Finding the missing link

By | 29th September 2011

I promised to return to the subject of the missing link at the end of my last post when I said that:

“I will try and explain what I think he (Richard Susskind) meant and how this ties up with new legal structures, technology, LPOs and dead satellites falling to earth in my next post.”

I was a litigation lawyer for many years and with all the benefit of hindsight and from the privileged position of no longer having to earn my living by being a litigator I occasionally pause to reflect on where the litigation process and litigation lawyers are going. I worry when I see a profession that is unable to find jobs for bright graduates of the LPC. They would be of huge benefit to their chosen profession, if only they could be selected for a training contract to help them pay down the debt they incurred to get themselves through university and the professional exams now demanded of them.

I remember a time when there was not an all graduate entry into the profession and some fine lawyers were produced by that system who never felt the lack of a university degree in law, science, classics or textile design. Then the Law Society decided that too many people were coming into the profession and, under the guise of improving standards, insisted that there should be an all graduate entry. Of course at the time university was largely free and funded by the state and governments decided that instead of the 8 to 10% who went to university when I did, this figure should be over 50%.

It was never going to be easy for any profession to absorb all the people who wanted to become lawyers in just the same way that it was never going to be possible for the state to continue to fund the fees of all those who were encouraged to go to university, and so it has come to pass that bright intelligent youngsters who are desperate to become lawyers are left high and dry by the system which encouraged them in the first place.

What is going to happen in the future and if you were asked, like Richard Susskind, where would you put your money if asked to invest in a structure for lawyers in the future? What will the likes of Irwin Mitchell and others do with any money they are able to attract by virtue of the new alternative business structures introduced by the Legal Services Act and due to come into force whenever the Government gets round to making the necessary arrangements?

I mentioned the missing link in my last post and the recent development in the LPO industry where the new kid on the block New Galexy Legal Process Outsourcing has appeared.

But before I get to the missing link, have a look with me at the state of the litigation market. This is not intended to be a comprehensive survey but an informed impression. In any event it is my view!

Among the young crop of lawyers it is becoming increasingly difficult to identify how the youngsters are going to turn out. I say that, not because they are not a bright bunch (they clearly are) but how many of them want to become embroiled in a law firm of the traditional type? How many actually want to become equity partners always assuming that they are able to qualify in the first place?

Will there even be a job for litigators in the future within the structure of a traditional law firm and would you invest your money in a litigation department.

Now there are always exceptions to every rule but the trends are not encouraging. I recall that lawyers used to carry out the majority of tax litigation when I first qualified, an area which today is almost exclusively the province of the accountants eg PwC Legal.

In my own “second career” it is plain that e-disclosure is becoming a much more main stream activity and in general lawyers are not good at it and many do not “get it”.

Why should clients continue to pay for lawyers to do something at which they are not very good and where some at least appear not to want to get their hands dirty?

Why not go to a discovery expert? There are lawyers out there (sometimes called discovery counsel) who are making an excellent living providing the service to clients already and effectively sweeping up after the litigation lawyer.

I recall Susskind saying, to my surprise, that he foresaw that a well run set of barristers’ chambers would be an entity which he thought might survive over the traditional law firm (at any rate one which did litigation) and that it was the sort of entity in which he might invest.

As I understood his thesis it was that a set of clever barristers (learned in the law) and with low shared overheads might carry out the litigation process from start to finish. They would need to employ a clerk of some sort, which of course they already do, to book appointments etc but with direct access why should a client go elsewhere? If the set also employed discovery counsel or a firm skilled in the art of e-disclosure, they would be set up to challenge even the strongest litigation firms. After all, they already do the advocacy, they know the law, clients can go to them direct and because of the way they are organised they are low cost and efficient to run.

I am not sure whether the law currently demands that a solicitor must issue a claim form but that would be an easy restriction to circumvent or abolish. A formal system such as that in Spain has a well functioning profession of procuradores who handle that type of work for a fee.

Add to that, the missing link of a company skilled in e-disclosure and the barristers are set!

There have been reports recently of remains thought to be nearly 2 million years old found in the caves of Malapa some 30 miles north west of Johannesburg. The discovery in the South African caves of what is called Australopithecus sediba is being hailed as the discovery of the missing link. According to reports the creature combined striking features of apes and humans with its dextrous hand which it is thought may have fashioned tools and been used to climb trees. Other features included a small brain similar in shape to a human brain, an evolved hand with an elongated human-like thumb and a “modern” pelvis but also a foot and ankle shape never seen in any human species, thus combining human and ape like features in one anatomical package.

Could this be the link we have all been looking for? And could a combination of a set of barristers and an expert firm be the litigation stars of the future combining, as they would, features of both litigators and e-disclosure experts?

I think I may have found the Missing Link by which I mean that the star of the future may well not be the bright litigation lawyer with a flair/knack/talent for litigation but the e-disclosure expert.

And as the cartoon set of legal disclaimers at a law conference would have it (and this happened at ILTA) the announcer concluded that “No lawyer was harmed in the making of this commercial!”

Photo credit: Image compiled by Peter Schmid courtesy of Lee R. Berger, University of the Witwatersrand. Used under Attribution-Share Alike 3.0 Unported licence.