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| {{a|design| | | {{essay|design|drills and holes|{{image|Machinery|png|A hole-in-your-pocket drilling machine, yesterday.}} }} |
| [[File:Hammer.jpg|thumb|450px|center|How to philosophise with a hammer.]]
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| }}{{quote|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 [[drills and holes|drill]]. What they want is the hole.
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| :—The ''Manhattan Mutual Life Company'' advertisement, Manhattan Kansas, 1946}}
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| {{quote|“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 {{author|Rory Sutherland}}’s {{br|Alchemy}}}}
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| {{quote|“To a man with a hammer, everything looks like a nail.”
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| :—{{author|Mark Twain}}}}
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| That a customer wants a hole, not a drill, is a favourite trope of legal futurologist Professor Richard Susskind.<ref>See {{br|The Future of Law}} (1996; now out of print. Bet he didn’t see ''that'' coming.)</ref>
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| His message for those in the legal profession is: do not assume that users of the legal system are irrevocably tied to how it currently works. Clients want ''outcomes.'' How the legal 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''.
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| So: all this carry-on with [[Jolly Contrarian Law Reports|law report]]s, dusty [[legal opinion]]s, horsehair wigs and so on is incidental bunk. No-one, necessarily, wants it. The rational moderniser’s refrain: or risk being driven out of business.
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| === Come the revolution — ===
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| Professor Susskind first made this warning twenty-five years ago. You would think by now someone [[Digital prophet|visionary]] enough to have read his book, or any of the several he has written subsequently on the same theme,<ref>It sounds like he stepped away from the drills and holes trope [https://thecritic.co.uk/issues/december-2019/cyber-court/ a couple of years ago].</ref> would have long since revolutionised the legal market.
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| But — and, look, it’s easy to be wise in hindsight, readers, but let’s do it anyway — the anticipated seismic shifts in legal industry are taking a long time to happen. [[Clifford Chance]] seems to be still in rude health, as far as anyone can tell.
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| To be sure, in the meantime the legal market has ''incrementally'' changed: it has [[Change adoption|absorbed every innovation]] — [[fax]], [[email]], [[internet]], mobile telephony, [[BlackBerry|mobile internet]], cloud computing, [[Downgrading|offshoring]], [[outsourcing]], and it is currently embedding what it can of [[neural network]]s and [[natural language processing]] — ''but not really in the ways that the [[thought leader]]s had in mind''.
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| It is an ongoing source of frustration for the legal imagineers out there, that the fundamental structures of the legal profession ''haven’t'' been revolutionised. They’ve ''rolled with the punches''.
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| Professor Susskind had in mind flying robo-taxis and hoverboards. What we have is Uber and electric scooters. You might say is no bad thing: [[thought leader]]s say, “yes, yes, yes: but the revolution is yet to happen, and happen it surely must.”<ref>See for example [https://www.allenovery.com/en-gb/global/news-and-insights/legal-innovation/the-future-of-the-in-house-legal-function this curious piece] from [[A&O]].</ref>
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| Yet, we have had all manner of changed circumstances thrown at us since the developed world lost its [[David Bowie|major stabilising influence]] in January 2016: political insurrection. Disease. Dislocation. War. Prince died. All of these things, you would think, would accelerate the rate of change. But the only constant since then has been the ongoing good health of the traditional legal industry.
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| So what is going on? ''Où est la révolution''?
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| === No-one got fired for hiring Big Law ===
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| The first thing to say is that Professor Susskind’s founding observation, that people want outcomes — ''holes'' — and don’t really care about the machinery that delivers them — ''drills'' — is not some new disposition, vouchsafed by the [[information revolution]]. If it is true that we want holes not drills, it was as true in 1790 as it was in 1996, as it is today.
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| ''If''.
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| But it is Llewelyn Thomas’s quip that has the ring of truth. We go to [[Allen & Overy]] not because it gives the best advice, but ''because it is [[Allen & Overy]]''. Ex-[[Magic circle law firm|magic circle]] [[partner]]<nowiki/>s routinely find this to their disappointment when the phone stops ringing.
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| It isn’t the ''hole'' people want: ''it’s the drill''. We can believe this is not so, but only by denying facts as they ''appear'' to us in favour of a mental model that ''appeals'' to us.
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| === Law as a complex system ===
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| The legal ecosystem developed in the way it did not ''despite'' customer demand but ''in response to it''. But not just customer demand: practitioner demand, societal demands and all the other multifarious demands, contingencies, [[Power structure|hierarchies]] and doctrines that the wider [[complex system|system]]. The legal system is, well, a ''[[system]]'': a web of [[complex]] interactions: stocks, flows and feedback loops, subroutines, submerged agendas and [[Conflicts of interest|conflicting interest]]<nowiki/>s that push it into a gently morphing pseudo-equilibrium.
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| Re-imagining this whole system from scratch through the simplistic lens of a four-box chart<ref>There is a lot of this in Susskind’s {{Br|The End of Lawyers?}} (2010)</ref> ignores the institutions, conventions, [[Power structure|hierarchies]] and deeply ingrained structures, embedded in glacial [[Pace layering|pace layers]], that are there, in significant part, to protect the system from sudden shocks and, yes, to protect the selfish interests of the multitudes that presently thrive within it. That deliver [[certainty]]. That provide the stability that is necessary to deliver a reliable hole in the wall, or — if that is what the customer wants — that deliver a shiny new drill with lots of buttons, lights and a badge saying “[[A&O]]” on it.
