AustLII Home | Databases | WorldLII | Search | Feedback

Legal Education Digest

Legal Education Digest
You are here:  AustLII >> Databases >> Legal Education Digest >> 2012 >> [2012] LegEdDig 14

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Strevens, C; Welch, C; Welch, R --- "Online legal services and the changing legal market: preparing law undergraduates for the future" [2012] LegEdDig 14; (2012) 20(1) Legal Education Digest 49


Online legal services and the changing legal market: preparing law undergraduates for the future

C Strevens, C Welch and R Welch

The Law Teacher, Vol. 45, No. 3, 2011, pp 328–347.

As a result of the Legal Services Act (LSA) 2007, it is inevitable that the market for legal services will continue to change in the coming years, and that law schools will need to prepare law students accordingly.

Formal legal education and training are relatively recent innovations in the history of the profession in England and Wales. Traditionally, lawyers have been socialised and trained via communities of practice, within which lawyerly knowledge, skills and values have been inculcated through a process of ‘legitimised peripheral participation’ in the world of professional practice. The Law Society, traditionally a custodian of these values, is apparently seeking to be proactive in promoting change.

In the current economic climate, universities are increasingly turning their attention to the employability skills possessed by their graduates. The challenge for legal educators, therefore, is to incorporate opportunities within the core curricula of qualifying law degrees to meet these expectations coming both from the academy and from the profession at a time when the profession itself is undergoing profound change.

It is likely that the immediate future, in the wake of the LSA, will see a greater demand for paralegals and the creation of a range of disparate types of service provider. Consequently, entrants to professional service will need to acquire skills and knowledge in different ways.

An ongoing problem for many law schools and their students is that despite attempts to improve diversity in the profession this is not yet happening.

We are awaiting the outcome of the comprehensive review of education and training currently being undertaken by the professional bodies, and this may result in changes to all stages of qualification.

The LSB [Legal Services Board] has recently published its evaluation of current trends in the legal services market and the likely effects of ABSs [alternative business structures] on the market and on employment trends. The LSB report predicts that there will be some but not greatly increased competition from new entrants, continued commodification of legal services, and legal process outsourcing (LPO), particularly offshore. Smaller firms will need to adapt to survive and it is suggested that they might cooperate in a number of ways such as sharing back office functions, or forming networks or franchise arrangements.

This view of the future where clients can obtain legal services over the internet in diverse and innovative ways is anticipated by the LSB in its Evaluative Framework. It identifies plurality of service and, as a future measure of objective success, ‘increases in take up of alternative methods of delivery of legal services’ as ways of realising its objective of creating a competitive legal services market.

The logic of these developments is that students should be exposed to different methods of communication and interaction that involve new technologies. Law graduates will be advantaged if they have some familiarity with using technology for practical purposes – not just in terms of accessing the law but also in acting on behalf of their organisation and/or its clients. Overall, the combined effect of new ways of working and the LSA could be to create considerable new opportunities for law graduates – particularly those many graduates who do not enter the legal profession after completing the professional stages of legal education.

The legal market is segmented and it is probable that this will increase with the opportunities presented by liberalisation, the pressures that are encouraging LPO and information technology. This divergence has been well recognised as has the attempt by legal educators ‘to provide a united front’ in the face of the two hemispheres of the corporate and the personal. Large commercial firms have already begun to require bespoke training from Legal Practice Course (LPC) providers and this trend may extend into the academic stage as the big firms embrace disaggregation of legal services.

Virtual law firms such as Axiom are established in the market and are supporting in-house legal departments which are also now adopting ‘in-sourcing’ using technology and disaggregation. Regan and Heenan have speculated that the impact of disaggregation of legal services may result in the trainee lawyers of the future lacking the opportunity to develop specialist skills through undertaking routine tasks such as photocopying, proofreading and the bundling of documents. They pose the question as to whether firms will alter their recruitment and training programmes as a result. It may be that there will be fewer permanent positions in the future but greater opportunities for graduates who set their sights lower than full tenure.

In examining the changing legal market and the impact of change on the legal profession it is interesting to identify the perspectives of the provincial law firm. To this end this paper reflects on interviews conducted with law firms in the South Hampshire area in 2004 and 2011. Twelve firms were surveyed in 2004. By 2011, one had been subsumed in a larger business and two others were no longer available for contact.

The results showed a lack of sophistication in strategic thinking about the role of electronic systems. Of the 12 firms included, most gave a low priority to electronic systems. Every firm but one of those surveyed used its website to deliver information about the firm. Some firms used their sites as a virtual distribution space, to deliver limited knowledge-based services to clients. However, only in one instance was the website used as a virtual transaction space, where the whole relationship is conducted online from initial interest through to distribution, invoicing and payment.

