Drills and holes

From The Jolly Contrarian
Jump to navigation Jump to search
The design of legal products
How to philosophise with a hammer.


Making legal contracts a better experience

Index — Click ᐅ to expand:
Design

Get in touch
Comments? Questions? Suggestions? Requests? Sign up for our newsletter? Questions? We’d love to hear from you.
BREAKING: Get the new weekly newsletter here Old editions here

We don’t want to sell you Life Insurance . . we want you to know and have what life insurance will do. A 1/4 million drills were sold last year: no one wants a drill. What they want is the hole.

—The Manhattan Mutual Life Company advertisement, Manhattan Kansas, 1946

“I don’t think it works like that at all. You see an electric drill in a shop and decide you want it. Then you take it home and wander around your house looking for excuses to drill holes in things.”

—Llewelyn Thomas, quoted in Rory Sutherland’s Alchemy

“To a man with a hammer, everything looks like a nail.”

Mark Twain

The customer wanting a hole, not a drill, is a favourite trope of legal futurologist Professor Richard Susskind.[1] The message for those involved in the legal profession is this: it is unlikely that users of the legal system are irreversibly tied to how the law currently works. Clients want outcomes — how the machinery by which these outcomes are delivered works is of little interest to them; what matters is (i) that the outcome works; (ii) that it is cheap; (iii) that it is quick.

All this nonsense with law reports, dusty legal opinions, horsehair wigs and so on is just so much bunk. No-one wants it. Professor Susskind intones: heed this warning, or you will be driven out of business.

He made this warning, for the first time, twenty-five years ago.

Presumably, someone visionary enough to have read Professor Susskind’s book — or any of the several he has written subsequently on the same theme — would have revolutionised the legal market long since. To be sure, many have read his books: Susskind has been a permanent favourite of industry thought-leaders over the quarter of a century since The Future of Law came out. But — and it’s easy to be wise in hindsight, readers, but let’s do it anyway — the anticipated seismic shifts in legal service delivery just haven’t happened. The market can stay illogical a lot longer than rational hot-takes can stay in print.

In the meantime the legal market has incrementally changed in response to the digital revolution: it has absorbed every innovation — fax, email, internet, mobile telephony, mobile internet, cloud computing, offshoring, outsourcing, and it is currently embedding what it can of neural networks and natural language processingbut not in the ways that the thought leaders had in mind. The fundamental structures of the legal profession haven’t been revolutionised. They’ve rolled with the punches. Professor Susskind had in mind flying robo-taxis and hoverboards. What we have is Uber and electric scooters. You might say that is no bad thing: thought leaders say, “yes, yes, yes: but the revolution is yet to happen.”

The masses can stay happy a lot longer than rational hot-takes can stay in print.

So what is going on? Où est la révolution? The first thing to notice is that Professor Susskind’s founding observation — that people want outcomes — holes — not the specific configuration of machinery that delivers them — drills — isn’t some new disposition vouchsafed by the information revolution. This was as true in 1790 as in 1996, as today.

The legal ecosystem developed in the way it did not despite that customer demand but in response to it. But, as in any system, the customers are not the only game in town. Customer demand, practitioner demand, societal demands, and the demands, contingencies, hierarchies and doctrines that the wider system — call it the common law paradigm — evolved. The legal system is, well, a system. It is a web of complex interactions: stocks, flows and feedback loops, and conflicting interests that push it into a gently morphing pseudo-equilibrium. Re-imagining the whole system from scratch through the simplistic lens of a four-box chart[2] ignores the deeply ingrained structures, institutions, conventions, and hierarchies that are there, in significant part, to protect the engineering of the system as it is and, yes, the interests of those within it. To deliver certainty. To provide the stability that is necessary to deliver reliable holes in the wall.

There is nothing about the information revolution that makes possible alternative legal process outsourcing where it was not possible before. Some forms of legal process outsourcing — typing and secretarial work, proof-reading, couriers, mailrooms, prospectus printing services, even media and marketing services — have actually vanished. Lawyers type their own stuff now. They send their own email. They manage their own branding and do their own webcasts of the same dreary seminars. All of these changes have happened iteratively, by the effluxion of time and the gradual change of behaviours, not by revolution.

This is not to say a great deal of the legal work product is not preposterous. It is. Most of it. It is demonstrably more preposterous than it was thirty years ago: there are more lawyers, legal agreements are longer, legal prose ever more tortured — the profession has used the enabling tools of the information revolution to further complicate everything.

There is the challenge that faces Professor Susskind, legal industry thought-leaders and smug self-publishing wiki-writers alike: how do we change the institutions to make them more effective, more efficient, less of a gravy train, less preposterous?

See also

References

  1. See The Future of Law (1996; now out of print)
  2. There is a lot of this in Susskind’s The End of Lawyers? (2010)