Legal services delivery

From The Jolly Contrarian
Jump to navigation Jump to search
The Devil’s Advocate

“Your CDO squared, sir. Would you like a monoline wrap with that?”


In which the curmudgeonly old sod puts the world to rights.

Index — Click ᐅ to expand:

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

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 being the logistics of getting the pizza — sorry, I mean “complex legal work product” — into the consumer’s gob.

In what follows, where I write “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.”

This seems to recognise that legal work involving sophisticated real-time reaction to emerging legal quandaries, is (or, at any reate, was) less mune to the “delivery by chatbot” — A&O raked a fair few millions cranking out CDOs, after all — but nonetheless paints a picture, unrecognisable though it may be to those at the coalface, that it’s all changed now.

This time is different. If I had a penny for every time I had heard that.

Somehow, we’ve solved the game; there are no mysteries left: one can only now create “legal worth” 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 it is about the pizza. Even now.

The marginal return on any activity is not a function of how clever it is, but how difficult. It is not difficult to do clever things with a computer: all you need is a computer, and the Java coder from Bucharest you found on UpWork. But if you can do it, so can anyone else who gets hold of a computer and an account on UpWork. Computers are cheap. Romanian Java coders are cheap.

Seeing as that “anyone else” will be your competitor, once you have figured out how to make your pizza with a computer, and paid your Java guy, its marginal value will equal its marginal cost of production — that is to say, nil. This will happen not just gradually, over a period, but at once. 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 galloping to the bottom of a very large, very empty, pit.

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; bespoke situations spinning out of non-contiguities and unfortunate reactions 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 fixed, and to prepare the land for tilling: 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 disintermediate — that is, get rid of — an existing rent-seeker. No-one wants another freaking rent-seeker. Hence: reg tech remains disappointing.

But the shifting buzz, man

The reason the “buzz” has “shifted to delivery” is that the sort of people who “buzz” are in management, or management consulting, and they have nothing to say about pizza.

The content of legal services is entirely opaque to them. The actual law is — by the careful design of generations of nest-feathering[4] lawyers — baffling, long-winded and obtuse. It is quite incomprehensible to the management layer. Management must therefore take lawyers at their word, and the pizza as they find it: whole, ineffable, immutable, and stuffed with odd things like artichoke, pineapple and anchovy:[5] basically, 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. A manager can only focus on what she does understand: the price of pizza, not its value.

But there is a dark inversion to this ignorance. For such is the inscrutability of the legal craft — so impenetrable is it — that a manager knows only that one has this magic, or one has not. Those who have it are interchangeable; substitutable; switchable; fungible. Any of them will do, and the cheapest is best. Hence the manager’s regular reconnaissance missions to those parts of Manila where the streets have no name.

The irony of the ineffable

Thus, our manager arrives at the notion of delivery as being her only yardstick. “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 in the outskirts of Hanoi.”

A manager 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 offshore it. This is the tragic irony of the law’s ineffability.

But unitised legal product is one of two things: either it really is commoditised, in which case it is a commercial product, not a legal one at all — a widget; see above — it may have some legally-relevant content, but all legal mysteries have been solved and all myths exploded: 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 commoditised; there really is some residual legal doubt, uncertainty or risk, in which case, how is handing it off to the proverbial school-leaver from Bucharest going to help?

See also

References

  1. The future of the in-house legal function: an Allen & Overy perspective on the opportunities and challenges that lie ahead. (2019)
  2. Kodak invented the digital camera. It still killed them.
  3. 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 manages non-linear interactions in complex systems. What counts as “legal work” is not just hard to predict ahead of time: it is impossible.
  4. Did I say “nest-feathering”? I meant “noble, fearless and brave.”
  5. For the record: artichoke yes, anchovy, utterly. But pineapple? Never.