In order to investigate the usefulness of websites to the firms studied, a keyword search was conducted, intended to reflect what an ordinary member of the public might do if in need of legal advice. The keywords ‘solicitors, conveyancing, divorce, and wills’ were entered into eight of the most common search engines, together with six locations local to the firms studied. Several firms appeared in relation to one or other of the named services, which could well reflect their specialities, but did not appear immediately when searching on the term ‘solicitor’. Again, this suggested a lack of sophistication in developing a strategic role for the Web within the firm’s business.

In 2002, the Law Society conducted a survey of small firms’ attitudes to eBusiness. The study concluded that: The prevailing vision of the impact of ICT on the legal market is that developments will move IT from data processing to true information management and that, in 20 years the legal market will be segmented in three ways: ‘traditional’ – in which lawyers will serve clients in the familiar relationship; ‘commoditised’ – in which routine legal matters will be serviced by paralegals heavily supported by IT; and the new ‘latent legal market’ – in which customers, who have been constrained by expense and access to legal material, will benefit from legal information services.

Welch and Strevens, reflecting upon this and the results of their own study, suggested that modern law firms will need to move on from information management to knowledge management if they are to remain competitive.

Initial results from surveys conducted to date indicate that, in contrast to 2004, case management systems are widely used and cover a range of disciplines from civil litigation to divorce, conveyancing and probate. The larger the firm the more likely it is to have developed or purchased bespoke systems. However only the larger firms with bulk work capable of being broken into simple tasks thought the use of technology would lead to deskilling and the possible recruitment of employees at graduate level. Other firms were of the opinion that the technology should make fee earners more efficient partly by reducing the need for secretarial support. There was also a view expressed by one firm that there were inhibitors to the deskilling process.

The practice of encouraging the joining of networks such as LinkedIn varied, with some firms regarding this form of activity with suspicion. Those that did encourage it had no formal strategy in place and little systematic analysis of how this benefited the firm. It is possible that this hesitancy results from the age of the senior partners making decisions about marketing and use of networking sites.

In 2004, the internet was not even being used effectively as a marketing tool. The current survey reveals that now it is being used for this and more. Customer service surveys and updating business clients with new developments are becoming widespread. The latter is accompanied by an explanation of how the firm can assist with the new legal issues.

There were mixed views about the implications of ABSs but some firms were prepared to hazard a guess that small high street firms would reduce in number due to competition from new entrants, and would find that insurance would become increasingly difficult to obtain or too expensive.

More optimistic prognoses saw the route to survival as retaining clients through the quality of personal service and specialising in providing legal services to individuals, rather than businesses.

The most consistent message that emerged from this survey was that the majority of firms, when asked about the qualities they sought in potential trainees, identified commercial awareness as being of high importance.

Overall, it is possible to interpret the results as revealing a cultural change. In 2004, it appeared that the smaller firms were focused on maximising fee earning on an ongoing basis, rather than looking ahead and thinking strategically about market development. Electronic services were given little importance, with websites being regarded as little more than signposts to enable clients to find the firm.

Empson has suggested that a move towards larger and more diverse firms gives rise to a need for more professional management. The survey shows some recognition among the firms that this may be an area in need of development. People and process management skills are among those suggested to be desirable in new entrants.

The emphasis on commercial awareness appears to represent a cultural shift of general applicability. In our view, commercial awareness has become a universal employability trait sought by law firms operating in both the business and personal ‘hemispheres’, and this is so irrespective of whether legal services are delivered in traditional ways or through technology enhanced methods.

There is no standard definition of commercial awareness, but, based on our interviews, we suggest that, at its heart, it means understanding that law firms function in much the same way as is the case with businesses in general, and that there is a wider picture than the black letter law applied to a given set of facts.

It seems likely that the changing nature of the market for legal service providers will ultimately impact on programme outcomes for qualifying law degrees. However, even if the academic and professional stages of legal education remain separate for the foreseeable future, there is a strong case for arguing that the academic stage should include a more practical and vocational orientation than traditionally has been the case.

In their analysis of the Law Society’s Training Framework Review, Boon, Flood and Webb identify how legal educators can be Janus-faced in their perspectives on legal education.

However, it is our contention that there is no inherent contradiction between encouraging critical legal thinking and including vocational training on law degrees. Indeed, it is in areas of law like employment law that the law graduate, who can combine legal knowledge with practical skills and an awareness of how the world operates, who may have the most to offer legal service providers seeking to recruit trainees.

This perspective coincides with the findings from our interviews with local law firms which revealed a desire for trainees to be more commercially aware in their dealings with clients.

