TRENDS AND PROPHECIES AS TO
“DISRUPTIVE” TECHNOLOGY

Michael Sean Quinn*

It is popular to see the insurance profession, and insurance lawyering in particular, as a profession under stress. Often, the point is that there very substantial changes her and more coming. New standard documents, new standards for performance,  new ways of coping, new techniques of discovery, a new language, new requirements on how to file things with courts, and so on and on and one. 


There is another way to think
about what is becoming of the legal profession in general and therefore
insurance coverage practice. What’s I’ve mainly written about up to now was mainly about new topics that have
to be learned and new activities that have to be mastered. For a very
different, and darker–more pessimistic–view, consider Richard Susskind, a well-known English
cyber expert on some parts of the law and all parts of law firms, as well as a
TV personality, and a handsome devil, judging from the photos he puts on the
Net.  In any case, he has written at some
length on the changing socio-economic-and-managerial world of law firms. He
virtually opened the Preface to his book of his 2013 book TOMORROW’S LAWYERS (“TL”)
with the remark, “We are, I have no doubt, on the brink of fundamental change
in the world of law. . . .”[1]

As Susskind observes, cyber
components of the legal world have been growing for some time. There have been
such things a “virtual hearing” for a while now, just as there have been
telephone hearings for even longer, and there is “online dispute resolution[,]”
accomplished, one might add by a variety of devices.  In my experience, there are also skype and
skype-line depositions, and theoretically similar trial testimony is on the
way.  Of course, the latter will lead to
a whole new species of cross examination and during-trial document production
and examination, not to mention ediscovery. 

         Of
course, although Susskind says nothing about the following hypothetical
deposition. all of the new electronic developments will have a tremendous
impact on global insurance coverage and insurer-versus-insurer conflict litigation.
(Imagine this: let L stand for lawyer and W stand for witness, deposing L is in
Austin; W speaks only the language of Fracus, a small, secretive, and nearly
unheard of finance country having syndicates of 
reinsurers and high-level excess carriers,  but where, at the time of the deposition, W
physically located in the sheep country of 
New Zealand (or perhaps in it the national prison which is roughly in
the same region); the translator for the contract of insurance is in in Moscow;
L for the witness and his Panamanian company is in Singapore, the contract of
insurance is in Chinese but the law of Mali applies; a professor of oriental and
Islamic insurance history and practice is “present” from his office at U.Conn.,
as is the retired national  judge of
Iceland, who is the agreed “ruler” on quarrels occurring during, in, near or
about the deposition but who is at that moment in Patagonia playing golf; and
so on. Now that you have  this configuration
of the deposition in mind; think of it as an insurance case; and reimagine it
as an actual arbitration hearing.)

So far, all we have is a
sustaining technological change. 
Professional life will have changed a lot, but there  have been no revolution in day to day
professional existence. There are new topics of negotiations; they are very
difficult; they require enormous extra learning, etc., etc. But the lawyers are
still doing what lawyers now do; for example, they negotiate.

         So
let’s talk about Susskind’s “disruptive” technological changes. One might also call them “quasi-destructive changes.” Susskind
observes several factors and trends leading to the “discontinuity” of the legal
profession are occurring roughly now. 
Only the cyber-digital factors will be discussed here.  Information technology and communication have
allegedly taken over the world, as everyone more or less believes. I dare say
that readers of this paper notice it every day.   It has also led, says the author to a certain
standardization of most (or, at least, very many) tasks, such as those
of lawyers that are routine.

         This
is not standardization in terms of how the quality of a performance is judged;
it is standardization of how it is performed. (“All of you professionals,” says
the ‘whoever,’ “Listen up! Do what you do this way[2] way every time.”)[3] The legal profession
regards itself as a “learned professions” the members of which  prepare different work for different clients,
keeping uniqueness and the idea of having a  special relationships as a central
idea. The classical lawyer-client relationship was in some sense
individualistic, personal, close, genuinely exemplifying loyalty, and a certain
kind of intimacy (though, of course, not others)  According to Susskind, for most lawyer
activities for clients those days are largely gone. Susskindean standardization
is actually a kind of what used to be called 
mechanization.”

