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The Future is Now! Bar Leadership Path to the Future Presentation by Charles F. Robinson Clearwater, FL NCBP,NABE,NABF.

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Presentation on theme: "The Future is Now! Bar Leadership Path to the Future Presentation by Charles F. Robinson Clearwater, FL NCBP,NABE,NABF."— Presentation transcript:


2 The Future is Now! Bar Leadership Path to the Future Presentation by Charles F. Robinson Clearwater, FL NCBP,NABE,NABF

3 © 2003 Charles F. Robinson Todays Agenda Why worry about the future? The 2003 environment Trends v. Cycles How to create the professions preferred future

4 © 2003 Charles F. Robinson Presentation Materials

5 © 2003 Charles F. Robinson


7 It Feels Like Something is Happening We feel uneasy We feel tentative We feel angry and frustrated There is competition everywhere we turn Will the massive change we are going through continue? Can we return to the way it used to be?

8 © 2003 Charles F. Robinson Tom Peters predicts Ninety per cent white- collar jobs will disappear in the next ten years. What color collars do lawyers wear? Is there an exception for lawyers?

9 © 2003 Charles F. Robinson Never in history has incumbency been worth less. Examples include:

10 © 2003 Charles F. Robinson The real threat is irrelevance.

11 © 2003 Charles F. Robinson Chief Justice Major Harding 2/5/2000 Dispute resolution as we know it may be a dinosaur Must look at reforming the jury system The big issue before the court system is relevance

12 © 2003 Charles F. Robinson Litigation

13 © 2003 Charles F. Robinson James A. Baxter Clearwater Lawyer For the Legal Profession to buck worldwide economic trends has about as much hope of success as mythological King Canutes efforts to have his men beat back the sea.

14 © 2003 Charles F. Robinson Wired Magazine (January, 1998) Guardians of the old order are trying their best to hold back change and preserve their power.

15 © 2003 Charles F. Robinson

16 Stare Decisis- Walking Through Life Backwards

17 © 2003 Charles F. Robinson Bill Gates Warning We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten."

18 © 2003 Charles F. Robinson Marconi v Sarnoff

19 © 2003 Charles F. Robinson There is no reason anyone would want a computer in their home. Ken Olson President, Chairman and Founder of Digital Equipment Corp., 1977

20 © 2003 Charles F. Robinson This telephone has too many shortcomings to be seriously considered as a means of communication. The device is inherently of no value to us. Western Union internal memo, 1876.

21 © 2003 Charles F. Robinson Im just glad itll be Clark Gable whos falling on his face and not Gary Cooper. Gary Cooper on his decision not to take the leading role in Gone With the Wind

22 © 2003 Charles F. Robinson The bomb will never go off. I speak as an expert in explosives. Admiral William Leahy, US Atomic Bomb Project

23 © 2003 Charles F. Robinson Everything that can be invented has been invented. Charles H. Duell, Commissioner, US Office of Patents, 1899

24 © 2003 Charles F. Robinson What is our vision of law practice in 2010 and beyond?

25 © 2003 Charles F. Robinson What are the deepest beliefs in our profession? What business are we in? What are the 10 things we believe about law practice?

26 © 2003 Charles F. Robinson Ten Toxic Assumptions of the Legal Profession- Bill Cobb

27 © 2003 Charles F. Robinson 2. Lawyers have a monopoly on the interpretation of the law.

28 © 2003 Charles F. Robinson 10. Practice of law will always be regulated by the courts.

29 © 2003 Charles F. Robinson What are Professions Core Values?- Traditionalist Take Confidentiality Independent judgment (Competently exercise independent judgment) Avoidance of conflict Loyalty to clients

30 © 2003 Charles F. Robinson Core Values- Professionalism Take Honor Integrity Nobility Decency Respect Character Paul R. Lipton Alternative amoral technicians

31 © 2003 Charles F. Robinson NH BAR OUTREACH 2000 Can the legal profession survive the dot.comet?

