Separating “essential” From “incidental” in Legal Practice

Next month I begin teaching a course on innovation in legal services at Western University Law School. I’m excited about teaching this new course, but I’m even more interested in the mood and thoughts of today’s law students. How do they perceive the legal marketplace given that 13% of Ontario law school graduates did not find articling positions this year? More importantly what do they think of the profession itself?

Do they feel the same sense of uncertainty about the future that many lawyers feel today? Or do they see themselves on the cusp of a new era with boundless opportunities for those who are bold enough to re-invent the profession?

At the heart of re-inventing and re-imagining the profession is separating what is truly essential to the delivery of legal services from what is merely incidental. And to say that something is essential to the delivery of legal services is to say that it is absolutely necessary for the achievement of that delivery.

Michael Sandel has an interesting TED talk in which he discusses what is essential to the game of golf. He reviews the case of Casey Martin and asks whether walking is an essential part of the game or just incidental to play? In other words is walking absolutely necessary for the game?

Historically I suppose, golfers had no other viable option and were forced to walk the course. Had golf carts been available at the invention of the game, would the inventors have placed an importance on walking?

Tangentially, are lawyers essential to the delivery of all legal services, or essential to just a fraction of them? Historically, lawyers were the only ones who were educated enough to deliver legal services and so it made imminent sense to ring-fence the practice of law solely around lawyers. As a result, lawyers were treated with high regard and given special status by many in society – even today! That special status justified increased tuition fees and increased legal fees. But with advancements in technology, education, and management techniques, is any of this still valid?

And if legal services can be delivered with the same result by technology and non-lawyers using better practice management techniques, this causes a traumatic paradigm shift not only in the practice of law, but also in the psyche of the profession.

What now is the purpose of a lawyer? How do law schools justify high tuition fees? And what does a lawyer do to justify the high esteem that many in society still give to the profession?

These are very important questions for a profession that no longer knows what it is any more.

And so I hope that law students view this time period as an era of disruption and change. I hope that they will challenge the traditional role of lawyers in the delivery of legal services. I hope that they believe that the Mayans were in fact correct – that 2012 is the end of the old way of doing things. It is for law students and for the young lawyers of today to re-think and re-invent our profession.


  1. Does the transformation of the legal profession have any comparison to that which the medical profession has undergone and continues to undergo. That is, some of the services that were once solely provided by doctors are now being carried out by nurses etc. Technological advances in the medical profession always have played a major part in the transformation of medical services but the profession of doctor endures. With that said, is there anything here that legal professionals can learn and be inspired by from the medical profession experience?