The rise of market pricing

So yesterday, I posted some thoughts about the problems I saw with value pricing in the legal market. The post drew a lot of interest and several insightful comments, especially from Ron Baker, and I encourage you to read the post and comments together when drawing your conclusions about value pricing.

Today, in this follow-up post, I want to expand on yesterday’s closing comments about how I think the future likely belongs to “market pricing” — that is, a system based almost entirely on how much the buyer is willing to pay the provider. I’ll preface these thoughts with what I should probably have prefaced yesterday’s — that I’m not a pricing expert by any means, and that I’m not advocating for or against any particular pricing mechanism (well, except the billable hour — I’m always happy to rail against that). What I’m aiming to do here — what I do most of the time at Law21, frankly — is not to describe the preferable future, but the probable future. Sometimes, happily, these are the same thing. Sometimes they’re not.

In order to have “market pricing,” one of the first things you’ll need is a market. Law has not always provided this element — in fact, I would argue, the legal sector has not been a functional “market” in the traditional sense for most of its history. To have a market, you need both buyers and sellers — plural. If you have one buyer and one seller, you’ve got a transaction. If you’ve got one buyer and many sellers, you’ve got a monopsony. And if you’ve got many buyers and one seller, you’ve got a monopoly — in this case, personified by the legal profession.

When you think about it, monopolizing a city’s housing market is a weird subject for a family game.

As I’ve written before, whatever the positive outcomes of restricting the authorized provision of legal services to a single class of provider, consumer choice is not among them. It’s trite to observe that most lawyers don’t view themselves in commercial terms (“Law is a profession, not a business!”), don’t like to compete against each other (it’s still forbidden in many jurisdictions for one lawyer even to suggest she’s better than others), and strike back ferociously against “non-lawyer” market activity. Lawyers have always been the exclusive supplier of legal services, and the organized Bar devotes enormous energy and resources every day to keeping it that way.

That’s why “market pricing” in the law has essentially always been “lawyer pricing.” We value our services according to the effort required and the costs incurred in applying our talents, and we decide what those efforts and costs should be. As I argued yesterday, this is largely because we don’t know any other way of doing it — but let’s be honest, it’s also because doing it this way has been easy, convenient, and profitable. So long as we’re the only authorized and competent providers of legal services (and lawyers get the final word on both authorization and competence), so long as we have knowledge and access and skill that no one else has, then we are the market. And we’ll price our services however we like.

That’s the world we all lived in up until about a decade or so ago. That’s when we began to see the emergence of unauthorized (hello, LegalZoom), newly authorized (hello, LLLTs), and unanticipated (hello, computer) suppliers of competent legal services. You could write a book about this (some have), but what matters for our purposes is that there is now more than one type of seller in the legal world.

And while these new players are still in their relative infancy, and lawyers still command the vast majority of legal spending, the seal has been broken. Lawyers’ share of the legal services market has peaked. (Since it used to be 100%, it really had nowhere to go but down.) Our share will decline from this point onwards — not down to zero, not anywhere close to it, but low enough that other suppliers can gain and solidify viable positions. And we will have an actual, functional market in legal services.

As we approach this event horizon, a lot of things are going to change, and the pricing of legal services will be among them. A multi-provider legal services market will breed intense competition for market share. There are three principal ways to win and retain market share in the legal sector.

Compete on quality. This is where lawyers instinctively gather — we maintain a nearly religious belief that our excellence, expertise, and education will persuade clients to choose us (as they should!) over anyone else. The problem with trying to compete on superior quality, though, is that not many clients can accurately assess quality, and fewer still base their purchasing decisions on getting the “very best.” And as technology upgrades and process improvements continue to take hold in the legal sector, the standardization (get used to that word, lawyers) of legal work will come ever closer, and quality distinctions between providers will cease to be very meaningful. Quality, from the client’s perspective, is table stakes: they assume it. What else you got?

Compete on service. A number of smart providers (not all of them lawyers) will differentiate themselves on the basis of the way in which they deliver their services, including the client’s experience throughout the transaction. Ron Friedmann’s excellent post on this subject should be a call to arms for lawyers to take service seriously, through better operations, user design, relationship-building, and responsiveness to client preferences. The great thing to remember about competing on service delivery is that anyone can do it — it takes no special intellect or pedigree to treat your customers like gold, just effort and commitment. But for all I champion competing on service, there are still significant investment costs to get there, and as more providers figure it out, it could well be a diminishing differentiator over time. And that leaves:

Compete on price. This is where the legal market is going — slowly and fitfully in some areas, rapidly in others. We’re going there because price is the one thing clients can understand at the beginning of a transaction — service doesn’t manifest itself until during the transaction, and quality doesn’t manifest itself until afterwards. Price is clear, obvious, comparable, and certain — you know what your investment is going to be right from the start. A billable rate and an estimate of hours is not a price — it’s a non-binding estimate. Nobody prefers non-binding estimates over a set price, including lawyers. The legal market is now filling up with providers willing and able to offer a set price at the outset. They’re going to take business away from providers who can’t.

Note that I haven’t said “Compete on the lowest price.” That’s not what I’m talking about. Number one, we’re not there yet — first we need to get to a point where most legal services are sold with a price tag, not a running meter, and that’s still some distance away. Number two, the lowest price in any market is not always the winning one — for many buyers, price is a proxy for quality, both low and high, and some buyers are not comfortable with the lowest bid. But rest assured, as quality differences among suppliers continue to narrow — and we are a lot closer to that point, in both the corporate and consumer legal markets, than many lawyers think — and the risk that “low price = low quality” falls, then prices will fall, too. And as price competition heats up, many legal services will become much more affordable than they are now.

Ideally, the value of a legal service will match up reasonably well with its price, but there’s no guarantee of that. Ask a criminal defence lawyer how that feels. (In my own perfect world, governments would significantly subsidize the income of lawyers who practise criminal, family, and refugee law, in recognition that the value of their services to the client and to society far surpasses what even healthy market mechanisms can provide. This would be more than just “legal aid” — this would be a restructuring of private legal services in these areas into a quasi-public service, maybe even a utility.)

Steer clear of Water Works, though.

Some areas of the law will be less amenable to automation and standardization pressures, of course. This is where you’ll find your outstanding advocates, your shrewdest negotiators, your most insightful counsellors. They’ll charge staggering amounts of money for their services, far more than they do now, because their customers need what they’re selling and can afford it. In some ways, they’ll come closest to “value pricing” as I described it yesterday — really getting paid what their services are worth — but probably still won’t achieve it. (If you give one piece of good advice every week to the $50 million CEO of a $50 billion company, what should your take-home pay be? I’d say a lot more than $1,000 an hour.)

My larger point, however, is that the pricing of lawyers’ services will be affected by many factors — but lawyers’ opinion of what their services are worth won’t be among them. This is what I mean by “market pricing” — buyer preferences, enabled by market forces beyond lawyers’ control, will determine how much money buyers fork over for legal services, and in what format. If the new legal market resembles other markets to any degree, then buyers’ pricing preferences are going to include:

  • simplicity,
  • convenience,
  • reliability,
  • comparability, and
  • affordability.

Roughly, I suspect, in that order.

And I’ll add this: It is in the direct financial interest of clients to accelerate the evolution of the legal sector towards multi-provider status. This might not yet have occurred to groups like corporate counsel associations and chambers of commerce, but if not, it very soon will. The more sellers, and the greater diversity of sellers, of legal services in this market, the sooner that buyer-driven pricing will become a reality. Lawyers and bar groups that continue to fight the “non-lawyer” battle should be aware that it won’t take long for their clients to choose a side in that fight.

So what’s the takeaway for lawyers? Above all, I think, it’s this: In a market in which you have little control over your price, you must have complete control over your costs. You cannot tolerate a situation in which your costs of doing business are unstable or unpredictable. You can’t be at the mercy of your suppliers of goods and services (as indeed, your own clients cannot be at the mercy of you). You can’t run a business riddled with inefficiency and duplication, or you’ll be cleaned out by other businesses that aren’t. You must know not only how much it costs you to deliver a service, but also how to continuously reduce that cost, how to increase your productivity, to remain competitive. If you invest well in process enhancements, service upgrades, and marketing improvements, then you’ll be able to influence your price, perhaps significantly. But complete control? Very unlikely.

Pricing is hard. One of the reasons it’s especially hard in the legal sector is that we’re just now emerging from a monopoly situation in which pricing didn’t really matter — we didn’t even have “price,” in many cases. Our current struggles around pricing are just part of the birthing pains of an actual, healthy, bouncing baby market. If you don’t have a handle on it yet, don’t be too hard on yourself — not many people do. But you do need to get a handle on it as soon as you can. When it comes to legal pricing, our time is not our own.

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I’m honoured to have received this review of my new book, Law is a Buyer’s Market: Building a Client-First Law Firm, from James G. Leipold, Executive Director of the National Association of Law Placement (NALP).

