Okay, strictly speaking, it’s a report rather than a book. But I’m so interested in talking about this publication and its importance to the developing field of alternative fee arrangements (AFAs, a topic we’re focused on these days at Edge) that I’m willing to blur genres — and in any event, at 150 pages, it’s not like this is a pamphlet. The LegalBizDev Survey of Alternative Fees is written by consultant Jim Hassett, Ph.D., and is based on interviews with managing partners, senior lawyers and AFA managers at 37 of the largest 100 law firms in the United States. To a critic who objected that a self-selected 37% isn’t a statistically sound sample, Jim replied that while his results may not be scientifically “good,” they’re the best available resource on the subject. That is unquestionably true — but this report is also good, and is worth your time.

The Survey takes an start-to-finish look at AFAs: how they’re defined, how they developed, what drives clients to push for them, bidding strategies for lawyers who want to use them, nine common examples of AFAs, recommendations to both lawyers and clients for maximizing their effectiveness, and what the future holds. Although the author delivers content throughout, especially at the start and finish, the bulk of the Survey is drawn from the respondents themselves, in their own words. That last point is not insignificant: because Jim guaranteed anonymity to his interviewees (the 37 firms are named, but no comment is matched with a firm and all comments are anonymous), he received some wonderfully blunt opinions. Here’s one of my favourites, a quote from a law firm chairman that would never be made for attribution:

“I think it hurts lawyers’ egos to suggest that all of the work that they do is not brain surgery. And when you suggest that they might be able to get away with using people who are not junior brain surgeons, almost everyone will say, ‘Oh, no, no, no. To do my stuff, you really need to be a brain surgeon like me.’ And it’s just ridiculous. I think that there’s an odd and irrational pride in wasting money. It’s gratifying for people to brag to their friends about how much they have to pay summer associates, and how much they pay starting associates, like, ‘Isn’t this a crime? We’re paying young associates more than judges, but hey, they’re brilliant. And they work for me.’ It’s an odd situation. But I think we’ve been able to do that because the market has paid to deal with it. And that may all be over.”

This candour (which, by the way, speaks highly of the trust these lawyers place in Jim Hassett) pays great dividends in the form of unalloyed honesty from these law firm leaders, allowing us to see how they approach AFAs, what systems they set up to deal with them, and the successes (and sometimes failures) that resulted. It’s a pretty safe bet that these folks didn’t share everything they knew on the subject, and at least some of their reports and comments must have been a little self-serving or trumped up. But even if you apply that discount, the insights here are remarkable. I don’t want you to forgo the chance to read them all for yourselves, so here are two good ones:

“In the past, where we have proposed unilaterally various fixed-fee arrangements, the clients have turned them down, because they think that if we proposed them, there must be something wrong with them. We have proposed ten alternative fee arrangements for every one that is accepted. Maybe in-house counsel are afraid that outside counsel will sandbag them by building inefficiencies and excess margins into the fixed-fee quotes. … The larger problem with RFPs and alternative fees in general is really the trust issue.”

“One of our problems is that our partners seem to think they have a better product than the people we’re competing with. And so when the client compares our fixed fee with other firms’, they ask how come we can’t do the work for less. [The partners typically reply that competitors are] not offering the same product that we are, so I ask [the partners], ‘Why are we offering a product that the client won’t pay for?’ It’s a whole mindset that will require a long time to change.”

Much of the value in the Survey is derived from these first-person accounts, but Jim also does a service by rounding up, explaining and giving examples of nine common types of AFAs, along with their pros and cons, from fee caps (“the dumbest deal ever,” according to one law firm respondent) all the way up to portfolio fixed fees, limited contingencies, and holdback arrangements. And his recommendations for success in alternative fee arrangements — both to firms and to clients — are especially valuable. I won’t list them all, but it’s noteworthy that his dual sets of recommendations have two in common for lawyers and clients: improve management and focus on value.

