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2022 | Buch

Liquid Legal – Humanization and the Law

herausgegeben von: Kai Jacob, Dierk Schindler, Roger Strathausen, Bernhard Waltl

Verlag: Springer International Publishing

Buchreihe : Law for Professionals

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Über dieses Buch

“Humanization and the Law” combines two current and complementary trends in the business-to-business (B2B) market of the legal industry: digitalization and humanization.

On the one hand, digital transformation in corporate legal departments and law firms continues to advance. Contract management, e-discovery, due diligence, legal operations, and forensic data analysis are just a few examples of task areas where the use of intelligent software solutions minimizes legal risks and increases compliance, enables efficiency gains and cost reductions through automation, and allows faster and more agile responses to changing market demands and client expectations.

On the other hand, the increasing number of failed digitalization projects shows that technology alone is not enough to successfully transform legal departments and law firms. Software solutions must be integrated into existing work processes, be easy to use, and provide real benefits in order to be accepted by employees. People and their ability to make decisions and lead others remain the focus in an increasingly digitalized legal industry.

More than 20 authors provide insights into why human aspects matter for business, what organizations can do to increase the mental well-being and motivation of their employees, and how to prevail in the upcoming war for talent in the legal industry.

“The legal industry has been largely dismissive of “soft skills” and “humanizing law.” One of the paradoxes of our time is that the ascendency of automation, artificial intelligence, blockchain, Big Data, and other technological platforms has elevated, not diminished, the importance of humanity. It is not only what distinguishes us from machines but it also enables us to apply our humanity to machines. The legal function will play an important role in this process but must first take a hard look at itself.”

(Mark A. Cohen, in “Foreword”)

