|image [cc] Flicker Clicker|
The Paradigm of Precedence
The name of this series is taken from a presentation I gave back in 1999 to a group of bar leaders. At that time I coined the phrase, The Paradigm of Precedence. To illustrate this concept, I suggested lawyers are driving the boat by watching the wake. Lawyers are deeply trained in looking at the past to determine the present. The future only becomes interesting once they know today’s precedence. A running joke in the industry is that whenever an innovative concept is proposed, the first question asked is: Are other firms doing this? This paradigm, this way of seeing the world in the rear-view mirror, has become a significant handicap for the profession.
Lawyers left to their own devices will hold to the Paradigm of Precedence. They prefer to wait and see what precedents develop in the market and then attempt to copy them. The big problem with this tendency is that new breeds of competitors will take the opposite approach, preferring to innovate ahead of the market, actually setting the new precedents. And once these providers are established in the market, it will be very difficult for lawyers to displace them. Lawyers in this scenario will be forever playing catch-up in a market that is gaining speed ahead of them.
Attempts to fight this tide with lawsuits over UPL will have little impact. Fighting in court will further expose how lawyers are not actively working to lower costs and improve their services. The public (including legislatures) will see a guild fighting to retain its monopoly when other providers have come in and met the public's needs at lower costs. For instance in the LegalZoom example, this company is getting legal help to thousands of people who were not getting it before. Lawyers will rightly argue some people will be harmed in this environment. These lawyers will essentially be arguing that it is better to not have this access to justice than to allow any potential for harm from non-lawyers. I think the recent success of LegalZoom demonstrate the likely outcome of such fights.
A Bit of Hope
As with any community, there will be some participants who shed the Paradigm of Precedence. After one or two times of being beaten in the market, these lawyers will embrace new thinking, employing new business structures and innovative technologies. Our best hope will be encouraging and enabling these agents of change.
Although my prediction is admittedly a bit of doom-and-gloom, I hope to be proven wrong. Lawyers are the best people to provide legal services. They have a noble obligation to protect the rule of law. If the provision of legal services primarily falls to those without this duty – the rule of law will suffer.
Part 8 - the final in the series - provides some hope and ideas for how the profession can embrace change, focusing on the role of bar associations as logical and likely agents of change.