Two things struck me when reading through this report. The first is the perhaps surprisingly high level of savvy displayed by these interviewees: contrary to the popular impression of large law firms in general when it comes to AFAs (an impression often reflected in this blog’s entries, it must be said), there are dozens of smart, informed and motivated lawyers in leadership positions within the AmLaw 100 who not only get the need for AFAs, but who are assessing the challenges, exploring options, and developing systems to implement them. If I were running a large law firm that competes with some of these firms, and I hadn’t done any serious work on AFAs within my organization, this Survey would make a chilling read. Most encouraging is the fact that these lawyers have identified the fundamental stumbling blocks to AFA implementation — cultural, financial, infrastructural — and are doing what they can to address them. That recognition doesn’t make these obstacles any less daunting, though.

The other thing that emerges from this Survey is that large corporate clients aren’t doing nearly enough to promote AFA relationships with their outside counsel. The number of times private-practice lawyers express frustration with in-house departments’ reluctance or intransigence to engage in serious AFA discussions is noteworthy: all too often, law firm AFA proposals to corporate counsel are greeted with polite statements of preference for a discount on hourly rates. Nor are corporate departments any better equipped to project-manage or otherwise administer an AFA system than their outside counterparts: more than one respondent cited the difficulty of trying to tell a general counsel that the lawyers in her department are as much the problem as the solution.

Overall, this is a powerful and important contribution to our collective understanding of alternative fee arrangements in law, a subject that Jim notes really is still in its infancy. For all that, the picture does feel incomplete: all the contributions and opinions come from law firms, and the absence of the in-house lawyer perspective leaves you wondering if general counsel might have a different view of the “reluctance and intransigence” problem about which their outside counsel complain. Perhaps a follow-up survey could speak with GCs of Fortune 500 companies, or be coordinated with the Association of Corporate Counsel as part of its Value Challenge, in order to provide another perspective, or perhaps be merged with the law firm survey to give a holistic view of this evolving area.

But on its own terms, The LegalBizDev Survey of Alternative Fees is a significant and very useful guide to understanding not just what AFAs are and how they work, but also the ongoing challenges and roadblocks to their implementation. Every law firm that seriously intends to tackle alternative fee arrangements would clearly benefit from reviewing this work.

This is an enormously important book, and if you have any interest or stake in how the legal marketplace will operate in future, you have to read it. The End of Lawyers? provides a sweeping assessment (and in places, an indictment) of today’s legal services landscape and describes the architecture of the systems that will replace it. It identifies the pressure points where the legal services marketplace is poised to fracture and describes the forces that will cause the breaks. But what really stands out about The End of Lawyers? is its comprehensive depiction of a profession undergoing massive transformation – it provides a unique panoramic view of a legal marketplace in unprecedented flux. We talk a lot about “visionaries” these days, but in the legal profession, nobody seriously competes with Richard Susskind for that title, and this book shows why.

Now, I’m a little late to this party — many other people have written excellent reviews already, most recently this incisive commentary by Mitch Kowalski at the Legal Post. Others have also covered this terrain very well, including Bruce MacEwen, Jim Hasset, Nick Holmes and Ted Tjaden, as well as numerous consumer reviews at the Amazons of the world. Accordingly, while I’ll provide an overview of the book’s contents, strengths and weaknesses, I’m going to try focusing more on what the book represents in the history of legal innovation (answer: a watershed) and its implications for the legal profession’s evolution (answer: potentially shattering).

The End of Lawyers? relates how technology (especially the Internet), collaboration, globalization, and other forces are changing the fundamental rules by which legal services are bought and sold. The book is characterized by several key observations about how the legal marketplace is being transformed, with three especially significant ones:

• The identification of an evolving and fluid spectrum of legal services categories: bespoke (one-off, customized or tailored), standardized (drawing upon precedents, process or previous work), systematized (reduced and applied to automated systems), packaged (systematized services exported to clients) and commoditized (packaged services so commonplace as to have little or no market value). Most lawyers insist that their services cluster around the left-hand end of this spectrum; Richard convincingly argues that movement to the right is inevitable for many types of legal services, with profound implications for lawyers’ business models.