         Customized (or what he calls “bespoken
work—like a tailored suit—(already a somewhat mechanized kind of work) has, for
a large part, given way to. and has been to some degree been replaced by, standardization,
as I just described it.[4]  That has bred the use of widely distributed
checklists—as opposed to individualized, and largely self-made checklists–as a
key to managing lawyers. Of course the checklists are computerized, even as to
creation and construction, and they are more and more used as a method of managing
the lawyers working on standardized projects; this is done by more senior
lawyers, project managers, and clients themselves, e.g., insurance claims
examiners.  (They can even be obtained
off computer sites, like forms, and this will be important for the  solo practitioners of the future.) This use
of checklists, Susskind calls “systematization.” It’s like (or is a version of)
a “procedure manual” (TL-26) or what is also called a “workflow system.”  If A (whether a computer or a person) makes a
checklist for B and doesn’t teach B how to use it, the checklist is worth far
less than if B has prepared his own.[5]

         Much
of this work can be “packaged,” i.e., done on the internet, e.g., with in-house
counsel or with certain kinds of executives. (TL 4-27). One can easily imagine
computers sharing checklists so that clients could keep track of what the
lawyers were doing according to the checklist every day. Welcome to the cloud;
nothing cloudy here.

         “Standardization,”
in Suskind’s sense has led to “systemization.”

         “Standardization” (TL 25) has also led
to “packaging,” and it has given rise to “commoditization
. I think the term
“commodization must mean converting something into a commodity, or thinking of
something as a commodity. It also seems to me that the term ”commodification”
is just as good a word as “commodization.”  Now, commodities of a certain type, e.g., lima
beans, are or are supposed to be pretty mu
Gl ch alike. 
I eat a lot of peanuts; they come in jars or cans; some of these groups
are salted; others are not. I take “baby aspirin” every night as genuinely
mature intelligent, and self-interested adult males are supposed to do. Some
come from Bayer; some come from the “God-Know-Who” Company; some are flavored,
some are not. All of these give you the idea of what a commodity is and how
there can be minor variations amongst them. It gets harder when on be thinks
about cars. In an important sense, they are standardized; they are all pretty
much alike; and some of those ways are important, e.g., not of them is
poisoned.

         Most
of us don’t want to admit that our Jaguars are commodities. And so forth.  Why? Because they are not consumed in mass
and  masses do not consume them. But the
point remains the same.  Susskind’s
thesis is that the vast amount of legal work will become commoditized, i.e.,
recognized as what he thinks it already is. And of course, to a considerable
degree he is right, although he uses stiff, rigid categories, phrases and words
to describe the slope running down from the highly specialized to the much more
mundane routine, e.g., the filling out of an administrative form.  In other words, Susskind believes that the
world of the legal professional will become something like the world of the
mass factory laborer, only in a nicer work facility and being paid more
money.  

         (If
the reader is wondering how to defined Susskind’s terms, “Relax.” Use them in a
broad, undefined sense, and if you read that sort of thing, think how the term
would be used in a popularized management manual. Use, embrace, and adjust to
them you must, however, or you will end up as dispossessed and forgotten as
coal miners or the recent past and Rust Belt former factory workers see
themselves today. Feeling that the times have passed you by is an accursed
state of mind. One thing for sure, however, he does not like the legal
profession being a “closed” community. He thinks that the disruptive
technological revolution will undermine the one-type-of-legal-services-producer
that has structured the Anglo-American legal profession. According to him, the
profession will become a patchwork of different specialities all highly
regulated. See TL-5-6.)

         Moreover, Susskind sees the future of
“BigWork” as involving “decomposed” work, by which he means that bigger
jobs are systematically divided into parts and then divided up among different
lawyers (or types of lawyers, semi-lawyers, or 
quasi-lawyers, all reviewed by someone else, and recomposed by yet
another lawyer.  Here is Susskind’s list
of a decomposed set of tasks (TL 31, etc.—his boxes):

LITIGATION

Document review

Legal research

Project management

Litigation support

(electronic disclosure)

Strategy

Tactics

Negotiation[6]

Advocacy

Consider,
Susskind says, all the document review being done by cheap foreign

lawyers
in cheap foreign places, disbarred but rehabilitated former lawyer,

all
supervised and managed from a professional paralegal, say, from Houston.[7] In his imagination, Susskind
pictures this organization as an orchestra. One wonders if this is the right
image. One also wonders how the professional lives of coverage counsel fits
into this.

