Save the cheerleader, save the world. That was the tagline for the popular first season of the TV show Heroes several years ago – the cheerleader was the key to the mystery.
In terms of the legal industry, expert Richard Susskind suggests that kind of causal relationship might be stated as “change the incentives, change the behaviour” – incentives are the key to creating a profession that can flourish into the next decade and beyond.
In a paper prepared for the CBA’s Legal Futures Initiative, Susskind notes six key issues facing the legal industry, many of them also noted by other observers – quickly evolving technology, for example, or the impact of globalization – which add up to what he calls the “more-for-less challenge:” how to provide more services for less money.
He notes that while there are those who respond to the challenge by finding internal efficiencies, others would disrupt the system altogether.
That Susskind is on the side of the disruptors becomes quite evident in the section dealing with access to justice, which he identifies as one of his six key issues. He defines access not only as “the availability and accessibility of public dispute resolution facilities,” but also as citizens’ ability to understand the law and what they’re entitled to as protection; and to benefit from the facilities that exist.
There are many causes of diminishing access to justice – a lack of commitment to legal aid funding being primary among them. Observers, including the CBA’s own Envisioning Equal Justice Project, have suggested responses ranging from strengthening the voluntary sector to greater use of alternative dispute resolution to some form of conditional and contingency fee arrangements or third-party litigation funding.
Susskind’s more disruptive answer to the access question is to rethink how lawyers respond to disputes – and why they respond that way.
The court system “is too costly, cumbersome, time-consuming and forbidding” to be a genuinely public resource, Susskind says, so wouldn’t it be “greatly advantageous if disputes could be avoided in the first place”?
If the escalation of disputes is what leads to ballooning legal bills, then wouldn’t legal risk management or dispute containment be beneficial for the client?
ADR and risk avoidance/containment are “underdeveloped legal fields” in Canada, says Susskind, and it’s not just because we live in litigious times. Lawyers themselves “can be the direct cause of the escalation of disputes,” and that is at least in part because of the way they earn their fees. The billable hour creates an incentive to draw out a dispute.
“Proponents of collaborative lawyering – which might entail, for example, lawyers on both sides withdrawing from involvement in a case at a specified stage if agreement has not been reached – argue it is important that when the incentives are changed, then lawyers can behave differently,” Susskind says. It follows that when justice is made more accessible, everyone wins.
Technology has a part in the accessibility narrative – with legal information; standardized forms; and information about lawyers’ fees and performance available online.
But lawyers themselves will play a key role by taking a look at the fees they charge, how they charge those fees, and why.
What’s your incentive, and are you ready to change it? #cbafutures