Inhaltsverzeichnis

Frontmatter
“The Missing Piece”
Why Humanism Must Dominate the Digital Transformation of Legal Work
Abstract
Too often, digital transformation of legal work comes across as a quest to cure imperfection, as a technocratic pursuit of effectiveness and efficiency aiming to eradicate wasted effort and deficiencies. While leaders and their visions certainly phrase it differently—centering around “better service for the client”, “more focus on high value work”, or “higher impact of the legal department”—their companions on the team do feel uneasy, because the underlying message still seems to be to “fix something”. And where there is something to fix, something must be broken. And if technology or digital means are the fix—well, it is probably then the human part that must be “broken” or “deficient”?!
Strange enough, no modern leader in legal services will sign off on the above—including myself! We all genuinely believe that our digital transformation agenda will help both, the team, as well as the client, to benefit from the new opportunities that legal technology and new methodologies bring about. Yes, of course this is our goal—yet, let’s face it: If we read the fine print of our strategies, if we listen to the tone of our presentations and the stories on our vision (specifically the version for executive management), we will find that they are mainly about getting more done with less, about improving the ROI of the legal department, and about broadening and accelerating the delivery of the legal services. More, better, faster!
So, what are we missing? A simple test reveals the missing piece: it is the human factor, or even more boldly, the focus on the human being. How would our story change if we purposely refocused and rephrased our vision and strategy so that it is truly humanistic and centers around the human being and the specific needs as represented by each key stakeholder (the client, executive management, the team as a whole, and the individual on the team)? We will also establish that there is no trade-off in the sense that humanism comes at the expense of optimizing the economics or the impact of a legal team. To the contrary, they are complementary and mutually supportive.
We will then put our findings into the context of current trends around professional work relations in high-skill markets such as the legal market: Relationships between employers and workers change radically; talent becomes an ever scarcer resource; and the strain of an increased density and variety of work demands (combined with the effects of the pandemic) take their toll on the human being. Inevitably the question arises: Can we—even economically—afford to “miss a piece”, i.e., the human factor?
Data—the famous new oil—drives businesses in the digital age. Yet, it also drives business functions and enables informed decision making. For lawyers, is digitalization then the choice between Dr. Jekyll and Mr. Hyde?—We will lay out that data literacy is fundamental and that a humanistic approach to data is crucial. Data and metrics are not a goal in themselves. We must keep focus on what we are ultimately aiming for, and, even more importantly, we must lead on our data journey with clear values.
Finally, we will turn to the question which methodologies are predestined to support a humanistic approach to the digital transformation of legal work. We need a strong culture, based on trust and transparency. This is why Agile practices, supported by a “digital-first” agenda, and embedded in the principles of DevOps offer a perfect basis for modern legal teams.
Dierk Schindler
Of Mice and Lawyers. Learning from Calhoun’s Rodent Utopia
Abstract
There is good data available to demonstrate that before starting law school, law students are healthier than the general population, both physically and mentally. They drink less than other young people, use fewer substances, suffer less from depression, and start school with a good sense of self and values. Then something goes astray for many of them. Today, according to some reports, lawyers have the highest rate of depression of any occupational group. The results of one study showed that more than one in five practicing attorneys are problem drinkers and 75 per cent of attorneys skipped the survey section on drug use as if it wasn’t there. Lawyers, as individuals and as a profession, seem to experience a behavioral sink.
Behavioral sink is a term coined by ethologist John Calhoun to describe a collapse in behavior that can result from overcrowding. The term and concept originate in a series of experiments in overpopulation that Calhoun conducted on rats and mice from the 1940s onwards. Calhoun’s work, and his utopian mouse community, Universe 25, became an animal model of societal collapse, and a touchstone of urban sociology and psychology in general. According to Calhoun’s findings, no matter how sophisticated we consider ourselves to be, once the number of individuals capable of filling roles significantly exceeds the number of roles available, the disruption of social organization will follow. Individuals under these circumstances will be out of touch with reality to the point of being incapable even of alienation. Their most complex behaviors will become fragmented. The creation and application of ideas appropriate for life in a post-industrial digital society will be thwarted.
This chapter considers the humanization of the law from the perspective of the increasingly crowded legal profession. Looking at the coping mechanisms of Calhoun’s mice in the face of crisis suggests another way of ‘humanizing’ the legal profession.
Barbara Chomicka
Women as a Game Changer in the Legal Industry: Relevance of Diversity and Inclusion
Abstract