If undergraduate programmes are to have a significantly greater vocational orientation this must impact on how some legal subjects are delivered and assessed. One way of developing professional skills in undergraduates is, of course, through clinical legal education (CLE) or variants of it such as participation in an Innocence Project. However, logistically, in any one cohort of law undergraduates it is likely that there will be restrictions on the number of students who take modules involving CLE, as it is expensive to deliver and is complex to organise, train, supervise and assess.

However, the construction and use of realistic simulations provides an alternative mechanism for experiential learning and enables large numbers of students simultaneously to participate in such learning activities. This is particularly the case if online technologies within the framework of a virtual learning environment (VLE) are used, at least in part, for carrying out a simulation. Such activities also enable students to develop their technological knowhow in a professional context rather than, for example, a context largely geared to social networking.

Simulations can expose students to unplanned variables and require more decision making than can be the case with paper based exercises. Students can be exposed to conflicts, pressure and decision making processes in a safe environment and with reference to consistent parameters. Simulations enable academics to control the introduction of difficult and sensitive issues, and are cost effective as they generate resources that are reusable.

Traditionally, the law of evidence can be perceived by undergraduates of consisting of ‘dry’ legal rules which they learn in a way that is abstracted from reality. However, the use of case study simulations can require students to engage in fact-finding, to assess the available evidence and relate it to issues of admissibility and proof. In this way the rules are brought to life and simulations may provide both a more stimulating and more effective method of learning such areas of the law.

Simulation enhances student-centred learning and engages student emotion and, as argued below, this results in a deeper learning than takes place when students learn the law by rote in order to pass examinations. Law ceases to be just a set of rules, and becomes something students use and manipulate for the benefit of the client the simulation requires them to advise and represent. The ‘class room’ experience is thus integrated with a professional experience that students would normally only encounter if they were engaged in CLE or were undertaking work placements in law firms.

Having considered a number of reasons why the use of simulations should be a feature of legal curricula in the future, it is useful to reflect on our own experience of using an online transactional assessment in the School of Law at Portsmouth. The assessment provided the key mechanism for delivering a level two unit concerned with the performance and termination of employment contracts. It consisted of a series of connected ‘transactional’ activities which, logistically, could not be undertaken within the constraints of conventional student and staff timetables, this being one reason why there was a significant reliance on online facilities.

The students were divided into small groups to work in ‘law firms’ to represent employers or employees involved in unfair dismissal or wrongful dismissal claim. They communicated with each other and with tutors via closed discussion boards on Victory which could only be accessed by students in the same group. Other than a very brief synopsis, they were not provided with the facts of the problems but were able to access online the types of materials which lawyers would require in real life such as an employee’s written statement of terms (or employment contract) and prior correspondence between the parties.

The first stage of the assessment required the firms to download and complete employment tribunal forms on behalf of their clients. In order to do this they had to obtain the relevant evidence which was available to them through a series of videoed witness statements – some of which were available to both parties whereas the remaining videos were exclusive to the appropriate firm. Thus, the students were required to engage in fact analysis by asking the ‘right’ questions to secure the divulgence of further essential evidence.

The second stage of the assessment consisted of the ‘law firms’ conducting a negotiation in accordance with their clients’ instructions with a view to securing a compromise agreement as an alternative to proceeding with a tribunal claim.

The experience of undertaking the negotiation required the students both to use their knowledge and understanding of employment law to support their negotiating positions and to assess their clients’ prospects of success were a tribunal hearing to take place. The assessment also required students to use the internet for ‘professional’ rather than social purposes, and this connects with the types of skills that Susskind identifies as being increasingly important for law students to develop.

As well as helping to prepare students for professional careers in law, simulation has distinct pedagogic advantages. What was particularly exciting was the way that our simulation captured the imagination and emotions of a large number of the students. Many of them really did start to behave as though they were representing real clients and this was most vividly demonstrated by the approach they took to the negotiations.

The changing market for legal service providers may well result in the types of deskilling identified by Regan and Heenan. However, it could also lead to increased opportunities for law graduates who do not take legal practice or bar vocational courses but who obtain employment as paralegals, either in law firms or ABSs. Our interviews with local law firms suggest that many provincial firms would welcome graduates leaving university with a greater appreciation of how law operates in the real world.

We are not proposing that the traditional ways of delivering and assessing legal subjects should be totally replaced. It is likely that professional bodies will still require law students to sit and pass examinations. We do argue that law degrees should enhance student employability and, in order to do this, should contain a greater vocational element than, typically, has been the case to date. It is our contention that simulation provides a valuable mechanism for helping to achieve this objective as, in the words of Priddle et al: ‘simulations can be highly effective where they are used. Their benefits include learning through practice rather than through acquiring factual knowledge, and gaining additional skills and often professional experience’.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/LegEdDig/2012/14.html