        

Now consider the same thing
being done for transactions (TL 33):

TRANSACTIONS, DECOMPOSING

Due diligence

Legal research

Transaction management

Template selection

Negotiation

[Unique/customized[8]]
drafting

Document management

Legal advice

Risk assessment

And
these various tasks can take place in all sorts of different venues or by means
of quite different function, including, of course, “computerization (TL 34).
(Susskind has a long list of venues and function in a “table,” but I am
interested only in computerization, so the readers are spared another box.
According to Susskind, computerization will be involved in standardization,
packaging, and commoditization. How does the professional life of coverage
counsel fit into all this?


         As noted several times, Susskind draws
a distinction between two kinds of innovations. One of them is “sustaining,” as
to the current business culture, and one of them is “disruptive.” He thinks
that the innovations populating the current legal business culture are
disruptive; here is his list (TL 40):

DISRUPTIVE LEGAL TECHNOLOGIES
Automated document assembly

Relentless connectivitry[9]

electronic legal
marketplace

e-learning

Online legal guidance

Legal open-sourcing

closed legal communities

Workflow and project
management

Embedded legal knowledge

Online dispute resolution

Intelligent legal search

Big data

AI-based problem solving

         He also recognized that some “high ‘falutin’”
activities of lawyers—for example, actually trying cases, negotiating enormous
deals, drafting at least parts of very complex documents for individual
transactions, and so forth, are unlikely to transported into new regimes where
lawyer activities is computer regulated and highly repetitive. At the same time
he suggest that so much work will be adapted to the new cyber world that there
will be less than a lot left over for swash buckling (or exquisitely
Ciceronian) trial rhetoric geniuses.
Notice
that the Susskind says there will be “some.”

            However, insurance
lawyers do not automatically fall inside the “some.”  There is a puzzle here. Most endorsements for
most insurance policies do seem to be—or to have been–commoditized. But surely
the writing of them was not. This is true even of form policies and form
endorsements. Making recommendations to an insured—at least a large business
insured—surely is not. Maybe that’s a hidden point in Susskind’s idea. Bespoken
insurance legal services will be for the substantial (mostly company) interests
only. The rest of the population is to get a commodity–advice and counsel
included.

 Given Susskind’s view of the disruptive impact
of computerized innovation on the practice of law, one might expect that much
coverage work will be broken down into standardized pieces which can be
packaged and commoditized.  Most legal
research for insurance coverage opinions has already been done in at least one
different case.  Standardized paragraphs
and topics can be stored in “coverage opinion archives” (electronic bins) with
there being computerized indexes easily available to all relevant lawyers in a
large firm, or set of non-conflicting large firms, or professional electronic
archives available to all for a fee. 
They may need to be adapted from state to state, to some degree, but
often not, except for citation purposes. But a large firm, or group of firms
from around the country (or from different countries) can assemble, get the
cites updated. Others can pull together the facts as set forth in the claim
files. The simpler the case, the easier all this is to do.  Even complex cases can be done partly in this
manner. One can bet that financially disciplined insurance companies will be
looking for ways to create “Susskind County” in their much larger state. 

         In
the area of insurance practice, most law firms will disappear. Most of the
practice will be in hours in the offices of general counsel. There will, there,
be electronic devices for “legal risk management” and for “knowledge
management.” Most problems will be solved by AI-based methods. The concept of
the law firm—as most of us know it–will be gone, except for a global elite,
and they will be in large global law firms.

         Susskind
seems to know that there are many objections to law firms—especially large
ones—based on their alleged impacts on the psychological well-being and
emotional lives of young lawyers. Of course, this “truth,” to the extent that
it is true, includes coverage lawyers. One has the impression from his book
that Susskind believes that these problems will for all—Poof!—be made to
disappear by the revolutionary technology of the new cyber age. Who else thinks
so? For  a dissenting view, just you wait. 



