Empathy trumps raw intelligence

I read recently that if your business model relies on ‘restricted access to information‘, then in the internet age, you are as good as dead. We live in a time of almost complete democratisation of information – and this trend is only accelerating.

If there was ever a profession that has historically relied on restricted access to information, then it is the profession of law.

In very early times the practice of law was like the practice of religion – lawyers literally spoke a different language to the one their clients spoke. It was either Latin in Europe, or French (and Latin) in England. We invested huge sums of money in libraries of case law, legislation and precedents. We then charged clients big money for us to access that information for them. This enabled us to form a union of sorts (if not a guild), and talk down to our clients from a position of information monopoly. We did not really need to interpret the information, or filter it, we just acted as its custodian and granted access at a cost. If our clients asked our opinion on what was right or wrong, or what should be done, we would casually respond, ‘it depends’.

Those days, my friends, are over.

When a client comes to see me now they usually know the same, if not more, about the relevant law as I do. They have invested days, if not weeks and months, researching their problem on Google. They have the same level of (free) access to all case law and all government legislation. They also have access to seemingly unlimited and quality commentary on many issues. If the matter involves a document, they come prepared with an advanced draft downloaded from the internet. I, on the other hand, have barely an hour or more to invest in ‘getting up to speed’ on their particular issue prior to our first meeting – and then being expected to add (significant) value.

So are lawyers still relevant in this new age of ubiquitous information?

Yes, but not as we once were.

I hear many lawyers saying that the ‘market is tough’, or blaming the ‘GFC’ for a change in the way clients are behaving. The truth is that it has nothing to do with the GFC, (which, my friends, was in 2008, which is now in the distant past!). Tough economic times may have acted as a tipping point where clients said ‘enough is enough’, but it was not the root cause. The root cause of why the practice of law has seemingly become so much tougher in recent times is structural in nature. It is a fundamental change in the way the world works. And things are never going back to the way they were. Whether you are a small sole practitioner servicing a country client base, or a partner in a magic circle firm servicing the in-house counsel of a large company, the successful practice of law has changed. Fundamentally. Forever.

Put simply, the key role of a lawyer is no longer the guardian of rare knowledge. In the age of information ubiquity the role of lawyers is more akin to that of a guide, facilitator and mentor. And this new role requires new skills – if not in some circumstances, a complete personality transplant.

The successful practice of law in the age of information symmetry between lawyer and client still requires a deep and practical understanding of the law. But that alone will not attract or keep a paying client. As a ‘guide’ we must possess the natural traits of empathy, humility and real interest. We must master the skill of active listening. And we must gain a working understanding of psychology.

Put simply the practice of law has changed from managing the restricted access to information, to that of managing our client’s information overload. Clients are now looking for an ‘intelligent filter’, someone who can confidently formulate a strategy in the context of high uncertainty, who is not afraid to express an opinion, and who can implement and facilitate transactions efficiently. The favoured lawyer response to a client that ‘it depends’ no longer cuts the mustard.

As a consequence of these changes, clients are now looking even more carefully for someone who has seen their problem before, and who can demonstrate that they have actually solved that problem in the past. Industry knowledge and genuine commercial experience is more valuable than ever.

Unfortunately the way the legal profession is regulated makes practising as an effective lawyer in this new age difficult, if not downright dangerous. We are still penalised for holding opinions, or seeking to implement transactions efficiently through the use of technology. We are still taught that a ‘dispassionate’ approach is ‘professional’, when clients are looking for genuine emotional investment in their issues. I also fear that the senior members of our profession that have the task of guiding us (whether as judges on a court bench, or as the leaders of our professional associations) do not fully grasp the enormity of the challenge we now face to remain relevant as practitioners.

This is not a change that is coming, but a change that has already passed. As Peter Drucker once said, it is our ‘new reality’. For those practitioners who are naturally attuned to this new reality (both in skills and disposition), it is one of the most rewarding times to practice the profession of law. For those that are still hoping that things will return to the way they once were. I suspect it will be a very long wait…

The information contained in this post was reviewed on 23 February 2022

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