In less than 90 days, it will be 21 October 2015. That’s the date to which Marty McFly travels in Back to the Future Part II. His journey through time from the 1980s led him to a future filled with gadgets like hoverboards, flying cars, and self-tying shoe laces. Unless we experience three months of frantic development, I suspect we won’t see any of those in October.
That’s the problem with trying to predict the future — our current preconceptions often blind us by narrowing our vision. Jetpacks might have seemed like a great idea when we were young in the jet age, but they actually make no sense. Madeleine Ashby puts it bluntly:
“We were promised jetpacks!” they whine. Yeah, dude, but what you got was Agent Orange. Imagine a Segway that could kill you and set your house on fire. That’s what a jetpack is.
Jetpacks solve exactly one problem: rapid transit. And you know what would help with that? Better transit. Better telepresence. Better work-life balance. Are jetpacks an innovative solution to the problem of transit? Nope.
I have a fear that a lot of the current pontificating about the future of legal practice is in the hoverboard and jetpack category. Many commentators present a future in which technology is injected into lawyers’ work. One way to show how this might fall short is to look at the process of document creation — a core legal activity.
- Documents have always been at the heart of legal work. As soon as someone reneged on an oral promise, it became clear that shrouding a transaction or relationship in writing would make it easier to prove and enforce. At this stage, the documents are short and written by hand by the lawyer in person or by someone scribing the lawyer’s words.
- As lawyers became more exalted, it was more likely that they would dictate to a secretary. Sometimes the lawyer or the secretary would collect commonly used clauses and paragraphs as an aide-memoire and to speed up the drafting process.
- Technology first arrived in the form of typewriters, which allowed secretaries to create documents more easily than writing by hand.
- Later on, the process of conveying the lawyer’s words onto paper was improved by the use of dictating machines. With these, the lawyer could store up words for typists to convert into documents. The document creation process could thereby be shifted in time and space.
- Typewriters gave way to word-processors, which saved more time by making error-correction and document reproduction much easier.
- Dedicated word-processing systems were supplanted by standard software and PCs that were inexpensive and easy to use so that lawyers could use them without the assistance of a secretary.
- Lawyers were assisted further in the production of their own documents by the ease of copying previous documents and by the creation of template documents and clauses for general use.
- The dictation process has now been digitised, so that lawyers who prefer not to type can still have documents created for them. These systems might just improve the traditional dictation process or they may use speech recognition to allow documents to be created directly.
- Increasingly, the document creation process is being automated — reducing the need for typing and similarly error-prone human intervention.
At the end of this broad-brush account it should be clear that a huge amount has changed. Technology now allows hugely complicated suites of documents to be created and managed with ease and accuracy compared to the quill-pen on vellum of the past. But equally, very little has changed. Clients still see their transactions or relationships converted by lawyers into documents. Apart from changes in technology and practice, a 19th century lawyer would recognise the work of a 21st century lawyer.
Through this lens, technology has changed the way lawyers work, but it hasn’t actually changed the way they serve clients.
Clients don’t see the world through documents. Documents are secondary to their real needs. More significantly (barring future litigation), the role of lawyers often ends when the document is done. For clients, that is just the beginning. Lawyers (especially those in private practice) rarely see the life that documents lead. For, as my former colleague Melanie Hatton pointed out some time ago, contracts are alive.
The best Projects and Contracts Managers which I’ve worked with keep their contracts close at hand and use them as a daily weapon against their suppliers to ensure deliveries are made on time, service levels are met, software performs as it should and (you’ll be surprised how much this next one is overlooked) invoices are accurate, so that we’re not charged a penny too much for the privilege.
And, as the project which it manages evolves, so the contract should evolve too. A contract is a living thing. And indeed, the Project or Contracts Manager managing that project is best served by keeping up to speed with this evolution.
Melanie tells a great story to illustrate her point. The ‘hat saga’ is best read in the original, but the key point is that when a particular contract was made some elements were left for future agreement. That isn’t uncommon. Nor, sadly, is it uncommon for the later agreement to be poorly remembered and possibly not even documented at all. The document was pointless in the face of the relationship’s commercial evolution.