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| Revolutions are not ''driven'' by industry [[thought leader]]s. Revolutions put thought leaders up against a wall. (Usually, one that already has holes in it).
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| === The internet, disintermediation and the scope for legal process outsourcing ===
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| The great theme of the information revolution is the network, and its power to [[Disintermediation|disintermediate]]. There is nothing particular about the internet that makes possible alternative legal process outsourcing where it was not possible before. Indeed, [[outsourcing]] is a form of ''re''intermediation: generally, rather than facilitating outsourcing, we would expect technology to remove the need for it altogether.
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| As it has done: some forms of legal process outsourcing have been obliterated, though it’s a done deal now, we have banked it, so thought leaders tend not to talk about it. But secretarial work, proof-reading, couriers, mailrooms, prospectus printing services, even media and marketing services — have vanished. Lawyers type their own stuff now.<ref>When the [[JC]] was a young clerk in short pants he asked for a terminal, and was told, “we don’t pay lawyers to type, son.”</ref> They send their own [[email]]. They manage their own branding, do their own webcasts of the same dreary [[continuing professional development|seminars]]. They even host podcasts. All of these changes have happened iteratively, by the effluxion of time and the gradual change of behaviours, not by revolution.
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| === This doesn’t make it okay ===
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| Now none of this is not to say a great deal of the legal work product is not preposterous. It is. ''Most'' of it. What is more, it is demonstrably ''more'' preposterous than it was thirty years ago: there are more lawyers, legal agreements are longer, legal prose ever more tortured, [[La Vittoria della Forma sulla Sostanza|form ever more imperiously towers over substance]] — and technology has been the ''enabler'' here. The profession has used the tools of the information revolution to ''further complicate'' everything.
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| The problems with law today are not technological problems. Technology cannot solve them. They are ''sociological'' problems. They are deep. They stem from inherent [[agency problem]]s that arise in any intermediation activity. The arise from natural barrier-protection activity that goes on around all substantial [[Paradigm|paradigms]] and [[power structure]]<nowiki/>s, and the practice of law is a heavily-fortified, deeply-entrenched power structure.
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| The doubtlessly well-intended efficiencies that [[Modernism|modern(ist) management theory]] promise and the the new vistas the information revolution have opened have multiplied the opportunities to defend the existing structure. Technology can be deployed to defend power structures just as easily as to dissolve them, and those within the orthodoxy have the resources to do it.
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| There is the challenge that faces Professor Susskind, legal industry thought-leaders and [[JC|smug self-publishing wiki-writers]] alike: how to get inside that hay-maker cultural punch? How to bring long-term change to deeply embedded behaviours and change institutions to make them more effective, more efficient, less of a gravy train, less ''preposterous''?
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| Trite talk about holes in walls won’t help.
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| {{sa}}
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| *[[Systems theory]]
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| *[[End-to-end principle]]
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| *[[IT strategy]]
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| *{{br|The Nature of Technology: What it is and How it Evolves}}
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| {{ref}}
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The design of organisations and products
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A hole-in-your-pocket drilling machine, yesterday.
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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
That a customer wants a hole, not a drill, is a favourite conceit of legal futurologists. Their message: do not assume that users of the legal system are irrevocably tied to how it currently works. Clients want outcomes. How the legal machinery by which these outcomes are delivered works is of little interest to them; what matters is that the outcome works, it is cheap and it is quick.
So: all this carry-on with law reports, dusty legal opinions, horsehair wigs and so on is incidental bunk. No-one, necessarily, wants it. Heed the rational moderniser’s refrain or risk being driven out of business.
Come the revolution —
We have been hearing these warnings for twenty-five years. Professor Richard Susskind has been sagely predicting private practice Armageddon since the 1990s — a thesis that reached its apotheosis with 2008’s The End of Lawyers?, to which rhetorical the commercial world’s answer over the last fifteen years has been a resounding negative. It has hardly been for want of trying [[ our legaltech roll of honour refers — but if revolution was really in the air, you would think someone visionary would long since have made it happen.
But — and, look, it’s easy to be wise in hindsight, but let’s do it anyway — the anticipated “seismic shifts” in legal industry are taking a long time to happen. But AI? Well, let’s wait and see.
To be sure, in the meantime the legal market has incrementally changed: 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 processing — but not really in the ways that the thought leaders had in mind.
But all this change notwithstanding, it is an ongoing source of frustration for the legal imagineers that the fundamental structures of the legal profession haven’t been revolutionised. They’ve rolled with the punches. Clifford Chance seems still to be in rude health, as far as anyone can tell.
Futurologists had in mind flying robo-taxis and hoverboards. What we got was Uber and electric scooters. You might say is no bad thing: thought leaders say, “yes, yes, yes: but the revolution is yet to happen, and happen it surely must.” See, for example, this curious piece from A&O.
Yet, we have had all manner of changed circumstances thrown at us since the developed world lost its major stabilising influence in 2016: political insurrection. Disease. Dislocation. War. The Pentaverate. Prince died. All of these things, you would think, would accelerate the rate of change. But the only constant since then has been the ongoing good health of the traditional legal industry.
So what is going on? Où est la révolution?
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- No one got fired for hiring big law
- Law as a complex system
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- This doesn’t make preposterous legal work okay
- Entropy always wins
See also
References