32 © 2003 Charles F. Robinson Lawyers charge excessively and add significantly to the cost of a legal need. Lawyers add significantly to the time it takes to satisfy a legal need. Lawyers complicate already-complicated problems. Results of a poll conducted by Franklin Pierce Law Center graduates of their clients:

33 © 2003 Charles F. Robinson Law School Client Survey cont Lawyers don't take time to learn enough about a client's legal need, and then do not adequately address the need. When they address the need, they are paternalistic and arrogant. Lawyers don't know when to step aside. Lawyers' expertise in litigation and advocacy impedes problem solving.

34 © 2003 Charles F. Robinson Jennifer James - Lodge (Guild) Mentalities Education Medicine Law

35 © 2003 Charles F. Robinson Guild Power Dimensions 1. Power and control over the association- right to create own rules 2. Control over the workplace Pace of work Number and status of workers Pricing of output

36 © 2003 Charles F. Robinson Guild Power Dimensions Cont 3. Control over the market 4. Power over the relation between the guild and the state State had to grant monopoly Right to control availability = right to set the price

37 © 2003 Charles F. Robinson Our Guild Legal Profession Operated as a guild in US for many years- Monopoly on legal services- We could define legal services as we wanted Death of the Guilds- Professions, States, and the Advance of Capitalism 1930 To the Present Elliott A. Krause 1996

38 © 2003 Charles F. Robinson Guild Characteristics Bar determined Who could be a member Standards for service quality Pricing (minimum fee schedules) Quantity of service to be performed

39 © 2003 Charles F. Robinson Guild Status Decline Goldfarb 421 U.S. 773(1975) End of pricing control Bates 433 U.S. 350 (1977) Advertising allows for competition Guild status gone since 1975 but many in denial in 2003

40 Cycles and Trends

41 © 2003 Charles F. Robinson Cycle An interval of time during which a sequence of a recurring succession of events or phenomena is completed Middle English cicle, from Late Latin cyclus, from Greek kyklos circle, wheel, cycle

42 © 2003 Charles F. Robinson Trend a line of general direction or movement a prevailing tendency or inclination the general movement in the course of time of a statistically detectable change; also : a statistical curve reflecting such a change

43 © 2003 Charles F. Robinson Trends v. Cycles Cycle says wait it out and it will come back. Weather Markets Trend says will not likely return to status quo We must deal with it or Let it take us wherever the trend goes

44 © 2003 Charles F. Robinson Trend or Cycle 1. Tort reform

45 © 2003 Charles F. Robinson 1.Tort Reform Economically destructive litigation US most expensive tort system in the world $179 billion 2002 direct costs $636 per capita 150% of amount spent on pharmaceuticals Bills pending in 20 states 11 states have passed legislation Trends Volume 1, Issue 3, July 2003

46 © 2003 Charles F. Robinson Tort Reform Targets Joint and several liability Size of jury awards ($250,000) pain & suffering Asbestos liability Medical malpractice Judicial review of jury awards

47 © 2003 Charles F. Robinson Trend Newsletter Predictions Asbestos special legislation limiting awards by 2005 Pain & suffering caps state/federal 2006 Product liability litigation- statute of limitations of 15- 18 years Exempt wholesalers/retailers who dont alter products Punitive cap at 200% of actual Federalize class-actions over $2 million Federal preemption of auto insurance litigation to include no fault coverage for pain and suffering

48 © 2003 Charles F. Robinson Tort Reform- Trend or Cycle? If cycle make low priority If trend bar leadership must actively decide Effect on public Effect on civil justice Effect on legal profession Strategic Plan to Protect public Protect civil justice system Make appropriate changes

49 © 2003 Charles F. Robinson Trend or Cycle 1. Tort reform 2. Lawyer/Bar leadership relevance

50 © 2003 Charles F. Robinson 2. Declining Image of Bar Associations from ABA to State and Local-Trend or Cycle? What is greatest problem facing the bar and its members today, ignorance or apathy?

