By Jim Calloway

“Navigating the Changing Legal Profession” is the theme for this month’s edition of the Oklahoma Bar Journal and the OBA Annual Meeting. That’s a topic in which I have much interest. Every lawyer not actively engaged in finalizing their retirement plans should also pay attention to future trends.

But it’s not that easy.

First of all, lawyers are busy — really busy. When your plate is completely full, it is hard to invest a lot of time considering things that may or may not happen years in the future. Second, lawyers operate in a world based on adherence to precedent and minimization of risk. “We’ve always done it that way” is often persuasive in many business settings and certainly sets the tone for much of the legal profession. So the fact that many of those discussing the future of the legal profession predict significant change ahead does not make for a welcomed message. We all cope with change, but few of us really enjoy it.

Oklahoma lawyers have several opportunities to become more educated about the future and potential changes for the legal profession this month.

Here’s my quick list for you:

1) Buy a copy of Professor Richard Susskind’s Tomorrow’s Lawyers today and see how much of it you can read before the OBA Annual Meeting. (Amazon has the Kindle version for $10.49 and the physical book for $18.86 as this is written.)

2) Register for and attend the OBA/CLE program “Tools for Tomorrow’s Lawyers” Nov. 12 in Tulsa.  I served as program planner for this, and I will start the day with a presentation titled “Lawyers and Change: How to Survive in the Future You Didn’t Expect” followed by a lineup of great programs by a number of great presenters.

3) Register for and attend the OBA Annual Meeting where on Nov. 14 you will have the opportunity to hear Professor Richard Susskind speak twice, first at the President’s Breakfast panel discussion (MCLE credit for registered attendees) and then at the Annual Luncheon.  Annual Luncheon tickets must be purchased separately.

4) Schedule an uninterrupted hour (just one hour!) the week or weekend after OBA Annual Meeting for you to think about the presentations above and determine what is most important for your practice. Make some notes and plans about what you plan to do for your response.

I’m not objective about critiquing my own advice, but my prediction is you will determine that one priority is to do a better job of documenting your processes and building your checklists and unique office procedures manual. You may even order a copy of the Checklist Manifesto by Atul Gawande, if you have not read it previously.

Why do I say that? Because that is the low-hanging fruit – the part that is understandable and unobjectionable. You may be skeptical of some of the darker, more challenging predictions of the future of lawyers, about whether artificial intelligence will really be applied to legal advice someday, the meaning of venture capital money flooding into legal service startups or whether consumers will increasingly turn to do-it-yourself legal websites for their needs. But it is hard to argue that it’s a bad thing to document office processes so that everyone is following best practices and using checklists to deliver a consistent work product more quickly and efficiently. This will result in almost immediate benefits whatever the future holds.

But even that simple (and some may say obvious) first step to reorganizing your law office comes at a cost. For the busy solo practitioner, it is another significant investment of time that is not billable to clients, even though it might lead to greater profitability in the future. For the lawyer in a firm, whether small or large, there may be resistance and institutional challenges.

Here’s just one example: A law firm should harness the creativity and talents of the lawyers involved to produce the very best result for every single client. That means that law office staff should no longer open new client files one way for one lawyer’s file and a different way for another lawyer. Internal standardization is important for your future success and that applies to file setup as well as uniform language in routine documents. If all of the lawyers in a firm cannot agree on whether “COMES NOW the plaintiff” language in a petition should be maintained or retired as superfluous, then that is not a positive sign regarding other decisions that will need to be made for the firm in changing times.

WHAT DO I REALLY THINK ABOUT THE FUTURE OF LAW PRACTICE?

The answer to that question, as Professor Susskind demonstrates, merits more of a book-length response than one the length of a bar journal article.

But I think it is safe to predict that there is a lot of truth in the title of Professor William D. Henderson’s law review article, “Three Generations of U.S. Lawyers: Generalists, Specialists, Project Managers.” Even though legal ethics rules prevented most lawyers from using the term “specialist,” we all know that few lawyers have been comfortable doing “everything” for quite some time now and even most remaining general practitioners have a network for referrals and associating with other lawyers on some types of legal work.

