The skills of the jurist of the future
Text presented at the VIII International Congress of Labor Law, held in October 2018.
Rephrasing the question
Honestly, I don't know how to answer the question that was proposed to me: "What skills will the worker of the future have (or need to have)?"
In any case, it is a question that intrigues me and, therefore, I would like to at least answer a related question, but less comprehensive. So I will take the liberty of reformulating the problem, facing the subject within what seems pertinent and possible to be answered: What are the skills that the jurist of the future will have (or will need to have)?
This is a little confused with an exposition of what I have been doing academically and what is happening in the world as a whole, so to speak, of the legal industry. I know that this name is not ideal, but at least it seems faithful to the fact that Law exists as a field of culture, at the same time that it exists as a branch of professional activities. After all, it is with the practice of Law that the jurist earns his living.
In my view, as professors, we put a lot of energy into introducing bachelor's students to the world of legal knowledge, but we practically ignore that the undergraduate student also needs to think about how he will exercise his professional activity.
Aware of this fact, Harvard professors organized the Center on the Legal Profession , whose mission is stated as follows: to provide a richer understanding of the rapid changes that are taking place globally in the legal professions. Although this center offers a very rich reflection on globalized advocacy, this trait is also limiting, given that it proposes to evaluate precisely the advocacy that serves global companies.
In view of this, the future of local law - as a market totally different from the globalized one - demands its own reflection. And, in the same way, all legal professions that do not fall within the legal profession need to be observed from other points of view.
Brazilian history since the first colleges
With the invasion of Portugal by the French in 1808, the Portuguese court was transferred to Brazil. As a result, there were a series of local evolutions, for example, the opening of ports, the construction of factories and the foundation of Banco do Brasil.
In 1822, Brazil became independent, which stimulated the creation of two law courses in 1827, so that the elite residing in the country would be able to study without returning to Europe. In this scenario, it is possible to imagine that the legal professions have been quite different from what we have today, basically organizing themselves around the mission of structuring a young independent country. Thus, the first law schools were responsible for providing the elite that would occupy the political and administrative positions in Brazil.
It was only around 1930, with the growing process of industrialization, that the organization of business law began. Until then, matters related to property, family and succession were the most important for legal practice. With the Second World War, the growth of the industry was even more accelerated, demanding the legal organization of banking, contractual, export affairs, among others.
Another relevant aspect is that, also during the Vargas Era, there was a growth in the role of the State, creating demand for the evolution of public law, especially administrative law. However, even in the face of the demand for a more specialized technical performance of legal professionals, this has not overshadowed the presence of legal training as one of the essential characteristics of Brazilian politicians.
Only after 1964, with the establishment of the Military Regime, the scenario would change. Although civil liberties and human rights have been neglected in the period, some more technical legal branches have undergone considerable evolution. Milestones of the period are the creation of the Central Bank, the National Monetary Council, as well as developments in the fields of tax and corporate law.
Throughout the 70s and 80s, the number of Brazilian lawyers who complemented their training in the United States increased. And, in the 90s, with the advance of globalization, this type of service became even more demanded. Such demand occurred on two fronts, both by the expansion of the operations of Brazilian companies abroad, and by the arrival of foreign investments, especially as a result of privatizations and new concessions in progress.
From that moment on, the Brazilian legal market began to have a truly organized workforce oriented to meet the demand of a globalized economy.
But this part of the Brazilian legal profession has always been a minority, given that, at the same time, the offer of vacancies in law courses has grown enormously. And most of these professionals would come to provide services in an internal dynamic that has nothing to do with globalization and that is often a resistance to the advancement of their culture.
Especially in the last decade, when some foreign firms arrived in Brazil (e.g., Mayer & Brown and DLA Piper) faced strong resistance. The biggest opponent of the foreign onslaught is the Center for the Study of Law Firms (Cesa), which includes large Brazilian law firms. The OAB's response to Cesa's demand, although it did not end the operational partnerships between the aforementioned foreign firms and their respective Brazilian partners, led to the end of the duo Lefosse and Linklaters, a British firm with activities in Brazil since 2001.
There is, therefore, a tension that has not completely dissipated between foreign firms and local law firms. Each strand represents a culture and demands professionals with different profiles. This is one of the reasons why we cannot think about the future of the legal professions in Brazil only based on findings and reflections promoted by foreign study centers.