51 © 2003 Charles F. Robinson California... Here We Come??? The Bar has drifted, and become lost. It is now part magazine publisher, part real estate investor, part travel agent, part critic, commingling its responsibilities and revenues in a manner which creates an almost constant appearance of impropriety. Governor Pete Wilson

52 © 2003 Charles F. Robinson California Bar Funding Vetoed Bloated Arrogant Oblivious Unresponsive Lawyers Weekly USA June 15, 1998

53 © 2003 Charles F. Robinson UPL- A Dog That Wont Hunt Gemini Ventures of Tampa Inc. v. Hamilton Engineering 26 Fla L. Weekly 927 (2 nd DCA April 2001). We, as part of the legal profession, should be ever vigilant to protect the public from those who seek to provide legal services without the requisite training and knowledge. However…

54 © 2003 Charles F. Robinson we must also recognize that there are people with experience and expertise capable of providing valuable service to persons involved in legal proceedings without crossing the line between legitimate consulting and the unauthorized practice of law. We do a disservice to the public if we prevent access to these services.

55 © 2003 Charles F. Robinson UPL Problems What is PL? No harm no foul? Protect public or profession? Protecting anybody? Limiting competition from nonlawyers?

56 © 2003 Charles F. Robinson ABA Task Force on the Model Definition of the Practice of Law Presumed law practice when Giving advice or counsel regarding legal rights and responsibilities Selecting, drafting, or completing legal documents that affect legal rights of person Representing person before adjudicative body, including but not limited to, preparing of documents or conducting discovery, or Negotiating legal rights or responsibilities on behalf of a person

57 © 2003 Charles F. Robinson Happy Days Are Here Again!!?? Justice Department and FTC Proposed definition would reduce competition and force consumers to pay higher prices for a smaller range of services Prohibit lay service providers from closing real estate loans Prohibit accountants, investment bankers and insurance adjusters from advising clients about various laws.

58 © 2003 Charles F. Robinson Hewin Pate Assistant AG for Antitrust Those who would not pay for a lawyer would be forced to do so, and traditionally, lawyers charge more than lay providers for such services. Without competition from nonlawyers, lawyers fees are likely to increase. The proposed definition could prohibit Web sites and software makers from helping consumers draft their own documents. St. Petersburg Times 12/25/02

59 © 2003 Charles F. Robinson Mary Ryan, ABA Committee on Delivery of Legal Services A lawyer is best defined as someone who provides the best services in a free market, not the only services in a protected market.

60 © 2003 Charles F. Robinson Utah Definition Appearing as an advocate in any criminal proceeding or before any court of record in this state in a representative capacity on behalf of another person. Cant claim to be a lawyer if you are not by using JD, Esq, attorney, attorney-at-law

61 © 2003 Charles F. Robinson Declining role of Bar and lawyers in general- Trend or Cycle? Should bar leaders be concerned with New Hampshire survey? Could the California experience happen in other states? Is there a relevance crisis in our civil justice system and maybe in the profession? Will generations X and Y use lawyers? Is pro se movement based on cost or perceived value of services?

62 © 2003 Charles F. Robinson What is bar leader responsibility if trends? Professional Reform Initiative Future studies on a continuous basis in the bar organization along with long range planning Make profession aware of change Teach strategic architecture and core competencies for relevant 21 st century services along with traditional CLE and practice management. Think era for change rather than year as president Make Executive Committee part of LRP and Futurist

63 MPJMDPABP What Does It Mean For Your Practice? SA

64 © 2003 Charles F. Robinson Battle Lines – London Times 7-29-03 Law Society looking extinction in the face Government wants to strip bar of self regulatory powers Client complaints up 50% Banks and building societies to handle probate Government wants one-stop shops

65 © 2003 Charles F. Robinson

66 How Much of Your Day Will Be Spent on Nonlegal Services? Services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, that are not prohibited as UPL when provided by a nonlawyer. All nonlegal services are fair game for any provider including out of state lawyers

67 © 2003 Charles F. Robinson Trend or Cycle 1. Tort reform 2. Lawyer/Bar leadership relevance 3. MJP

68 © 2003 Charles F. Robinson 3. Multijurisdictional Practice Florida Rule 4-5.5(a) UPL Lawyer shall not practice in jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction 5.5(b) assist another in UPL Birbrower et. al v. Superior Court of Santa Clara County, 949 P.2d 1 (Cal 1998)

