The United States has a well-documented access to justice crisis. According to the American Bar Foundation, 80% of people with legal problems are not addressing them with the help of a lawyer. In many cases, people do not recognize that their problems are legal problems. For others, the cost of legal services is too high, or the uncertainty of billable-hour costs make legal services impractical.
Legal counsel in the 20th century was a scarce resource. For the most part, advice was given on a one-to-one basis: one lawyer and one client at a time. The advice of a lawyer was expensive, and for the most part, available to large corporations, wealthy individuals, people who qualified for legal aid, or people who were compelled to employ the help of a lawyer. This scarcity meant that legal services were expensive
Legal services of the 21st century do not need to follow this path, and making legal assistance more abundant would help. Creating abundance from scarcity is difficult, but models help show the way, and increasingly lawyers are looking to industrial process as a guide. This is not to suggest that the future of law is “law factories,” but our history contains useful parallels that suggest a more abundant future for legal services.
The Industrial Revolution
One such change in our history was the Industrial Revolution. Before the Industrial Revolution, goods were much less equally distributed, in part because they were made one at a time, by hand. Industrial goods such as cars were scarce, and only the wealthiest had them.
Skilled craftsmen would create every piece of a machine, including the nails and screws. The craftsman would assemble the parts, using files to make changes to the parts until they could fit. Craft production led to beautifully crafted machines, but very few of them. Three innovations during the industrial revolution changed that.
One of the biggest challenges for manufacturing was that each craftsman had to make his or her own parts, for each machine, each time. Parts were not interchangeable – screws created for one machine could not be used on the next machine (even of the same kind).
Eli Whitney changed that in 1798 when he introduced standard parts in the United States at the Whitney Armory in Connecticut. He could use lots of non-craftsmen to make standard parts to standard measurements to make muskets for the early American military. Whitney’s musket parts were interchangeable, easy to make inexpensively, and predictably assembled. The parts fit each time, and could be assembled with less expertise. The development of machine tools such as milling machines and screw-cutting lathes made it possible to use standard fasteners, tools, or components without custom-fitting them for every job.
The assembly line.
Before the assembly line, a single automaker, or at best a small team, would line up all of the parts to make a car on the shop floor, and work their way down the floor to assemble the car. When the Model T was introduced by Ford in 1908, it was an inexpensive car, even when built by hand. But Henry Ford’s goal was to make the Model T so inexpensive that everyone could own one.
History credits Henry Ford with the creation of the assembly line, an idea that his team got from butchers in the Chicago stockyards. (Henry Ford wasn’t even the first to use the assembly line to build cars—Ransom Olds used an assembly line to build his Oldsmobile Curved Dash. But it was Henry Ford who perfected the assembly line to make Ford Model Ts.)
In 1913, Henry Ford built conveyors that would move cars progressively through assembly, to the workers who would complete assembly in stages, one worker per stage. By keeping auto workers in the same spot and moving cars down an assembly belt, workers would develop specialties – specializing in a single operation. Each autoworker only needed to do one part of the process, they did not have to be experts at automotive glass, tire assembly, and the timing of a carburetor. It meant that more people could be autoworkers, with more specialized skill, higher expertise at each step, and faster production of cars.
Henry Ford’s assembly line worked so well, he was able to shorten the time to create a Model T from 12 hours per car to 90 minutes. At the height of production, Ford created 2 million Model Ts in a year. Ford’s cars came off the line in 3-minute intervals, a pace that produced more cars than anyone had believed possible.
Abundance was so important to Ford that he made all Model Ts the same color. The slowest part of the process turned out to be paint drying, so Ford found one paint, Japan Black, that would dry fast enough to hit his 90-minute production target. He stopped offering other colors and made all Model Ts Japan Black. Ford sacrificed customization for the sake of mass production.
Industrial process democratized the automobile—there was less scarcity, more cars, that more people could afford at a lower price. People of means could still buy craft-built cars, but there were also cars that, for the first time, middle-class families could afford, and they did in great numbers. It was a virtuous cycle—there were more workers at higher wages who could produce more cars at lower cost. And the more affordable cars weren’t of lower quality—standard parts meant better-fitting parts, and specialized labor meant expertise in every feature of mass-produced cars.
The 20th century produced great innovations in industrial process, including “kaizen,” the Japanese concept of continuous improvement espoused by Toyota (among others). The idea is that no process is perfect, but that all processes may be improved, standardized, or aligned. Kaizen is a culture of continual aligned small improvements that improve efficiency and reduce waste.
Toyota also promotes “jidoka,” which means automation with a human touch. Automated car manufacture has made cars of higher quality, faster and less expensively than ever. Although this has not always been a win for car manufacturers, it has been a win for consumers, as the quality of cars has increased greatly, while costs have remained flat.
With lower prices, working people were able to buy cars at an unprecedented rate in the 20th century in America. And this democratization of the automobile was met with a similar ambition by the U.S. government, which starting in the 1950s built an infrastructure to accommodate this age of the automobile. President Eisenhower standardized a patchwork collection of state roads to create the Interstate Highway System, building government infrastructure and standards that ushered in new industries of transportation, commerce, and tourism.
