Terri Mottershead

16 December 2020

This article has been republished with permission from the author. You can view the original here

There is no scale we can use to measure 2020 – it’s been exceptional for the wrong and right reasons – and, for many of us, looking at it in the rear-view mirror will be the best part about the year. But, if 2020 has taught us only one thing in the legal industry, it’s that we now know we can do law differently and, we have a real opportunity to build back better. Our challenge, as we reflect on 2020, is to move on quickly from the endless debate about whether we can change and, instead, to focus our energies and resources on making it happen. That’s our opportunity, change – we can embrace it or lose it but, we can no longer ignore it…well, we can, but we probably won’t like what comes next! And, here’s the kicker in all of this, as an industry we’ve devoted a lot of time over the last 5-10 years enumerating the shortcomings of or raising concerns about ALSPs, but, during the pandemic, didn’t most legal practices emulate their business and service/product delivery models?

Here’s my top 10 “change” trends from 2020 – these are the ones that signalled a reshaping (if not reinvention) of the business and practice of law. Many evolved from pre-existing, solid foundations in our industry but also, and importantly, from other industries too. They were significant and, taken together, provide a framework for sustained change…

The legal industry is capable of rapid, global change:
Legal commentators often explained the absence of change in our industry as lawyers being risk adverse and the profession being more comfortable with precedent and reacting, than experimentation and being proactive…hmmmm…well that myth has been busted on a global scale! We now know for sure that the legal industry and legal professionals CAN work differently, with agility and we CAN do innovation and experimentation at scale. The challenge in 2021, is where the legal industry will reset – it can’t be zero – we can’t go back to where we were, because that system was broken. And yes, law firms continued to do well during the pandemic in Australia and elsewhere (well, some but not all practice areas anyway) but here’s the critical factor, they did not thrive by doing things the same way, that was not possible - what they DID, was DONE DIFFERENTLY and as most would agree, done more effectively, efficiently, and with a greater degree of empathy for clients and employees (more on that below) than ever before. Going back to zero will be a short journey to regression and, it won’t stop everyone else from continuing to change – if the legal industry does not step up, others will continue to step in!

The legal industry IS NOT a single profession, it’s a dynamic ecosystem:
In 2020, we finally had to accept that the practice and business of law is no longer a solo pursuit or in the hands of a single profession, lawyers. It takes a team to deliver legal services/products effectively and efficiently. This was a lesson learned AND the legal services/products provider marketplace became ENTENCHED as an ecosystem - multi-stakeholder, multidisciplinary, multi-generational, multi-functional and not exclusively human! Consequently, legal practices took a long, hard look at what they offered, to whom and how. Those practices that reflected, and reset in 2020, will move into 2021 with increased agility and very likely consolidate a market leading position.

In 2021, we’ll see even more on this front especially in those places where they are modernising the regulation of legal practice. Forward looking regulators in these places will have the opportunity to really understand, value, and explore new and innovative legal businesses, service/products, and their delivery models. These changes will almost certainly include lawyers and allied professionals as law firm co-owners and, some entities will not include lawyers at all. They will be entities that are tech fuelled and data driven with a decreasing focus on practice areas and the billable hour, and an increasing focus on holistic problem solving and value adding outputs. They will require different people (some lawyers and some not), offering different parts of or differently packed legal services, in different ways. They will involve different combinations of self-help (using tech), para-professionals and lawyers. We will see a bigger and more clearly defined role for para-professionals too – some will work in law firms and others, independent of them. It will be different and/or a different combination of stakeholders - these service providers will expand the definition of ALSPs.

Where will we see all this happening? Where it began to take flight in 2020, through the applications to and eventually the outcomes of regulatory sandboxes in places like Utah, USA and the UK. These will be THE places to watch. There are a bunch more sandboxes in other places too and there will be more in 2021. Unlike legaltech incubators and accelerators that have tended to focus on legaltech development and integration, these sandboxes are about tech application in, and the reinvention of, legal business models – the sandboxes promise to do more to advance the innovation agenda than anything that has come before, because they are open to all stakeholders catering to all consumers and provide a safe environment for experimentation.