A bigger variety, in particular gender diversity, improves the working environment, delivers a higher and qualitative better output, and leads to a higher satisfaction of employees, employers, and customers. One may expect that an employer would automatically strive for more diversity to achieve these positive results. However, the legal market like most other industries, still lacks sufficient representation of women at top management levels, be it as partners in law firms or as general counsel in legal departments. The legal industry often claims this is due to lack of qualitative good and available talent. However, it is not (anymore) a pipeline issue but a structural problem which prevents diversity on all levels. Going forward, the legal industry can no longer afford to deliberately waste these precious resources. To the contrary, opening the working environment at all levels to a diverse team may position an employer at least as an early adopter of diversity in the legal industry. This will open the race to become the most attractive employer and win the best talent in the market. In the long run, an employer can secure the required human resources in a sustainable way.
Bruno Mascello
Corporate Digital Responsibility: Stimulating Human-Centric Innovation and Building Trust in the Digital World
Abstract
Accelerated by the COVID-19 pandemic, the influence of digitalization on daily life and our dependence on digital technology have continued to increase rapidly. Mobile working, digital classrooms, online shopping, video streaming, contactless payments, virtual parties, fitness apps, COVID-19 alert apps, digital vaccination certificates and e-health services. Not only is data digital, but our lives themselves have become largely digital.
At the same time, the expanding use of digital technologies by corporations is leading to public discussions that go beyond data privacy and security issues. Other aspects of concern range from surveillance, transparency, profiling, manipulation of opinion and behaviors, automated decision making, bias, discrimination by algorithmic systems, to autonomous systems and existential risk from AI.
Yet, as Prof. Melvin Kranzberg stated in his six laws of technology (Kranzberg, M. (1986). Technology and History: “Kranzberg’s Laws.” Technology and Culture, 27(3), 544–560.) already in 1985: Technology as such is neither good nor bad. Technology is a very human activity because it’s what we do with it that makes the difference.
Since technology is usually designed, developed and distributed en masse by companies, companies need to think about how they may benefit from technological advances, but also what consequences this can have for the world around them.
Companies that successfully embed digital technologies in their products and services, as well as in their business models and internal processes, adopt a human-centric approach.
Much of today’s devices, systems and processes, are technology-centered, designed around the capabilities of the technology with people being asked to fill in the parts that the technology cannot do. Human centricity means shifting focus and starting with the needs and abilities of and the impact on people. Companies increasingly recognize the need to take people’s and societies’ interests as a guiding principle in their digital innovation projects, to address societal expectations and concerns and to build trust among their stakeholders—they are taking on Corporate Digital Responsibility.
This article (1) highlights the development of Corporate Social Responsibility up into the digital era, (2) introduces Corporate Digital Responsibility as an emerging new field of corporate responsibility, (3) presents a framework of topics that are currently being discussed as building blocks of Corporate Digital Responsibility that aim to stimulate human-centric innovation and build trust in the digital world, and (4) provides some thoughts on how lawyers may contribute to shape corporate responsibility in the digital world.
Martina Seidl
Designing Legal Systems for an Algorithm Society
Abstract
The Information Age challenges the competency and cultural acceptability of traditional legal systems. Reciprocally, some AI methods are themselves in need of public oversight and stronger social trust. Legal systems and information technology are, however, positioned to help each other; each realm has specific tools to address the problems faced by the other. If properly integrated, their partnership can enhance the law’s efficacy as well as reduce AI’s potential dangers.
This work reaches what may seem a paradoxical conclusion: that the strongest contribution to humanizing the law may be to redirect some attention away from humans and their individual choices. Doing so encourages a legal/AI framework that focuses less on individual choices or their market-place aggregation, and more on the environments in which people actually live, the behaviors or outcomes produced inside those settings, and the measure of those outcomes against explicitly stated justice goals. In an increasingly algorithmic society, AI tools should enable stronger legal problem-solving; but ex ante and post hoc legal oversight should also ensure algorithmic outcomes that are more just as well as more accurate.
This Chapter reflects on what the tools of AI, combined with the law, may offer: a process of understanding social environments more realistically, designing them more deliberatively, and seeking defined ends for a differently imagined humanity.
Thomas D. Barton
Value Creation Through Blockchain-Based Tokens: Transforming Traditional Collaboration Structures
Abstract
1.
Money is viewed as a medium of exchange, a unit of account, and a store of value. This article focuses on the “store of value” and rephrases it as “representing potential futures”. Assessing the buying power of one’s money relies on the assumption that the person will be able to buy in the future what he or she can buy today. However, this notion does not consider the impact of an increase in buying potential (through rising productivity) or of a decrease (through external shocks and other structural changes).
 
