Starting from scratch

Suppose that, tomorrow, you needed to create a business that provides legal services — but law firms had never been invented, and you didn’t have that reference point to use as a template. Being a sensible and forward-thinking person, you might come up with an entity that featured many of the following characteristics:

  • A privately owned corporation, perhaps with significant initial venture capital and the possibility of an IPO down the line, to assure yourself of operating and investment funds.
  • A focus on markets where incumbent providers (lawyers) are scarce and where potential customers are therefore underserved and plentiful (say, consumers and small businesses).
  • A range of affordable legal document assembly tools, accessible online 24/7, that can deliver extremely high-margin solutions to the basic legal needs of your customers.
  • A network of reliable local lawyers to whom your customers’ more complex legal matters can be referred, and for whom your brand and market reach constitute a powerful marketing force.

In other words, you might wind up creating something like LegalZoom

Now suppose that, tomorrow, you needed to create an entity that resolves legal disputes, but courts had never been invented and you didn’t have them to use as a template. You might come up with an entity that featured many of the following characteristics:

  • It recognizes that what people desire most in dispute resolution is speed and affordability, and so it would prioritize these two objectives on par with any other consideration. 
  • It accepts that the best way to help people access dispute resolution is to meet them where they are, and so it would be native to and entirely contained within an online environment.
  • It acknowledges that relatively few disputes truly require lawyers to resolve and even fewer really need judges, and so it discourages or does away with the use of either.
  • It understands that continuous improvement is the key to any effective service, and so it engages in an ongoing process of intense user feedback and system enhancements. 

In other words, you might wind up creating something like the Civil Resolution Tribunal in British Columbia (or the HMCTS Public Law Project in Great Britain).

And suppose that, tomorrow, you needed to create a way to provide legal assistance to low-income people, but legal aid had never been invented and you didn’t have that to use as a template. Once again, you might come up with an entity that featured many of the following characteristics:

  • Solutions begin with and are centred around the root causes of the problem, because legal matters are only one dimension of the multi-faceted “life matters” that people encounter.
  • Legal services are co-designed with and collaboratively directed by partners in the community where the people live, rather than designed and delivered solely by a single heroic outside lawyer. 
  • Legal assistance is channeled through those community partners that have strong relationships with community members, rather than through one-off fixes provided to individual clients.
  • Legal services are provided between 4 pm and 10 pm, because that’s when most individuals with jobs, kids, or parents to take care of actually have the time available to seek legal help.

In other words, you might wind up creating something like the Community Activism Law Alliance in Chicago.

Take a moment to consider that none of these three foregoing entities was created by a legal organization, a law firm, or a court — and in fact, one of them is an international success despite opposition from and prosecution by the legal profession for most of its existence.

Now, it’s likely that if you were to take on those three design challenges above, the entities you’d come up with would differ in various ways from my three examples. But I’m also pretty sure of this: 

  • If you’d never heard of law firms, and you needed a way to deliver legal solutions, you wouldn’t invent a business owned and operated solely by lawyers that sold their effort, used little technology, and had no access to non-lawyer capital.
  • If you’d never heard of courts, and you needed a way to resolve disputes, you wouldn’t construct ornate buildings in downtown cores that are 70% idle space, can only be used effectively by lawyers, and are unbelievably slow and costly. 

    Is this really what you’d build tomorrow to resolve legal disputes?

  • If you’d never heard of legal aid, and you needed a way to give poor people access to legal services, you wouldn’t come up with a system by which governments pay people from the first place to take problems to other people in the second place to find a solution. 

When you look at the traditional institutions of the legal services market — and not just law firms, courts, and legal aid, but also law schools and legal regulators — hardly any of them are what we would invent today if we needed to solve the problems they’re meant to address. If we had to start from scratch in all these areas, we would:

  • understand in detail the goal(s) we’re trying to achieve,
  • design around the end user or service recipient,
  • use only the tools and resources we truly need,
  • prioritize speed, accessibility, and affordability, and 
  • constantly improve through assessment and user feedback.

As we all know, the traditional institutions of the legal profession and the legal services market have become slow, costly, inefficient, and inconvenient. Many people and a whole lot of money have been deployed trying to make these institutions faster, affordable, efficient, and convenient. These efforts, for the most part, have fallen short or failed altogether, as these institutions have also proven remarkably impervious to reform and innovation.

But maybe we’re going about this all wrong.

Rather than trying to fix law firms, reform courts, and save legal aid, we could recognize that maybe these institutions were meant to function (and did function, very effectively) in a different set of social and economic conditions than we have today. And maybe, as a result, we should instead strive to identify, build, legitimize, and support other ways of delivering legal solutions and resolving disputes promptly, affordably, and accessibly. 

I’m not saying we should dissolve law firms, shut down courts, and defund legal aid. I’m saying that we need to supplement these old means of providing legal services with new ones that are better adapted to the world we live in, not the one our parents or grandparents lived in. Create more channels. Open more pathways to solutions. Give other options a shot.

Could we have legal services without law firms, dispute resolution without courts, legal help for the poor without legal aid? Many lawyers would say that’s unthinkable. But we buy books without bookstores, get music without record stores, see movies without theatres — and not that long ago, these were all unthinkable too. 

