“The future is already here — it’s just not very evenly distributed” – William Gibson
In a recent Lawyerist Lab discussion, contributors discussed how they would advise younger lawyers to prepare for the future of law. What was interesting to me in this discussion was the sense of denial that carried through some of the messages posted. Sam Glover paraphrased these lawyers’ view as, “Nothing about their practice is really changing, apart from the tools they use.” I think this denial stems from the idea that changes taking place in one practice area are often seen to not be applicable to other areas of the law.
Litigators believe that their practice is immune to big changes. Unfortunately, no practice area is immune from big changes. What differs is when those changes will affect a practice area. Converging pressures of stagnant client incomes, increased legal needs, and a drastic underfunding of courts, mean that litigators are already in the cross hairs for change. Civil litigation is already being disrupted by Online Dispute Resolution (ODR).
Services like Modria allow business to handle their own disputes without relying on courts. EBay uses ODR to settle 60 million of disputes a year, at a fraction of the costs poured into our court systems. The value and savings of moving disputes out of the court systems have not gone unnoticed by business. In AT&T Mobility v. Concepcion, businesses found they could move even class action litigation out of the courts and into alternative dispute resolution.
User agreements have been altered to cut the courts out of future disputes in all but the most limited circumstances. This change in civil litigation continues with even state actors creating non-court remedies. British Columbia has created their own pilot ODR system. Residents of BC can receive a binding agreement in a dispute online, with Section 20 of the Civil Tribunal Act forbidding lawyers from representing clients.
Seems like the future is breathing down on civil litigators. In the criminal system, heavy reliance by cash-strapped courts on fees and private actors has lead to an abusive system ripe for change. Some courts are already looking to alternatives to justice by plea agreement and overcrowded prisons. Courts are looking to targeted tribunals that focus on rehabilitation and remediation to provide alternatives to traditional criminal trials. Tribunals, like drug courts, have been around for a long time, but are unevenly utilized.
Many criminal lawyers have never represented a party in a drug court. The role for a defense lawyer in a drug court may be more akin to a caseworker than a litigator. For those lawyers practicing in drug courts, at least one legal future has arrived. That is why the discussion on the Lawyerist is interesting. There is no one future for legal professionals. Each jurisdiction and practice area will have different outcomes.
The future will be diverse and will arrive in fits and starts. My prediction for litigators in the future? I predict that part of their work will be in advising which type of dispute resolution will work best for their clients. Collaborative mediation, ODR, and other adjudication processes that I haven’t even considered will come into existence. Clients will turn to lawyers for help not just in settling problems, but also to help select the best process for getting resolution.
The best lawyers will be not only advisors, but guides, charting courses for their clients into new worlds of legal outcomes. Keep up to date with Clio’s top legal blawg for more in-depth legal discussions and advice, on topics such as “Choosing Your Legal Niche”.
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