• The decomposition of legal tasks into component parts that can be delegated to various sources, few of them actual law firm lawyers. Twelve types of destinations for this multi-sourcing (reminiscent of unbundling) are identified: in-sourcing, de-lawyering, relocating, offshoring, outsourcing, subcontracting, co-sourcing, leasing, home-sourcing, open-sourcing, computerizing and no-sourcing, each of which is explained in more illuminating detail. Despite this multiplicity of legal work performers, an overarching entity responsible for managing the work must exist, and all the systems and processes involved must work together seamlessly.

• In the context of astonishingly deep and rapid technological advances, the emergence of no fewer than ten disruptive (in the Clayton Christensen sense) legal technologies: automated document assembly, relentless connectivity, the electronic legal marketplace, e-learning, online legal guidance, legal open-sourcing, closed legal communities, workflow and project management, embedded legal knowledge, and online dispute resolution. These developments offer tremendous opportunity for more efficient and effective legal services delivery; but they also represent major threats to various aspects of the traditional law firm business model.

And this really is just a sampling – only an actual précis of the contents could convey everything that the book suggests. The details and depth in which these and other observations are explained and illustrated, with ample use of current examples, should be enough to persuade most readers that these trends are real and they are irreversible. But over the course of the book, Richard makes other observations that can fairly be called eye-popping ­– they open the mind to possibilities that none of us have been pondering:

• the existential threat to in-house lawyers, who will be as susceptible as their outside counsel to being swept aside altogether if they fail to create or facilitate value;

• the possibility that mediators, arbitrators, judges and even courts could be partly or wholly disintermediated by online dispute resolution (think: Facebook juries);

• new lawyers learning their trade by practising on artificial clients – participating in simulated learning environments not unlike Second Life.

As David Maister notes in a dust-jacket testimonial, you don’t have to agree with all of this book’s assessments and conclusions to appreciate the importance of absorbing these ideas and their implications. I personally think there are far more hits than misses among the book’s prognostications, but what’s really important about The End of Lawyers? is that we now have a comprehensive and fully imagined picture of the new legal service marketplace towards which we are now hurtling – and on top of that, we have an example of the power of imagination in legal services innovation.

The myriad trends identified in this book all have one thing in common: they strip lawyers of the control and influence they’re accustomed to exercising over the legal services marketplace. The clearest message Richard sends in The End of Lawyers? is that from this point onwards, and to a increasing degree as time goes on, clients will call the shots. They will learn from the previous experiences of similarly situated clients, obtain services from reliable sources outside the legal profession, and benefit from technological advances that knock down price and access barriers. The means by which and the price at which legal services are delivered will be shaped by the marketplace, not by lawyers.

Regardless of which of the book’s forecasts are accurate (and even half of them would render the legal services market virtually unrecognizable), that’s a heart-stopping conclusion. And that’s why most lawyers who hear Richard’s prognostications react either with anger or denial. We all know by now that these are the first two stages in the process of accepting loss.

These lawyers might be tempted to dismiss the conjectures and conclusions of this book as mere predictions about the future. What they need to appreciate is that this book’s claims aren’t really “predictions,” in the popular use of the term. Richard is not predicting here, but “presuming,” in the legal sense. My criminal law professor used to explain “presumption” with the story of Dr. Stanley, who, making his way through African jungle in the 19th century in search of a missing British explorer, suddenly came across a Caucasian Briton near Lake Tanganyika. Recognizing that the facts before him led to one very likely conclusion, he said: “Dr. Livingston, I presume?”