“This is a book you should buy and read if you take an active interest in the future of large law firms in North America, but I would go further and recommend you buy two copies, sneaking one onto the desk of your managing partner or dean by stealth in the dark of night. [Jordan] does as good a job as anyone of diagnosing the current law firm malaise, and he does it with an easy grace and style that makes the read a pleasure — then he goes further and offers a road map for building the law firm of the future.”

Learn more about Law is a Buyer’s Market, including how to order here at Law21.

The problem with value pricing

A day in the life of the corporate legal market:

A law firm submits a bill to a client. The client doesn’t like the bill because the amount is higher than expected or seems incommensurate with the value of the service. The client contacts the firm and asks for the amount to be reduced.

What does the firm do? Eight times out of ten, it reduces the amount, at least according to all the accounts I’ve heard and read. The client pushes back, and the firm gives way. This happens every day in the corporate legal world, and when it happens often enough, the nature of the transaction itself changes. The “final” bill issued by the firm actually becomes the starting point in negotiations — short and one-sided negotiations, as it turns out, because the client says, “I will pay this much,” and the firm invariably says, “Okay.”

Why doesn’t the firm push back harder? Why doesn’t it take steps to demonstrate that the bill represented good value? Because, in most cases, the firm can’t. It can’t really explain why Lawyer A spent 37 hours on the client’s project, beyond “That’s how long it takes,” and why her billable rate is $275 per hour, beyond “That’s how much she costs.” Why does it take this long? Why does she cost this much? These questions are terrifying to lawyers, because their honest answer would be: I don’t know. Lawyers have never thought much about it, because they’ve never needed to think about it. That’s not how the legal market has worked up till now.

But, notice: The client does not normally offer a substitute value definition. The client does not say, “The value of the services you provided to us is closer to $X, an amount we calculated according to the attached methodology, so send us a bill for this amount.” Most clients can’t easily assess the value of the legal services they received either, but they’re pretty sure the firm’s bill is too high and they’re very sure they can get it reduced. So they’re likelier to simply say, “Knock 12% off the amount” or “Drop all billings for lawyers called fewer than three years ago” or some such. In practical terms, neither lawyers nor clients really know the value of the lawyers’ work. They’re both groping around in the dark.

Clients undertaking a careful assessment of lawyer value.

Lawyers have always measured and sold their services according to inputs — their hourly efforts, primarily — because it’s all they’ve had to go on. Lawyers can easily measure their inputs, but they can’t really measure outputs, because legal output value is entirely situational and subject to the client’s experience and assessment. Clients have never enjoyed paying lawyers on the basis of inputs, but it’s not like they had any better ideas. “Value pricing,” attractive as it is in theory, confronts clients with some hard questions: “How much are these services really worth to me? Do I want to take the time to find out? And if I do find out, do I want to tell the lawyer?”

Consider: How much is a contract worth if it never gets so much as glanced at by either party for its entire term? (This describes a whole lot of contracts.) Based on outcome and use, the contract arguably is worth almost nothing. How much is that same contract worth if it ends up helping to clinch a transaction worth $300,000? Now, what if a $300,000 dispute is avoided because the contract was so well-drafted? Would anyone ever know the dispute was avoided? If the client somehow found out, do you think he’s going to call up the lawyer and invite her to send him a new bill to reflect this higher value?

Or how much is a last will and testament worth? Set aside for a moment the insurmountable challenge of pricing the peace of mind that comes with knowing your loved ones will receive the assets you intend for them. Suppose the testator has assets of $10,000 — how much should the client pay for that will? What if the testator wins the lottery the day after he buys the will, and his estate is suddenly worth $10,000,000 — is the drafting of the will suddenly worth more?

The most frequent response to these objections, and it’s an entirely reasonable one — I’ve been making it myself for some time — is that the lawyer and the client should have detailed conversations about their respective needs and situations, develop a degree of trust in the other’s good faith, and arrive at an amount (or a framework for determining an amount) that strikes both sides as fair in the circumstances and attentive to each side’s needs. A fine example can be found in this insightful article in Bloomberg Business of Law, which describes Ron Baker’s excellent eight-step model for setting up a value-pricing system between a law firm and a client.

I’m confident that this model is extremely effective, and for those lawyer-client relationships that have managed to put it into practice (mostly those with large volumes of repeat business, I’d imagine), it seems to be delightful. But I’m also confident that many firms and clients alike would consider it to be a significant outlay of effort and resources. It requires a lot of time, expertise and goodwill on both sides to make it happen — a degree of exertion that rarely scales and that most people, lawyers and clients alike, aren’t interested in making. (I’m not saying, to be clear, that they shouldn’t make the effort. I’m just saying, in practical terms, most won’t.)

So close to unprofitable.

This is the real reason, I think, why value pricing has been slow to make headway in the legal market: It is incredibly difficult to calculate the value of lawyers’ services. It’s a huge hassle. Many people want something easier to understand and simpler to implement, even if it’s less reflective of actual value. The billable hour is not hanging around because it’s a brilliant pricing mechanism. It’s hanging around because we haven’t come up with anything equally simple but markedly better.

And these are just the easiest examples. How much is it worth to help someone escape an abusive marriage and keep a violent ex-spouse away? How much is it worth to help someone stay out of a brutalizing federal penitentiary? How much is it worth to help someone flee certain death from religious persecution by enabling their emigration to a liberal democracy?

The value provided by lawyers in family, criminal, and refugee law is off the charts — yet they’re some of the lowest-earning lawyers in the profession, because the value of their services routinely outstrips their clients’ ability to pay it. The “value pricing” argument cuts both ways, and not always to the client’s benefit. And anyway, in none of these situations does either the client or the lawyer have the time or inclination to develop a trusting relationship that can enable fair pricing.

The real value proposition of most legal services is an enigma, one that can be solved with great effort over a sustained period of time — but my expectation is that few people will consider this kind of effort worthwhile.

So how can we better price lawyers’ services? “Input pricing” is a fiasco: the price bears no relation at all to the value of the work, and the client bears all the risk of errors and inefficiencies by the lawyer. “Value pricing,” as I’ve tried to demonstrate, is theoretically appealing but is often unworkable without a significant investment of effort in each client transaction — an effort that in itself will raise the cost of the lawyer’s services and complicate a process that most clients desperately want to streamline.

For these reasons, I’m coming to think that the likeliest pricing system to emerge for legal services will be simply “market pricing” — that is, how much the client is willing to pay the provider. I don’t pretend that this is necessarily a desirable system — it’s a highly imperfect one, and potentially regressive. But as the legal market continues to evolve and legal supply continues to diversify, I think “market pricing” will be able to deliver more fairness, value, and expedience to the pricing of legal services than we have today. More on this in a follow-up post, “The rise of market pricing.”

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Law is a Buyer’s Market: Building a Client-First Law Firm is available here at Law21 (in print) and at Amazon (as a Kindle e-book). “This is an exceptionally clear book, brimming with practical help, and humorous into the bargain,” says Richard Susskind, author of Tomorrow’s Lawyers. “Jordan’s assessment of the legal market should be read carefully by clients and lawyers everywhere.”

Getting over technology

Since the start of the year, I’ve received three different media calls asking me about the role of artificial intelligence in the law. Partly to make good use of the notes I prepared for these calls, and partly so that I’ve got something written down to which I can send reporters with future inquiries of this type, here are some of my thoughts on the topic of technology in law practice.

The truest observation ever made about technology remains this one from American computer scientist Alan Kay: “Technology is anything that wasn’t around when you were born.” British author and technophile Douglas Adams famously expanded on Kay’s comment: “Anything that’s in the world when you’re born is normal and ordinary and just a natural part of the way the world works. Anything that’s invented when you’re between 15 and 35 is new and exciting and revolutionary and you can probably get a career in it. Anything invented after you’re 35 is against the natural order of things.”

Great game, weird book.

These two quotations should be borne in mind anytime you start talking about technology in law firms. Law firms are stuffed to the rafters with technology, and always have been. There’s the photocopier, for example — an extraordinary device, if you stop and think about it, and who talks anymore about how many monks it replaced? Email blew me away the first time I used it — you can send a written message to someone in the building next door, immediately! The telephone, for crying out loud — maybe the most revolutionary invention of the last 500 years, and now we let almost every incoming call go to voicemail. Since the time feathered quills and inkwells were first replaced by fountain pens, lawyers might have complained about every new technology, probably resisted it, but inevitably they accepted and assimilated it.

So it will be, soon enough, with artificial intelligence. I’m as amazed as you are by what can already be accomplished in legal services by machines equipped with cognitive reasoning, and how much more those machines certainly will accomplish in future. But right now, somewhere in your community, someone in her late teens is thinking about maybe applying to law school someday, and by the time she’s called to the Bar in 2027, AI-powered legal services will be normal. They’ll be routine. They’ll be boring. And our future lawyer will be less than 10 years away from grumbling about genetically engineered judges.

By all means, maintain a childlike sense of wonder about the evergreen miracles of technology as long as you can. Keep postponing and rescheduling your appointment with curmudgeonhood (I missed that train awhile back.) But at the same time, maybe the best thing we can all do to really absorb and apply the astonishing power of technology is to just get over it.

