Embracing disruption: how technological change in the delivery of legal services can improve access to justice.

Author:Brescia, Raymond H.
Position:Introduction through III. The Past and Present of Disruption of the Provision of Legal Services D. Ethical Considerations Regarding Innovations in the Legal Services Sector, p. 553-586
 
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  1. INTRODUCTION

    Change has come to the legal profession. Technology has supercharged the ability of lawyers to conduct lightning-fast legal research; engage in e-discovery; bend time and space by communicating with clients, colleagues, and adversaries scattered throughout the world; and draft hundreds if not thousands of documents with a few key strokes. But just as technology has made lawyering easier, it has also made it easier to provide services that look a lot like lawyering. And the provision of legal services is becoming commodified: carried out by lawyers and nonlawyers alike in a way that is far less expensive than the traditional, "bespoke" model of lawyering.

    In the words of Clayton Christensen, the legal profession is in the midst of a disruption: a monumental, transformative shift in shape and focus that will change the practice of law forever. Some lament this phenomenon. Some worry that it signals the end of big law and that it will have ripple effects throughout the legal industry; that it means there will be fewer lawyers and fewer law schools and that the transformation of lawyering will harm the ability of all lawyers to earn a living--not just those in large, white-shoe firms, but also those practicing in small towns and rural America. Others claim that the new modes of providing legal services--websites, mobile applications, do-it-yourself programs--threaten the consumer, who may receive services at a discounted price, yet those services may be of such low quality that they might end up causing more harm than good. (1) Some, like Richard Susskind, embrace this disruption and believe the changes in the legal profession will mean a different role for lawyers in the future. (2) Many assess the impact of these disruptions on the delivery of services to wealthier clients and corporations, who, in many instances, are the only ones able to afford lawyers in the U.S. legal market in the first place.

    But if Christensen's "Innovator's Dilemma" theory of business disruption is to be believed, true change in the market for the provision of legal services will not come from those serving wealthier clients. Instead, disruption in the legal field will come from those serving individuals of lower income who do not require the type of representation that has become the norm in the celebrated halls of the largest, wealthiest law firms. True disruption is likely to come from those serving the "lower end" of the market: the solo practitioners, legal services lawyers, and "low bono" providers of legal services. It is innovation in these corners of the market where pathbreaking disruption will take place, mostly out of necessity. What is more, it is the low-end of the market that is actually quite robust--that is, there is a desperate need for legal services, just an inability to pay for them.

    If disruption is indeed coming to the legal services market, and few can doubt that it is, technological innovation, one of the main drivers of this disruption, can serve to widen access to justice in communities desperate for legal assistance--low- to moderate-income communities, the working poor, and the middle class. Christensen's theories of disruption, which will be discussed here, posit that disruptive innovation does not start at the high-end of the market, but rather typically enters the low end and filters its way up, changing the way a particular market segment operates. (3) Most who have bemoaned the disruption occurring in the legal market have pointed out that lawyers for wealthier clients are seeing their profits diminish and their clients demanding more efficient, less expensive services. What we hope to do here is identify ways that disruption can occur in the provision of legal services to improve access to justice, particularly for low- and moderate-income individuals and families. If Christensen's theories about disruption are to be believed, it is here where true disruption of the legal services profession will occur. Given the need in these communities for affordable legal services, perhaps disruption in this market has its benefits; at a minimum, it offers a way to improve access to justice for communities and individuals underserved by the present--and expensive--modes of delivering legal services in the United States.

    To explore these issues, this paper proceeds as follows. In Part II, we will discuss Clayton Christensen's theories of business disruption with particular emphasis on service economy fields, like legal services. In Part III, we will provide an overview of some of the disruptions currently taking place in the legal profession. We will also assess how the machinery for monitoring the unauthorized practice of law has responded to some of the more popular entities that have broken into the legal services market and are providing such services at a rate that is a fraction of what the typical lawyer would charge. In Part IV, we will look at ways that technological change can improve access to justice for low- and moderate-income communities and explore one manifestation of this phenomenon, namely, a web-based interface for individuals facing a mortgage foreclosure. We will also look at some areas for concern should technological innovations begin to address the justice gap.

  2. THE INNOVATOR'S DILEMMA: DISRUPTIVE INNOVATION

    1. The Innovator's Dilemma: The Theory

      Why do successful companies fail to stay atop their industries when confronted with technological, market, and social change? And to what extent can the legal profession learn from the ways companies in a range of sectors confront, or are confronted by, innovation and technological change? The first of these questions opens Clayton Christensen's seminal book on innovation, The Innovator's Dilemma. (4) Published in 1997, the book expanded and refined Christensen's original notion of "disruptive technologies" first released nationally in his Harvard Business Review article, Disruptive Technologies: Catching the Wave. (5) The Innovator's Dilemma has received global praise and notoriety for its revolutionary analysis of business management and technology. In 2011, The Economist proclaimed the book one of the six most influential business books of all time. (6) Forbes Magazine has touted Christensen as "one of the most influential business theorists of the last 50 years." (7) What is more, his paradigm, the innovator's dilemma, is useful for assessing the impact of innovation across sectors where technological change manifests itself in similar ways, including financial consulting, emerging markets, media, education, health care, and the legal market. (8) More importantly perhaps, Christensen's theory offers potential responses and solutions to sectors experiencing technological change. (9)

      In explaining his ideas, Christensen simplifies his theory as "statements of causality," which he explains as an "understanding of what causes what and why," (10) or as Christensen transposes into a logic format: expressions of "if ... then"--if this scenario, then this result. (11) Christensen compares his classroom approach at the Harvard Business School to the application of a pair of glasses; his students would learn the concepts, then apply these studies like a new pair of "lenses" helping to focus their examination of companies, firms, countries, their own life objectives, and why certain propensities lead to particular results. (12) Similar to Christensen's classroom, this discussion will focus on first understanding disruptive innovation foundationally, then applying these statements of causality to examine contemporary developments and patterns in the legal services industry.

      The term disruptive innovation "describes a process by which a product or service takes root initially in simple applications at the bottom of a market and then relentlessly moves up market, eventually displacing established competitors." (13) Paramount to this theory is the relationship between the two core terms: "sustaining innovations" and "disruptive innovations." (14) Because Christensen's theories have been disseminated globally, the definitions of these terms sometimes become muddled. As a result, perhaps the best, most precise definitions of these terms come directly from Christensen himself.

      A sustaining innovation is the process through which good products become great products. (15) Companies pursue intuitive strategies that helped them succeed previously, refining their products using technological advances and research to respond to the demands of their most sophisticated customers at the top-end of the market. (16) Fueled by a desire to achieve the greatest profitability through sales to wealthier consumers because these companies "tend to innovate faster than their customers' needs evolve, most organizations eventually end up producing products or services that are actually too sophisticated, too expensive, and too complicated for many customers in their market." (17) The production of these sustaining technologies creates a gap in the consumer market because middle- and low-end consumers have either little desire for, access to, or the ability to use these products. (18) The void generated by sustaining innovations inevitably propels the development of what Christensen calls disruptive innovations. (19)

      In contrast, disruptive innovation "transforms a product that historically was so expensive and complicated that only a few people with a lot of money and a lot of skill have access to it. Disruptive innovation makes it so much more affordable and accessible that a much larger population have access to it." (20)

      When describing disruptive innovation, Christiansen emphasizes that the

      [characteristics of disruptive businesses, at least in their initial stages, can include: lower gross margins, smaller target markets, and simpler products and services that may not appear as attractive as existing solutions when compared against traditional...

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