Rethinking the Future of Law

-- By AlejandroMercado - 14 Oct 2011

I. The End Of The World As We Know It

The world has changed. The legal cosmos as we know it, no longer exists. The signs are there; yet, many are still blinded by the vanishing glare of a perceived functional and “glorious” model. That very thing that shifted the gears of the global economy into hyperdrive a decade ago, has also struck a deathblow to our beloved profession. The system of law has been transformed by technology. And many are so inert, so hopelessly dependent on the system as previously known to them that they can’t bear to devise it any other way. They can’t bear the thought of being unplugged from it, to be rid of the world pulled over their eyes that blinds them from the truth.

A. "Weird Science"

First off, the discovery process has been utterly transposed. Computer technology has advanced us to an era where evidence is no longer paper based, but electronically stored. Every personal technology that surrounds us has a potential evidentiary value – e.g. e-mails, text messages, browser histories, search engine queries, social network accounts, GPS software, etc. Even our automobile’s event data recorders (“EDR”) or so-called “black boxes” promise to be crucial data for the courtroom regarding accidents. Thus, for the sake of clients, lawyers are now required to think in terms of technology.

Be that as it may, us juris consultus lack the know-how, let alone the experience, to confront these challenges. Because of the distinctive characteristics of electronically stored information (“ESI”) and old, bad, lawyerly habits at the discovery level, parties are being shunned from the court system and from having access to justice. For example, ESI is voluminous. Every little piece of electronic storage we possess holds the equivalent of thousands, hundreds of thousands, if not millions of document pages.(1) And the problem lies not in their magnitude, but in sorting through them to find the few, which are relevant to a legal claim.(2) At the same time, lawyers are being swamped with hundreds of expensive proprietary software from e-discovery vendors purporting to have the holy grail of discovery; purporting to hold the true secret for finding the needle in the haystack, the “smoking gun” of a claim. Whether it is through Boolean search methodologies or concept searching, all of these technologies promise results in exchange for “reasonable”, yet “justified” fees for using their exclusive technology. This, of course, translates into exorbitant costs to clients that arise from the handling of volumes of electronic data sought throughout our revered process of “liberal discovery”.(3)

B. Google(a)Scholar

Meanwhile, the brick and mortar of law is starting to wheeze from an ailment in the billable hour. That is, large law firms are starting to suffer from client’s adverse reaction to being overcharged by hourly fees and demanding alternative fee arrangements.(4) In part, this has been induced by the rising costs of discovering ESI and emerging software to supplant routine tasks such as “manual review”.(5) But also by the spurt in free legal resources that better allow for small firms to compete to serve large corporate clients – e.g. Google Scholar, FastCase? , FindLaw? . Accordingly, money conscious clients are abandoning renowned, flashy firms, and switching to the ever-characterized unconventional law firms.(6)

Take for example Clearspire, a small shop of 20 lawyers working from their homes on a sophisticated technology platform that mimics a virtual office. In taking advantage of said technology, clients use its platform to both communicate and conduct exchanges as their requested service is being performed.(7) Also important, Clearspire provides its clients with project-based rates that help them avoid being overcharged.

Axiom employs too an alternative model that has been thus far successful. It engages independent or teams of lawyers per week or month, keeping overhead costs down by dumping the glittering headquarters and focusing on service.(8) With 11 years in the business, Axiom enjoys the likes of companies such as Google, Amazon and IBM as clients.(9)

Thus, in taking advantage of the discredited “billable hour” by adopting its abandonment as their ethos and pooling the talent of experienced attorneys with backgrounds from prestigious law firms, these “non-conventional” law firms forebode part of what the practice of law might look like in the not so distant future.

II. There's No Place Like Home...

We can always tell from its ominous tune that something bad will happen in a horror movie. In the legal profession you can usually tell from the continued pressure of clients to cut legal bills or the demise of a reputable firm. Just recently, the renowned law firm originally known as Howrey & Simon shut operations, while two years ago each individual partner was averaging $1 million in revenues. After giving in to pressure to cut legal fees and having lost an important source of income over to e-discovery vendors, its money churning shop closed. Over 50 years of experience and it took a little under a year to dissolve.(10)

Once more in history, change is driven by economics; economics which, in this respect, have come about as a result of legal advancements in technology and the reengineering of the practice of law. Assuming that the “liberal discovery process”, initially adopted in 1938 has worked adequately throughout the years, by now it has taken its toll. No longer should attorneys be able to rely on broad discovery requests, drawn in turn from overly broad pleadings, to “ensure” the “full disclosure” of pertinent facts to “avoid unfair surprises” and have cases “decided on the merits”.(11)

A new approach to resolving cases is required. And panaceas such as the “initial disclosures”/“meet and confer” provisions, to “tailor” discovery, have already proven unsuccessful. Although there might not be a single approach to embetter the system, absent truthful cooperation among counsel, clients will continue to complain about fees and e-discovery costs will continue to bar parties from the courthouse. Certainly, many will want to go back to home, to the old business model. But, let them stay home. We don’t want their help.

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Notes

1 : It is estimated that 1GB equals 75,000 pages. See Ralph C. Losey, E-Discovery: Current Trends and Cases, 291(ABA 2008). Thus, the cheapest iPhone 4, which has 16GB capacity, can store approximately 1.2 million pages of information. See http://www.apple.com/iphone/specs.html, last accessed October 12, 2011.

2 : In 2009, 81% of all email traffic was spam. Moreover, the volume of 247 billion emails sent daily is estimated to increase to 507 billion by 2013. See Radicati Group Email Statistics Report http://www.radicati.com/?p=3237, last accessed October 12, 2011.

3 : Pamela A. McLean, Survey Says E-Discovery Cost Help Settle Cases, The National Law Journal, Sept. 11, 2008, ttp://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202424436280, last accessed, Sept. 16, 2011.

4 : Alternative fee arrangements accounted for 16% of large law firm’s revenues throughout 2010. The Economist, Law Firms: A Less Gilded Future, May 5, 2011, http://www.economist.com/node/18651114/print, last accessed October 12, 2011.

5 : See Andrew Peck, Search, Forward: Time for Computed-Assisted Coding, Law Technology News, Oct. 1, 2011, http://www.law.com/jsp/lawtechnologynews/PubArticleFriendlyLTN.jsp, last accessed October 3, 2011.

6 : The Economist, Bargain Briefs: Technology Offers 50 Ways to Leave Your Lawyer, May 5, 2011, http://www.economist.com/node/21525907/print, last accessed October 12, 2011.

7 : http://www.clearspire.com/#principle

8 : http://www.axiomlaw.com/index.php/overview/overview

9 : http://www.axiomlaw.com/index.php/overview/clients.

10 : Steven Pearlstein, Why Howrey law firm could not hold it together, Washington Post, March 19, 2011, http://www.washingtonpost.com/business/economy/why-howrey-law-firm-could-not-hold-it-together/2011/03/16/ABNTqkx_story.html, last accessed October 13, 2011. See also n.4, supra.

11 : See for example George L. Paul and Jason R. Baron, Information Inflation: Can the Legal System Adapt?, 13 Rich. J.L. & Tech. 10, 17 (2007), http://law.richmond.edu/jolt/v13i3/article10.pdf.

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