2.
In the case of external shocks such as the coronavirus crisis, attempts are made to mitigate the consequences by injecting liquidity into the hard-hit sectors. Yet, we are still faced with the internal devaluation dilemma: All long-term contracts, such as loans and rents, do not decrease even though the reduced payment capacity of the contractual partners requires a downward adjustment. It can take months or even years for such an adjustment to occur, at the cost of a tremendous loss of productivity, which is often accompanied by social unrest.
 
3.
Digital units, which represent an underlying asset, share or right, the so-called “security tokens”, have the same quality as a currency in regard to their immutability. Therefore, they can function like a currency in this respect. Compared to traditional legal instruments for organizing work products, a security token can very effectively and with no prohibitive contractual arrangements tie the success of a business project to the security token. This means that even an anonymous workforce can participate successfully in a business project and be remunerated by tokens. Today there are liquidity options available which give immediate liquidity to the security token. Security tokens can instigate the production of goods and services, thereby expanding the potential futures for everyone.
 
4.
Such a (security) token economy allows for a fair platform economy as compared to traditional centralized platforms since the token governance and value distribution can be organized effectively through a token structure including all stakeholders in the process. Achieving the same result with the traditional legal and economic instruments is close to impossible.
 
5.
Hence, such a security token economy is a valid option for implementation into the Common Legal Platform (CLP).
 
Wolfgang Richter, Sebastian Richter
Transforming Legal Ecosystems: A Conceptual Framework Derived from Our Practice
Abstract
This paper is primarily aimed at legal professionals in larger in-house departments, particularly those in the position to ignite and drive change processes. Yet, the insights shared can be easily transported to a wide variety of other contexts. The authors’ views on some key cognitive biases often standing in the way of meaningful and long-lasting transformation are presented. Ways to overcome them are also proposed. The main focus is placed on how people could be empowered to deliver on their tasks, together with ever developing digital technologies. At the heart lies the need to use some skills not traditionally associated or developed by professionals in the legal field. Legal design principles, knowledge visualisation techniques and proficiency in legal project management are promoted and exemplified in three case studies. The authors posit that such upskilling of legal professionals is necessary to avoid being overwhelmed by the disruptive way in which legal services are increasingly requested, consumed, and valued by clients. To structure and thematise actions that are enabling the shift to be implemented, a model is derived—named ‘ease legal model’ where EASE stands for Engage—Aim—See—Empower. It is completed by a concise guide for legal practitioners.
Valérie M. Saintot, F. Lulić
Elevating the Customer Experience
Abstract
A company does not operate as an end in and of itself; its mission is to create sustainable value, and to do that, it needs to attract and retain customers. This requires more than “customer satisfaction,” and it encompasses the customer experience beyond simply using the company’s products and services. This paradigm—Experience-Centric Design—improves customers’ satisfaction, enjoyment, and meaning from the work they do. Fundamentally, it makes their lives simpler and better, allowing them to worry less about the problems they entrust to the companies they use.
Stephen Allen, Lizzie Christmas, Rachel Barnes
Putting Humans First
Digitisation of Government Services from the Citizen’s Perspective
Abstract
Many countries experience waning public trust in government, while digitisation of society is on the rise and public authorities continue to further digitise their services. If governments do not pay enough attention to the perspective of citizens and adopt a citizen-centric approach while designing digital services, accessibility of government services may decrease and further erode public trust. Against this background, this chapter explores the digitisation of government services from a citizen’s perspective, with a special focus on the role of the law and legal professionals. The chapter is based on the experiences of the authors over the past years with using digitisation to enhance citizens’ access to the law and to improve the way in which (internal and external) processes of public legal departments work.
In current practice, the logic of the law often requires that citizens split up their problems or requests for help and approach different government bodies for different aspects of their problem. Well-designed digital government services put real-life problems that citizens experience first and combine all regulations that offer possible solutions, thus reducing complexity for the citizen and increasing their capacity to act. The limited capacity for personal contact can then be reserved for those citizens that need it. From a legal perspective, it is essential that government services are based on a traceable and transparent connection to the underlying regulations, using external knowledge models. Current government practices leave a lot to be desired in this respect. Methodologies are available to create these connections and are an important element for designing legally sound and citizen-centric government services.
Michiel Scheltema, Ivar Timmer
Helping Lawyers to Better Visualize Their Knowledge: A Formula and Four Scenarios
Abstract
With this article, we aim to bring our voice as practitioners and knowledge management (KM) lawyers to the innovation table. To facilitate the retrieval of legal knowledge and its mapping, we have tested different forms of visualization of law and we have been exploring how, in our context, technology could be used or has already been used to support the work of lawyers. We have summarised our insights to foster further conversations on this key topic. We wish to steer the conversation towards what its practitioners need and how data scientists and technology experts can cater better for these needs.
