you do.
Sure, the non-lawyer’s work will be lower quality in most cases, and won’t have a solicitors’ insurance fund behind it. But an increasingly large number of clients don’t care, because the non-lawyer does it much cheaper and usually much faster. That title insurance is a thriving business today is testament at least in part to the fact that people have run the cost-benefit analysis and are willing to accept fewer guarantees in exchange for lower costs (it also speaks to lawyers’ failure to market their services better). Lawyers have positioned themselves as a luxury good in an increasingly downscale market. If you’re offering luxury services to match, that’s terrific; if not, you’re going to be in trouble. That, I think, is the fundamental market reality to which most lawyers have yet to adjust.
The “luxury lawyers” who survive will be precisely those whose work does require legal skills, analysis and judgment – characteristics that an insurance policy or software code can’t provide. These will be the lawyers higher up the trust spectrum who would be in a position to install and make use of an Amazon.law approach. I might hazard a guess that 30 years from now, these lawyers will be the only ones left who answer to the name – the rest will simply have been run out of the business by a punishing marketplace.
I think you’re right that most people will always try to hold a certain line on privacy, although I’m frankly not optimistic about technology’s ability to protect those lines in future – I suspect our cultural definition of what is deemed acceptably accessible to public view will change, as the reality of a truly flat world emerges. A lot will depend on what we think our service provider needs to know – we think nothing of sharing deeply personal information with our doctors, for example, because we’re sufficiently motivated to preserve our health.
Lawyers aren’t in that league, not least because for most people, legal services are less important and crop up less frequently. But over time, as the new legal marketplace establishes itself – and as we see legal and medical issues more frequently intersect; e.g., the right to your own DNA – I can see some lawyer-client relationships, at least, moving much deeper past the client’s privacy line than we’re used to seeing today.