Let AI become normal. Wait for it to become routine — it probably won’t take as long as you think. But the longer we talk about the exciting but virtually indefinable term “artificial intelligence,” and the longer we tolerate the repeated use of “robot lawyers” with anything but self-aware irony, the longer it’s going to take us to make the necessary adjustments to our worldview and just get on with things.

If I could offer one reliable way to help speed along this adjustment, it would be this: Stop asking whether “AI will take away lawyers’ jobs.” Stop asking what AI will do to, or for, the legal profession. Stop thinking about AI from the perspective of the lawyer altogether and start thinking about it from the perspective of the client.

How will AI help clients? Will employing AI, or any burgeoning technology, help a client to get what it needs faster, less expensively, or at a higher degree of quality? Will the client get a better result — measured in outcome, experience, or resource allocation — using a new technology than would have been possible or probable with pre-existing tools and methods? If I’m at a legal tech trade show and I’m talking with an AI vendor, this is what I want to know, and I want numbers and case studies to back up the answers.

Because if there are AI tools out there that can deliver those foregoing outcomes to my clients, then I want them in my law practice, today, while I can still derive a competitive advantage from using them — before they’re widely available, before they’re commonplace, before they’re boring.

Ten to fifteen years from now, by the time our late-teens prospective lawyer is well into her career, many law firms could offer a branded, mobile, user-friendly application to which their clients subscribe, on a paid or even a complimentary basis. Clients would ask this application — out loud, with their voices — questions about how the law applies to a situation they’re facing, or what they should do in a circumstance in which they find themselves. They’d receive immediate, practical, and accurate answers from the application, close it up, and get on with what they’re doing.

Any sufficiently advanced technology is indistinguishable from the Magic School Bus.

Today, we’d consider that to be a significant, even sci-fi-level advancement (and make no mistake, we have a significant distance to go to get there). But by the time we do get there, it will be considered normal. “Yeah, that’s just the Answer App; all the firms have one now.” The great gift (and curse) of technology in the 21st century is how quickly it renders the magical commonplace. Law, which is so far behind technologically and has so much ground to make up, is going to experience that gift in an especially rapid-fire and visceral fashion.

So quit worrying about what technology will do to you and your firm. Start thinking instead about what it can do for your clients. Figuring out the second point will, in due course, take care of the first.


Foreshadowing: Look for a major announcement here at Law21 next Monday, March 20. In fact, I’d even say you should …. [puts on sunglasses] … book the date.

Navigating the multi-polar legal market

Georgetown Law School and the Thomson Reuters Legal Executive Institute are ready to call it: the party’s officially over. The 2017 edition of their annual Report on the State of the Legal Market is unequivocal in its assessment of how completely the commercial legal services market has changed over the past decade.

Corporate clients, under intense internal pressure to reduce the overall costs of legal services, insisted on taking control of their matters and managing the work of their outside law firms to a degree never before seen. [They] emphasized the need for greater efficiency, predictability, and cost-effectiveness in the legal services they received. This basic change in client attitudes … has resulted over the past decade in fundamental changes to the legal market itself. These changes are foundational and, in all likelihood, irreversible.

These trends are sufficiently familiar to us by now that we might dismiss this as merely a statement of the increasingly obvious. But consider just how much has changed in the last decade. Ten years ago this month, the Dow Jones Industrial Average stood above 12,000 points; the NASDAQ hovered around 2,400 and the S&P 500 at 1,400. Two years later, they’d each lost more than 40% of their value. While the indices have more than recovered in the intervening decade (they stand at 19,828, 5,565, and 2,268 this morning, respectively), law firms’ fortunes have not.

Those were the days, my friend, we thought they’d never end….

Back in 2007, as “The State of the Legal Market” reminds us, firms were coming off “more than a decade of almost uninterrupted growth in demand, revenues and profits.” As the report’s subtitle (“10 Years of a Stagnant Law Firm Market”) suggests, those days are a hazy golden memory. “[D]emand growth for law firm services has been essentially flat, productivity has been declining, expenses have been growing (albeit at a fairly modest rate), and leverage has remained essentially unchanged. In short, the only factor positively impacting revenue growth has been the ability of firms to raise rates 2 to 3 percent a year.”

So the market conditions for commercial legal services have changed, and many law firms are significantly worse off for it. But the remarkable thing (or the frightening thing, depending on your perspective) is that we haven’t even seen real change in this market yet.

All that’s really happened so far is that corporate clients have become rather more stringent about outside counsel budgets and have begun to use alternative suppliers more frequently. Those measured steps alone have been enough to eviscerate profit margins in many law firms. Imagine what will happen when clients start to get serious.

Because so far, they really haven’t. Ron Friedmann makes this point in an illuminating post titled “Legal Operations – What We Know Now.” Ron reports on the slow ascendance of law firm shared services centers and other staffing changes, but I’m especially interested in his dispatches from the client side, based on the Blickstein Group’s Law Department Operations Survey:

  • 57% of responding law departments, up from 50% two years ago, report having an LPM program. Of these, only 2.5% report the program as “very effective” and 44% as “somewhat effective.” In my view, more law departments need LPM and they need to do it better.
  • 63% report having formal metrics or reporting but effectiveness is low. On a scale of 1 to 5 (where 1 is primarily manual and 5 is fully automated with dashboards), the average is 2.1. To get more value from both in-house and outside lawyers, law departments must continue on the metrics past more rapidly.
  • Law departments use providers other than law firms for a range of functions as the chart below shows. Legal process outsourcers (LPO) are one provider type doing this work: 21% of respondents use LPOs, up from 17% in 2015. These data are one explanation for the relatively flat growth of large law firms.

These are, let’s be honest, pretty weak numbers. Fewer than 3% of law departments find LPM “very effective”? Metrics and reporting earn just a 42% average grade in sophistication? Barely one in five law departments sends work to LPOs? This isn’t a knockout punch; these are merely exploratory jabs — yet they’ve still been strong enough to send many law firms reeling.

There’s no single reason for the trepidation with which law departments have flexed their muscles so far. I don’t think you can attribute it all to doubts about the efficacy or reliability of alternative legal services providers: the major players in this sector have ten-plus years of outstanding results and tens of millions of dollars in annual turnover. Nor can you still put it down to loyalty shown by general counsel to their longtime law firms, a rapidly diminishing commodity as generational change reshuffles the ranks of law department leadership. It might, in the end, simply be the difficulty everyone encounters when trying to break old purchasing habits, multiplied by lawyers’ inherent difficulty in changing anything.

But I do think an additional, underrated factor might be a high degree of uncertainty within law departments about what their options actually are. I’ve presented to law departments and spoken with in-house lawyers who are intensely interested in getting better results, faster and less expensively, than their traditional methods have delivered. But they don’t know:

  • what categories of new processes or alternative suppliers are available to them,
  • which processes and suppliers are most highly regarded within each category,
  • which processes and suppliers are most appropriate to use in a range of situations,
  • what bottom-line improvements they should expect from using such processes and suppliers,

and perhaps most importantly,

  • what they themselves would have to do differently if they employed these processes and suppliers.

Armed with this information, law departments could greatly accelerate their use of alternative methods and suppliers of legal service delivery. The problem is that there’s no obvious credible place to obtain this information. The providers of the alternatives themselves are hardly an objective source of insight; equally, I wouldn’t rely on law firms to extol the relative virtues of their competitors. A number of legal consultancies have this capacity in theory, but I’m not aware that any specialize in practice (though I’d be happy to learn otherwise).

It seems to me that this calls for a new capacity in the legal market — one that I cover in my upcoming book Law Is A Buyer’s Market: Building a Client-First Law Firm, which you’ll be able to buy here at Law21 late next month. (Yes, this is a plug.)  Here’s what I wrote on this subject:

In this new market, legal services buyers have to work a lot harder to choose their legal services providers and must manage their legal affairs much more closely. They need to understand how legal tasks are carried out, which legal services (if any) they should carry out themselves, and how to monitor the progress of all their legal tasks against various time, budget, and effectiveness milestones. Even more challenging, buyers have to assess the value that their desired legal services provide to them, in order to figure out a fair price for those services and judge whether the services were delivered to expectations and specifications.

In this regard, a great opportunity awaits lawyers (or if not lawyers, anyone else with smarts and ambition): to create the role of “legal concierge.” This is a professional who gives you, not legal advice, but instead advice about buying legal services. He or she analyzes your situation, asks some questions, identifies potential sellers of appropriate services, and prepares you to approach and negotiate with them. You could think of it as a broker or real estate agent for legal needs, but I prefer the personal-service feel of “concierge.”

Nobody under the age of 55 will get this reference.

From a law department perspective, you could have a good argument about whether to “build or buy” this capacity. If the legal function is large and complex enough, you would invest a person or small team with the mandate of mapping out the entire ecosystem of alternative processes and suppliers and advising lawyers and support staff of the best options for each kind of project or case. Smaller law departments wouldn’t have the budget to develop that functionality, but they’d probably be interested in an outside concierge service that they could retain for advice on individual matters.