Certainly a major trial or large transaction closing is already an exercise in project management skills and legal skills. With the combination of increasingly powerful technology tools and more people with deep expertise and skills in limited areas, tomorrow’s lawyers may find themselves acting like the conductor of the orchestra, managing both technology tools and people to accomplish good legal work.

I would also direct your attention to Professor Henderson’s blog post on The Legal Whiteboard “A Counterpoint to ‘The most robust legal market that ever existed in this country,’” where he makes the observation that “the artisan lawyer cannot keep up.”

This is not to say that the future for the legal profession is overwhelmingly negative.

Ken Grady is the chief executive officer of SeyfarthLean Consulting, a company that works with organizations around the world to provide solutions for in-house legal departments and other strategic business units. On the company blog, he writes “Lawyers, the End is Not Nigh for You – Bring Wisdom.” I would encourage you to read his entire post, but he gave me permission to share this great example of a lawyer’s wisdom with you.

Lawyers Are Processors With Wisdom

While I agree we will continue to see routine legal processing moved from lawyer to computer, I disagree with Mr. McClead’s basic premise that law firms and lawyers are nothing more than legal processors. Processing is part of what we do, and an important part, but not all of what we do. The part missing from the legal processor description can best be summarized as wisdom.

A client asks for advice on firing an employee. The employee’s performance has been rated average for most of her almost 30-year career. In the past three years, however, her performance has slipped. She is 59 years old and has failed to keep up with technology. She can do work on a computer, but others in her department are faster and more facile with software. Her department manager, an up-and-coming manager in his late 30s, is under pressure to increase productivity. He wants to terminate the employee and bring in a replacement (who he already has identified) who is in her early 40s. The question to you is whether the risk of the company getting sued is relatively low if the manager fires the employee.

This seems like a straightforward question for Mr. McClead’s digital legal processor. Identify the risk factors, consider the law in the relevant jurisdiction, and compute a probabilistic risk range for a lawsuit.

A good lawyer will go further. When did the employee’s performance start declining? Is she well-liked amongst her peers? Is the company aware of any changes affecting her at the time her performance dropped off? Apart from performance, what is her history with the company? Since the employer is a family-owned business in a smaller community, does she have other connections to the company?

As the lawyer flushes out the story, we learn that the employee lost her mother to cancer and her son, a Marine, to enemy fire, within three months of each other. It was a few months later that her performance level started to decline. She joined the company 30 years ago when the founder hired her as the company’s first customer service representative. She knows everyone in the company and is very well liked. Because she has been around so long, she is the unofficial company historian and employees frequently consult her about products or services. Her co-workers don’t complain about her performance level. Rather, they have gone out of their way to help her keep going. She has planned for years to retire at age 62 when her husband retires and they can move into their lakeside cottage. Her sister and brother-in-law both worked at the company.

Based on all of the information, the lawyer advises the department manager that he could fire the employee and, while there is some risk of a lawsuit, the likelihood of a successful one is manageable. But, the lawyer encourages the department manager to think more broadly about how to handle the situation. The company is financially strong, notes the lawyer. She suggests the department manager work with the human relations department to find a different role for the employee for the remaining two-plus years until her planned retirement. The new role would allow the employee to keep working, recognize that she probably feels the pressure of not being technologically adept, and would allow her to retire with dignity while reinforcing to the other employees that they are valuable to the company.”

Reprinted with permission.

Be wise. Work hard. Take good care of your clients. None of those tools for success are likely to change in the future.

Your incorporation of project management skills and the smart use of technology should be and will be increasing in the future. Mr. Grady also notes in a subsequent blog post that the role of lawyers will change as technology takes over a substantial portion of what we do today. That is not happening with the sunrise tomorrow. But it is evolving for our tomorrows. Today’s office procedures manual may become tomorrow’s automated law firm process, which might be the very best reason to start documenting and developing your procedure manuals today.

Mr. Calloway is OBA Management Assistance Program director. Need a quick answer to a tech problem or help resolving a management dilemma? Contact him at 405-416-7008, 800-522-8065 or jimc@okbar.org. It’s a free member benefit!

Originally published in the Oklahoma Bar Journal — November, 2014 — Vol. 85, No. 29