In the same way, Richard is presuming the eventual state of the legal marketplace from real evidence and undeniable trends. He’s not making this stuff up, and he’s not just throwing darts at a board. He gathers all the facts on the ground and trends in the air (the unprecedented pressures on the traditional legal marketplace), ties these disparate strands together, and figures out where they logically must lead. As a result, his conclusions aren’t nearly as radical as they might seem — they’re the natural outcomes of forces and developments that he clearly has demonstrated is already taking shape.

This is already a long review, and I could go on at greater length about everything raised in this book. But I want to point out an element of The End of Lawyers? that can go overlooked by those of us primarily concerned with the fate of lawyers. Chapter 7, “Access to Justice and the Law,” is enormously important and valuable for its insights into a far more pressing issue: the unmet legal needs of literally millions of people, and the social cost this unmet need extracts.

Richard comes to the law from an IT background, and throughout this book, you can detect the technologist’s overriding desire for greater systems efficiency. You get the sense that the legal services marketplace offends him not least for its staggering misallocation of resources and wasted opportunities for better processes and results. But when the conversation turns to access to justice, another voice emerges, that of the author’s deep commitment to the ways in which society at large should and could be far better served in the legal services field.

It’s not just that so many people can’t afford their day in court — it’s also that so many people don’t even know that their unhappy situations merit a day in court, that they have rights and channels through which they can exercise those rights. The law delivers too many ambulances at the bottom of cliffs and not enough railings at the top. Unrecognized and unmet (or met too late) legal needs are a blight on society, and Richard lays out the ways in which this can be addressed (noting along the way, for self-interested lawyers, that the flip side of “unmet legal needs” is “the latent legal market”). It’s only one chapter, but if its implications and promises are taken up, it could well prove to be the most important one.

As always, I feel it’s important to identify the less positive aspects even of books I like. I would argue that the 12 multi-sourcing targets are too finely separated, and that the list could fairly have been just 8 or 9. The section on clients contains an evolving series of law firm and client grids that become confusing and distracting as they go on. The language and many of the examples (especially on the access-to-justice side) show this to be a book written primarily with a UK audience in mind – an alternative or future edition conversant with cultures and developments on both sides of the Atlantic would be helpful. This is yet another book about law practice that could use a more comprehensive index. And I would have liked to read more on law firms’ business models and the fatal problems with legal education, although admittedly these are outside the book’s purview. As you can gather, I don’t think these shortcomings damage its power and significance.

Finally, much has been made of the title, and no doubt some people believe (inaccurately) that the author is gleefully prophesying the extinction of homo legalis. Richard reiterates in the conclusion the significance of the question mark, “intended to confirm that this book is an inquiry into whether lawyers have a future rather than a prediction of their demise.” But I think there’s another sense in which the title could be interpreted without the need for the interrogatory.

If we take another meaning of “end” ­– an outcome worked toward or an objective for which effort is expended, rather than the more popular meaning of “disappearance” — then we could say that this is a book about where lawyers are going, and what use will be made of them when they get there. In that sense, the book warns, if the profession stubbornly ignores or resists these clear changes to the surrounding environment, then the end of lawyers could be, indeed, the end of lawyers.

But it doesn’t have to be that way, and it’s not what Richard Susskind is rooting for. He sees a radically transformed legal profession at the end of this process, and clearly hopes that this new profession can and will provide smarter, earlier and more effective legal guidance to a much broader range of clients. That’s an end of lawyers we should all be pulling for.

The most important and remarkable thing about The Lawyer’s Guide to Collaboration Tools and Technologies is that it’s not really a technology book.

This might come as a surprise, considering the book’s authors are two of the most well-known and widely published legal technology experts around. Tom Mighell chaired this year’s outstanding ABA TECHSHOW and operates the blawgosphere’s unofficial “paper of record” at Inter Alia, while Dennis Kennedy is the closest thing to a household name in legal technology worldwide. Accordingly, you might expect that the latest work from these longstanding collaborators — this time on, well, collaboration — would be a tech-heavy read. And certainly, fans of legal technology minutae won’t be disappointed with the result.