The real potential for a legal concierge, however, would be in the consumer and small business market. This sector is almost as dynamic as the commercial law market, in terms of emerging options to traditional law firms. But the buyers in this sector have almost no knowledge of the many cost-saving and efficiency-upgrading options that are now coming available to them.

Surveys repeatedly demonstrate that individuals and small businesses see legal services choice as a stark dichotomy: either hire a law firm or do it yourself (or ignore your legal matter altogether). They’re not just unaware of what other options can do; they don’t even think about the possibility that there are other options.

If you could reduce or eliminate that blind spot, you’d not only provide a valuable commercial service; you’d also go some distance towards closing the access-to-justice gap. Increasingly, I suspect, the A2J movement is going to focus less on making lawyers’ services more affordable, and more on making people aware that they have choices other than lawyers for their legal needs. In that vein, a good legal concierge could skilfully and objectively scan the legal market for various types of service providers and develop systems by which it could recommend that its clients retain one or another combination of such providers for its specific needs.

Like any good brokerage, of course, a legal concierge would have to be clearly independent and immensely trustworthy, so maybe it would be best to start out as a public or government agency (which would also alleviate the cost of using the service). But over time, I could see a company with a strong brand in trusted recommendations (hello, Amazon) take this service into the private sector. The legal market is becoming a complex, multi-polar environment, and with so many new destinations on offer, navigators are becoming increasingly necessary. A legal services concierge could be a good place to start.

Buyers of legal services are in ascendance, even if they don’t entirely realize it yet. Eventually, they’ll fully appreciate the power they hold and the options at their disposal, and they’ll start to navigate among those options with ever-greater confidence and discernment. Once that day arrives, many law firms might look back fondly on these last ten years not as an unhappy time of stagnation, but rather as a relative period of gentle and graceful decline.

Playing the client’s game

Some years ago, when I was working for the Canadian Bar Association, real estate lawyers in Canada became deeply troubled about losing their lead role in residential real estate transactions. They complained that they undertook a great deal of work and expense to ascertain the validity of title, yet they made only a few hundred dollars per transaction, while realtors and title insurance companies did much less (in the lawyers’ view) and made much more. Many of the strategies drawn up to change this state of affairs aimed (ineffectively, as it turned out) to restore the lawyer as the “quarterback” of the real estate deal.

Maybe you're not quite right for this role.

Maybe you’re not quite right for this role.

My problem with that approach, as I expressed it at the time, was this: I don’t think lawyers are the quarterbacks in this market. Quarterback is the most powerful position in football, a big-picture strategist, personnel manager, and elite performer all rolled into one. But most lawyers are tacticians, not strategists, and they prefer neither to manage nor to be managed. More likely, I said, we’re the third-down fullback called on to blast through the line in a short-yardage situation, or the speedy wide receiver who goes deep on 3rd-and-22 to make a big play. We’re specialist performers who wait on the sidelines until we’re called upon to do one thing really well.

I was reminded of that observation this week when I read a column by Anthony Hilton in the UK’s Evening Standard with the galvanizing title, “Why their profession’s failures mean lawyers don’t win top City jobs.” Among his critiques of the commercial bar, Hilton had this to say:

[L]awyers have allowed themselves to be pushed further and further down the food chain, and away from the seat of power. In today’s commercial world, when there is a deal to be done, it is picked over by investment bankers, brokers and public relations consultants — all of whom have a share of the ear of the chief executive. Then when all the high-level stuff has been sorted by these experts, the package is tossed to the lawyer with instructions to sort it out and make it presentable. … 

[L]awyers have lost the glamour, the access and the special status that came with having opinions worth listening to. They have allowed themselves to be commoditised and to become the last port of call. They have allowed some of their best brains to move in-house as general counsel in the biggest companies, taking the interesting legal advisory work with them. … 

Now, when Hilton speaks of “lawyers” here, he means the private Bar, members of law firms engaged in private practice. But of course, “lawyers” are also working in-house, as the very corporate counsel he refers to here. They’re serving as the executive-level advisors and risk management experts in corporations’ corridors of power.

So it’s not a question of “lawyers” per se losing their power and value. It’s a question of where lawyers need to go these days if they want to develop real power and deliver real value in corporate affairs. Hilton suggests they need to go to the client side — and that, when you think about it, is an astounding turn of events. Remember when law firm partners would look down dismissively on those lawyers who “couldn’t cut it” in practice and had to take refuge in-house? It wasn’t all that long ago.

I don’t think there’s any question that power (and therefore prestige) is increasingly accumulating on the buyer’s side of the legal service relationship. How much power? Consider another column, this one by Alex Novarese of Legal Business in the UK, who was reflecting on whether anything in the legal market really posed a genuine threat to the world’s most elite law firms. He concluded that there was such a threat:

[I]t comes from those paying the bills, the clients. The sustained development of in-house teams means major bluechips already have legal teams that resemble global law firms in their breadth and resource. …  The drain of good people from private practice to in-house has become a feedback loop and a dangerous one for law firms as it remakes the legal industry. In the UK, more than one in four commercial lawyers works in-house. On current trends, it is not outlandish to imagine a 50/50 ratio in 20 years. What happens to the conventional buy/sell dynamic when the clients have as many providers in-house as externally? Why go to a law firm at all?

That last question is remarkable simply for the fact that it can reasonably be asked. And as the world’s largest legal buyers build more and more internal legal capacity, there’s no obvious answer.

Google’s in-house law department, for example, employs 1,000 lawyers to focus solely on legal issues, which is more scale and expertise than the vast majority of law firms can muster. But Google, like many other companies, also maintains a Legal Operations team, which handles legal technology, internal operations, and interestingly, “vendor management” — and the “vendor” category includes outside counsel. Law firms, increasingly, aren’t going to report to the General Counsel — they’re going to report to the Director of Vendor Management. What does that tell us about how power and prestige are shifting?

If you’re looking for the quarterback in the corporate legal market right now, I think you need to go visit Legal Ops. The skyrocketing growth of the Corporate Legal Operations Consortium suggests that Legal Ops will continue to take on more power and responsibility in the corporate legal services relationship. And as power continues to accumulate on the client’s operational side, a major change is occurring in how corporate clients view legal matters.

The ongoing trend towards insourcing legal work, and the consequent decline in the amount of work sent to law firms, confirm that corporations are now building up their internal legal infrastructure. But they’re not just adding more lawyers — that would amount to simply replicating law firms inside the corporation, which is not a smart way to go about it. Large corporations are instead re-engineering their legal infrastructure towards a new model, one in which Legal doesn’t seek to address every legal issue within the company (which is an impossible task in massive organizations). Instead, the new infrastructure aims to help the company and its people solve legal problems themselves — or better yet, anticipate legal risks and thereby avoid problems altogether.

That’s a significant strategic shift, because it re-envisions the role of “legal problems.” Law firms tend to regard legal problems as part of their inventory, providing solutions to those problems on an hourly basis. But corporations view “legal problems” as an obstacle to business continuity and corporate profit, and therefore as something to be minimized and eliminated. In this model, legal expertise reduces friction and therefore cost. It’s not something you buy, it’s something you integrate into your business to help it run better.

“There are no legal problems,” said Cisco’s Mark Chandler recently. “There are only business problems.” I don’t think that’s entirely correct. But it doesn’t matter what I think — it matters what the general counsel of one of the world’s largest corporations thinks. And he’s redefining legal issues away from law firms and towards the company’s legal infrastructure.

No, I’m not saying this is “the death of BigLaw,” obviously. What I’m suggesting is that the large, full-service law firm — the traditional business platform for private-sector lawyers serving corporate and institutional clients — is entering a period of existential crisis. What purpose will law firms serve in this market? Why will clients go to them at all? What do they offer that the buyer cannot either develop and deploy internally or acquire elsewhere at a competitive price?

I’ve heard it said that 80% of corporate legal work is going to either stay in-house or be directed to lower-cost third-party specialists, with the remaining 20% of high-end, high-stakes legal tasks (the “bespoke” work) delegated to outside counsel. But law firms developed as destinations for 100% of that work, and they have the size, overhead costs, and hierarchical structure to prove it. What does it look like when a supplier loses 80% of its business? How do you cope with that?

We’re entering uncharted territory here, and there are possibilities arising that we’ve not considered before. Maybe full-service law firms that performed every aspect of a legal matter, no matter how trifling or routine, were a temporary stop on the evolutionary road of legal services. Maybe such law firms are vestigial and will eventually fall away — to be replaced by smaller expert boutiques where legal shoppers go for occasional splurges, while the rote work that supported their predecessors is either claimed by software and systems or is performed by clients in the ordinary course of events.

Is that the future for BigLaw? Are large law firms destined to be simply a collection of third-down specialists, niche experts called in to perform a high-value task once in a while? And if so, is there necessarily anything wrong with that?

I really don’t know the answers to these questions. But what I do know is that law firms — at least, as they are currently owned, structured, and managed — are in the process of losing their status as the legal market’s power brokers. The center of gravity in this market is shifting to clients, and it’s not going back. The law firm is now just one more resource among many, a particularly fussy and expensive resource called in only when absolutely necessary. And someone else is going to decide what “necessary” looks like.

