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Rule One: Calculate Precisely Why You’re Trading Your Mustang for a Horse

I was bemused, recently, when a highly-respected and knowledgeable professional publisher intimated to me a partial preference, presumably based on a degree of evidence, for content which was aimed at lawyers, that did not rely on or make significant reference to rules. It caused me to ponder, as a sometime law publisher and one who holds certain systems of rules in high esteem, on their value, not least for purposes of providing information to lawyers and their like.

It is not within my competence to attempt to deal in any depth with the complex jurisprudential analysis that has always underpinned any theoretical discussion of the law; Aristotle, Hart, Dworkin, Llewellyn and others do the job perfectly well. What I do think, however, is that the idea of the law as a system of rules, even to the extent that this can be debated in various ways, is one that works for those seeking to make a living from selling content to professional advisers and legal information specialists. With humble and vague reference to Professor William Twining’s noted lecture and article, I suspect that while, in the law, the metaphorical plumbers vastly and obviously outnumber Pericles, the latter is more likely to recognise the value of investment in knowledge resources. For those who do not yet fully appreciate the importance of good and fair legal rules and (competent and honest) lawyers, I recommend, Philip Wood’s “The Fall of the Priests and the Rise of the Lawyers”.

You know where you are with rules. You can make up your own, then break them and alter them. You can comply with those formulated by others, simply ignore or even break them too, ideally, knowing the consequences thereof. A good thing about rules, other than in environments which are steeped in fundamentalism of one kind or another, is that they are made to be broken and altered and are capable of being evolved ad infinitum. This is a key factor in what makes them so appealing to some law publishers who can thrive on providing information on and, especially, analysis of caselaw, legislation, regulations, codes of practice, proclamations, executive orders and suchlike. Particularly in a dynamic environment, one great certainty is that rules will change. Precisely how information and analysis are delivered, the extent to which this is the case and the tools and/or methodologies by which it is done, may be a different matter and one which, clearly, is developing all the time. However, this does not detract from the continuing need to know about and give guidance on rules, together with the benefits of being able to exploit them to advantage, as any international tax avoidance expert will confirm.

For those who would take a significantly opposing view of the provision of information which is of relevance to legal and professional markets, the choices are innumerable and varied but I wonder if many of these have any greater value (by all definitions) than those which are rules-based. It is most certainly the case that there may be benefits in taking a wide view of the needs of and types of professional advisers and the ability to satisfy near-total, rather than narrowly-defined information and processing requirements. Lawyers and legal information specialists do not just need to know about law; they must have information, analytics, tools, processes and artificial intelligence systems on a whole range of topics, such as competition, legal business and business in general, risk measurement and management, social, financial, statistical data and trends, commercial and industry practice, medical, health, educational and environmental practice, to name merely a handful. They need to know about and advise on local, national and international government policy and plans, and require technological solutions with which to process them. Many of the technical innovations underpinning the necessary methodologies are in substitution for traditional delivery media, but that is not particularly important; the outcomes are so.

Embedded in all these areas of practice and further opportunity, are rules of one kind and another, but where there is an absence of rules, objective evidence and measurability, with merely an offer of subjective opinion, one needs to be more circumspect. Occasionally, beneath those with something of value to offer, there are law-populists, charlatans, shysters and new-age psychobabblers. A few are quick and keen, for a price, to offer their pre-redundancy sales-team supervision experience, faux science and puerile emotions disguised as futurology, inspiration and motivation, encouraging their followers, among other such nonsense, to be “leaders” and help others “believe in themselves”; perhaps, though, this is coloured by my personal scepticism about the convenient and simplistic notion of a world divided as between “leaders” and “the led” and that I distrust deeply some who would purport to be among the former. However, without the rules, objective measurement and empirical research, written or other guidance from the self-styled gurus on the topic may, now and again, be best located among the fiction titles. Contrast this with the quality and depth, combined with the creation and sustaining of many generations of reputation, that are part of the tradition of rules-based law publishing. My own article, Working with and writing for a law publisher to achieve law firm or corporate reputational and competitive rewards, originally published in Modern Legal Practice, MLP Vol 2 [2019] issue 4, pp.54-59, seeks to articulate why these factors are significant and beneficial.

I suspect that there may be a little confusion, from time to time, between the concepts of “the law” and “the business of law”. They are not the same and law publishers may need to choose which market they wish to serve or to target both while fully appraised of their distinctions. Perhaps for “law”, it is wiser to think in terms of “a system of rules which needs to be understood and interpreted”, as distinct from information for “businesses which engage in law-related activity”. The former, which I’ve seen referred to as “law law”, presumably as opposed to “non-law law” or suchlike, requires analysis, explanation, guidance and instruction, as does the latter, but each in different ways. Both vary, depending on markets, market sectors, jurisdictions and various other factors. The latter, to a large extent, is not substantially distinguishable from other types of business and endeavour in unrelated sectors, perhaps making it more appealing to non-specialists who speak primarily in general and generic terms. It is not so of necessity, as there is much of value to communicate but its characteristics tend to differ from those of rules-based guidance. I find it perplexing, however, as a number of law publishers move to align themselves to support staff in legal practice to a greater extent than to fee earners and legal experts. Maybe the obvious contraction and consolidation in all areas of information provision for the legal and related markets, together with major corporate withdrawals from markets, has caused a degree of panic as those publishers which are less able to evolve into high added-value legal technology solutions, search for ways in which to survive and compete. If the lawyers and qualified law librarians, as target customers, are drifting away, maybe those with lesser or alternative skills look attractive; I have my doubts.

In truth, the important discussion now and for the future is not so much about the evolution or demise of law publishing businesses and the differing focuses of one type of law market provider versus another but rather on the ability of technological innovation, particularly artificial intelligence, to deliver optimal solutions to address scenarios in which the law has to intervene. However, in the drive and competitive race to win, it may be wise to calculate precisely in what terrain and circumstances a horse, recalling Shakespeare’s Richard III, might be better than a Mustang. Which mixed metaphor represents which, perhaps, depends on one’s personal view. Meanwhile, there is strong evidence to show, certainly at the top end of the market, which publishers are making the good decisions and which are not.

Comments

  1. “‘I suspect that there may be a little confusion, from time to time, between the concepts of ‘the law’ and ‘the business of law’. They are not the same … need to choose which market they wish to serve or to target both while fully appraised of their distinctions.” This distinction is suitable also in the discussion of “traditional” law firm versus ABS and if not already discussed should be discussed in the said scenario.

  2. Many thanks Verna, for taking the time and trouble to read and comment on the article.

    Beyond my competence to express any views but It would be interesting to know the opinions of others too.

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