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The Future of Law (13): The New Legal Experts

“All professions are conspiracies against the laity.”
George Bernard Shaw

But what if, Mr. Shaw, consumers could get timely, pertinent, accessible, and affordable legal expertise indirectly — because it is incorporated into democratized and commoditized legal service offerings — without the need to confer with a lawyer? Would that end your “conspiracy”?

Good questions.

We saw earlier in this series that one of the Wikipedia founders has backtracked on the radical democratization of knowledge, admitting instead the ongoing need for experts:

“As wonderful as it might be that the hegemony of professionals over knowledge is lessening, there is a downside: our grasp of and respect for reliable information suffers.  With the rejection of professionalism has come a widespread rejection of expertise—of the proper role in society of people who make it their life’s work to know stuff.  This, I maintain, is not a positive development”

From Larry Sanger’s Citizendium manifesto entitled Who Says We Know:  On the New Politics of Knowledge.

  • It’s not hard to buy Sanger’s position and predict there will still be a need for legal experts in the future.

But what will their expertise be, exactly? And how will they obtain it? More good questions. We’ll take them in reverse order.

Until now, conventional wisdom has been that new lawyers should develop expertise Malcolm Gladwell-style, logging their ten thousand hours in a career path legal futurist Richard Susskind described this way in his 2008 book The Future of Law:

“Traditionally, lawyers have developed their skills and evolved to the status of specialist by apprenticeship and then ongoing exposure to problems of increasing complexity”

Susskind also foresaw that legal commoditization could end this career path:

“Given that this book suggests IT would eliminate, streamline, and proceduralize increasing amounts of conventional legal work, does this not eliminate the very training ground upon which all lawyers cut their teeth and rely upon in progressing to specialist positions?”

It was a rhetorical question. The answer was yes, of course, and five years later, Susskind’s book Tomorrow’s Lawyers cited multiple lawyer surveys revealing what most of us already knew:  this practice was flawed anyway, since it takes only a few of those ten thousand hours to learn due diligence, discovery, and the other kinds of work that pass for lawyer training. No, it seems that the real reason for this ‘”training” was law firm economics:

“[W]e should not confuse training with exploitation. It is disingenuous to suggest that young lawyers are asked to undertake routine legal work largely as a way to them learning their trade. Rather, this delegation has been one mainstay in supporting the pyramidic model of profitability that has enjoyed such unchallenged success until recently.”

  • Regardless what we think about this path to expertise, it will end as “routine legal work” is increasingly commoditized.
  • The new legal experts will be lawyers who are proficient with the kind of systems thinking that commoditization requires.

Commoditized law requires people who can understand the larger context in which legal knowledge will be used, and then package it into self-executing, self-correcting, automated sequences to be used not just for a single client but over and again. You don’t learn this skill from ten thousand hours of legal grunt work. If you either have the cognitive knack or can learn it, you’ll be one of tomorrow’s legal experts.

More next time.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

The Future of Law (Part 12): Commoditizing the Law (Cont’d.)

If you want to further explore the topics we’ve been considering in this series, here are couple wonderful resources:

Check out 100 Innovations In Law, the ABA Journal’s cover story, just published yesterday. The article begins this way:

“People tend to think of the law as slow-moving, immutable and disconnected from daily life. And lawyers have a reputation of being cautious and resistant to change. But in fact, when technology or sweeping changes are necessary to better serve their clients, improve access to justice or simply make their work easier, lawyers can be pretty progressive.

“While fundamental change can take decades, in the past 100 years legal professionals have eagerly adopted technological innovations, streamlined the law and launched new practice areas that were unimaginable just a century ago. The innovation of written laws dates to 1750 B.C., but many of the most important innovations in the law have come in just the last century. Here is a list of 100 technological, intellectual and practical innovations that have fundamentally changed the way law is practiced.”

For a futurist perspective on the law spanning the past twenty years, Richard Susskind is the mother lode. I’m chagrined to be just discovering him and his work after all these weeks of making my own predictions, but we’ll be hearing more from him. He writes mostly about law practice — less so about the law itself. The link takes you to his website, where all his books are listed. I recommend all of them, although there is some repetition as time goes on.

And now, back to our consideration of the commoditization of the law that we began last time.