The last, ominous, word on this goes to Alex Novarese: “what your clients want is not always good for you. What your clients want can clean you out.”

football

How client succession is driving law firm consolidation

Maybe, as the President of the United States believes, the world needs more Canada. What we do know is that the world evidently needs fewer Canadian law firms.

It’s been a busy month in the Canadian legal marketplace. On Sept. 12, Norton Rose Fulbright completed its six-year-long Canadian expansion by acquiring Vancouver’s 95-lawyer Bull, Housser & Tupper. On Sept. 20, DLA Piper picked up Toronto IP boutique Dimock Stratton and 16 of its 19 lawyers. And just yesterday, the largest firm in Manitoba (Aikins, MacAulay & Thorvaldson) and the largest firm in Saskatchewan (MacPherson Leslie & Tyerman) announced their merger and the creation of a 240-lawyer western Canadian firm, MLT Aikins. Market watchers might also recall that global labour and employment law giant Littler Mendelson came to Canada last year by swallowing Toronto L&E boutique Kuretzky Vassos, among other recent consolidations.

Canadian lawyers celebrating another law firm merger.

Canadian lawyers celebrating another law firm merger.

There’s something going on here, and it’s not just limited to Canada. I’ll run through some of the local implications first before looking at the big picture.

The Norton Rose, DLA Piper, and Littler expansions are qualitatively different from the MLT Aikins merger (although the fashionable thing these days is apparently to call all such deals “combinations”). These first three deals are acquisitions, pure and simple — and the easy way to differentiate an acquisition from a merger is that in the former, the name of the acquired entity disappears completely. Norton, DLA and Littler are international firms with worldwide brands, and a major element of their value proposition is sheer size and geographic reach. Each of these firms grows by absorbing smaller firms (or in the case of Ogletree Deakins, which also crossed the 49th parallel earlier this year, by raiding an established large firm). Norton Rose says its shopping spree is done; I’d be surprised if the same were true for DLA or Dentons, or for other global firms that are probably in serious acquisition talks with smaller Canadian firms right now.

MLT Aikins is a different beast — it’s a good old-fashioned blockbuster merger, of the kind we’ve not seen around here for awhile. The two originating firms were about equally matched in size and reputation in their neighbouring provinces (it’s a coincidence, but a nice one, that two of western Canada’s largest potash companies also announced their plans to merge this month, creating a $36 billion behemoth). A Prairie law firm (MLT Aikins will have a robust presence in Alberta and a smaller one in British Columbia, but it will probably be dominant mostly in its home provinces) is a sensible idea, and an overdue one: look at Atlantic Canada, where a fleet of small provincial firms merged into regional powerhouses back in the 1990s. And while many people outside the country (and more than a few inside) might dismiss what they think of as Canada’s “flyover provinces,” there’s a lot of resource development and business innovation happening there. If the two firms can successfully merge their cultures and operations — and that, of course, is always a colossal “if” — than MLT Aikins could be a powerhouse.

But this trend isn’t limited to Canada. Altman Weil told us back in January that 2015 was a record year for US law firm combinations (there’s that word again). Look closely at the list, however, and you’ll see that most of these “mergers” were the absorption of smaller firms in myriad jurisdictions by global giants (Dentons in particular seems like it won’t be satisfied until it has an office on the moon).

The advantages to the acquiring firms in deals of this type are obvious: new locations opened, top lawyers acquired, cash and PPP infused, brand extended, and so forth. Not everyone would choose to make size and reach their market differentiator, but if that’s what your firm has decided to do, then these are the tactics you adopt. Managing a firm that far-flung and with that many people — most of whom belong to a profession that’s not exactly renowned for collegiality and esprit de corps — is going to be, shall we say, a challenge. But if this is the life you’ve chosen, then I wish you godspeed.

What’s a little harder to perceive are the advantages to the acquired firm. Name deleted, history ended, autonomy lessened, reputation slowly fading away as new brand replaces old — that’s not what you’d normally consider a loot bag of treasures. If the new name, brand, and reputation are superior to your old one, then great. And if the new platform is stronger, more technologically advanced, more efficient and productive than what you had before, then all the better. But it seems to me that few law firms secure in their markets and happy with their current status and future prospects would be rushing to make that trade. One does not normally submit to another’s terms from a position of strength.

Shortly after Altman Weil released its 2015 merger report, Edwin Reeser, one of the most perceptive analysts of the current BigLaw market, published his own commentary, which included the following observations:

We can expect more “merger” activity as long as there are buyers in the marketplace who are interested in the acquisition of revenue streams. Who are the sellers of these revenue streams? In many instances, they are going to be lawyers, typically smaller groups of lawyers, who have something worth selling. But why would they sell voluntarily if they have a good thing going? Typically because they have one or two fundamental problems associated with their sustainability as an enterprise. One is succession to leadership. Two, and perhaps more fundamentally, to continue generation of the revenue stream when one key partner retires. 

A “merger” into a larger firm with an established operating structure and breadth of talent can help preserve that revenue stream. The pricing for such a move to a larger firm usually involves: (1) a compensation cut for the acquired lawyers, a function of higher overhead and thus lower operating margins in many larger law firms; (2) the need for a profit for the acquiring firm to be derived from the work and revenue generated by the new addition; and sometimes (3), a deal feature that allows the acquired lawyers to monetize and harvest some of the built-up value in their firm that would otherwise be lost if they were to wind down.

I am not, emphatically not, applying the foregoing analysis to any of the firms mentioned in this piece. But the term “liquidating merger” has a lot of resonance to me in this current market, because it tracks with something else I’ve been noticing for awhile myself.

I’ve been saying to law firms over the last year that the “succession planning” train has just about left the station. The time to plan for succession in law firms, to begin transitioning client relationships from senior partners to younger ones, was five to seven years ago. Many of us in the commentariat tried to persuade law firms in this direction; not many firms tried, and few succeeded. Now, because succession planning didn’t occur, we’re entering a period of “succession management” — and you can read that in the same sense as “crisis management” or “disaster management.” This will prove to be a significant, and ultimately transformative, development.

All these matters will be lost in time ... like tears in rain ... Time to merge.

All these matters will be lost in time … like tears in rain … Time to merge.

Succession is going to happen in law firms, in the sense that when a client relationship partner retires, that relationship and the work that accompanies it will transition to another provider. But as we know, in most law firms, the partner has no interest in encouraging that transition. The last five years of his practice figure to be the most gloriously profitable of his career, the crown upon his decades of hard work, and he’s not going to let any other head wear that crown even part-time or on weekends. Pleas from the managing partner to “think of the firm’s future” and “leave a legacy” will melt some partner hearts, but not most. I’m not judging any lawyer who responds in this fashion, but that’s the reality in many firms, and it’s an enormous challenge.

But here’s the thing: that challenge is actually greater than most firms realize. Because while the firm’s leadership fumes and fulminates about “succession,” the client is over here waving its hand and saying, “Uh, I’m pretty sure I have some say in where my legal spend is going now.”

The problem with “succession planning” is the arrogance of the assumption that the firm will unilaterally decide who takes over the client’s work, perhaps by way of written notification: “Dear client, since Bill has retired, you will now be dealing with Bob, best regards.” Clients, as I’ve been saying for some time now, have options, and they are exercising them. They can choose the lawyers in this firm with whom they want to deal, or they can choose another firm, or an LPO, or a flex-time lawyer platform, or an employee doing insourced work, or a software program. I’m just guessing here, but I doubt that most clients enjoy being regarded as an asset to be passed on to the law firm’s next generation, like a sacred relic or a family heirloom. The days when the firm could simply assume the client’s continued patronage following a partner transition are done.

That’s why the real opportunity presented by “succession” is to open a dialogue between the firm and the client about how the client would like to be served following the partner’s retirement. I wouldn’t be surprised if many clients actually look forward to these retirements — not because they’re glad to see the partner go, but because it gives them an opportunity to reset and enhance the business relationship without the risk of compromising the personal relationship that had developed. But I don’t think most firms recognize this opportunity, or act on it if they do. They see only that a lawyer who “controls the client” is retiring, and they need to find another lawyer to “control the client” afterward. But they lack the cultural mechanisms and the leadership to pull that off, and even if they could, they’re missing the larger point about how the nature of client relationships has changed.

The upshot, in firms that are experiencing this phenomenon, is that the eventual or imminent departure of relationship partners will leave the firms with few prospects for their continued growth or even stabilization. Within the next five or ten years, most of their business generation and client relationship machinery is going to be sailing yachts around the Mediterranean. As Ed Reeser says, the firms are losing the means “to continue generation of their revenue streams,” and they lack ways to renew those streams or start new ones. The next generation of partners, seeing this unfold before them, starts eyeing the exits, and the junior lawyers get worried and restless. In those circumstances, why not pick up the phone when the big firm calls, so that the indignity and messiness of a gradual decline can be replaced by the savvy strategy of merging with a global giant?

