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A Special Report: The Litigation Tidal Wave (5 of 6)

The Changing Practice Environment


What accounts for this untenable change in the way lawyers conduct themselves and their relationships with their clients? As noted by Professor Neil Gold, former Dean of Law at the University of Windsor, in his 1997 report to LPIC on the underlying causes of claims, numerous external factors have coloured the practice climate. The forces described on the following pages have made legal practice more complicated, less predictable, and often more risky as rising expectations of the clients and the courts have often outpaced the profession's efforts to adapt.

Globalization
Globalization has put tremendous pressure on us all to be better informed of events and relationships well beyond our immediate area of interest and concern. Issues have become more complex as all sorts of relationships have become interconnected through the forces of consolidation and mega-mergers in the worldwide business world.

Technology
The impact of technology on all aspects of law practice is fundamental and far-reaching. It affects, for example:

  • how we communicate with our clients and colleagues (anywhere, any time and very quickly);
  • our ability to access and manage large amounts of information about our clients, their industries, their competition and their problems
  • clients' access to information; and
  • our ability - and a client's expectation, to process our work more quickly and efficiently.

It's no longer unusual to be faced with a judge who operates a computer in the trial or motions court or a counsel who trots his or her laptop around to discoveries and meetings to record or access information about the case.

The technology advantage that once accrued to the larger firms is now commonplace, and a real equalizer for the smaller firm practitioner. Everyone - clients, courts, agencies and adversaries alike - expects you to be using technology. And use technology you must, if you're to meet demand for detailed information and the shorter time frames that clients now expect you to work in to meet their expectations.

Consumerism
Increased consumerism has brought us a much more sophisticated client base who expect timely, service-oriented responses from lawyers like never before. These clients are not shy about demanding quality advice at low cost and are prepared to second-guess every step of the way. So being vigilant about identifying and managing a client's expectations, regardless of their sophistication, is essential to a productive relationship and ultimately, a healthy practice.

Self-help services
That same "more sophisticated" client knows more - and is willing to learn more - about the legal system, legal services and the law generally than in the past. As well, litigators today have to be prepared to deal with their clients' self-help mindset - fostered in part by the proliferation of self-help services such as internet and phone-in legal advice, and pre-packaged forms etc. and/or software for doing wills, estate planning, real estate, separation and even custody agreements and more.

Competition
Competition from a number of sources, including paralegals, accountants, consultants and other professionals, is chipping away at many services that have been regarded as the sole domain of the litigation practitioner - opinions, strategy plans, representation and advocacy and risk management.

As well, many clients, especially in the business world, are turning to a more collaborative approach. In fact, their in-house resolution programs and risk management strategies, which focus on a preventative approach, avoid the use of a litigator altogether.

Alternative Dispute Resolution
The widespread use of ADR is largely a client-driven development, the result of discontent with the laborious timeframes and prohibitive costs involved in the court process. But with new forums for resolution comes a need for resolution of cases within new abbreviated time frames as well as a new application of our planning and advocacy skills.

The dollar-drive
A recent issue of CBA's The National magazines highlighted some of the root causes behind the profession's disenchantment with itself - and the reasons behind the falling esteem in which clients now hold lawyers.

Lawyers today, it argues are too often driven by the dollar rather than the dignity of their profession. As a result, they may be hard-pressed to turn down a fee-paying client; collegiality, civility and mutual trust are a rarity in the adversarial environment in which lawyers now practise; and this adversarial approach in which lawyers see themselves as advocates for their client's causes, has spawned a raft of aggressive litigation tactics which further undermine the profession's calling as "counsellor." The end result: A high calling is becoming an "increasingly unprincipled business."*

* ["10 Steps to a Better Profession," by Carl Horn; CBA National, March-April 2000, pp.18-41].

Key DatesMore

April 30, 2010
Real estate and civil litigation transaction levies and forms are due for the quarter ended March 31, 2010.

 

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