Skills for those who are already in the market
A large firm, for example, with more than a hundred lawyers, is marked by two characteristics: the first is that its competitive advantage consists in keeping its client sheltered in all their needs; the second, closely related to the first, consists of each lawyer acting according to his specialization. There is, therefore, a relevant degree of impersonality in the dealing.
Because of these characteristics, a lawyer from a big law firm must respond to the firm's culture and their progress is relatively predictable within the organization, based on the agenda of these values. Nowadays, large firms try to convey an image of innovation, not just tradition. This is due to the fact that the form of organization of big law is facing enormous threats worldwide.
While it is understandable that large firms do not demonstrate their vulnerability publicly, it is easy to verify their existence from a line of research by the Center on the Legal Profession of Harvad , called " The reemergence of the Big Four in Law ”. This means that large accounting firms, which are much larger and more efficient than any law firm, are aggressively advancing on the market.
In view of this, in my view, the competencies of a future partner of a large law firm need to include: knowledge about the current business model of law; knowledge about alternative business models; and knowledge about how to integrate legal services with support services.
I think that no technological competence is relevant to appear as a lawyer in this market, given that the great threat derives from a business issue.
The business model of international law firms is under threat and, in my opinion, the partners who know how to promote the defense of their organizations will be rewarded.
In contrast, for the national market and for smaller firms, I believe that the jurists of the future need to invest in another list of skills. Since its market is not exactly threatened by the big accounting firms, there is no risk of maximum magnitude against it.
However, this type of law will need to deal with adversities: the potential increase in legal technologists, which tends to reduce margins in lower value-added services; and the increase in local competition, given that electronic process platforms will allow national competition in any litigation market.
As a consequence, smaller law firms will tend to operate in increasingly determined niches, but without territorial limitations. So, in my view, the future belongs to the specialist. I suppose that the generalist will also lose space due to the maturation of the platforms that should serve information about the quality and reputation of each firm, so that the specialist can be more easily found.
Everything leads us to believe that the cost of finding a good lawyer at a fair price will be reduced through virtual platforms that will promote the balance between supply and demand for such services.
I suppose that small offices will gain from this, as they will be more efficient in providing the work directly, without facing the large costs of maintaining a luxurious office or one aimed at maintaining business relationships based on appearances.
Finally, as for the public sector, there is an even more different dynamic. I suppose that the public service will go through times of budget restriction, which will demand greater productivity from the manager. From the point of view of the boss, more productivity will require learning about team management in an agile and results-oriented way. After all, the public manager will need to do more with less. This demand seems to have intensified in recent months.
Still regarding the public environment, from the point of view of the subordinate public servant, complementary skills to those of the head will be valued, for example, the ability to set up a low-cost computer system from services provided via the cloud. This would not require the ability to write in computer language, but it would certainly require a more analytical mind than the one traditionally oriented by verbal and communication skills.
I imagine that the era of valuing eloquence and the ability to express itself has reached a point where such virtues will compete with other desirable skills. Under this approach, the traditional qualities of a jurist will become less valuable. Above all, memorized and unreflective knowledge will have less value than it already has today, because information retrieval systems tend to be improved.
While the private sector naturally has more agility to adapt and modify the profile of its workforce, the public tender has a rigid and legally imposed format. Thus, the government tends to maintain an outdated format for selecting civil servants, and it is desirable that it invests in solutions to improve the skills of its workforce already in activity.
Skills for those who are yet to enter the market
The Ministry of Education recently published, through Resolution 05/18, new National Curriculum Guidelines for the Law course. Among the novelties are the concern with the strengthening of consensual forms of conflict settlement. In addition, the MEC understands that it is desirable that graduates of the Bachelor of Law degree be able to work in an environment of diversity and cultural pluralism, developing the ability to work in groups and in an interdisciplinary context.
From a technological point of view, the MEC established that the Law course should enable the formation of skills so that the bachelor understands the impact of new technologies in the legal area. I think it was right for the MEC not to list what these technologies would be, because the scope of the Curricular Guidelines is really to generically guide the elaboration of the Pedagogical Project of the Course.
With regard to younger people, whose training will take place under the current Curriculum Guidelines, the impact of innovation will be even greater on their careers. The recognition, on the part of the MEC, that technology will play a leading role in the legal professions appears, in my view, as a conservative diagnosis.
