Richard Susskind’s Dispute Prevention Wisdom

Richard Susskind is a British law professor, author, speaker, and advisor to businesses and governments. 

He has studied and written extensively about a wide variety of subjects.

In his 2008 book, “The End of Lawyers?”, he addressed the subject of lawyer-client relations, and particularly the “irrational” failure of the business and legal worlds to take rudimentary steps to prevent disputes.  

His perhaps most famous observation on that book was that “clients would prefer to have a fence at the top of rather than an ambulance at the bottom”.  But nevertheless, as he added, while clients irrationally are reluctant to pay for dispute prevention services, then, “when a dispute arises, the budgets often seem to be without limit.”

I have compiled from that book a number of other wise Susskind quotations on the subject of prevention of disputes. They are ripe fruit for thought, and they are linked below. 

Provocative quotations from Richard Susskind’s book:  The End of Lawyers?  Rethinking the Nature of Legal Services  

… we should accept that disagreements are all but inevitable.  It does not follow, though, that we should uncritically accept the current mechanisms that our legal systems provide for the handling of disputes  -–  today’s lawyers, courts, systems, and processes, underpinned by our prevailing culture, expectations, and even our art and literature (… a stereotypical portrayal of combative litigators in fierce opposition to one another).

I challenge the status quo.  ….  This traditional legal apparatus, an industry that has been built on human conflict, is frequently unwieldy and often unfit for [the] purpose.  The heavy-handed involvement of lawyers and courts can distort the process of resolving disputes, diverting focus from the parties to their advisers, driving an often unnecessary wedge between the clients themselves, and incurring disproportionate costs.

… where we find intermediaries, I entertain the possibility of disintermediation – removing the middle men from the process. 

The End of Lawyers?  Rethinking the Nature of Legal Services, by Richard Susskind, pg 183

I go further:  if we can find ways of avoiding disputes altogether, then we should not shirk from examining these as well.  And when we cannot prevent or pre-empt disputes, we should be looking hard for ways to contain disagreements amicably and to avoid unnecessary escalation. 

The End of Lawyers?  Rethinking the Nature of Legal Services, by Richard Susskind, pg 184

I suppose the market first has to recognize that wildly excessive and disproportionate amounts of time, energy, and cash are dispensed on dispute resolution.  And this will have to coincide with a dawning realization – and this is my game theory point again – that litigation, in the long run, may not be in the commercial interests of any party, other than in exceptional circumstances.  

Section 6.7:  Dispute Avoidance   

What value do lawyers bring to the markets they serve?  I know of only two satisfactory responses … The second answer … Based on countless discussions, interviews, and research projects with clients of law firms, this second answer runs as follows:  what clients actually want is lawyers who can help them to avoid legal problems, difficulties, and disputes.   Clients prefer to have a fence at the top of a cliff rather than an ambulance at the bottom.  

The avoidance of legal problems has been a running theme of my work since I wrote an article on the subject in the Financial Times n 1992.  I argued then for the development of a discipline known as legal risk management.  … The piece also seemed to resonate with many in-house lawyers who complained that their work was dominated by firefighting rather than the strategic management of legal risk. …  However … a distinct discipline has yet to crystallize.  I have in mind here an approach which enables the job of lawyers to be genuinely proactive. … Proactive legal risk management requires more than bright lawyers shooting from the hip when clients suspect they face a difficulty.  It requires the development and use of structured and formal techniques and processes that are already used by strategy consultants, professional risk managers, and tax specialists too.

The End of Lawyers?  Rethinking the Nature of Legal Services, by Richard Susskind, pg 224

… very few legal risk tools have been crafted for the legal profession.  When I wrote in 1992, I had fully expected the rapid emergence of a wide range of tools for legal risk review.  I thought these would include … the soundness of their standard form documentation, and the adequacy of their escalation procedures when serious problems arise.  I wondered if economists might be engaged to help with some models for quantifying some of the legal risks.  I had also expected a corresponding set of services devoted to legal risk control, so that the legal risks, once identified, could be kept at bay.  Under this heading, I had anticipated some nifty techniques …

The End of Lawyers?  Rethinking the Nature of Legal Services, by Richard Susskind, pg 225

The lack of investment and imagination by law firms in this area astounds me.  In all the studies that I undertake on behalf of law firms, when I am asked to interview and later summarize the views of General counsel, I invariably hear from these top in-house lawyers that legal risk management is the main focus of their job. … legal risk management tools … do not exist. There is an unparalleled opportunity here for innovative law firms to extend their range of services beyond traditional reactive work to a fundamentally different, proactive suite of services.  These services will not be a variant of one-on-one consultative advisory service delivered on an hourly billing basis.  Instead, they will be a blend of facilities, methods, systems, and services which together will focus on helping clients to identify the legal risks they face, evaluate the severity of these risks, and, where necessary, take appropriate precautionary measures.

In controlling legal risk, we will need to move away from the idea that the best and only technique for managing legal risk is to throw lawyers at the job.  Another method is to increase awareness of legal risk across an organization, so that non-lawyers are able to avoid legal pitfalls without the direct intervention of legal advisors.  

The End of Lawyers?  Rethinking the Nature of Legal Services, by Richard Susskind, pg 226

… it is hard to make a business case for spending money on legal problems that have not yet arisen.  This dilemma of the aspiring legal risk manager is neatly reflected in the tale of the chief fire officer [who was hired after the company had experienced a series of fires and successfully brought the problem under control.  But when a new cost-cutting chief executive learns that there have been no fires for over a year] his immediate response is to fire the chief fire officer and scrap his department.   

Whether in law or in relation to fires, it is hard to quantify the benefits of disasters averted.  And so, irrational though it may appear, it is much harder to sell legal risk management services than legal services.  When a dispute arises, the budgets often seem to be without limit.  A tiny fraction of that budget is rarely released to avoid litigation in the first place. 

The End of Lawyers?  Rethinking the Nature of Legal Services, by Richard Susskind, pg 227

Most law firms, if we are honest, would prefer to advise on a mammoth dispute than have helped to avoid it.  I return to the all-important case study of Cisco – only when that company’s external law firm took on their commercial litigation on a fixed prices basis did the lawyer and client come to share the same point of view.  Both of them had a very strong interest in reducing Cisco’s legal risks. 

In the long run, perhaps law firms will only take legal dispute avoidance seriously  when they are sharing legal risks with their clients. 

The End of Lawyers?  Rethinking the Nature of Legal Services, by Richard Susskind, pg 228