Interconnectivity is so much more than a word!
Single source tech solutions came under pressure to do more and be more in 2020. Platforms and connected tech became the flavour of the year! Take a peek at the tech mergers and acquisitions in 2020 as a sampling of what’s to come in this space – the recent Salesforce acquisition of Slack being a good example. Then look at the changes to workplaces and workspaces (more on that below) to understand just how differently we will be connecting, communicating, and collaborating in 2021. In 2020, interconnectivity of tech with task and people was front and centre and, we will see even more in 2021 as we work out the balance, blend, and the brand new, in this space. The nature, extent and frequency of internal and external communication and connection raised the bar in virtual interconnectivity this year. In 2021, as we return to the office, the biggest challenge will be how to meet these new expectations in an in-person/virtual hybrid world and, what will happen if we don’t!

Choosing the right legaltech is an art and a science:
The need to make quick decisions on tech was critical and at the forefront of business continuity in 2020. The emphasis was not on buying more but understanding what you had in the first place and…using it! The Office365 suite (including Teams) was a winner here and, Zoom! The catch phrase of the day was “love the tech you’re with!” As Bob Ambrogi has recently discussed, for those in larger law firms and in-house legal departments, who needed to make purchasing decisions quickly, they were assisted by a number of legaltech platforms where products could be reviewed, demonstrated and tested before they are were bought/deployed like Reynen Court (the so called legal app store which actually launched a little ahead of the global lockdown in January) and Thomson Reuters Marketplace (an online store aimed at a number of professional service providers not just legal services) versus legaltech directories like the Legaltech Hub (a global directory of commercial legaltech) and The Observatory (from law firm Orrick Herrington & Sutcliffe).

As legal users start to move beyond the tech as tools fundamentals, expect to see an increased reliance on and expansion of these platforms and directories, especially around more detailed guidance, and deeper tech assessment/rankings in 2021. This sort of buying/use tech support is likely to increase in the small and medium sized law firm/legal department market too – it could come from consultancies, tech or industry focused memberships and associations, but it is also an obvious place for law societies or bar associations to expand services. These services from memberships and associations won’t need to be local - tech is borderless and so too is the advice about it. We’ll also see legal publications or innovation consultancies expanding here – these will be independent of or work with a pre-selected tech catalogue. In 2021, no matter what the size of your law firm/legal department, the focus will be on tech relevance, use and resilience connected through comprehensive digital strategies – that means not just identifying the tech tools but really understanding and educating people in how to use every aspect of them, connect them, and create from them – digital literacy will be the catchphrase of 2021 and we’ll be there to support you with our new series of the same name!

Legal work has changed…forever
The definition of “work” changed in 2020. We revisited biases, traditions, and even the concept of work. Here’s some of the ways that discussion was cut and diced and…myths busted:

a. Work will be increasingly categorised as “something you do, not somewhere you go.
b. You CAN trust people to work productively and conscientiously from home and, if you can’t why did you employ them in the first place? Great people excel anywhere and everywhere (see above and below)!
c. It is “work” if you are drinking coffee with a colleague or client via Zoom, just like you when you visited with them in-person before lockdown.
d. It’s ok to put the washing on or pick up a sandwich at the local café (when it’s open) during the day, because you still know a deadline is looming and you’ll meet it because outputs matter, not hours.
e. It’s ok if the cat shows up on a video – people like seeing your cat, where you live, your family and getting to know you…thank you videoconferencing for helping us celebrate our humanity…and the love of other species!
f. Saving time on your commute to the office provided you with more time at your desk but it also gave you more time to chill, spend with your family, read that book or binge watch that show – productivity is not about hours, humans are more productive and creative when they can step off the treadmill…there was a lot of research in 2020 that confirmed this and busted the long held traditions, biases and myths to the contrary.
g. Clients like seeing you in person BUT, they also like video/teleconferencing, especially when it means they don’t have to drive 50 kilometres to meet with you for a 5- minute consultation to sign a document and/or also pay CBD parking rates.
h. Not everyone wants to work remotely from home and not everyone is set up for it – where it can be (i.e., not a lockdown situation), it needs to be a CHOICE. Working out what’s best for each person, is a discussion, consultation, collaboration and yes, there needs to be a business case for it too. Many of us, maybe even all of us (depending on choices employers have made), won’t return to the office 5 days a week - it seems a 3 office/2 home split is where it’s heading for 2021.
i. Humans need human contact but, not all the time! Some humans may need more in-person time than others e.g. early career professionals or new recruits to settle in and get to know their team, colleagues and clients…initially but, thereafter (or arguably even then), in-person time should not be (and can’t be):