Good technology could change the way transactions and relationships are managed by looking beyond the document into the reality of commercial practice and contractual evolution. (I know that contract management tools exist, but my sense is that they aren’t always successful.)
Two items from beyond the legal sector provide further illustration of the principle of looking beyond the hoverboard and jetpack.
For some years, journalists covering consumer technology have argued that Apple should make a television. Obviously, Apple has not made a television to compete with Sony and Samsung in the living room. M.G. Siegler of Google Ventures has spotted why that is:
a whole generation is now growing up used to watching television content on their phones and/or tablets. Or, at the very least, their laptops. For all intents and purposes, these are televisions. And guess what? Apple already makes them!
In essence, Apple (with other companies) has changed the way moving pictures are consumed. They don’t need to make a television to match the old way of viewing.
…just imagine what a mistake it would have been to build an actual television. Whatever that is.
Benedict Evans recently took a long hard look at the evolution of Microsoft Office and similar productivity software.
[T]oday, in a thousand companies, a thousand execs will pull data from internal systems into Excel, make charts, put the charts into PowerPoint, write some bullets and email the PowerPoint to a dozen other people. What kills that task is not better or cheaper (or worse and free) spreadsheet or presentation software, but a completely different way to address the same underlying need – a different mechanism.
Evans traces the design of this kind of monolithic software back to the kind of office environment presented in Billy Wilder’s film, The Apartment, in which Jack Lemmon played CC Baxter, a junior executive. Evans proposes a different focus — on needs and verbs.
Do you need a large or small screen, do you need a keyboard, a mouse or just touch, and do you need a complex multi-window OS (Windows, Mac OS) or a simpler model based on full-screen use (Windows 8 et al, iOS, Android)? If you have to make an Excel file, paste charts into PowerPoint and write bullets or a memo then yes, keyboards, mice and windowing make things much easier. But if you have to flag a few key changes on a dashboard and tag them for review by three colleagues, you might not. The business task being achieved might be the same. Again – you need a keyboard to do x, but is x actually your job, or it it just the tool you use today to do your job?
What this points, to, I think, is that productivity breaks down into a set of verbs. In CC Baxter’s office you see each of those verbs made into a physical object. Over time, those verbs get combined, broken apart, linked, created and removed as the tools change, the organization is changed by the tools and of course the underlying business itself changes. You don’t actually send email or make a spreadsheet – you analyze, delegate, report, confer, decide, track and so on. Or, perhaps, ‘what’s going on, what are we doing and what should we be doing?’ Each set of tools fixes that into a different pattern, but one should not look at that pattern and assume that that’s the way things must be done – that that’s what ‘real work’ looks like.
A thread through all of this is communication… Communication changes from a typed memo hand-carried to your desk in a manila internal mail envelope, to a carefully-laid-out presentation laboriously crafted in PowerPoint (maybe emailed, maybe presented on screen, maybe printed), to threads in Slack, a chat app with third-party service and data integrations. The real, underlying task is to communicate around the problem “how are sales of widgets going, why, and what should we do about it?”, and that might not have changed at all, though you might have gone from a week to a day to a minute to get the answer.
Distilling that further, there is information and the creation and analysis of it, and then there is communication – the connective tissue of the organisation. Right now, both of these generally mean the creation and the passing around or talking through of document files. But there’s nothing eternal about that model.
Evans is talking about generic business processes, but these are just as applicable to legal work. When they document clients’ transactions and relationships, lawyers manage, create and analyse information and then use the document as a medium of communication. There is nothing eternal about the document-centric model of legal work.
What could come in its place? Anything that matches more closely the way clients want to work. Just as moving pictures now fit in people’s pockets rather than being restricted to large public or household screens, so relationships and transactions could be more comfortably managed in a myriad of ways better than in a rigid document that is likely to end up unread in a filing cabinet.
There will be technology in the future. But it will be more useful than hoverboards, jetpacks, flying cars and turbo-charged legal documents.