But Amazon, iTunes, and Netflix didn’t destroy bookstores, record stores, and movie theatres. All these business are still out there — a lot fewer than there used to be, sure, but no more than the market requires. And they are catering to people who want a different and richer experience than simply buying and consuming content online. The new options haven’t eradicated the old ones — they’ve allowed the old ones to find their core customer base, and given everyone else much more choice and convenience than they ever imagined they could enjoy. 

Not dead yet.

Would you give up Amazon, iTunes, and Netflix — and all the choice, convenience, and accessibility they’ve given you — so that we could revive bookstores, record stores, and movie theatres? I think it’s unlikely. Well, someday down the line, someone will ask the equally inane question: Would you give up LegalZoom so that we could have more law firms? Would you give up online dispute resolution so that we can open more courthouses? Would you give up community legal networks so that we could return to the golden age of the perennially underfunded legal aid certificate? 

We need more LegalZooms, more CRTs, and more CALAs. We need to authorize them, fund them, and support them. They’re not going to replace law firms, courts, and legal aid; they’re going to relieve these older institutions of the burden of trying to be everything to everyone in every circumstance — the burden of monopoly. Fighting to preserve that monopoly will go down in history as the least sensible and enlightened thing the legal profession ever did.

It’s time we stopped fighting. It’s time to set aside our preconceived ideas and conventional wisdom about what our legal institutions ought to look like. It’s time for us to start from scratch. 



9 Comments

  1. Merrilyn Tarlton

    Yes, Exactly.

  2. Mike O'Horo

    Very astute observations.

  3. Robert Garvey

    Keeping the herd running together is deeply ingrained in the profession, its customs and regulation. Professional ethics ought to be a driving force behind making legal services more accessible, but instead, written and unwritten rules are too often invoked to stop innovation.

  4. Julian Summerhayes

    Morning Jordan from a slightly snowy Devon. Given the function of the Lizard Brain and the place of Resistance (see “The War of Art” by Steven Pressfield), I very much doubt if the people who currently run the ‘system’ (aka The Matrix) will ever allow it, as anodyne and irrelevant as it is it, to fail. I now work in-house and my role is so much different. For a start, if I need to access legal services — which is quite rare apart from my own research — I do so without being dragged into a mind-numbing selection between firm A and firm B who I know do things exactly the same way. Instead, I would try to sidestep this meaningless dichotomy and select Counsel of my choosing, which means I get can a straight answer to straight question (most times) and I don’t have to feel I’m paying for a whole load of meaningless overhead. Also, I feel valued in my role rather than having to answer to a plethora of stakeholders who really couldn’t have cared less about my welfare. For my part, I’d love to see a bucket load of reinvention, but I suspect it will never happen. Keep up the blogging. It’s always a pleasure to read your work. Best wishes Julian

  5. Stephen Levett

    You mention law schools in passing as operating in ways that you wouldn’t choose if you were starting from scratch. But some law schools have torn up the rule book to teach law in completely different ways. From the Problem Based Learning approach of University of York Law School to the Law Clinic focused course at Northumbria or the incorporation of clinic modules into a traditional law degree at King’s College London, law schools are conscious of the need to change to ensure students are being prepared for the legal world to come not the one that’s gone before.

  6. Carolyn Elefant

    We do have dispute resolution without courts. It’s called arbitration and it’s been shown to be generally unfair to the injured. I see dispute resolution in my line of business – pipeline eminent domain – where land companies help negotiate easements for clients – and when they can’t negotiate an agreeable resolution, the pipeline brings lawsuits in federal court – because they can. I don’t like the legal system any more than you do and there is low hanging fruit – like getting rid of court reporters, holding proceedings and conferences online – that would be a good place to start. But in the longer term, we should just make things easier – why does a divorce require so much paperwork? Why does a will require taxes and probate? Why don’t we simplify the system. My feeling is that if Legal Zoom is capable of handling a particular matter, it should be easy enough for people to do on their own without a middle man.

  7. Lesha VanDerBij

    Love the article Jordan, but I think we’re a long way off. I recently attended an event where the participants were largely made up of individuals who would be considered the most innovative people working in big law. When asked to provide advice to a new model of law firm, I recommended using metrics to measure lawyers’ performance other than tracking hours. Seems obvious, right? A show of hands made it clear that at least half the people in the room disagreed, arguing that even if firms moved away from hourly billing, it was necessary to continue to track hours for pricing, performance management etc. I found it sad that many still considered time based tracking so critical, but that seems to be where we’re at. At least at large law firms.

  8. Karen Dunn Skinner

    A thoughtful post, as always! I agree that no one with a blank slate would ever design something that looks like the legal profession today. It has evolved over centuries to address particular problems in particular circumstances, with all the outdated social expectations and class realities that existed. Those are, as you point out, certainly not the case today.

    Still, I’m struggling with the idea of starting from scratch. I just don’t believe it’s even remotely realistic. Your more realistic proposal is that we stop fighting. As a profession, we need to recognize the shortcomings of the current system, acknowledge the vastly underserved portions of the population and the overpriced, inefficient delivery system we’ve designed.

    Those who can evolve will. The rest need to just get out of the way. Over time, the profession is going to look different. Some more traditional providers will exist alongside a raft of what are now called alternative but will eventually be normal.

    Starting from scratch is revolution. I think we’re already into a cycle of evolution, of incremental changes that will continue to occur across decades. As with natural evolution, some of these changes will work and some won’t. It will be frustrating, certainly. But it’s inevitable. And as you say, we just need to stop fighting it.


Leave a reply