You Can’t Put the Toothpaste Back in the Tube: Some Things that will Change Forever in Law Firms After the Virus

This plague that has caught us all napping is going to change all our lives forever: in some obvious ways, and in some more subtle ones. Let us hope that one of the things that changes forever is our readiness, as a species, to deal with the next pandemic more effectively and more speedily.

More particularly, for our industry, there are some key lessons that I think law firms and others will learn, and never unlearn, such as:

·        firms will realise how thankful they are to be (largely) paperless

·        firms will realise they don’t need (as many) people working in their offices

·        firms will realise that they don’t need (as many) secretaries

·        firms will realise that they don’t need (as many) face to face meetings

·        clients will realise that they don’t need to use law firms as much

·        courts will realise they have to have facilities for on-line civil, and criminal, hearings

Let’s examine each of these propositions in turn.

Paperless

Obviously, the key technology here is the DMS. It doesn’t bear contemplation as to how lawyers could work at home effectively with paper files. Of course, document management has been around since the days of PC-DOCS in the mid-1980s. However, it was the Baltic Exchange and Bishopsgate IRA bombings in 1992 and 1993 that made law firms first realise how vulnerable they were in their reliance on paper – especially when they saw their client files strewn all over the City streets. That changed things forever too, firstly with a clean desk policy and then with an increasing trend towards making firms’ electronic ‘files’ the file of record as a matter of policy.

This mass migration to what are now iManage, NetDocuments and case management systems means that fee-earners can do almost everything from home that they can do in the office, including collaborating and sharing documents with fellow workers – as long as the firm has effective remote access. This, in turn, relies on lawyers having firm-provided laptops, or their own desktops, at home that can connect to a suitably sized communications server infrastructure. 

In the last few weeks, most firms have discovered that their remote access servers were not configured for a rapid switch from some 5% of their workforce being at home to 50% - 80% and many have had to upgrade their communications infrastructure accordingly. Now that they have done so, once the danger is over, will they not leave that new equipment in place? I believe that most will, partly because they can see that this may easily happen again, but partly because they can now see a way to reduce their second biggest overhead...

Offices

...which is, of course, office expenditure. A law firm’s largest outgoing is the cost of their people, the second largest is office space and – often – the third largest is Professional Indemnity insurance.

If, and this is the crux, if a firm sees that their staff is actually as conscientious and productive (or nearly) when working at home as they are in the office – then I foresee a sea change in their long-term attitude towards home working. Especially when they factor in the ability to cut their annual office costs by, say, 50% – 70% on a permanent basis.

It won’t need all of them to come to this realisation at the same time – it only needs a small proportion to adopt this strategy and drastically alter their overheads and thus create a significant imbalance of law firm economics. These first movers will be able to slash their fees and increase their profits at the same time. Once this approach is seen to be feasible and sustainable, the rest will the follow like lemmings.

Secretaries

Fee-earners, and partners, will realise that they can get along without what remains of their secretarial support. I struggle to see how, at the moment, a legal secretary can demonstrate how useful he/she is when they and their boss are in their respective homes. How can they add value?

This is another key element of cost that firms will learn that they can do without, or with less. Again, the same argument above will apply – those firms that can demonstrate they can still function after reducing their fee-earner : secretary ratio from, say, 3:1 to 10:1, or from 8:1 to 20:1 will start another cost-saving stampede.

Meetings

In my experience video-conferencing is the major source of continuing frustration with technology in professional practices. All too often it is difficult to set up, often breaks up mid-meetings and occasionally interferes with the discussion. As with remote access, however, many firms have recently upgraded or enhanced their office-based VC systems, as well as their laptop-based VC capabilities – whether it is based on Zoom, Skype or Teams.

Furthermore, having to deal with more VC-based meeting means that all fee-earners are getting more familiar with, and increasingly capable of, making them work effectively.

None of this will go unlearned. It will cause a quantum leap in the adoption of VC technology – for ever. Face to face meetings will always be nicer, and some will always take place, but we now know that we can manage with virtual meetings when we have to, and so have the clients.

Lawyers will learn that they can right click on an email distribution list in Outlook and create an instantaneous Teams meeting on their laptop – they will use it more and more often.

As a result, the proportion of virtual to physical meetings will increase exponentially, even after the crisis is over. Apart from anything else, they will have to, as increasingly often attendees will not be in the office anymore.