In a two-step approach we present our angle as KM lawyers. First, we explain what we call the ‘Knowledge Formula’, showing four scenarios in which varying degrees of technological support were deployed and, as a result, the access to legal knowledge differed. Second, we provide two examples as to how knowledge visualization can be applied to support legal KM.
We employ a mathematical formula to describe our understanding of the current opportunities and limitations and to draw some of the boundaries of the map of legal knowledge visualization. Then, we provide an analysis of two specific visualization case studies. The results of this conceptual and practical exercise stress the essential role visualization plays in increasing the readability and understanding of law. Furthermore, we formulate some of the needs practitioners may have. We show potential solutions for the issues encountered during the process of visualizing law, with a particular focus on the challenges and limitations.
Visualizing the knowledge encapsulated in law brings us closer to the objective of assisting better drafting. Better drafting will translate into more effective legal interpretation, more efficient production and increased impact on the practitioner’s day-to-day business. In addition, it will facilitate any sharing of knowledge and its understanding, improve collaboration among key stakeholders and nurture legal work to make it fit for the third decade of the twenty-first century.
Valérie M. Saintot, Gabriele Di Matteo
The Paradigm Shift in AI: From Human Labor to Humane Creativity
Abstract
Digitization is already here. By today’s standards, every legal professional possesses his personal computer and smartphone and utilizes standard software. But is this already a digital transformation? Digital transformation, i.e. digitalization, does not only mean converting analog into digital information, but rather the integration of digital technology into all areas of business in the form of a fundamental transformation of how businesses operate. Therefore, it has the potential to include a positive paradigm shift towards a smart and technological world that emphasizes the creative input of human work. The resulting gains in efficiency were, however, accompanied by a change in expectations of employers, clients and business partners. The workload of (legal) professionals has increased even further because the possibility of automation raises expectations and the need for automation. The hope that digitization would enable humans to work differently with a shift from fast-paced mundane to creative and quality work has so far been proven wrong. Will a true digitalization in the sense of a paradigm shift and digital transformation bring us closer to turning that vision into reality?
Digitization has led to an abundance of information. This poses the difficult problem of information overload. The distinction between relevant and irrelevant data has become one of the main challenges of our informational age. Artificial Intelligence (AI) offers the possibility to cause a paradigm shift, freeing humans from simple and repetitive tasks by automation and informational analysis.
Automation is already in widespread use. For example, legal documents can be created automatically, eliminating common human mistakes such as misjudgments, omissions, missing references or even simple typos. Or document-intake including understanding its content and automated triage can be carried out by bots without much human contribution. This enables humans to channel their energy into more creative and complex tasks like designing legal processes or complex negotiations.
Informational analysis, however, is still a bottleneck. AI can already process millions of datasets. However, humans have a hard time using the information an AI system processes efficiently as they often lack a clear understanding of the results of the analysis and how it was calculated. AI and human intelligence “perceive” our reality differently. AI “thinks” in correlations, whereas humans mainly use causality to link data (Leetaru, A Reminder That Machine Learning Is About Correlations Not Causation, https://​www.​forbes.​com/​sites/​kalevleetaru/​2019/​01/​15/​a-reminder-that-machine-learning-is-about-correlations-not-causation/​?​sh=​535c6fc96161). We can overcome this hurdle by using visualization of the results and well-designed processes. Visualization can make it easier for humans to use the information provided by AI-processing and thus bridge the gap between the difference in AI’s and human’s perception of data.
In summary, digitalization, in particular technologies such as AI, have the potential to bring a paradigm shift upon human work. Humans may be relieved from repetitive work, allowing them to be more creative, and therefore more humane. What will be most important is to be innovative instead of productive.
Philipp Glock, Sven von Alemann
How Will People Enter the Legal Job Market in Ten Years’ Time?
Entry-Level Professionals and the Digital Transformation of Legal Services
Abstract
When it comes to the Humanization of the Law, I cannot help but think of my first few years as a junior associate in legal services. My work was often about browsing through documents and data in order to find keywords, numbers or other pieces of information. Although it was all available in a digital format, I preferred to work with printouts and my multi-colour set of highlighters (I still do).
I often wonder if future junior associates will still have to do this sort of work. For it seems all but certain that such repetitive tasks will increasingly be delegated to technology.
At first glance, the idea of ever-increasing automation seems like something to look forward to. Who wouldn’t want to trade grinding monotony for stimulating think-pieces and substantial contributions to cases?