Susskind is surely right about some things. Routing lawyering has been destroyed. Probably just as well, perhaps.  It was boring and an easy place to foul things up by not paying attention, hating you job, hating your clients, or hating yourself. But that is far less than the whole story. Me thing the Englishman has exaggerated and misunderstood the diversity of lawyering and its susceptibility of adaption. 



[1]
The actual title of the book is TOMORROW’S LAWYERS: AN INTRODUCTION YOUR FUTURE
(Oxford U.P 2013). Among of his other accolades, in 2013, at least, Susskind
was the President of the Society for Computers and Law. For those who have
doubts about his views, keep in mind that a person’s having no doubt about a
proposition he believes is not evidence that 
true. Section V of  this paper
might be regarded as a book report on those parts of TL which portray and
predict the influence of IT on the legal profession.  (The page numbers of TL will be internal and
will be noted only by the form “TL ___.) Another “doomsday” summary of some of
his view were published recently in the HARVARD BUSINESS REVIEW. Richard Susskind and Daniel Susskind, “Technology Will Replace Many Doctors, Lawyers, and Other
Professionals,” HARVARD BUSINESS REVIEW (October 11, 2016). It might be well to
keep in mind that Richard has had a long career as a show business publicist
and TV personality; his son Daniel is a Fellow in Economics at Balliol College,
Oxford University.

[2]
Of course, at least some of the “this way” orders will have some alternatives
built into them.

[3]
Who is the “whoever”? Boss? Supervisor? Master? Client? Client’s “emissary”?
Industry “god”? Somebody or group of somebodies. 

[4]
Special, high-end tailoring, at least for men’s clothing, is becoming more
standardized while it remains tailoring preserves its high-endedness. This is
done by a customer using his own smart phone as a way of doing the needed
measuring, shipping the resulting specs off to somewhere (Paris? Singapore?
Tomball?), and the new suit, or whatever, comes in the mail. The name of the
tailor might as well be Amazon. Something is missing here. Who among us that
has ever used the same tailor more than thrice without forming a real
relationship with him? The same goes for high-end barbers as well, does it
not?  Might not one think that what is
good for the tailor-customer relationship (and the barber-buyer relationship)
isn’t also applicable to the lawyer-client relationship? Susskind seems to say
“No.”

[5]
From this last remark, it should be clear that I have nothing against at least
some kinds of  check lists but, in fact,
value and embrace the idea of  them with
enthusiasm, though I’m not sure what the role of a checklist is the creation of
a sonnet. Of course, that last remark has almost nothing to do with an
appellate brief or other lawyer work, even if it exemplifies a certain kind of
artistry.    See Atul Gawande, THE
CHECKLIST MANIFESTO: HOW TO GET THING RIGHT (2009)

[6]
The Susskind includes mediations by implication. As a separate point, I must
confess that I am not comfortable with Susskind’s beloved word “decompose.” For
me, “decomposition” is what happens to a corpse over time, if it is not
embalmed. When I try to think of “decompose” as a verb, I imagine taking pages
of notes for a musical composition and shuffling them around. Thus would I
decompose something that has been composed. Maybe the same idea could be made
to work for poetry. Something like this is what I think Susskind actually had
in mind.

[7]
Referring to  the use of non-lawyers
Susskind called “de-lawyering.” (TL 33)

[8]
Susskind’s actual word was “bespoke.”

[9]
Given electronic mobile devices, etc., lawyers are almost always connected to
their clients (or employees thereof) and to each relevant other. The idea of
connectivity also suggests the idea I attribute to Susskind, namely, that of an
orchestra.

*Michael Sean Quinn, Ph.D., J.D.

1300 West Lynn Suite 208

Austin, TX 78703

Office Phone: 512-296-2594
Cell:512-656-0503
Fax: 512-344-9466

Email: mquinn@msqlaw.com 
www.michaelseanquinn.com 

Originally posted on 12/05/2016 @ 10:13 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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