  • i. the only way to provide feedback, mentor, coach, sponsor, teach, learn, or connect, or
  • ii. the only way to allocate work, or
  • iii. the only way to have a conversation with a colleague or client, or
  • iv. the sole means by which we assess how, where or when a valuable contribution has been made.

Suggesting these sorts of things can ONLY be achieved through face time is not only clearly incorrect but signals poor leadership, management, and unimaginative business development.
And, by the way, as Jordan Furlong has recently observed, culture and values can’t be measured by face time either – they’re about behaviours that are normalised and rewarded in every interaction – that’s as true for in-person interactions as it is for digital ones!
j. Great project management has always been essential but really came into focus as critical once we moved to remote working.
k. More time working at home means less time in the office which leads to more home office space and less commercial office space. We all saw the reports in 2020 about people moving from apartments to homes as the need for home offices became a long-term necessity. We also saw very different negotiations taking place for commercial office places and spaces. In 2021, we’ll see these questions, and more being asked and answered: Do we need an office in the CBD when most staff are in the suburbs? What does office space look like now? If coming to the office is as much about time together as the work being done, do we need fewer individual offices and more hot desks and (different) meeting places?

There’s a new buzz around the importance of people…?
As creativity, different, new, curiosity and experimentation took hold in 2020, it became equally apparent that many legal practices did not have the capabilities to identify the issues, act and steer the ship in choppy waters. These practices needed different ways of thinking about and getting things done. The events of 2020, in so many ways, made the case clearly and loudly for diversity and inclusion. Unfortunately, that call continued to go unheeded as numerous reports provided evidence that women and people of colour were being unequally disadvantaged by the impact of the pandemic. Recent reports have also shown that allied professionals fared worse than lawyers in areas like job retention, increased workloads, and mental-health and well-being. Of all these areas, while change in employment status for allied professionals may be able to be explained through the increased use of tech in legal practices, we have yet to see if that is correct.

Out of these negatives there were still some positives, even if these remain more anecdotal than evidence based for now:
• Through the increased use of technology, we discovered our humanity – as mentioned earlier, we liked working from home, but we liked being around each other sometimes too
• We rediscovered empathy – amidst so much tragedy, with all of us in a tough spot together, it made for a new appreciation and deeper understanding of the human condition
• Mental health and well-being, long a hidden or neglected topic in legal practice, came to the forefront with many legal practices running additional or dedicated sessions with and for staff to support and assist them in coping with things like leading, managing and living through rapid change, remote working, and prolonged isolation
• As we continue to return to the office in 2021, we may do so with our strongest commitment yet to building a kinder, better, and more human centred workplace – I really hope this one is right!

Becoming REALLY client centric means not being lawyer centric:
Jordan Furlong wrote a number of thought provoking Law21 posts about the impact of the pandemic on legal practice, they’re all worth reading, but these words really struck a chord with me – it’s an eloquent reminder of something most of us in the industry hold near – being of service: “If you’re building a function or procedure or system for the fulfilment of legal needs, and you’re doing it from the perspective and priorities of a judge or lawyer or other justice professional, you’re doing it wrong. Build for the users.” In 2020, the legal industry was forced to “build for the users” or bring the law to the people and not the people to the law – we finally stopped JUST talking about “legal design thinking,” we took the clients journey and we made legal services/products, (AND the courts), more accessible. At CLI, we discussed this a lot in 2020 and even launched a new series on Client Experience. There is still is still a long way to go in this area for most law firms. Few would satisfy all the characteristics identified as “customer-centric legal services” in Mark Cohen’s recent article but, the longevity of the legal industry is dependent on doing just that in 2021 and beyond.