The inability of many law firms to address the difficult issue of key partner retirements, or to take advantage of the opportunity they present to reset and strengthen their client relationships, has left the firms with few options for continued growth down the road. This has surely been increasingly clear to the leadership groups within these firms for some time. And now we’re seeing a marked rise in the dissolution of law firms through their acquisition by much larger firms, effectively pushing all the difficult conversations and decisions about the firm’s future onto the desks of strangers in another city or country. It might be a coincidence that these two developments are trending in parallel. But I’m not inclined to think so.

Why law firms should focus on adaptation, not disruption

In a post last month, Ron Friedmann poured cold water on the notion that large law firms were anywhere close to being “disrupted” — to losing the commercial legal services market to high-tech NewLaw raiders. Disruption? More Like Incremental Change for Big Law, he said, and it’s hard to argue.

Many commentators claim that tech, especially artificial intelligence (AI), will do something to Big Law. I disagree. Tech more likely will do something in it: incremental change. …

By the late 1980s, a few law firms had most of their lawyers using PCs. The market did not reward these early adopters. Nor did it punish late adopters. The same pattern played out for email, the Internet, and social media. Tech did disrupt legal secretaries. But that took an economic crisis and 15 years. Tech has enabled change – for example, the rise of boutiques and clients using alternative providers – but that has not disrupted lawyers or law firms.

An even bigger event than tech – the 2008-10 economic crisis – also failed to disrupt Big Law, notwithstanding widespread layoffs and a few dissolutions. In the aftermath, Big Law faces price pressure and more competition, but not disruption. Even with tech, with price pressure, and with clients bringing more work in-house, Big Law prospers as reported by recent Am Law 100 and Altman Weil surveys.

With this history, I just don’t see how the new technologies today will be any different than the past.

The book actually wasn't that great. Better than the movie, though.

The book actually wasn’t that great. Better than the movie, though.

“Disruption” became a flashpoint term in the legal community a couple of years ago, when Clayton Christensen’s groundbreaking 1997 work The Innovator’s Dilemma belatedly reached the legal market and the “Reinvent Law” boom was at its loudest. Ron’s post suggests that it’s time we take another look at this concept and begin to parse the difference between disruption theory and on-the-ground practice in the legal world. Let’s do just that.

All market activity, obviously, requires two parties: a source of demand (purchaser) and a source of supply (seller). Market disruption requires the presence of a third party: a new, alternative source of supply that can appeal to the source of demand in ways that the primary supplier can’t. The alternative’s appeal lies in its ability to provide value to the purchaser to a degree or in a dimension that the incumbent supplier has overlooked, ignored, or believed to be impossible. The alternative supplier can generate this value because it has adopted a means of production profoundly different from the incumbent supplier’s, one designed to produce deliverables (in dimensions such as affordability, timeliness, convenience and quality) better aligned with what the source of demand really values.

Now, disruption theory states that given all these circumstances, the alternative supplier will steadily grow its market share — starting from the edges of the market and its least complex and lowest-value needs, then gradually working its way up and in to higher-value sectors as it develops and matures — until at a certain point, the established supplier fades away and the challenger becomes the new incumbent. The circle of life, and all that. Christensen cites numerous examples of this pattern from steel, computer chips, and many other industries. So how about law?

It seems to me that we have all the pieces in place right now, in the corporate/commercial legal market, for this kind of disruption to occur. (As George Beaton points out in a comment on Ron’s post, this process is further along in the consumer legal market.) We have demand on an enormous scale — several hundred billion dollars spent every year, by an increasingly irritable and cranky corporate client base. We have traditional supply — incumbent law firms with little imagination — by the hourly-billing boatload. And now we’re finally approaching a critical mass of the third ingredient: alternative sources of supply. You could group these options into three distinct categories.

  1. Alternative Options for Lawyers’ Services. It used to be that if you needed to buy a legal service or solution, you had to go hire a lawyer. Today, demand for some legal services can be met by viable substitutes for lawyers. These are primarily technology solutions (including ODR systems, e-discovery software, contract analysis programs, advanced document assembly software, expert applications, predictive analytics, and various cognitive reasoning systems), which can perform some tasks or achieve some outcomes that previously only lawyers could manage. The result: some legal work never makes it to a lawyer, going instead to a viable lawyer substitute.
  2. Alternative Platforms for Lawyers’ Services. Suppose that for your particular need, however, there is no viable substitute: you must have access to a lawyer. Well, it used to be that if you needed to hire a lawyer, you had to visit a traditional law firm (including solo practices) to find one. Today, demand for lawyers can be met by alternative platforms for lawyers’ services: project and flex lawyer companies, managed legal services providers, the legal divisions of accounting firms, and various self-identifying “NewLaw” firms, among others. The result: some “lawyer work” never makes it to a law firm, going instead to a viable law firm substitute.
  3. Internal Options for Addressing Legal Needs. The ultimate alternative to an external legal solution of any kind, though, is to remove the need for the external solution altogether. Corporate law departments have expanded their internal productive capacity — increasing lawyer headcount (insourcing), developing their legal operations (“legal ops”) capacity through software installations and process improvement techniques, and (to take another of Ron’s observations) “doing less law” and eliminating some legal demand altogether. The result: some legal work stays in-house and never gets shipped to any external provider, period.

It’s nothing short of fantastic that buyers can now access all these options. Kudos to them all. But so far, these alternatives have captured just a tiny sliver of the entire commercial legal market. A few worthy exceptions aside, large corporations and institutions haven’t significantly changed their legal buying patterns. That’s not because the alternative sources of supply have proven inferior to the incumbent suppliers — in fact, by most indicators of cost-effectiveness, quality, and value to the buyer, the opposite is true.

The real cause is that most front-line purchasers of corporate legal services (in-house lawyers) care more about what traditional suppliers (law firms) can offer them (strong personal relationships, a reliable brand, routine buying processes, and a familiar culture) than what they can offer the enterprise. Lawyers who buy legal services are just as conservative, risk-averse and change-resistant as the lawyers who sell them — probably more so — and they define “value to the buyer” much more narrowly and individually than their company does. Purchasers of commercial legal services, to this point, operate in a very different corporate environment than purchasers of steel or computer chips or other commodities. Their cultural influences and individual incentives reward low-risk decisions and prioritize personal relationships over enterprise results. The impact on buying patterns shouldn’t surprise us.

Now, corporate procurement personnel are currently hard at work infiltrating and influencing legal purchasing, either by persuading the legal department to exercise its buying power differently or commandeering that power altogether. Take the lawyers out of the equation, and maybe you start getting somewhere. But so long as lawyers are buying legal services from lawyers, and especially so long as both sets of lawyers emerged from the same type of law firm culture, there’s little reason to anticipate imminent change. While it still appears inevitable to me that commercial legal purchasing will be transformed — and with it, the entire commercial legal market — I’ve personally grown tired of its stubborn evitability. “Waiting For Procurement” is not a performance I feel like sitting through multiple times.

We need to talk about Godot’s productivity.

The larger point, though, is this: “Disruption” is a means to an end, not an end in itself. It’s not a goal towards which anyone in the legal market should be bending his or her efforts. It’s simply a process by which other goals — chief among them, a more effective legal market that serves its customers better — can be achieved. Disruption will come when it comes, and there’s not much more to say about it than that.

The more interesting and important question, I think, is how the traditional incumbents will react to the high-tech upstarts in the meantime. What law firms do in response to the market’s emerging “NewLaw” options will determine the long-term success of both groups.

It should be pretty apparent that the longer the “disruption” process takes, the more difficult life becomes for most of the innovative alternatives. The builders of better mousetraps can wait only so long for the world to beat a path to their door — eventually, the venture capitalists who funded the traps want to see some Return On Mice. A drawn-out disruption period is especially hard on smaller upstarts, who either run out of money or become ever more vulnerable to acquisition and consolidation by rivals with larger footprints and deeper pockets. And of course, if market resistance to innovative new options is strong enough and lasts long enough, there’s a chance that the whole concept of viable alternatives to traditional suppliers will fall out of favour altogether, and the revolution will be stopped before it can begin.

For all these reasons, you’d think that traditional law firms would have every incentive to prolong the “steady state” of the old legal market, with its toothless demand and monolithic supply, as long as possible. But if anything, the danger to law firms here is more acute than to the upstarts.

The longer disruption takes, the more comfortable life will seem for the incumbent suppliers, and the more likely that they’ll be lulled into a competitive slumber. But whether it arrives tomorrow or next year or ten years from now, change is gonna come. The value proposition of alternative suppliers is too strong, and the well-publicized process of adjustment is already underway within some of the biggest sources of legal demand (including Shell, Cisco, Honeywell, AIG, and Capital One). Just as importantly, the alternative suppliers that do survive will get bigger and stronger by the day, growing and consolidating into truly formidable opponents. Law firms that fall asleep will be shaken awake to the realization that the waters kept on rising while they slept, until the levees eventually gave way.

So for law firms, the concept they should be focused on isn’t disruption, but adaptation. How will they adapt to changing market demand? How will they adjust their offerings and rework their operations to compete against powerful rivals for the attention of sophisticated and aggressive buyers? Will they try to destroy high-tech providers, or integrate them? Will they ridicule process improvements, or adopt them? Will they keep trying to “out-lawyer” everyone or, as I’ve argued, start trying to out-customer them?

