[JUST.’s newest column, ‘Debatable’, gives two lawyers the opportunity to battle through an interesting and provocative legal issue. Envisioned as a friendlier “Hunger Games” or a cuddlier WWE match, we hope that this feature will elicit thought-provoking and competing views on topics of interest to practitioners.
Our first issue up for debate is one that has boiled the blood of many a lawyer in recent years and has challenged our fundamental perception of our vocation: Is 'Big Law' dying or here to stay?
Mitch Kowalski says yes. Follow this with Josh Kubicki's opposing view.]
Percy Bysshe Shelley’s poem Ozymandias is instructive for those who believe that large law firms will always have an unassailable stranglehold on the vast majority of corporate legal work:
I met a traveller from an antique land,
Who said—“Two vast and trunkless legs of stone
Stand in the desert. . . . Near them, on the sand,
Half sunk a shattered visage lies, whose frown,
And wrinkled lip, and sneer of cold command,
Tell that its sculptor well those passions read
Which yet survive, stamped on these lifeless things,
The hand that mocked them, and the heart that fed;
And on the pedestal, these words appear:
My name is Ozymandias, King of Kings;
Look on my Works, ye Mighty, and despair!
Nothing beside remains. Round the decay
Of that colossal Wreck, boundless and bare
The lone and level sands stretch far away.”
Much like Shelley’s traveler, 25 years from now we may only vaguely remember the names of the current members of Big Law club; just as we vaguely remember law firms like Dewey & LeBoeuf and Heenan Blaikie today.
I base this assertion on Richard and Daniel Susskind’s astounding suggestions in their latest work, The Future of the Professions. They claim that the purpose of the legal profession is nothing more than to produce and distribute practical legal expertise to clients. And furthermore, we are now living in a time where the production and distribution of legal expertise can be done by other means.
By extension, therefore, I suggest that the only purpose of Big Law is to produce and distribute practical legal expertise at a size, scale and complexity that is required for corporate clients.
And if that is correct, we need to determine if we are now living in a time where the production and distribution of legal expertise, at a size, scale and complexity that is required for corporate clients, can be done by other means.
To answer this question, it’s helpful to consider legal work undertaken by Big Law as akin to a gigantic Jenga® game. Each Jenga block of legal work adds to the health of Big Law; removing them diminishes that health. Over the past 50 years Big Law has risen like a sturdy set of Jenga blocks; in fact growth prior to 2008 was of historic proportions; but since then, growth has been anemic.
Besides the obvious economic conditions, something else is at play.
For BigLaw clients who are unable to increase the size of their legal teams, they’re beginning to become more comfortable with disaggregating work and using alternative providers for certain files and certain aspects of BigLaw files.
We have heard for years that the “more for less” challenge has driven the growth of in-house legal teams. And yet general counsel around the world - the core clients of Big Law – still overwhelmingly tell the market they would prefer to grow their internal teams even larger. As internal teams increase in size, shifting legal work away from Big Law, they take out a slew of Jenga blocks required for the health of Big Law.
For Big Law clients who are unable to increase the size of their legal teams, they’re beginning to become more comfortable with disaggregating work and using alternative providers for certain files and certain aspects of Big Law files. This activity removes another slew of Jenga blocks required for the health of Big Law.
And if that wasn’t bad enough, Google’s Deep Mind®, IBM’s Watson®, ROSS® and Kira Systems® should convince you that technology can and will increasingly displace the number of lawyers needed to do a set of tasks. To paraphrase the Susskinds: systems and machines, operating alone or operated by people that look very unlike traditional professionals, will take on more and more of the tasks that we associate with Big Law lawyers. Again, Jenga blocks that are required for the health of Big Law are removed.
Once the Jenga blocks are removed from Big Law, they never return.
"'The Death of Big Law' is a phrase often used as a vague notion or as hyperbole to fill event rosters and sell books." - Read the opposing view in this debate, authored by Josh Kubicki.
About the Author
Mitchell Kowalski is a lawyer and the principal consultant at Cross Pollen Advisory where he advises in-house legal departments and law firms on the redesign of legal service delivery. Mitch was recognized as a Fastcase 50 Global Legal Innovator in 2012. He writes for a variety of publications, including a monthly column on legal innovation for The National Post, and is often asked for comment in international and local news media. He is also the author of the critically-acclaimed book, “Avoiding Extinction: Reimagining Legal Services for the 21st Century.” Mitch is frequently asked to speak about legal service innovation at conferences and client-gatherings around the world. As a visiting professor at the University of Calgary Law School, he researches and teaches innovation in the global legal services market. Follow him on Twitter @mekowalski or visit his website www.kowalski.ca