With a bolder stance, Richard Susskind (Susskind, 2017) proposes a series of new activities, which would be performed by new lawyers, in a future in which they should be endowed with less professional prestige. They are: legal advice performed by lawyers in extremely specialized cases, in which the professional has a strong relationship of trust with the client; as well as technological support activities for this consultancy.
In addition, Susskind maintains that new professions will be created, summarized here in free translation.
The Legal Knowledge Engineers It would be the lawyers responsible for analyzing and parameterizing the language and legal concepts so that they can be incorporated into computer programs. Already the Legal Technology Engineers would be a profession that until today has been performed by people from one of these two areas: Law or Technology. Its mission would be to enable the consumption of legal services independently of the mediation of a lawyer.
They would also come into existence Hybrid Lawyers , also versed in two areas of knowledge, whose mission would be, for example, to create a negotiation strategy or act as psychologists. The author recognizes that, in some way, this practice already exists, but what he proposes is that the lawyer does not only have a notion of the area of knowledge in a secondary way, showing solid training on equal terms with his legal knowledge.
A variation of these professionals would be the Legal Data Scientists . They would need to have a strong background in mathematics, statistics, and programming. In other words, such a description is not that of a lawyer who operates ready-made computer systems, because, for the performance of this activity, it is necessary to capture, analyze and manipulate large amounts of data with great technical resourcefulness.
Just as today the electronics and pharmaceutical industries have innovation laboratories, Susskind points out that there should be Research and Development Professionals in Law. They would be responsible for designing services and solutions based on experimental techniques, acting with much more freedom than the professionals allocated to the operational part of offices and companies linked to the legal area.
Susskind also mentions that another profession would be that of Legal Project Analysts . Such analysts would not be confused with mere operators of ready-made systems, their practice consisting of the decomposition of tasks to be distributed to various suppliers. Its function would be to disaggregate the tasks of a project, outsourcing the execution, whose management would be in charge of another type of professional, the Legal Project Manager .
Just as accounting giants have built a consulting business out of their initial auditing businesses, Susskind believes that law firms should evolve in a similar direction, creating the conditions for the establishment of auditing services. Legal Management Consultants .
Although, for example, team management and instruction activities already exist within legal departments, they are usually provided in a non-specialized manner. Other services that would be covered by this professional performance include: value chain analysis, organizational structuring, recruitment of professionals, information management, etc.
There is also a very specific part of this type of service, concerning the identification, quantification, monitoring and prevention of risks. This would be the field of action of the Legal Risk Analysts . His role would be to assist the Legal Directors, on a front in which there is a huge deficit of professionals.
Finally, apart from services provided by online platforms, the author points out that there should be the Online Mediators .
Conclusion
In a scenario of so much uncertainty and lack of analysis about the particularities of the legal professions market in Brazil, it is really very difficult to know what are the competencies of the jurist of the future.
In view of this, regardless of the moment of the interested party's career, the most prudent thing seems to be to get deeply involved with the labor market in the state in which it is. From the understanding of their current state and their weaknesses, each one will be able to organize themselves to take advantage of the opportunities that will present themselves.
Without getting involved with the real market, opportunities cannot even be perceived as real opportunities, because everything would be in the field of conjecture. So being aware of the changes is the best recommendation I could give, at least the most honest.
It is true that, for those more focused on technology, it may be convenient to seek formal instruction in some field of exact sciences. In contrast, for people with more commercial and relationship skills, it is advisable to remain attentive to the changes related to the business model of providing legal services.
However, the most interested in the answer to this text seems to be the student who has not yet found himself in any of these extremes. It is most likely that a good Brazilian Law School is oriented to transform its graduates into people capable of performing an activity of judicial representation, through personal service, working passively according to the cause that the client may present to him. In other words, this is the traditional definition of a lawyer.
On the other hand, Educational Institutions seem to invest little in the development of skills aimed at teamwork, as well as in the hybrid instruction of a legal and also technological profile, strongly oriented to meet market demands and aimed at working according to the needs of the corporate world.
I imagine that the student's effort to fill such gaps in his education will be rewarding, if the premises assumed in this text are confirmed. Well, at least that's my reflection for today.
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