The more that law firms accept these realities and adapt to these new alternatives, the less business they will lose, and the less these new alternatives will advance: by co-opting their rivals’ best features, they will improve their own productivity and value and maintain their dominant market position. There’s no shortage of examples in this regard among established incumbents (including Wachtell, DLA Piper, Norton Rose FulbrightDentons, Baker Donelson, Littler, AkermanAshurst, Mishcon de Reya, Gilbert + TobinMcCarthy Tétrault, and Stewart McKelvey), but you’ll also find some alternative providers going the same route (including Deloitte, LegalZoom, Riverview Law, and Lawyers On Demand).

Conversely, the more firms resist the advancement of substitute providers and stick to their old ways of doing things, the more time they’ll grant their most fearsome competitors, the more ground they’ll lose to them, and the faster the disruption process will proceed. For every day law firms fight adaptation, that’s another day in which the alternative platforms receive an extended lease on life — and that’s a dangerous game for law firms to play. If you give competitors with a better way of doing things enough time and oxygen to grow, then grow they will.

So this is a key moment for law firms. Viable substitutes to law firms have established themselves on the margins of the market, offering a genuinely better option for at least some legal services to (what is currently) a skeptical and conservative community of buyers. Most law firms seem to be betting that the market will remain skeptical and conservative — that the odds of real demand in market change are so small that the substantial payload of the corresponding risk can safely be ignored. That’s not a bet I’d care to place right now.

Disruption has not reached the commercial legal market, and maybe it won’t for a long time. But adaptation is here, right now. And for law firms, adaptation is by far the more pressing and important matter. Law firms can afford to put off worrying about disruption for the foreseeable future. I don’t see how they can put off thinking about adaptation one day longer.

Who’s your biggest competitor?

That’s a question I sometimes like to ask when visiting a law firm or speaking to an audience of lawyers: “Who is your biggest competitor?” I usually let the respondent decide what “biggest” means — sometimes they interpret it to mean the competitor who poses the greatest threat to their book of business, or who has the kind of clients the lawyer wishes he or she had, or who keeps them up at night worrying about what they’ll do.

Take a moment to think about it yourself. Who’s your biggest competitor? If your colleagues happen to be walking past your door, flag them down and ask them. Come back to this post when you’ve written down your answer and/or collected others.

So, here are the most common answers to that question, in no particular order:

  • A specific lawyer in another firm
  • A specific lawyer in my own firm (surprisingly common in larger firms)
  • An entire practice group in another firm
  • An entire firm (managing partners think along these lines)
  • A legal provider outside my jurisdiction (LPOs, for example; not too often)
  • A non-lawyer substitute, such as LegalZoom (more common for smaller firms)
  • Me (the clever answer from lawyers who take pride in always pushing themselves harder)

I don’t dispute any of these responses, and some of them are absolutely correct. Sometimes a lawyer might identify the right category (a lawyer in another firm), but the wrong specific answer (it turns out that Attorney B, rather than Attorney A, is her biggest competitor). Nonetheless, I think that many of these responses are wide of the mark, because they overlook what I consider to be almost every lawyer’s biggest competitor, now and especially in the future.

  • My client.

We have entered the era of do-it-yourself lawyering. Clients of every type — individuals, families, businesses, corporations, non-profits, and governments — have taken their lead from Annie Lennox and Aretha Franklin: they’re “doing it for themselves.” They are self-navigating their way, in whole or in part, through the legal system to achieve their goals — not because they love the experience or because it delivers better outcomes, but because (a) the price of a lawyer’s full-time guidance is beyond their means or disproportionate to the value of their needs, and (b) products and services are emerging to help them self-navigate.

Consider:

There’s a lot more going on here than simply an “access to justice crisis,” although that’s certainly part of it. What we’re seeing, partly in response to that crisis, is the gradual acquisition by both individuals and businesses of the skills, confidence, and willingness to manage at least part of their legal affairs on their own.  [do_widget id=”text-7″ title=false]

The longstanding assumption at the heart of the legal system — one shared by lawyers, judges, and legal organizations — is that interaction with the system requires the assistance of a lawyer. We unconsciously assume that “hiring a lawyer” is the default setting. But as I’ve written before, that assumption is no longer shared outside the legal community — lawyers are in danger of becoming incidental to the legal system.

I think “self-navigation” is the fundamental trend driving much of what’s confounding lawyers and the legal system today. And I don’t really see that this trend will be thwarted or diverted anytime soon. Technology continues to develop useful and accurate tools for legal self-navigation, lawyers increasingly recognize the benefits of limited scope representation, and the spread of open and well-designed legal knowledge and information systems is constantly creating more sophisticated system users.

I suspect that this trend will result in a re-examination of the word “client.” We use this word to describe the people and businesses who hire us to guide them through the legal system — but when you think about it, “client” is an oddly possessive word for us to use. When we, as lawyers, call someone a “client,” we define them in terms of their relationship to us. That has several practical and ethical benefits for lawyers, but it also traps the person or business in a one-dimensional, lawyer-facing position regarding the legal system. What we’re starting to see is people and businesses struggling to free themselves from that straitjacketed, all-or-nothing position. And I think they’re getting the hang of it.

In future, people and businesses with justiciable issues will have a portfolio of options for addressing those issues, and at the centre of that portfolio will be not a lawyer, but the individual person or business. Lawyers will simply be one of the options in that portfolio, to be deployed selectively and appropriately when our skills match the present needs. Our “clients” are going to assert more independence, carve out a stronger position, gain more choice in understanding and resolving their legal issues. Instead of automatically coming to us and asking, “Can you do this for me?” they will increasingly bypass us while saying, “I can do this part myself.”

So don’t focus too heavily on what other lawyers, other firms, or even the dreaded “non-lawyers” are doing to take business from us. From now on, our own clients will be our biggest competitors.

Jordan Furlong is a lawyer, consultant, and legal industry analyst who forecasts the impact of the changing legal market on lawyers, clients, and legal organizations. He has delivered dozens of addresses to law firms, state bars, law societies, law schools, judges, and many others throughout the United States and Canada on the evolution of the legal services marketplace.

The incidental lawyer

The South Carolina Supreme Court ruled this week that LegalZoom’s services do not constitute the unauthorized practice of law. As reported by Greg Lambert at 3 Geeks, LegalZoom’s press release celebrates the news, while also taking pains to note that the company’s documents have been reviewed by the state Supreme Court and that it frequently refers its customers to licensed lawyers for more complex work.

What interests me more than the outcome of the case, however, is that a lawyer (and he’s not the only one) felt compelled to spend time and money challenging LegalZoom in the first place. Think about the practical results that would have followed had this lawsuit succeeded.

A source of legal materials that, by most accounts, is at least adequate for the needs of its customers would disappear from the state, leaving those customers once again with the prospect of hiring a lawyer they know they can’t afford or seeking a lesser alternative (along with a chilling effect on any other business inclined to try the same thing). Would lawyers have reduced their fees in response, to become more affordable to the low-income market segment that LegalZoom serves? If so, it would have been history’s first recorded instance of a supplier lowering, not raising, its prices in response to reduced competition. If there’s a net social benefit here, I’m not seeing it.

What, exactly, are efforts like this designed to achieve? “The protection of the public interest” is the standard justification — even though the public has an equal if not overriding interest in having tools and processes with which to exercise its legal rights, is already protected by the right to sue an incompetent or fraudulent provider in court, and is comprised of adults who presumably can make informed decisions about their own lives with their own money. There’s a subtle but importance difference between “protecting the public interest” and “serving the public interest,” and we’re supposed to be pursuing the latter more than the former.

The likelier explanation, of course, is that these efforts are really trying to protect the interests of lawyers. But I think they’re actually achieving the opposite. Whenever we reflexively oppose “non-lawyer” legal service providers, we’re saying: “There is no place for anyone in this market except lawyers.” But that sentiment is not based in reality. If you believe it, then you ought to take a step back and consider just how incidental lawyers already are in in this market — how far we’ve drifted from the centre of the legal system and towards its periphery. And every time we try asserting our indispensability in the face of reality, we just accelerate that drift.

The American Bar Association, the Canadian Bar Association, the UK’s Legal Services Board, the World Justice ProjectStanford Law School, the Canadian Department of Justice, and the Canadian Action Committee on Access to Justice in Civil and Family Matters are among the groups that have released studies over the past several years demonstrating what a small and shrinking segment of the legal market is actually served by lawyers. A good example is the Department of Justice study from 2007, which asked thousands of Canadians if they’d had a “justiciable problem” over the past three years, and if so, what they did about it:

  • Slightly less than half dealt with it themselves.
  • About a fifth did nothing.
  • About another fifth got non-legal help (e.g., unions, government, friends or family).
  • Less than 12% got legal help.

Given that this survey was published a year before the financial crisis, I don’t see how that 12% figure has improved since then. And it’s not an outlier: the UK survey found a similar result, as only about 16% of small businesses with legal issues turned to a lawyer to help them. According to the ABA, courts across the United States report between 60% and 90% of family law matters involve at least one self-represented litigant. The legal market, viewed in its entirety, is like an iceberg, 85% hidden below the surface. Lawyers have concerned themselves only with the small fraction above water. Everyone else is down there on their own, holding their breath.