But entry-level tasks are traditionally used to make sure graduates integrate into the workplace well. Since there is only so much a formal education can teach, the rookie stage is typically needed before more demanding work can be mastered. What may seem like a waste of time at first ideally offers the required skill-building and earning. After all, there is a salary payment to be justified.
So, the result of the digital transformation we can see today may well be the following question: assuming traditional rookie services will be less and less required, how can entry-level professionals continue to earn a salary and progress on the learning curve?
It is presently impossible to answer this question with any degree of certainty, of course.
One way to approach it, however, might be to remain optimistic and expect legal services to change rather than to disappear. Many industries have undergone considerable transformation only to find that modified products and services were even more in demand than the traditional kind. IBM’s transition from mainframe producer to a software and service provider is a classic example. While the challenges the legal services industry currently faces shouldn’t be downplayed, there is no reason to believe such a transition is out of reach.
While much is still unknown, it is obvious that the future tasks of junior associates will depend on how the legal consulting industry develops.
In particular, they will require a different skill set due to the changing nature of legal services and how they are delivered. If the past few years are any indication, these requirements will not replace the traditional skills necessary for a legal career but come on top. This is to say that entry-level professionals will have to be accomplished lawyers and something else as well.
Given the time and financial investment a legal education requires even in its classic form, prospective law students have a right to understand what is expected of them and to know how to successfully prepare for the altered service landscape. So, the various stakeholders currently engaged in the digital transformation of legal services should get involved and describe their own key take-aways from the changes they witness: what may be currently missing from educational curricula, what can be said about training on the job, which sort of skills should become more and more important?
Against this background, the idea for this article grew around my work in and with IT platforms for specific and well-known workflows—or rather the pain points businesses typically identify therein. Users can log in through a web page and find specific products or processes ready for use. At first glance, this does not seem to affect legal services since it concentrates on the underlying business matter.
Nothing could be further from the truth! In fact, the business model is nothing short of a revolution on a scale not seen in legal consulting since the middle ages.
Like any other member of the liberal professions, legal advisors make a living by providing access to specialist knowledge. Short of studying the matter themselves, clients traditionally have no choice but to retain the services of one such person or another.
The three software solutions selected for this contribution, however, provide platforms with standardized knowledge for typical cases—material which would otherwise have to be sourced from human specialists.
Such classic input is typically bespoke and valid only at a certain point in time for one particular set of facts. The platforms, on the other hand, provide standardized value for typical cases embedded in typical workflows. They are continuously updated and expanded as time goes on.
So, the software solutions presented here address a specific matter by dividing the related caseload into standard and non-standard cases before human advisors have any say about it.
Standard cases are supposed to function automatically without further assistance, just as if they had been assessed on a bespoke basis in times of old. This is not about simply pre-processing data so the advisors can have a look at it. The platforms propose to automate the very procedure of consulting standard cases by providing the solution upfront, in a scalable format and for a fraction of the fee.
Non-standard cases still do provide opportunities for classic consulting to human advisors, provided they find themselves highlighted, recommended, or better yet selected by the platform.
The best strategy to reach this position on the platform is to provide the standardized value users are looking for. This will not immediately result in payouts, but rather require a substantial investment.
What a fundamental change! Being used to a monopoly on specialist knowledge clients simply cannot source otherwise, most legal advisors would much rather ask clients to pay the time they spend analyzing the specific case at hand—again, again and again, until they retire. They now have to rationalize themselves out of the bulk of cases by providing free input they may well be held liable for given the masses of cases it should be applied to. Since all they get in exchange is a rather vague promise of billable hours distributed through the platform, most are somewhat underwhelmed.
These underlying thoughts are anything but new, of course, and have been highlighted by thought leaders for years (See for example Suesskind, Patrick, 2010, The end of lawyers, 2nd edition, Oxford.).
What is interesting in the current phase is that platform models show a progression. They started out from well-defined bases in subject matters of no major significance to legal consulting but have been steadily increasing in relevance and value provided. Once users make the conversion to platform use, they typically are not coming back, but ask for more. Indeed, the three solutions selected show that core areas of legal consulting are no longer off-limits.
This is even more relevant to future junior associates. The work they have traditionally been assigned is primarily about understanding and mastering standard cases, a necessary step if they want to make an impact in non-standard constellations.
In order to provide some insight of value to future graduates in this and related developments, three questions need to be answered:
1.
What do providers of platform solutions have to say to prospective legal graduates?
 
