David Bilinksy has earned a laundry list of awards and merits, but the part of his résumé perhaps most reflective of his professional pursuits is this: He has completed 11 marathons.
As a person who’s dedicated his career in lawyering and consulting to inspiring change, he has to be committed to the long game. Change in the legal profession generally doesn’t occur in sprints.
Then again, these are different times — when it seems almost as inevitable that the biggest law firm in the world will one day operate out of Walmart as it does that the world’s busiest lawyer will be a robot.
In this interview with Logikcull, Bilinksy, an attorney for the Law Society of British Columbia in Vancouver and chair of the Pacific Legal Technology Conference, explains the evolution of innovation in law, what can spur and stem it, and why, for legal professionals committed to the status quo, tomorrow isn’t promised. This is the first of two posts.
David is speaking on his own behalf, and not as a representative of the Law Society of British Columbia, of which he is a part.
Logikcull: In the context of delivering legal services, how would you define what it means to be innovative?
David Bilinsky: I think there are two types of innovation. There is the Deming approach, which I would describe as making incremental improvements to any system. And then there are disruptive innovations.
Incremental innovations are moving from, say, a paper-based folder approach to an electronic document management system to essentially perform the same task but with new tools and new workflows.
Disruptive innovation is something completely different. An example would be bringing in online dispute resolution, where you don’t go to court but instead visit and ODR website asynchronously and have the technology act as a neutral third party to help two parties or more resolve their disputes online. So, in this instance, you don’t have to go to court, you don’t have to build courtrooms, you don’t have to have judges. The whole cost and nature of the manner in which you resolve the dispute has changed. And conversely, the cost of resolving the dispute drops.
eBay has shown that online dispute resolution is very effective. They deal with about 6 million disputes a year — 90 percent of which are settled with their online dispute tool that they’ve built. So that’s an example of disruptive innovation.
Logikcull: How would you assess the ability of the legal services industry to embrace incremental innovation and disruptive innovation as technology — like the technology you’re talking about — has become more widely available?
DB: You would have to look at the nature of the change that you’re trying to bring about. I think incremental innovation is possible and has been occurring in the legal profession all along as technology changes. We’ve gone from scribes to typewriters to word processors to document assembly systems. That’s an incremental kind of change.
For disruptive innovation to occur, the structure of the legal system or the regulatory system or perhaps both has to change. An example of this would be how alternative business structures are appearing in the UK and elsewhere, where you simply can’t have non-lawyer ownership of law firms without the structure of the regulatory system around the legal profession changing.
Logikcull: Many people have said that the legal field is slow to innovate because of the reasons you just alluded to, and also because it’s limited by the constraints of law and by the willingness of lawyers to take risks. Lawyers are generally thought of as naturally risk averse. You wrote about this recently and hypothesized that the fundamental attribution error is in play. Can you explain what that is and why it might limit innovation?
DB: The fundamental attribution error is an idea that arose out of social sciences research. My understanding of it, at least in the context of law, is that, where people want change, they try to influence those in a given system to try to change their behavior. However, the people inside the system are currently behaving rationally given the system in which they operate. In other words, in order for real change to happen, you have to change the nature or constraints of the system.
For example, you’ve said how law firms are very risk averse. It’s almost like a Whac-A-Mole system where, if somebody tries to be innovative, the system pounds them down and says, “No, we’re a conservative profession. We don’t do that sort of thing.”
“It’s almost like a Whac-A-Mole system where, if somebody tries to be innovative, the system pounds them down and says, ‘No, we’re a conservative profession. We don’t do that sort of thing.’”
But consider a company like Google, which I think is very innovative. That’s an atmosphere and culture that encourages innovation and actively promotes it from within. That’s the nature of their business model. I think you have to have the system change as Google did to have real change to occur…. I’m not sure how those changes occur, but I’m convinced that changing the system is part of the solution.
Logikcull: If a law firm says, “we are going to be more innovative,” how would you suggest it go about stimulating that innovation given the work environment and economic constraints?
DB: Well I think part of the problem is the hourly billing model that law firms currently use. It rewards the number of hours that people put into a file and there’s no real incentivization for achieving efficiencies, because it only reduces the amount of time you can put into a file and bill. So one structural change would be that we as lawyers have to move to a different fee structure that rewards time being put into efficiency improvements, and helps reward the client as well as the firm at becoming more efficient and effective at how they provide services.
“Part of the problem is the hourly billing model (where) there’s no real incentivization for achieving efficiencies, because it only reduces the amount of time you can put into a file and bill.”
There are alternative billing systems that have been tried. Jeff Carr, at FMC Corporation, was one of the leading lights in trying to promote alternative billing systems — incentivized systems — in both the transactional and the litigation context. There have been books written on this. I think a lot of people recognize that changing the legal billing model will result in greater efficiency and effectiveness and, therefore, innovation. But this is a structural change we need to get behind.
Logikcull: I wanted to ask you about how you think consumers of legal services are influencing the way those services are delivered. Why do you think it is that consumers have not demanded — or have been more demanding of — alternative fee arrangements and flat fees and things like that?
DB: I think consumers have to a certain degree. Look at the LegalZoom model. One of the quotes I love tossing around is “People with legal problems don’t want lawyers, they want their legal problems solved.” And they don’t particularly care who is the person that solves that problem. There’s no guarantee that lawyers have to be the people that are providing dispute resolution or legal services to people.
Here in British Columbia, we have a profession known as Notary Publics or simply “Notaries” that co-exist with lawyers and Notaries can provide non-contentious legal services — wills, estate planning, property transfers, certain kinds of contracts and things of that nature to members of the public. They’re not lawyers – they make that quite clear – and they’re doing quite well thank you very much!
There’s nothing that guarantees that lawyers have to be a profession that is present in the next 100 years. The consumers have that power and I think LegalZoom has tapped into it. They have a great business model that provides limited legal services to a quickly growing and accepting class of consumers, and the very fact that they’re successful shows that consumers of legal services will look for solutions wherever they happen to be.
As told to Robert Hilson, a director at Logikcull. He can be reached at firstname.lastname@example.org. To learn more about what must be done to sustain your practice in challenging times, check out the whitepaper below.