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Monday, June 05, 2006

UK: Professor Richard Susskind OBE on the Future of Legal Services.

On March 06, 2006, the

Society for Computers & Law (SCL) was host for the 2006 SCL Lecture given by

Professor Richard Susskind OBE, which is said to have created enormous interest in the UK. The

transcript of Mr. Susskind's lecture is available on-line, however, at least for the time being, for SCL Members only. A

webcast as well as a podcast of the event appear to be available on-line without restrictions.

According to SCL, Mr. Susskind anticipated a new model for legal services seeing an volutionary path, running from the bespoke legal service which remains the norm to the commoditisation of legal service. It is a five-stage path which leads through standardisation and systemisation. Central to this is the impact which will be made by explosions in processing power. Mr. Susskind summarised his lecture as follows:

"[...] To recap finally, I believe that we are seeing an exponential growth in technology. I believe we are going to see increasing information satisfaction, as I have defined it. I believe online community and collaboration will come to dominate the way not only that we share knowledge with one another but the way we develop service. The net generation coming through will expect nothing less. We will move from being text only to being multi-media and these and other technologies, as we have seen in relation to dispute resolution, will not simply be complementary and sustaining; they will be fundamentally disruptive. That is what I anticipate for the next ten years. [...]"

What I find particularly interesting is Mr. Susskind mentioning "Open Source" within the context of legal services:

"[...] But what I have been observing are a number of related and exciting phenomena. I have recently been trying to make sense of them collectively. Napster was an amazing idea. Forget the legality of the system for a second. It is an amazing idea that we are all connected, as some people would say, to the same Big Machine and on this Big Machine we can all exchange music files with one another, dipping into, as it were, one another's stores of files. The fact that these are music files is incidental; technically, peer-to-peer networking (almost) is a phenomenon that really has no precedent. That we are all connected to one another across the globe and we can share files is mind-boggling.

Add to this the whole notion of Open Source. You have to forget for a second that the great successes of Open Source have been in system development (most notably Linux and Apache). These complex systems have been developed voluntarily by a whole bundle of people spread across the world who came together in what looks like an unstructured project and they developed and delivered operational systems that underpin much of the World Wide Web as it functions today. What is going on here, when all these people can collaborate online from a distance without any traditional, overarching structure to guide them?

And look at Wikis. The idea is that, working collaboratively and online, we can build up shared bodies of knowledge - one person contributes an article or the like, another refines that and adds more, and an evolutionary model of a particular area of knowledge develops. Wikipedia is the best example here. It has more than 4 million articles. It is a global project to create an online encyclopaedia, to which we are all able to add voluntarily; and others can edit it; and, in a sense, it is self-regulating. While I know that there are lots of debates about its quality, I am less interested in the specifics and more interested in the general phenomenon. People are getting together, often beyond the scope of their conventional work, and their knowledge sharing and collaboration practices are wildly different from anything we have seen in the past. People talk about social software as the technology that underpins this. Others talk about the network effect. It is a new world of collaboration enabled by the Internet.

Now consider instant messaging. Look over the shoulders of your teenage children who are communicating online, maybe with ten people at the one time, and perhaps collaborating on school work in ways that our brains do not seem to be wired to be able to do. Here is yet another illustration of new and significant patterns of collaborative behaviour.

And in the background - not so much in the UK sadly, but certainly in the United States - a revolution in thinking about intellectual property is going on: really fundamental challenges are being articulated in relation to who really should own our creations and how best to encourage innovation rather than inhibit it.

All of these phenomena - peer-to-peer networking, Open Source, wikis, instant messaging, new thinking about IP and many more - combine to point to what I believe will be the most fundamental change in the next ten years and that is in the way we collaborate, communicate and operate together online. We are going to see the emergence of entirely new attitudes to collaboration, entirely new attitudes to knowledge sharing and entirely new resources available at our fingertips as a consequence of the new mindset. [...]"

Mr. Susskind then creates something like a prospective example:

"[...] I have been speaking to a number of in-house lawyers across the world who work in various industries and they are similarly coming together in new ways to help one another manage their own legal activities. They consider a lot of legal risk management to be non-competitive, and so they are prepared to pool resources and use their collective purchasing power. Sharing resources raises interesting IP questions but when a law firm undertakes, say, a multi-jurisdictional review of some particular issue, the client might say, 'That work product will become our property and we want to be able to make it available to our own community'. The time-honoured notion that lawyers perform a review for one client and then provide a similar review at a similar cost for many others will disappear. In the new world of collaboration, such a review will probably be plugged into some wiki which relates to legal risk management for in-house legal departments. It would evolve and be built upon in the Open Source spirit. In this way, we will evolve massive bodies of legal documentation that will be readily and freely available, purchased once perhaps by one client and then made freely available to the client community generally. briefserve.com gives an idea of how this might happen - it has taken many of the briefs that have been put prepared for Supreme Courts in various jurisdictions across the United States, extracted all these fantastic pieces of legal analysis and made that publicly available. There are all sorts of intellectual property issues here, but this example reflects trends in the evolution of IP generally. The net result, I believe, is that we are going to see the web community, and the legal community on the web, have a far wider range of resources available.