2.
What does this specific change have to teach us in terms of necessary skills and how they are put to use as part of a career?
 
3.
What new roles and positions are currently being created on the basis of these skills?
 
To answer these questions, this paper will first analyse use cases of tools and/or IT solutions which are already in the market, affecting rookie services. In a second part, it will show what can be inferred in terms of on-top skills from these examples. Finally, it will look to new job roles currently emerging.
Each of these topics is built around a series of interviews with professionals from the field, sharing their experiences and views. While most of the questions asked will be identical in each respective section, some have been modified to better express what the interviewee wanted to communicate.
Matthias Bosbach
Layered Contracts: Both Legally Functional and Human-Friendly
Abstract
This paper addresses a debate that frequently arises when contract simplification is discussed. For business users, a clear contract is one that helps them understand the deal, implement its terms and encourages a productive business relationship. Legal teams, on the other hand, often worry about their responsibility to protect their client against excessive risk and potential litigation. For them, a clear document is unambiguous and legally watertight, resulting in complex documents that can be hard for non-lawyers to use. In this paper we discuss a layered approach that can reconcile competing definitions of clarity, functionality and user needs, and we speculate about the role of information design and emerging technologies in the development of human-centred layers to traditional contract wording.
Robert Waller, Stefania Passera, Helena Haapio
Injecting Humanity (Back) into Talent Development
Abstract
Many clients buy legal expertise, but often they demand more. Clients want their lawyer, in providing legal services, to understand their broader personal or business issues, of which legal issues constitute only one part. Some of these attributes fall under the general rubric of complex problem-solving, such as problem-assessment, strategic/systemic thinking, judgment, commercial/business acumen, judgment, etc. These skills are critical to enable lawyers to understand the context of their clients’ broader problems, in order to supply not just correct, but useful, advice. It is not coincidental that many of these described skills are similar or the same as those identified in multiple studies about future workforce skills that will both be in demand and less subject to automation.
Anecdotes and surveys, however, suggest that surprisingly few lawyers have these skills associated with complex problem-solving (beyond legal problem-solving). At the same time, law firms and corporate legal departments continue to spend significant amounts on talent development, with limited returns on those investments.
This chapter explores why current approaches in legal training and education, focused primarily on developing technical expertise, is incomplete, inefficient or ineffective in developing complex problem-solving skills. To help re-examine traditional legal training and education, the author articulates two different problem-solving schemas. The first correlates to the legal training or specialist training currently dominant in law schools pedagogy and in professional training. The second problem-solving schema examines “wicked” problems—the more complex problems that clients and lawyers face in real life, and one that is not taught systematically in the legal profession.
By deconstructing the elements of “wicked” problems and associated problem-solving skills, the profession and legal industry can be more intentional in developing new training tools and methodologies for those skills and mindsets that clients demand. The author offers an example of such approach in transactional lawyering, to illustrate how complex problem-solving skills can be incorporated into traditional pedagogy. Doing so enables lawyers to better understand and assess of the root causes of a problem before applying legal expertise and delivering legal services—which goes to the heart of the humanization of law—to deliver services grounded in deeper understanding of the clients and their problems.
Duc V. Trang
The Elevated Workplace
Abstract
Starting with the dawn of the Industrial Revolution, a series of evolutions have profoundly transformed work and the workplace over the past three centuries. Presently, yet another shift is underway: the digitalisation of work. With it, a new type of entity, the self-aware organisation, has come into existence. With it comes the possibility of a more humanised work environment: the elevated workplace. The elevated workplace meets a broad range of human needs and, in doing so, represents the future of work.
Liam Brown, John Croft, Joyce Thorne
Contracts and Humanity: How Freedom and Fairness of Contract Can Be Secured in the Digital Age
Abstract
The beginnings of modern thinking about the function and meaning of contracts for society date back to the sixteenth and seventeenth centuries. For the supporters of capitalism, contracts and private autonomy are primarily an expression of individual freedom, namely the freedom to be able to regulate things between two private parties without the influence and tutelage of the authorities. Others argue that the ideal of two equally opposing contracting parties is in most cases a pure fiction, with the result that contracts and private autonomy were and are primarily an instrument to reinforce inequality and injustice in capitalist society and thus an instrument of bondage. The question of the meaning and function of contracts arises more than ever in the modern digitized world. Globalization and digitization have led to an exponential increase of the number of contracts concluded every day between consumers and/or private businesses. Similarly, the complexity of most contracts increased significantly.
From a legal sociological and legal ethical point of view, all of this calls for a review of the general status of freedom and fairness of contract in modern society. This article is devoted to this question by examining the priniciples of freedom and fairness of contract as traditional link between contracts as legal instrument and humanity, and by asking how these principles and humanity can be promoted and secured in the digital age.
Carl Renner, Michael Zollner
Patagonia: Everything a Law Firm Is Not, But Could Be?
Abstract
Patagonia is perhaps the ultimate example of a humanized company: Its approach to human resource management is characterized by its flexible working policy known as “Let My People Go Surfing”; its founder, Yvon Chouinard, was known for his “MBA” (Management-By-Absence) style of bottom-up leadership; it features in the Fortune 100 Best Workplaces for Diversity with 50% women in the workforce and 50% women executives; its declared primary purpose is not the generation of wealth for its owners and investors, but to “build the best product, and not only to do less harm but more good”; and its unconventional marketing strategy tells customers, “Don’t buy this jacket” (Chouinard Y, Let my people go surfing. Penguin Books, New York, 2016).
