Legal services delivery
 “Your CDO squared, sir. Would you like a monoline wrap with that?”
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Of a legal service, to deliver it to a buyer, who will consume it. Like a pizza. A view of the world that sees a lawyer as a dolled-up courier gigging for Deliveroo, and the difficult part of the job is the logistics of getting the pizza — sorry, I mean “complex legal work product” — into the consumer’s gob.
In what follows, where I put “pizza” you could read “complex legal work product”, but for some reason the argument makes so much more sense when you put “pizza”.
It’s not about the pizza.
Here’s a quote from those luminaries of the legal future, Allen & Overy:[1]
- “More recently the buzz and effort has shifted from innovation in legal expertise (inventing derivatives, CDOs and so on) to how the services that embed that expertise are delivered.”
The learned authors seem to recognise that true legal innovation and sophisticated real-time reaction to emerging legal quandaries, are (or, in the good old days, were) less susceptible to the “march of the chatbots” — A&O raked a fair few millions cranking out CDOs, after all — but have concluded, by means of a crystal ball wholly inaccessible to those of us at the coalface, that it’s all changed now. It’s like they suppose we’ve somehow solved the game, there are no mysteries left: one can only now add value by supersizing, adding fries, or getting the delivery guy to go faster for less money. It’s not about the pizza.
It is about the pizza.
But here is the thing. It is about the pizza.
The marginal return on any activity is not a function of how intrinsically clever, but on how difficult it is. It is not difficult to do clever things with a computer: all you need is a computer — and maybe a Java coder from Bucharest you found on UpWork. But if you can do it, so can anyone else if they get themselves a computer and an account on UpWork. Computers are cheap. Romanian Java coders are cheap. Seeing as that “anyone else” will be a competitor of yours, once you have figured out how to make it with a computer, and paid your Java guy, the marginal value of your pizza will equal its marginal cost of production — that is to say, nil. This will happen not just gradually, over a period of time, but immediately. Ask Kodak.[2] Ask people who used to make postcards and aerogrammes.
If you think there is a money to be made delivering a valueless product more cheaply than any other bugger, you will find yourself in a very fast race to the bottom of a very large tank, with a very hard, very flat, very concrete floor.
The point about real legal work is that you can’t get a computer to do it. If you could, it wouldn’t be legal work.[3] Legal work is — always has been — about edge cases; conundrums; things no-one expected. Bespoke situations spinning out of non-contiguities and interactions between moving parts that no-one expected to move. To be sure, part of a lawyer’s job should be to identify those parts of the ecosystem than can be tamed, and to prepare the land for farming: to commoditise new products, productionise them, and hand them off to operations teams who can make widgets out of them — but lawyers don’t make widgets. Lawyers are bushwhackers. Lawyers are pioneers.
The folks in reg tech have this exact problem, too: their business model doesn’t work. You can’t continue to extract an annuity out of a quick bit of coding you bought from a guy you found on UpWork. No-one will pay for it. So you have no option but to try to extract rent. But, problem: the reason anyone wants reg tech is to intermediate an existing rent-seeker. It’s a bum model. Hence: reg tech remains disappointing.
But the shifting buzz, man
The reason the “buzz” has “shifted to delivery” is that the people who buzz — management consultants — have nothing to say about the pizza. The content of legal services is entirely opaque to them. They have not the first clue about it. The actual law is — by deliberate, cynical design of generations of nest-feathering lawyers — baffling, long-winded and obtuse. It is quite incomprehensible to the management layer. Management must take the lawyers at their word, and the pizza as it comes: whole, ineffable, immutable: an unsolvable brute fact of the universe. A manager cannot say “cross default is stupid” (though it is). She cannot say “you do not need that absurd indemnity; you would never use it, and a court would never enforce it,” however much these things may be true.
A manager knows that only one with magic powers can say those things. She can only focus on the things she can understand: how much it costs to hire such a person. But there is a dark inversion to her ignorance. For such is the inscrutability of the legal craft — so impenetrable is this world — that all she can say is one has this magic, or one has not. Those who have it are interchangeable; substitutable; switchable; fungible.
The irony of the ineffable
Thus our manager arrives at the notion of delivery. “I must have this ineffable magic,” she realises, “but it could be delivered from London, or Belfast, or Gdansk, a someone rifling through a playbook on his lap from a service centre on the outskirts of Hanoi.”
She cannot rationalise legal product, nor simplify it, nor cauterise it and expunge the tedium with which all legal product overflows — but she can parcel it up and outsource it. This is the tragic irony of the ineffability of the law.
But unitising legal product does one of two things: either it really is commoditised, in which case it is a commercial product — a widget; see above — with some legally-relevant content embedded in it, but in respect of which all mysteries have been solved: the value in that product is not in its nuanced legal advice, but it has some other value (else, why “deliver” it at all?) or it really isn’t; there really is some residual legal doubt, uncertainty or risk, in which case handing it off to the proverbial School-leaver from Bucharest really isn’t a great idea.
The definition of a legal problem is that it can’t be productionised.
See also
References
- ↑ The future of the in-house legal function: an Allen & Overy perspective on the opportunities and challenges that lie ahead. (2019)
- ↑ Kodak invented the digital camera. It still killed them.
- ↑ I could pause here to pick a fight with the Susskind clan, but it would spoil the flow. But the essence of the argument is this: what counts as legal work is inherently dynamic. It changes through time. It is a function of non-linear interactions in complex systems. What counts as legal work is not just hard to predict ahead of time: it is impossible.