Data:
Really did become the new oil in 2020We had to monitor, measure and act using something other than being present in the office. We couldn’t rely entirely on experience or precedent because we hadn’t experienced anything like this before. As the pandemic took hold, it was all about financial data. As people moved home to work, it was all about client intake, matter management, staff utilisation, realisation, and productivity. When legal businesses and/or their clients businesses started to feel the full force of the pandemic-led economic downturn, the focus was on data to help predict and manage liabilities and risk. Now, and even more in 2021, expect data to be about bringing all of this together, preferably via a user-friendly dashboard – a place where a law firm/legal department, having first established benchmarks and metrics, can monitor and manage internal (legal operations and business) and external (market and client preferences) metrics daily and deploy resources (human and digital combined) when and where needed in real time. Also, and consequently, expect understanding data, data analytics and predictive analytics to be one of THE most in demand areas for legal professional development in 2021.

Is legal education capable of wide scale change?
In 2020, legal education came under increased scrutiny. Initially all about rapidly moving in-person classes online, this advanced to a broader discussion about the work readiness of graduates and their career options outside private practice. Here’s what was revealed along the way:
a. The blurring if not disintegration of the walls between the traditional legal education silos of academic, vocation and continuing legal education, in favour of life-long capability development
b. The need for rapid upskilling in the use of tech for many law teachers
c. The evolution from teacher-centred to student-centred learning
d. The need for a rapid overhaul and more sophisticated use of education technology (EdTech) for online course delivery (i.e., video capture of a lecture is not sophisticated online learning) and student participation/engagement
e. The need for a radical overhaul of law school curricula so it reflects changes in legal practice (authentic learning) wherever (not just private practice) and however (tech enabled) law is practised
f. The need for a radical overhaul of assessment methodology of law school courses/program with the emphasis moving from summative (grading) to formative (application)
g. The need to revisit the role, function and contribution of clinical legal education and experiential learning courses/programs in law schools – they need to move from being electives or bolt on courses to main-stream
h. For practical legal education, the need for work experience to reflect contemporary skill development e.g., the ability to engage with clients in a virtual legal world
i. The need for law students to actively engage in and better understand their career options e.g. by exploring how and where a law degree can be used through virtual internships
j. The need for law schools to revisit their prospective student base i.e., with the rise of the multi-disciplinary firm and its professionals, there is a growing market need for complimentary substantive law and legal business education around the world
k. The need for regulators to support change, agility, innovation, and contemporary relevance of legal education – we need to establish a legal education sandbox, now!
l. That the legal education space is ripe for disruption from alternative legal education providers (ALEPs). Their path was paved by MOOCs but, these are more legally focussed and diverse than previous offerings on these platforms. These education opportunities include things like lawyer bot building, coding for lawyers, digital literacy, data analytics, or certification in use of legaltech software. They are being offered by tech companies, legal consultancies, online legal education providers, and thought leaders who are motivated to support and assist the future legal profession like e.g., the O-shaped lawyer program. Sometimes these courses and programs are offered in collaboration with law schools but at least as often, they are not. They are plugging critical skill gaps needed for contemporary legal practice.

Watch the legal education space in 2021, the discussion has just begun and it’s not going away any time soon!

Leadership:
In 2020, we needed leadership in the legal ecosystem. Leaders who saw the possibilities and benefits of change and were willing to embrace them and advocate for them. We didn’t see enough leaders or leadership. In 2021, we need more, many, many more, brave, and insightful legal leaders who are willing to listen, learn, collaborate, develop, experiment, and adopt next practices from within our own industry and from industries outside the legal bubble. The time has come to break down the silos and build back better! If you would like to explore these trends in more detail in 2021, please register for and join the discussion at the FREE, VIRTUAL CLI-ALPMA Innovation and Legaltech Week on 8-12 February 2021 – over 100 faculty will deliver more than 30 live and on demand sessions - we look forward to seeing you there!

Terri Mottershead

Terri Mottershead

As the Director for the Centre of Legal Innovation (Australia, New Zealand and Asia) at the College of Law, Terri works internationally with leaders of law firms, legal associations, law schools, and lawyers, supporting their transition to, and building a pipeline of exceptional talent for, new law. She has been a thought leader and innovator in legal strategic talent management and development for more than 20 years.

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