In his 2008 book The End of Lawyers, Richard Susskind predicts that, as the law is increasingly presorted and prepackaged for delivery in the commoditized marketplace, the awareness of what is actually legal advice will fade, dissolved into more comprehensive packages of multidisciplinary service and product offerings:

“[T]he compartmentalization of information into legal and other such conventional categories will itself fade away in time. The information products and services available… will be packaged and oriented towards providing practical and directly implementable guidance with little or no distinction between the disciplines from which the final information product has been derived. A user who has a problem which traditionally may have needed, say, accounting and banking expertise as well as legal, may consult a service which provides a synthesis of these three sources of guidance, but there will be no particular need or benefit in the overall guidance being broken down into units which reflect their original structure.”

A key result of this shift in advisory practice will be a narrower field of vision concerning what the law actually is or isn’t:

  • The law in its commoditized form will increasingly be regarded as the law itself, as opposed to what the law theoretically might be. Therefore law changes will occur within this narrower field, not the wider. more theoretical field of possibilities.
  • As a result, legal advice will narrow in scope as well. Historical lawyer-like answers such as “it depends” and “on the one hand this vs. on the other hand that” will be less valued, and legal complexity will fade as a commonly-accepted paradigm.

The lack of distinction between what is legal vs. non-legal advice will have some interesting side effects on law practice, such as:

  • As the legal profession loses its monopolistic grip on legal advice, policing the unlicensed practice of law will become increasingly difficult. As a result, lawyers and legal processes will lose their exclusive franchise as the creators, interpreters, and changers of the law, opening its content to wider influences.
  • Informal collaboration among allied disciplines and practitioners will be increasingly replaced with comprehensive, integrated, ready-to-implement information product offerings. As a result, the current practices of inter-disciplinary networking and referrals will become less important for law practice and career building.

Further, these developments will create a need for a new kind of legal expertise. We’ll talk about that next time.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available as a Kindle. A promotional free download is available for a limited time from Smashwords, Barnes & Noble, iTunes, and Scribd.

The Future of Law (Part 11): Commoditizing the Law

“A lawyer’s time and advice are his stock in trade.”
Abraham Lincoln

 Who’d have thought we’d see the day when Honest Abe would steer us wrong?

The other day at the gym one of the TV’s ran an ad for LegalZoom’s business startup services. They’ll set up your business entity, protect your IP, handle contracts, take care of your estate planning, and generally make it possible for the smiling business owner on their website to declare, “I’m making money doing what I love” — which presumably doesn’t include visiting a lawyer.

Welcome to the commoditization of legal services, where lawyers’ time and advice aren’t what’s for sale. We’re not just talking about legal kiosks at Walmart; commoditization is happening on the high end of legal services, too. Click here for a more thorough look.

  • It’s easy to predict we’ll see much more of this.

Commoditization shifts the focus of legal consultation from the one to the many:  lawyers don’t advise individual clients based on that client’s circumstances; instead, they presort legal information which is relevant most of the time and package it into immediately useable form. In his book The Future of Law, law futurist Richard Susskind calls this new kind of lawyer an “engineer of legal information”:

“What, then, might the lawyer’s role be as an engineer of legal information? The main task… will be that of analyst–it will be for the lawyers, with their unparalleled knowledge of the legal system, to interpret and repackage the formal sources of law (legislation and case law) and articulate it in structured format suitable for implementation as part of a legal information service.

“As legal service becomes a form of information service, and lawyers package their knowledge and experience as information services designed for direct consultation by non-lawyers, the work product of individual lawyers will no longer be devoted only to one case and to one client. Instead, the legal information will be reusable and for that purpose cast in a form well suited to repeated consultation.”

The impact of commoditization on the law will be as follows:

  • The marketplace consensus of what is relevant for the many, as embedded in systems-based legal products, will increasingly be regarded as the law itself.

Susskind describes this new kind of law as follows:

“[Commoditization] has extremely profound implications for the law. It is possible, for example, that the information which will be accessible on the global highway will guide our social, domestic, and working lives more directly than the primary sources (legislation and case law) themselves. In a sense, this legal guidance itself may come to be regarded as the law itself and not just a representation of it. This may indeed become the prime illustration of what the legal sociologist Eugen Ehrlich, earlier this century, called the “living law” — the law which actually reflects and conditions behaviour in society.”