Is the traditional law firm the antithesis of Patagonia? Although the pandemic forced the hand of law firms, suddenly making flexible working acceptable, many have returned to business-as-usual, literally driving their workers back into the office [Hyde J (2021) Law firm workers say they are being forced into the office, Law Society Gazette. Available via https://​www.​lawgazette.​co.​uk/​news/​law-firm-workers-say-they-are-being-forced-into-the-office/​5107050.​article.]. Partner leadership style is persistently top-down with key decisions being made behind closed doors. In Germany, women make up only 35% of all lawyers (According to the statistics available from the Bundesrechtsanwaltskammer, as of 1 January 2021. Available via https://​www.​brak.​de/​fuer-journalisten/​zahlen-zur-anwaltschaft/​.), and the percentage of female partners is around 14% (Authors’ own calculation based on a review of the websites of the top 10 law firms in Germany, as ranked by Juve.). Even as the world continues to reel from the financial hardship caused by the pandemic, the AmLaw Top50 US law firms reported nearly 15% growth in profits per equity partner [Strom R (2021) The Richest Law Firms Are Hiring More Partners After Record 2020, Bloomberg Law. Available via https://​news.​bloomberglaw.​com/​business-and-practice/​the-richest-law-firms-are-hiring-more-partners-after-record-2020.]. And can you imagine a law firm telling a client, “don’t buy this service”?
Can law firms learn from Patagonia? In this chapter, we will consider whether the philosophies and values of the ultimate humanized company, Patagonia, can be transferred to the business of law: In particular with regard to (1) law firm culture, diversity, and values; (2) leadership and change; (3) finance and purpose; and (4) sustainability. Can law firms, in the words of Patagonia, “save our home planet”?
Emma Ziercke, Madeleine Bernhardt
International Business Etiquette For Legal (IBEL)
Abstract
In today’s corporate world, Diversity & Inclusion policies are at the top of the agenda in every organization—particularly, large corporations and multinationals are required to comply and people are expected to work harmoniously. However, cultural differences have been proven to be an underestimated factor in international business and often Legal departments are the ones to blame if a business deal fails. For example, when a lawyer (from Spain) could not agree on the terms of a contract because the other party (from Sweden) did not bring enough documentation to prove their argument, concluding that the uncertainty was too risky. Or, when a lawyer felt that the solution the other party was suggesting was unethical. How do we know who was right or wrong? Maybe both lawyers were right in their assumptions—and, the human factor was at fault.
The article analyses how empathy can be developed with cultural awareness and showcases the author’s personal journey into cultural awareness from living in countries with very different cultures (Colombia, Sweden, and United States). It also explains how these dilemmas have been the subject of research by the World Values Survey (WVS), the European Social Survey (ESS), and the Geert Hofstede Analysis. The article ends by explaining how Legal should implement a program that could facilitate working more efficiently with different cultures. This program has been titled by the author as International Business Etiquette for Legal (IBEL).  According to the author IBEL could be used as a tool to improve human interactions, concluding that it could help minimize misunderstandings during negotiations, and help people to actually work harmoniously.
Tatiana Caldas-Löttiger
About Lawyers and Humans
Abstract
The rule of law helped to humanize societies. Over ages statutes were written in plain language and meant to be read (or heard) and understood by the people. Over time, our societies, our economies, and our interactions have become increasingly complex, and so have the rules and regulations that govern them. Modern companies’ legal and compliance departments play an increasingly significant role in mitigating risks associated with new projects and products. They, in turn, rely on external legal advice when specialized expertise is required. This is the playing field of international law firms. For many years the total turnover has increased well above the market. Profit per partner has increased even more. However, over time both the lawyer-client relationship as well as the working conditions of lawyers and staff have suffered from increasing economic pressures. Lawyering mutated from a profession into a profit driven business. This comes with a cost: a dehumanized working environment, huge pressure on law firm partners, regarding both qualities of work and economics. Partners push it down to associates and staff which leads to high numbers of psychological diseases, drug abuse, and suicide, or people trying to escape, which then again results in high fluctuation and a ‘war for talent’ (euphemism). Do we want to continue down this path? Imagine a future where law firms focused on being more “human” for both, individuals working within and for our clients. Can we imagine a law firm where the primary focus is on helping our clients understand rules and regulations to guide the way, translating the secret legal code into business language, thus granting them access to law? Can we imagine a competitive environment where client satisfaction counts more than profit per partner? Can we create an operating model providing funds for investments in the future, thus unlocking new sources of revenue that are built on value add rather than the billable hour? Can we create a less hierarchical working environment nourishing the expectations of young lawyers, valuing the contribution of professional staff and overall making law firms a place where people love to work?
Rainer Markfort, Tanja Podinic, Patrycjusz Zamorski
How to FIRE-UP After Burn-Out
A Personal Story
Abstract
This is a personal account of a professional burn-out I experienced and how I managed to overcome it and get back on track.  
Roger Strathausen
“Who are you…?”
A Story About a Gay Humanist Working at a Law Firm
Abstract
This is a fictitious story about a gay humanist starting to work at a law firm. The story is intended to illustrate aspects of humanization in the legal industry in an aesthetic fashion which may be more immediate and leave a stronger emotional imprint on the reader than what can be achieved through academic discourse. All resemblance with real people and events is contingent and unintentional.
Roger Strathausen
Metadaten
Titel
Liquid Legal – Humanization and the Law
herausgegeben von
Kai Jacob
Dierk Schindler
Roger Strathausen
Bernhard Waltl
Copyright-Jahr
2022
Electronic ISBN
978-3-031-14240-6
Print ISBN
978-3-031-14239-0
DOI
https://doi.org/10.1007/978-3-031-14240-6