Industrial Legal Process
The automobile industry is a great example of process gains in the last century. Industrial process has led to similar quality gains in many industries, leading to higher quality, lower prices and economies of abundance. Law would benefit from a similar transition from scarcity to abundance, and industrial process in the automobile industry may offer some helpful guidance.
The delivery of legal counsel shares much in common with the early auto industry. Legal services are scarce—luxuries afforded mostly for businesses, wealthy individuals, or people with subsidized access to counsel. Our delivery system for legal services follows the “expert craftsperson” model—individual lawyers or small firms who are responsible for all aspects of legal problem, using nonspecialized tools to create bespoke, one-to-one solutions for every legal problem, even commoditized ones.
A new generation of lawyers are thinking about how to improve the process of lawyering—to increase quality, reduce waste and to reduce the risk of error. This kaizen for law looks to industrial processes to create a new era of abundance for legal advice, to make better legal counsel available to more people at lower prices.
Abundance of legal services could help liberalize legal services, making them more accessible to more people at lower prices. The assembly line in the automotive industry was learned from meatpacking. Can we learn industrial processes for legal services from the automobile industry?
As a profession, we frequently say that we are trying to avoid “re-inventing the wheel.” But we do it all the time. We re-create contracts in Microsoft Word, we draft new complaints, we analyze documents anew each time. At best, we start with a document from another case, and manually hunt to replace stray party names, addresses, pronouns, and the like.
Standard contracts, or at least standard contract provisions, would help. KM Standards has begun to analyze contracts for standard provisions, and has made them available at Contract Standards. How much time and effort could we save if, instead of drafting and negotiating the form of agreements, we could agree on standard forms and simply negotiate terms?
In addition, lawyers should take a project management approach to lawyering, finding common processes that can be routinized or automated, checklists, and expert guides. Many legal problems are unique, but countless other problems are repetitive and would lend themselves to standard procedure, workflow and forms. (We could even teach these in law school.)
Specialization (and the Latent Market).
Lawyers and law firms handle every part of a matter, from marketing to intake, pleadings and motions practice to document review and due diligence, from arguing in court to appellate litigation. Sometimes all of these functions are handled by the same lawyer. This is akin to the same craftsman building one car at a time.
For that one lawyer, creating artisanal legal services may be fulfilling – but for many clients, especially the 80% not seeking a lawyer for legal problems, it puts legal advice out of reach. We should find better ways (and UPL regulations should allow) for us to specialize and to partner with experts in other fields, and to work with paraprofessionals to creatively serve clients. Washington State’s licensing of Limited License Legal Technicians is a step in the right direction, allowing some legal services to be provided at lower cost by specialists without a law degree.
There is no guarantee that specialization, or creating abundant legal counsel for the latent market, will create more or better jobs for lawyers, but that was certainly the experience in the auto industry. Because Ford made so many more cars, even at lower prices, the company was able to hire many more workers, and at better wages . (The phenomenon was so stark, it became known as “Fordism.”) We could use a Fordism for law, with more people providing legal services, for better wages—but at scale, to more people, at lower prices.
As with auto manufacture, automation will absolutely be a part of the delivery of legal services, and that’s good for clients as well. This won’t look like giant articulating arms, or robot lawyers hanging a shingle. But document automation, machine learning, data analysis, and artificial intelligence will surely be a part of the future of law.
At the outset, automation may take the form of embedding legal learning and process into expert systems like Neota Logic, A2J Author, or QnA Markup, which will allow lawyers to build software to guide lawyers (or clients) directly through legal processes, or the creation of legal documents. This moves away from bespoke, one-to-one delivery of legal services, and towards one-to-many advice at scale.
As time advances, more services will analyze data from past legal engagements—outcomes of cases, contract values, success rates of lawyers and law firms, quality of advice, cost and value of legal services—as a way to drive transparency. Beyond that, data scientists and software will use this information not only to understand what happened in the past, but to predict what will happen in the future.
Henry Ford didn’t build an American Century by himself. A big part of creating a car culture in America was the federal government’s creation of highway infrastructure. Similarly, federal and state governments could go a long way towards democratizing the law by harmonizing forms across federal courts. Local court rules, different local forms, and standardless electronic filing systems also play a part in making legal services more expensive. Harmonized forms that follow uniform standards would go a long way to addressing the access to justice crisis.
Legal services are scarce. They are consumed mostly by corporations, wealthy individuals, or individuals who have no other choice but to use them. It need not be this way, and the Industrial Revolution has given us some guideposts about how we might address this crisis, to make legal services abundant and more available to more people.
By using standard parts, a sensible division of labor, automation, and investment by courts in infrastructure, we can help create more legal help, of higher quality, and at lower price, an era of “Fordism” for law. Industrial process for law, and legal kaizen, can help create abundant legal services, more jobs for lawyers, and help to create a new American Century for the practice of law.
About the Author
Ed Walters is the CEO and co-founder of Fastcase, an online legal research software company based in Washington, D.C., and formerly was a corporate and IP lawyer at Covington & Burling.