But Dennis and Tom have done more than that: they’ve created a thoughtful, comprehensive, strategic guide for 21st-century lawyers to understand and appreciate the significance of collaboration, and how it can be be integrated into real-world legal practices. In doing so, they’ve reached beyond the legal tech hardcore to the exponentially larger base of lawyers who must respond to the wave of collaboration now striking the profession, but aren’t sure how to begin. Tom and Dennis get these lawyers started and give them a map to follow and signposts to steer by. Considering how central collaboration is about to become in the law, this book really can be called indispensible.

The Lawyer’s Guide to Collaboration Tools and Technologies clocks in at a little under 300 pages, with the final 50 devoted to a handy glossary, detailed appendices and a useful index. The 34 preceding chapters are a legal collaboration gold mine, starting with explanations of what collaboration in the law is, why it matters so much, how lawyers are already collaborating every day, and how to prepare a law practice for a strategic, client-focused adoption of collaboration. Chapter 5 includes a particularly useful blueprint for a collaboration audit — the authors want lawyers to go into this process informed, context-aware and prepared for what’s to come.

From that point, the fun really begins, with several chapters on document collaboration (everything from MS Word’s Track Changes to online tools like Google Docs to the perils of metadata) and project/transaction collaboration (instant messaging, Adobe Connect, online meetings, and project management tools, to name just a few). Then the book goes into the important subject of collaboration platforms like extranets, wikis, Basecamp, MS Sharepoint and even plain old e-mail, a dangerous yet widely used de facto method of lawyer collaboration. The authors wind up with sections on strategies, practical tips, and potential pitfalls of collaboration (chapter 32, which offers recommended collaboration scenarios for lawyers in different types and sizes of firm, is invaluable). Throughout, they offer up descriptions, pros, and cons of leading products and services and lists of many more. Tightly and concisely written (appropriately enough, collaboratively in Google Docs), the book offers a remarkable amount of detail and insight.

It’s important to note that this book is as much about understanding the power and growing necessity of collaboration as it is about exploring the tools to get you there — arguably, it’s a strategy text first and a technology work second. To that end, it’s aimed more at the collaboration novice than at the expert — Dennis and Tom use real-life illustrations from a typical law practice (and make homey references to kids and grandkids) to put readers at ease and facilitate their entry into this subject.

But by no means is this a Collaboration 101 book with no relevance to intermediate and advanced users — lawyers already interested in and familiar with collaboration tools and strategies will find a lot of useful information too. I know this area pretty well, but I learned several new techniques and approaches to collaboration from reading this work. Dennis and Tom have taken particular pains to note cutting-edge tools like Twitter, drop.io, and even the Texas Bar Circle, which I only blogged about in March. And even veteran collaboration junkies will benefit from the big-picture, disciplined, strategic, and (especially) client-focused approach to collaboration that this book constantly drives home.

I like most everything about The Lawyer’s Guide to Collaboration Tools and Technologies, so I’ll set out only a few minor reservations here. At times, the authors make too much effort to simplify their subject — even the most jaded urbanite, for example, probably doesn’t need to have the word “silo” explained and defined. The sections on extranets are as detailed as you could ask for, but I wish there was more on intranets, especially regarding their potential as a knowledge management tool. Indeed, KM, arguably among the most important examples of lawyer collaboration, appears later in the book and not in any great detail (though I readily admit it’s a subject that, once broached, could easily fill a book of its own).

But that aside, there really is nothing more you could ask from a book that not only shows lawyers how to collaborate, but also, and even more importantly, why they should and why they need to. As Tom and Dennis say at both the beginning and end of their work, “Collaboration is not an option.” All the talk these days about Web 2.0, or even Law 2.0, essentially comes down to collaboration. Whereas the first iteration of most web-based technologies was individual, one-to-many and static, the newest online developments are collaborative, many-to-many and dynamic. People today expect interactivity — they assume that they’ll be able to participate actively in their chosen pursuits.