69 © 2003 Charles F. Robinson MJP Issues Protection of public and clients- Home state/Host state Or is the rule protectionist for host state lawyers? Host state interests Competence- Model Rule 1.1- measure by Bar exam? Accredited law school graduate? CLE requirements? Consensus of ABA Futures Committee-no borders in 10 years

70 © 2003 Charles F. Robinson Borderless World Regional/National reciprocity 26 states now GATS Treaty Drivers license approach in 5-10 years

71 © 2003 Charles F. Robinson MJP- Trend or Cycle If trend several questions Role of State and Local Bars Relevant to member needs? Disciplinary only Section and committee relevance Can we reinvent state and local bars to new powerful positive roles Will bar organization become a trade association? Opportunity for ABA Will uniform laws become uniform?

72 © 2003 Charles F. Robinson Trend or Cycle 1. Tort reform 2. Lawyer/Bar leadership relevance 3. MJP 4. Technology changing the practice

73 © 2003 Charles F. Robinson Law Office of the Future A computer + a dog + a lawyer. The computer will practice law. The dog is there to keep the lawyer away from the computer. The lawyer is there to feed the dog. Dr. Peter Bishop, Associate professor of Human Sciences University of Houston-Clear Lake

74 © 2003 Charles F. Robinson The Big Question Will the Legal Profession Reinvent Itself In Order to Provide Highly Valued Twenty-First Century Services to Twenty-First Century Clients?

75 © 2003 Charles F. Robinson Trend or Cycle 1. Tort reform 2. Lawyer/Member/Bar leadership relevance 3. MJP 4. Technology changing the practice

76 © 2003 Charles F. Robinson 4. Technology Disintermediation Internet Available to Everyone Wills, Tax Return Prep On-line Like Printing Press to Church/Temple Literacy Brings New Relationships

77 © 2003 Charles F. Robinson The Future of Law: Facing the Challenges of Information Technology Legal Profession Will Change Beyond Recognition Three Types of Legal Service Traditional Commoditized Latent Richard Susskind Traditional Commodity Latent

78 © 2003 Charles F. Robinson Susskinds Key Questions Likely developments in IT over next 10 years Possibilities for law practice in light of IT changes Future for lawyers and what part is the world wide web likely to play

79 © 2003 Charles F. Robinson Transforming the Law; Essays on Technology, Justice and the Legal Marketplace- Richard Susskind 2000 Introduces the Susskind Grid First work tying together technology use and strategic future planning for lawyers

80 External KnowledgeTechnology Internal Information Figure 1.1 The Grid Richard Susskind 2000 C

81 External KnowledgeTechnology Internal Information Figure 1.2 The Quadrants external technology links internal use of technology internal management of knowledge provision of access to knowledge C Richard Susskind 2000

82 Client KnowledgeTechnology Internal Information Figure 1.4 Examples of systems document management practice management human resource management marketing databases hardware networks operating systems online financial reporting status reporting deal-rooms document archives electronic mail know-how databases template libraries precedent libraries Intranet services 2nd generation web sites virtual lawyers online legal guidance systems expert systems C Richard Susskind 2000

83 Client KnowledgeTechnology Internal Information Figure 1.5 Business impact keeping basic systems running risk management providing robust infrastructure new, improved ways of delivering traditional service efficiency productivity leveraging knowledge new service opportunities new business models turning knowledge into value C Richard Susskind 2000

84 SelectionServiceRecognition Figure 2.1 - Todays Client Service Chain blatant trigger selection of lawyer consultative advice C Richard Susskind 2000

85 SelectionServiceRecognition Figure 2.5 - Tomorrows Client Service Chain blatant trigger selection of source of guidance unbundled services proactive service selection of online service selection of adviser online service consultative advice C Richard Susskind 2000

86 © 2003 Charles F. Robinson Technology Disintermediation- Trend or Cycle? What are implications if Susskind is correct? Traditional- large firm, large client only Commodity- better, faster, cheaper Latent- may be no direct client contact Upper right quadrant of Susskind grid Will bar lead the way to teach members new service delivery methodologies? Beyond unbundling?