Clients

This is more speculative, and I have no evidence for this as yet, but my feeling is that some clients are simply foregoing using law firms for non-urgent work, or work that they feel - in the circumstances - they can manage without external advice. If this is true, then some of that reduced demand is likely to ‘stick’ after the pandemic is over. I also suspect that it will lead clients to consider the nature of the kind of things for which they continue to ask for external legal services. I think it may awaken a nascent interest in a different kind of legal service.

I have spent some time over the years talking to commercial consumers of legal services about their use of law firms. Occasionally I get a whiff of an idea from them that they often wish they could get help from law firms to shut stable doors before the horse has bolted, as opposed to having to use them repeatedly for assistance after a problem has developed. When I ask them to articulate how this might work in practice, they will often describe something vaguely like the concept of having law firms come into their organisation and deliver some kind of risk management service. Then they sort of shake their head and seem, wistfully, to consign the idea to the ‘too difficult’ box.

After this is all over, I foresee a period of reflection by commercial organisations about how and when and in what circumstances they use law firms. I feel that this vague longing potentially to manage risks at a lower cost than dealing with the consequences of them may finally come to the fore. If so, the first law firms to be able to come up with a reliable and proven methodology for delivering such services deep into the functional areas of the client’s organisation – not just the in-house lawyers - will reap benefits.

For example, rather than deal with the in-house legal team to assist them every time the client is sued for unfair dismissal, the firm could instead deliver training and tools directly to the company’s managers and HR team to make sure they more often follow the legislation’s rules.

Courts

We have had a very slow pace in the development of online or ‘virtual’ courts since Richard Susskind started propounding their feasibility and advantages several decades ago. There appears to have been significant reluctance by the judiciary and the Ministry of Justice in this area. Small advances have included the ability to ‘produce’ an accused at remand hearings from prison, and to facilitate witnesses I some types of hearings to give evidence via VC. However, little progress has been made towards the establishment of entirely virtual ‘courts’ where all the participants can be remote from each other.

As Richard said in an article in The Times on 19 March:

‘It is clear that Lord Burnett of Maldon, the lord chief justice for England and Wales, regards technology as vital to ensuring continuity in the justice system and to providing alternative mechanisms for conducting hearings and resolving disputes. He has said: “We are planning and expect to expand the use of existing technology, where feasible, to increase the use of telephone and video conferencing to enable court hearings to take place which otherwise would be lost because of the inability of someone to attend.” ‘

One suspects that these plans will currently be being radically progressed in the light of current circumstances, and that we will shortly see the fruits of these plans in the shape of the setting up of such virtual courts for certain types of civil proceedings. Once they are established, they will be here to stay.

But why stop there? There is also an urgent need to provide some kind of mechanism for the continuance of jury trials during this crisis. The only alternative is to let hundreds of potential criminals walk free.

This week the trial of three teenagers accused of murdering PC Andrew Harper had to be adjourned after the jury was discharged due to the current circumstances. The Alex Salmond trial nearly collapsed on 23 March when two jurors had to be sent home, and on the same day the lord chief justice Lord Burnett of Maldon announced as from that day that no more criminal trials will start in the United Kingdom. However, this cannot stand indefinitely as the accused have rights concerning the timely progression of justice and – unless the trials can proceed on some basis – will eventually have to be discharged.

If the current spreading of Covid-19, and the policies regarding separation, continue much longer, therefore, we will have to set up some way in which to establish ‘virtual’ jury trials.

During my lockdown I have been rerunning a lot of John Grisham and other courtroom-based movies – such as the sublime (12 Angry Men, To Kill a Mockingbird) to the enjoyable but ridiculous (My Cousin Vinny). In each, I have tried to imagine how one could run a criminal trial with jury members being located elsewhere. I have to say, that so far, it defies my imagination; and I can see a long list of impracticalities and objections, especially by defence counsel. However, at some point, something will have to be done. If it is then deemed satisfactory, then it may result in some permanent changes in the practice of criminal trials.

There are many ways in which, I suspect, our word will change forever after we put Covid-19 back in its box. As I have sought to demonstrate, this will undoubtedly be the case in our own legal IT industry. I also reckon that there will be many other permanent changes that we cannot possibly foresee now, there always are.

In the meantime – take care and stay safe…