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Lawyers and scientists may be unusual bedfellows, but watching TV science-fest the 'Wonders of Life' recently, I was struck by the idea that human existence was not a “thing” but an unfolding process of energy constantly changing form. The link to the law, is that the practice of law is to many, even practitioners, very much an art, and to describe it as a process would be heresy.
In universities and law schools, the principles of law are taught, and as the lawyer begins practice, these principles are updated as the law develops. Learning the practice of law begins in law school, but the bulk of the learning takes place when the lawyer begins work, first as a trainee, then as a newly qualified lawyer.
The nature and quality of this training can vary massively, but often the majority of it comes from supervision while “doing” – in essence copying a more senior lawyer or following a set of verbal instructions. After this process has been repeated over the course of the years, the lawyer can conduct the work unsupervised, and the “how” of the work is largely left unexamined in the lawyer’s mental desk drawers.
The how is of course, the process. To suggest legal work is a process is to many lawyers an insult and an affront to their autonomy and intellectual capability. The reality though, is becoming harshly exposed in today’s ultra-competitive world.
Take a particular piece of legal work – say the drafting of a commercial supply agreement. Whoever carries out this work will have to undertake a certain set of tasks. From taking instructions and asking the right questions to elicit the relevant information to the client, to selecting the correct template document to start the draft, through to identifying the unique legal issues and reflecting these in the draft – all these are process steps. The type of contract and the client’s circumstances will dictate how many steps and the content of the steps, but to do the job correctly, all need to be completed. That’s not to say that there isn’t room for different approaches or any variation – the more complex or novel the matter, the more scope for variation there is – but the fact remains that there is a fundamental process that the lawyer will go through, even if they don’t consciously recognise it.Once the lawyer accepts that their work has a process, then the possibility of improving that process arises, as does the idea of unbundling. Unbundling, or disaggregation as it is sometimes known, is effectively breaking the legal process down into smaller packages of tasks. So for example if a corporate transaction was analysed, the due diligence stage could be unbundled, and undertaken in a different way – possibly using a different process, set of resources or service provider.
As the cold winds of competition sweep the profession, leading to lower profit margins, efficiency is creeping ever higher up the client’s agenda, and thus on to law firm boardroom tables. Unbundling legal services allows the lawyer to critically examine how they carry out a piece of work and assess whether it can be carried out at a lower cost, faster and/or to a higher quality. This inherently offers the promise of greater efficiency.
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