For the Times, They Are a Changin’

Are we in the midst of a revolution in the provision of legal services? In 1962, Thomas Kuhn described what may well be happening today in the way lawyers function as advocates, particularly in the insurance and risk transfer industries. It was in that year that Kuhn penned and published The Structure of Scientific Revolutions. He challenged the prevailing view that advancements in science are the mass accumulation of small incremental changes over a long period of time.

To the contrary, he argued that historical advancements are the result of revolutionary discoveries that cause the entire scientific world to rethink its approach. The prime example was the impact of the Copernican Revolution, which posited the theory that the earth was not the center of the universe. At its inception, this remained theory and only promised to provide better and simpler solutions than those provided by the Ptolemaic system. It wasn’t until later that Copernicus’ world view became the prevailing one.

The impact of technology on litigation promises the same better and simpler solutions to the age-old problems of managing the transfer of risk and the resolution of societal disputes. These changes are driven by a convergence of two factors at this unique point in history: (1) economic crisis, and (2) the ease of the dissemination of accurate information.

The economic conditions of today have a pervasive effect on litigation. Court systems are underfunded, thus cutting into the availability of trials and judges. Filing fees are higher than ever before, and the resources of the court system are not keeping up with the demand. In addition, law firms and insurers are faced with pressure to cut out the fluff that has existed for too long. Electronic billing and bill review, alternative fee arrangements, and reduced hourly rates are all symptoms of this crunch. Carriers are letting accountants and “vendor procurement managers” (that was a new phrase to me) make decisions about which firms to hire and for what they will and will not be allowed to bill. The carriers and firms that operate most effectively in this new environment are those that will see the most long-term success.

The second factor acts almost as a counterbalance to the economic factor. The effective deployment of technology in the landscape promises to alleviate much of this crunch produced by the economy by allowing lawyers, and perhaps one day the court system as a whole, to operate more efficiently. So much of risk management and risk reduction in litigation is affected by the speed and accuracy with which we obtain and disseminate information. Technology facilitates this in a way that previously has not existed—and this is just the beginning.

Below are some traditional areas in the course of litigation that stand to be reinvented as technology begins to change the way lawyers, and the court system as a whole, function.

Third-Party Subpoenas — The advent of electronic medical records and paperless office environments has allowed medical providers and other businesses to operate in a more effective way. Combined with the ease of transmitting documents around the globe in an instant, the ability of lawyers and claims professionals to identify and obtain necessary records should be reduced drastically in the coming years.

Depositions — Real-time transcripts and video conferencing virtually eliminate the need to question a witness in person. Perhaps some nonverbal communication is lost when you are not in the same room as a deponent, but remote video depositions are a great improvement over telephone conferencing. Previously very expensive, this technology now pays for itself. Carriers used to share costs with attorneys by asking them to travel at half their hourly rate. Lawyers increasingly will see themselves traveling less. We may even see this technology implemented in the courtroom to allow witnesses to testify remotely.

Reporting — Effective litigation management hinges on the efficient reporting of case developments to the claims professional. As information becomes stored more frequently in a way that allows remote worldwide access, is it too forward-thinking to envision that files of the lawyer, claims professional, or client will become less segregated? There are obviously inherent problems with things like the tripartite relationship and duty of loyalty. However, they are not insurmountable obstacles, particularly when compared to the advantages and economies of scale that could exist.

What do you think the practice of law will look like in 10 years? 20 years? 30 years? What other areas are being impacted by technology and the economy? What will law firms need to do to adapt and provide effective and efficient service in the changing technological and economic environment?

Though Bob Dylan was likely never mistaken as a prognosticator for cutting-edge litigation management trends, his words are a warning to all who are moving forward in this brave new world. We all would do well to heed them: “As the present now / Will later be past / The order is / Rapidly fadin’ / And the first one now / Will later be last / For the times they are a changin’.”   

Jim Pattillo is a partner with Norman Wood Kendrick & Turner, an Alabama-based law firm. He has been a CLM Member since 2010 and can be reached at jpattillo@nwkt.com, www.nwkt.com.