87 © 2003 Charles F. Robinson Leadership or Parens Patriae- The Bar's Critical Choice

88 © 2003 Charles F. Robinson Ethical code presumes a paternalistic attorney-client relationship

89 © 2003 Charles F. Robinson Bar leaders paternalistic to members Do I have a constituency to lead? What is my job vis a vis profession's values? Keeper of traditional values? Make sure bar members are following the rules. Preserve the past Reflect the changing values in changing times?

90 © 2003 Charles F. Robinson Lawyer's traditional paternalistic relationship to clients Producer-controlled relationship I am the learned one and you should listen to me.. Drives relationships Advertising police MDP issues

91 © 2003 Charles F. Robinson Has the move from a producer-driven economy to a consumer-driven economy changed the attorney-client relationship?

92 © 2003 Charles F. Robinson Have the other changes in the economy had an effect on bar governance issues?

93 © 2003 Charles F. Robinson Less than two years ago, Major Insurance Company CEO said, Insurance is too complex. I think people will always need agents. What Planet was that guy living on? Gary Hamel

94 © 2003 Charles F. Robinson Three bits of advice Listen to the revolutionaries. Challenge orthodoxies. Exploit discontinuities.

95 © 2003 Charles F. Robinson Building foresight Listen to the revolutionaries. Remember - The revolution doesnt start with the monarchy.

96 © 2003 Charles F. Robinson Who Is Responsible for Changing Our Profession? The Bar Leadership? Section Leadership? Each of us individually?

97 © 2003 Charles F. Robinson Why Do Great Enterprises Fail? Inability to Escape the Past Inability to Create the Future Hamel and Prahalad, Competing for the Future

98 © 2003 Charles F. Robinson Thinking About the Future- Stuart Forsyth No one can truly predict the future But we can: 1. See different possibilities (alternative futures) 2. Pick the future we prefer 3. Take actions designed to foster our preferred future 4. Seek to maximize our viability in the event of another future (not the one we prefer)

99 © 2003 Charles F. Robinson Leading the Profession to a Preferred Future If we dont drive the vehicle to our future we will end up wherever we are taken There are at least 10 accepted methodologies to do future planning Doing nothing will produce the worst results Institutionalize future planning We can create positives or default to negatives

100 © 2003 Charles F. Robinson High Growth Strategies – What are the tools? Gap analysis Root cause (fishbone analysis) – defining moment moment Competitive analysis Competition is an opportunity Flexibility/innovation analysis PEST analysis Growth drivers Porters 5 competitive forces and Grundys industry mindset Scenario planning and visualization SWOT analysis STAIR analysis EVA, GE grid AID analysis Implementation forces analysis

101 © 2003 Charles F. Robinson Dakota tribal wisdom says that when you discover you are riding a dead horse, the best strategy is to dismount. © 2000 Charles F. Robinson

102 © 2003 Charles F. Robinson In law firms we often try other strategies with dead horses, including the following: © 2000 Charles F. Robinson

103 © 2003 Charles F. Robinson Changing riders © 2000 Charles F. Robinson

104 © 2003 Charles F. Robinson Saying things like... This is the way we always have ridden this horse! © 2000 Charles F. Robinson

105 © 2003 Charles F. Robinson Dead Horse? What dead horse? © 2000 Charles F. Robinson

106 © 2003 Charles F. Robinson Appointing a committee to study the horse © 2000 Charles F. Robinson

107 © 2003 Charles F. Robinson Arranging to visit other firms to see how they ride dead horses © 2000 Charles F. Robinson

108 © 2003 Charles F. Robinson Increasing the standards to ride dead horses © 2000 Charles F. Robinson

109 © 2003 Charles F. Robinson Declare the horse is "better, faster and cheaper" dead © 2000 Charles F. Robinson

110 © 2003 Charles F. Robinson Harnessing several dead horses together for increased speed © 2000 Charles F. Robinson

111 © 2003 Charles F. Robinson


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