Drills and holes

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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

The customer wanting a hole, not a drill, is a favourite trope of legal futurologist Professor Richard Susskind. The message for those involved in the legal profession is this: 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.

So: all this nonsense with law reports, dusty legal opinions, horsehair wigs and so on is just bunk. No-one, necessarily, wants it. Heed this warning, or risk being driven out of business.

Professor Susskind 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 perennial favourite of 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 processing — but not really in the ways that the thought leaders had in mind. 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.

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 leaders say, “yes, yes, yes: but the revolution is yet to happen, and happen it surely must.”

We have had all manner of changed circumstances thrown at us since the developed world lost its major stabilising influence in January 2016. About the one constant since then has been the ongoing good health of the traditional legal industry. The revolution has not come. It seems 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 note 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 it is today. If it is true: Llewelyn Thomas’s quip has more than an ounce of truth to it. In large part you go to Allen & Overy not because it gives the best advice, but because it is Allen & Overy. No-one gets fired for hiring Big Law. It isn’t the hole, it’s the drill.

We can wish it were not so, but we deny facts as they appear to us in favour of a neat theory that appeals to us.

The legal ecosystem developed in the way it did not despite that customer demand but in response to it. 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: 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 ignores the deeply ingrained structures, embedded deep in the social structure on layers that move at a glacial pace, institutions, conventions, and hierarchies that are there, in significant part, to protect the engineering of the system as it is from sudden shocks and, yes, the interests of those within it. To deliver certainty. To provide the stability that is necessary to deliver a reliable hole in the wall, or — if that is what the customer wants — a shiny new drill with lots of buttons, lights and a badge saying “A&O” on it.

Revolutions are not driven by industry thought leaders.

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, secretarial work, proof-reading, couriers, mailrooms, prospectus printing services, even media and marketing services — have vanished. Lawyers type their own stuff now. They send their own email. They manage their own branding, do their own webcasts of the same dreary 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.

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 — the profession has used the enabling tools of the information revolution to further complicate everything.

They are not technological problems, and technology cannot solve them. But these are sociological problems. They are deep. They stem from inherent agency problems that arise in any intermediation activity. The arise from natural barrier protection activity that goes on around all meaningful power structures. The doubtlessly well-intended efficiencies that modern(ist) management theory and the the new vistas opened by the information revolution have multiplied the opportunities to intermediate. Smart 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.

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

Holes in walls won’t help.

See also

• Systems theory
• End-to-end principle
• IT strategy
• The Nature of Technology: What it is and How it Evolves