Lawyers need to understand this, because collaborative technologies are going to play a key role in the transformation of the lawyer-client relationship. The Lawyer’s Guide to Collaboration Tools and Technologies is where every lawyer should start that process.

Solo by Choice: How to Be the Lawyer You Always Wanted to Be, by Carolyn Elefant (Seattle, Decision Books, 2008 )

If you’re even vaguely familiar with the legal blogosphere, you’ll know about Carolyn Elefant, a sole practitioner in Washington, D.C., who authors the MyShingle blog and is widely regarded as a leading spokesperson for and authority on solos and small-firm lawyer issues. Solo by Choice is her first book, a detailed compendium of advice, instruction and encouragement for sole practitioners that’s already destined to become just as much, if not more, a touchstone for the sole practice bar as the ABA’s Flying Solo.

Carolyn is an advocate for solo life and makes no bones about it: the book opens with six reasons to start your own practice and makes clear the author’s intent to defeat negative stereotypes of sole practice. But she’s equally clear that soloing isn’t for everyone, and the opening exhilaration of the promise of sole practice is tempered with a sober assessment of the demands of this type of career, especially straight out of law school. Carolyn supports solo practice, but won’t be zealous about it to the point of underselling its challenges or misdirecting lawyers into this line of work who don’t belong there.

In 250 pages (plus 50 pages of appendices), Solo by Choice covers every aspect of sole practice, from making the gut-wrenching decision to hang your own shingle to meeting the financial and client-relations demands of a sole practice. There is not an ounce of fat in this book: it is lean, powerful, tightly written and economical. Carolyn tells you everything you need to know about life as a solo and not a word more, making it the rare text that is both comprehensive and readable: her blogging background is evident in the concise style.

A particularly attractive feature of the book is the plethora of what we in the publishing business call “points of entry,” design features that attract the eye. There are no pages of continuous grey text: sidebars, headings, checklists and bullet-point lists promise short, to-the-point nuggets of information that busy lawyers can start and finish in rapid succession. In addition, Carolyn inserts anecdotes from her own experiences as a solo and, in a smart move, first-person accounts and advice from other solos that provide more voices and fresh perspectives.

Good lawyers will tell you that extensive preparation is the key to success, and Solo by Choice exemplifies that: the first 90 pages are devoted to making the decision to go solo and planning the launch of the new practice. No one who takes this book’s advice will rush to hang out a shingle until they’ve paid meticulous attention to critical matters like leaving their current employer, choosing a business structure, setting up an office, and even seemingly minor matters like choosing a firm name and making the official announcement.

The heart of the book, to my mind, is Chapter III, “The Practice.” Under five headings — Dealing with Clients, Billing and Fees, Generating Cash Flow, Growing Your Practice and Outsourcing — the book provides an intense tutorial in the fundamentals of sound law practice management for solos.

But the remarkable thing is that much of Solo by Choice isn’t just for solos. The client relations and marketing sections, for instance, are equally applicable to lawyers who work in major global firms as they are to sole practitioners. Solos have little margin for error, and so they must operate with efficiency, client focus, and a careful approach to finances. These ought to be characteristics of every lawyer’s business, and so this book is useful for lawyers in all shapes and sizes of practice.

There are very few criticisms to hang on this book. It’s written by an American attorney for an American audience, so for readers outside the US, repeated references to state bar exams and ethics rules can be distracting. The absence of an index is surprising, and somewhat reduces the book’s ability to serve as a quck reference guide. And the typeface is one of those annoying fonts that uses a capital “I” in place of the number “1″ — that’s always bugged me.

But these are minor objections, at most. Solo by Choice is an outstanding guide to the practical realities of being a lawyer, absolutely essential for solo and small-firm lawyers and valuable for lawyers in mid-size or large firms too. Highly recommended.