We normally use facts like these to illustrate the “access to justice” crisis, and we convene panels in which we sternly lecture the profession and the courts about our moral failure: “Your access to justice is bad and you should feel bad.” And that’s fine. But what these facts should also illustrate is something that we ought to take just as seriously: the “lawyer irrelevance” crisis.

With a few exceptions (principally criminal defence work), lawyers are simply not relevant to 80% to 85% of all individuals and businesses with legal issues. We’re off the table: we’re briefly considered and quickly dismissed. We need to recognize and absorb the fact that a huge amount of legal activity already takes place entirely without our involvement.

And that was the situation before the market began bringing forth new options for legal solutions. We were already peripheral before barriers to non-lawyer entry began falling, before legal technology began making such impressive strides, before LegalZoom was bringing in $200 million a year, before the legal startup sector received $458 million in outside funding last year. One startup I spoke with last month was just the latest to tell me that that its product was designed to “take lawyers out of the equation.” When you consider how few equations we’re already in, this ought to bring us to immediate attention.

Consider what’s going on in the market right now:

  • Australia approved “non-lawyer” law firm ownership a decade ago, England & Wales has issued 300 Alternative Business Structures licences since 2012, and Ontario will soon become the first North American jurisdiction to grapple with this option (aside from Washington State, which has already approved limited-license legal technicians).
  • Computers can now do the following things: draft commercial contracts, review contract provisions, assess electronic evidence for relevance, answer legal and regulatory questions interactively, predict the outcome of negotiations, and partition marital assets in a divorce. What will they be able to do in another five years, or ten?
  • Self-represented litigants are receiving growing levels of institutional support: courthouse kiosks provide them with guidance, lawyers unbundle services to support them through limited-scope retainers, and startups create systems and programs that maximize their ability to get the results they want. Self-representation is becoming normalized.

So let’s say that lawyers serve about 15% of the total potential market, and make a decent living doing so. As a lawyer, you might be satisfied with that: let the other 85% take care of itself, or use one of these alternatives. You’ll continue to serve the highest-level, most lucrative market segment, the small chunk of the iceberg above the water. So what if lawyers are peripheral to the entire market? We’re central to the richest part of the market, the one you care about, right?

Right. But what happens when all these “non-lawyers,” all this technology, all these self-represented litigants and their supporters, get better at what they do? What happens when, in addition to being cheaper than lawyers and faster than lawyers, they start to become almost as good as lawyers? Do you really think they’re not going to look up through the water at the tip of the iceberg and think, “I’d like a piece of that?”

This is what I mean when I talk about lawyers becoming increasingly incidental. A huge amount of legal activity already takes place without us — and what the foregoing should make clear is that that amount is growing. The ability of the legal market to function adequately and competently without the involvement of lawyers is increasing. Deprived of access to the best and most valuable asset available to assist them — lawyers — people have started to look for substitute assets, and where they can’t find such assets, to create them. Those substitutes are now here, and filing UPL lawsuits against them isn’t going to stop the process that spawned their development.

Because too often, that’s how we’ve been responding to what the market is telling us: with hostility, or with arrogance. I’ve lost count of the number of lawyers who’ve chuckled at warnings about “non-lawyer” providers, saying (sometimes literally), “Ka-ching! Every time a client tries to use one of these companies, it just means more business for me when they come looking for help to straighten out the mess they made.” What a selfish, unprofessional attitude we’ve developed: comfortably serving our 15% of the market, blocking the other 85% from accessing whatever help they can get, and smugly feasting off the problems of those for whom even these efforts went wrong. And we wonder why people are looking for alternatives?

But here’s the thing: I don’t believe that lawyers are doomed to the periphery of the market — after all, we used to be central to it. There was a time when we were intrinsic to the enforcement of legal rights and the execution of legal procedures, essential to a functioning market in legal services. But over time, we allowed ourselves to become optional, to become something close to a luxury good — content to serve the most well-heeled clients with the most interesting cases in the most convenient manner. We’re meant to be stewards of the entire legal system, but we’ve confined ourselves to our small gated grounds and let the rest of the property manage itself.

But that is not irreversible. I’ve met too many concerned, creative and compassionate lawyers, and I’ve seen too many praiseworthy change efforts already within the legal profession, for me to give up on lawyers as a universal legal solution. I believe that lawyers can and should serve more than 15% of the market. I believe we can because the tools and the procedures are now available to enable us to offer high-quality legal services more efficiently, effectively, and affordably. And I believe we should because we are still (for the moment) the most valuable and effective resource available for the resolution of legal problems, and it’s wrong for those resources to benefit only a select few.

Maybe not everyone needs the skills and expertise of a lawyer. But everyone deserves the opportunity to find out if they do. Let’s stop fighting the needs of the 85% and start figuring out how we can serve them instead.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

What do lawyers sell?

The first time I heard Richard Susskind speak was at a Canadian Bar Association conference in Montreal in 2007. That was also the first time I heard one of the best parables about professional services ever told. I’ll try to paraphrase Richard’s delivery from memory:

“Black & Decker, the power tool company, had just hired a new CEO. He walked into his first meeting with his board of directors, held up a power drill, and asked, ‘Is this what we sell?’ The directors looked at each other and looked at the drill and said, ‘Yes, that’s one of ours; that’s what we sell.’ ‘No, it isn’t,’ replied the CEO, and he put down the drill and picked up a board with a hole in it. ‘This is what we sell,’ he said. ‘This is why the customer comes to us. This is what he wants.'”

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That’s a magnificent illustration of the best way, the only correct way, to look at the process of buying and selling anything — that is to say, from the buyer’s perspective. Given the legal profession’s struggles to cope with a newly evolving market — as exemplified by the shocking cuts and wholesale retrenchment of many large law firms recently — it seems like a good time to apply that question to lawyers.

What do lawyers sell? Ask 100 lawyers that question and you’ll get, not 100 different answers, but a very narrow range of familiar answers, repeatedly proffered. “I sell my time,” some lawyers will respond. “I sell my expertise,” others will reply. The MBA types: “I sell solutions.” The ones who’ve been paying attention: “I sell value.” The ones who haven’t been paying attention: “I sell excellence.”

None of these, however, is a good answer, because none of these are things that clients specifically need and that can be identifiably described.

  • Time: No one in history has ever bought or sold one second of time. It’s not a commodity in any sense of the word.
  • Expertise: No client needs legal expertise for its own sake. Specialized knowledge has only applied, not intrinsic, value.
  • Solutions: Getting closer, but this is a buzzword that’s meaningless without context. And not every legal matter is a “problem.”
  • Value: Closer again, but really, “value” isn’t much better than “solution” — it’s another way of saying, “I sell you what you want.” It’s circular.
  • Excellence: Must try harder.

There’s a better answer to that question, I think — one that unites the many incredibly disparate strands of legal services. There’s one response that can legitimately cover all the myriad needs of diverse legal clients — from getting a will made out to clearing up a tax issue, from overseeing a bankruptcy to managing a high-stakes acquisition, from defending an assault charge to gaining a permanent work visa, from enforcing a child support order to appealing the loss of a business licence.

That one answer is this: Lawyers sell peace of mind. This is what clients seek when they turn to a lawyer. This is their “hole in the board.”

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“Peace of mind” is what you get when you find someone with expertise, someone who’s excellent at what they do, someone who comes up with solutions to problems and avenues for opportunities — you find them, and you speak with them, and over the course of time, you come to trust them. You trust that they will help you, that they will use their skills to remove a worry, manage a process, or come up with an answer that has eluded you. That trust delivers peace of mind.

Almost every client, when he first contacts a lawyer, is legitimately anxious about something important. He’s worried, he’s not sleeping well, his emotional well-being is compromised. “Peace of mind” is what that client gets in that blessed moment when he can say to himself, “It’s alright. I’ve talked to a lawyer, and she’s given me options, and she’s working on the matter, and she’ll take care of it. Someone is looking after it, or will help me through it. I can start to relax now.” And he does.

Look at your own client relationships. Think about the most rewarding engagements, the most satisfied clients. Maybe they won their case, maybe not. Maybe the deal closed, maybe not. But in most cases, the clients who speak most highly of their lawyers are the ones to whom the lawyers gave the gift of peace of mind — the trustworthy assurance that someone is sharing their burden and helping get them to a place where the burden will be lifted.

Clients buy peace of mind — that’s what they want when they hire a lawyer. Gear everything about your practice — your first consultation, your personal manner, your client communications, your dependable prices, your transparent activities — towards increasing your trustworthiness and reliability and relieving your client’s worries and burdens. You will be a happy, successful lawyer with happy, satisfied clients.

Available now! My first two published books: Evolutionary Road (e-book published by Attorney At Work) and Content Marketing and Publishing Strategies for Law Firms (co-authored with Steve Matthews, published by The Ark Group). Click the links to learn more and order your copies today.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.