These resources will become commodity. A lot of the legal work that is done today by law firms for clients will immediately become a commodity available to others, and it will not simply be a question of searching to see if there is a document 'out there' that is potentially relevant. We will have the improved retrieval that I have talked about; so we will have tailored alerts. We will also have this idea of the community building up, in a wiki-like fashion, evolving bodies of guidance into which will be plugged these free resources of an Open Source type. Eventually, this resource will begin to be able to solve problems, using AI techniques and so forth (although this will be beyond ten years); it will begin to be a source for direct problem-solving and certainly for perfect retrieval of directly applicable documents.

The client who currently has to decide whether to undertake work within the legal department or put it to an external law firm is going to have a third option. There is going to be Open Source. This will be legal commodity on a grand scale. It is scary for law firms, this vast resource of past legal advice that will be generally available, and will affect not just major client organisations but all of us in our social and economic lives when we need legal help and guidance. [...]"

Of course, not everybody is prepared to follow Mr. Susskind when he offers his guidance into some high-tech utopia.

Mr. Richard Harrison who is a partner in

Laytons

argues:

"[...] I think Professor Susskind's problem is that he operates at too high a level and moves in too exalted circles. When he talks about 'legal advice' as the product we are selling he seems to be thinking in terms of education and entertainment. He is inspired by the world of wikis and blogs, multimedia presentations and online collaboration. You do collaborate in the realms of education and entertainment. But when you are negotiating a tough contract or engaging in what we now call 'dispute resolution' (but which in most cases still remains commercial warfare underpinned by the realpolitik of participants faced with court sanctions if you don't play the game) you are in a somewhat different world.

His main theme is that the spectrum of legal advice runs left to right through five stages: bespoke/standardised/systematised/packaged/commoditised. The client wants to buy a commodity because that is what economics tells him creates true value. The emerging technologies tend to aid the move to the right towards commoditisation. The difficulty is that the increasing complexity of the legal and commercial world seems to some of us to require increased bespoke operation. It is hard to think of a successful legal product that actually works as an automatic commodity sale beyond the very basic level or in the entertainment/educational sphere.

Professor Susskind says that he meets commercial clients, in-house lawyers who want to collaborate with each other. That is because of the circumstances in which he meets them. When I meet them, generally when they are fighting each other, I find that collaboration is the last thing on their mind. [...]"

The discussions held at SCL are in no way specific with regard to the Intellectual Property business. In particular, they are not specific with regard to the business model of patent attorneys or law firms established by or with the involvement of patent attorneys.

The most crucial question in the context of the readership of this Blog here might be: Is Mr. Susskind's technological utopia also relevant for patent attorneys and their business model?

I guess that for the time being most of my colleagues in Germany and abroad are standing firmly on the side of Mr. Harrison. But Mr. Susskind argues that listening to most lawyers is a mistake. There are, Susskind says, all manner of vested interests at play when lawyers speak of the future, given that they are - cliche though it may be - inherently conservative and not disinterested observers. But I can also see initiatives like the

Peer-to-Peer Patent Review Project in the U.S. which, whatever deficiencies it might suffer, seems to go very much into the direction indicated by Mr. Susskind. When launched from scratch, novel

disruptive commercial products are allowed to suffer specific deficencies compared to competiting established products. It is intrinsic to disruptive developments that they are not taken seriously at their very beginning due to those deficiencies. Later on, they might gain momentum and eventually overtake those established products without giving traditional practices any chances to survive. Perhaps such projects like the above-mentioned "Peer-to-Peer Patent Review" are nothing else than vanguards of the future.

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Thought provoking commentary indeed. While personally I relish such a day as that envisaged by Susskind, one does wonder how attorneys, including patent attorneys, will be able to sustain their activity if all resources are pooled and available through collaborative work ?

Even then, and as Harrison pointed out, most companies tend at some stage or another, to get into a fight with one or more other companies to protect their own shareholders' interests. One can only wonder how building up a "legal knowledge commons" as one might call it, would be useful to anyone, least of all the client who needs to win his case, and not potentially have a wealth of knowledge that could sink him.

Alex

# posted by athurgood : 07 June, 2006 10:06