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.
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.
- 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.
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.