The English language is undergoing an overhaul. That’s not news to anyone who has been around kids or is superficially exposed to popular culture. But when, as recently occurred, many of those neologisms and acronyms are included in the dictionary, it’s time to take notice—and not just for Scrabble or Words With Friends purposes. These words reflect modern life and have come to describe it in terms of sufficiently widespread usage—like it or not. Merriam-Webster’s Unabridged Dictionary announced 1,700 new additions, many of which are unlikely candidates for SAT verbal exams. Words like “photobomb” and “emoji” are now enshrined in our language compendium. “WTF?” Yes, that’s in there, too.
This brings to mind a plethora of neologisms and acronyms that have been recently introduced into legal parlance. What are some common ones and is their functional meaning captured or obscured by their use?
- Legal Process Outsourcing (“LPO”)—this is a generic term applied to moving offshore high-volume/low-value (document review, basic research, etc.) tasks once performed by domestic lawyers. More recently, such work has sometimes been moved “onshore” to low-cost locations. But LPO now has a much broader meaning than it once did and also describes the IT-driven, streamlined process and project management delivery process by which these tasks are performed as well as to their steady migration up the sophistication ladder. Translation: “LPO” is not what it was when Tom Friedman authored “The World is Flat” in 2005.
- Alternative Fee Arrangement (“AFA”)—this term originally referred to any fee structure other than the billable hour, long a foundational element of the Biglaw business model. AFA is now a mainstream legal term but one which, without more, does little to describe the nature of the fee structure between provider and client. Recent data suggests that if it is still “alternative” to the billable hour, it is certainly widespread. Donny Ching, Shell Oil’s Legal Director, eschews the term, noting that AFA’s—alternatives to the billable hour—are neither “alternative” nor exceptional. He goes with “appropriate fee arrangement.”
- Alternative Business Structures (“ABS”)—this is a term emanating from the UK as well as those other former Commonwealth jurisdictions who have adopted some version of the UK’s Legal Services Act of 2007. That means that law firms can be managed and funded by “non-lawyers”, share profits with them, engage in inter-disciplinary practice, and, be run like the businesses they are. Again, the term “alternative” is a contrast to the “traditional” model, one that is in the process of being put to rest in the UK and elsewhere. Why not simply refer to all this as “Acceptable (Legal) Business Structures.”? Many US lawyers believe ABS is synonymous with “de-regulation.” This is entirely misleading and inaccurate—if not a scare tactic to dissuade adoption here.
- New Law—this is a catchall term commonly invoked to refer to any aspect of the delivery of legal services—either as a service or product—that diverges from the traditional legal service model (one where law firms perform all matter functions start-to-finish). But there is nothing new to the practice of law (except the ongoing common law and statutory activity as regular as the surf). What is new is the way the business of law is being conducted.
- Collaboration—this term evokes Gilbert and Sullivan, Abbott and Costello, and Fred and Ginger. “Collaboration” is embedded in the DNA of every other knowledge-based service profession except law. The term “collaboration” has many layers when applied to the delivery of legal services: collaboration within a law firm or legal service provider; collaboration between/among the legal supply chain suppliers; collaboration with clients (especially in-house legal departments); and, increasingly, collaboration with other professionals and para-professionals who are now fixtures in the delivery of legal services. This is a term that lawyers had better familiarize themselves with from a functional perspective.
- Self-Regulation (see also “ABA”)—many US lawyers, particularly some on the ABA’s “20-20 Commission” contend that by passing the Legal Services Act of 2007, UK lawyers are now de-regulated. They are not. Rather, they are re-regulated and function in a more client centric regulatory environment. Such re-regulation is occurring beyond the UK and is being widely embraced around the globe—except in the US. Perhaps it’s time for US regulators to reconsider “self-regulation” and what it does and does not mean to the delivery of legal services. My vote: “Re-Regulation” should replace “Self-Regulation” in the US legal lexicon.
- Legal Training—the functional definition of this term used to describe three years of doctrinal training at accredited law schools followed by licensure testing is archaic. “Legal Training” must include both doctrinal immersion as well as practicum training. While we’re at it, let’s throw in enhanced job placement guidance from experienced practitioners, especially those familiar with the contemporary legal marketplace.
- “Engaged in the Practice of Law”—this seminally important phrase formerly described all the different tasks a lawyer performed. Put another way, everything a lawyer did on the job was deemed to be “the practice of law.” This is no longer the case. As “legal” tasks have become disaggregated, legal service providers (think: Axiom and UnitedLex, among others) are now engaged in the delivery of sophisticated tasks but, since they do not retain ultimate risk retention, they are not deemed to be “engaged in the practice of law.” This makes little sense—nor does the bright-line distinction between “legal service provider” and “law firm.” Why not simply say “legal services provider.”
- Legal Job—this once referred to a narrow band of positions dominated by law firms, Government, and not–for-profits. Today, “legal jobs” refer to lawyers in business positions, IT, consultancies, BigFour accounting firms, entrepreneurs, and a spate of yet-to-be-created positions requiring legal skills (coupled with others). Law schools and law students, especially, must have a clearer understanding of what this term now means.
Like them or not, new words are ushered into the dictionary because they describe life as it is presently being lived. The legal vertical would be well served to take a closer look at its own lexicon to ensure that the meaning key terms intend to convey is uniformly understood from a cognitive and functional perspective. Lawyers, after all, are communicators, and they must be able to articulate to each other as well as to the public they serve what their core terms mean and how they are applied to what lawyers do. And this is not just clickbait*.
“Clickbait”, one of the new words in the Merriam-Webster Unabridged Dictionary defined as: “Something (such as a headline) designed to make readers want to click on a hyperlink, especially when the link leads to content of dubious value or interest. “