Historical notions of the attorney-client relationship recoil at commoditization, but it is all bad? Maybe not. Susskind describes one key benefit:  greater access to legal advice:

“The number of [users of commoditized legal information] will be vastly greater than the number of conventional clients of today; and the frequency with which these legal information services will be consulted will greatly outstrip the frequency of consultations with lawyers today. The difference will lie in the emergence and realization of the latent legal market, as innumerable situations in domestic and business life are enlightened by the law when this would or could not have happened in the past.”
(Emphasis in original.)

More on legal commoditization next time.

A collection of my Legal Connection blog posts for the past three years is now available in print from Amazon. Also available as a Kindle. A promotional free download is also available from Smashwords, Barnes & Noble, iTunes, and Scribd.  

The Future of Law (Part Ten): Mindfulness Doesn’t Mean Wimpy Lawyers

Mindfulness is another trend driving change in the law. Here’s DU Law professor Debra Austin’s definition from her Killing Them Softly law review article:

“[M]indfulness is attention without labels, ideas, thoughts, or opinions.  Mindfulness means “being fully aware of something” and paying attention to the moment, with acceptance and without judgment or resistance.  It requires “emotion-introspection rather than cognitive self-reflection,” and specifically does not involve the analysis of thoughts or feelings.   Mindfulness is a form of self-understanding involving self-awareness rather than thinking.”

My CLE workshops don’t talk about or teach mindfulness, but they do require comparable reflection and self-awareness. Occasionally someone worries out loud that too much of this kind of thing will make you lose your edge, become less zealous as an advocate.

In other words, mindful lawyers are wimps.

I don’t know about you, but the most mindful people I know are rarely comfortable to be around. Penetrating, insightful, honest, no-nonsense, yes. Laid back and careless, no. The “mindfulness is for wimps” assessment no doubt comes from the Legal Borg, which has its own issues with fostering cognitively- or chemically-impaired lawyer brains, and never mind that there’s plenty of research and experience out there to support the notion that mindfulness provides a competitive advantage.

Judging from the strength of the mindfulness trend, this is another area in which the Legal Borg is losing its grip on the legal profession’s cultural ethos. An ABA Journal article last year announced that Mindfulness in Law Practice is Going Mainstream. As evidence of that, check out these resources:

Mindfulness in Law:  Articles, books, websites, exercises, with categories for bar associations, law schools, the judiciary, and lawyer groups.

The Mindful Lawyer:  More programs, resources, events, and articles, collected by lawyer and educator Scott Rogers, founder and director of the Institute for Mindfulness Studies, the University of Miami School of Law.

How will the mindfulness trend change the law?

  • We will see the emergence of new “best practices” that address and reverse areas of chronic dissatisfaction with the law among both lawyers and clients. For example, toxic stress and intentional destruction — both uncivil behavior toward other lawyers, and self-destructive lawyer responses to stress — will simply no longer be tolerated in the legal profession or the legal marketplace.
  • In their place, mindfulness practice will foster a new kind of “thinking like a lawyer” that will create new laws and legal procedures characterized by the kinds of benefits mindfulness produces in the individuals who practice it — e.g., decisiveness, clear thinking, intolerance for “brain noise” (drama, distraction, histrionics), and an uncanny awareness of invisible factors driving behavior.
  • As the law takes on the characteristics of mindfulness practice, the result will be more self-appraising, self-guiding, and self-correcting pathways to legal end results. The result will be more efficient and satisfying legal options and outcomes.
  • A new equity system — maybe formal, certainly informal — will arise in which the process of getting to results through informed collaboration will be valued, encouraged, and enforced.

Next in our excursion into futurology, we’ll look at the increasing polarization of three divergent pathways in legal practice and the law:  commoditizing, expertise, and mastery.

The Future of Law (Part Nine): Hacking the Law

Hackers used to be known by the color of their hats:  black, white, and gray. There were good guys, bad guys, and in-between guys. Nowadays, hacking is the new caché in the self-improvement culture. Self-hacking is the ultimate DIY — it’s how you step up, take responsibility, get it done.

Remember DU Law professor Debra Austin from the Killing Them Softly series? Here’s her advice re: neural self-hacking for stressed-out lawyers. Or check out this video on neural self hacking, Google style.  And how about this conference in London last summer on The Future of Self-Hacking that asked:

“What are the best methods for “hacking” improvements on ourselves? What do recent insights from science and technology have to say about self-development? What methods are likely to become more widespread in the not-too-distant future?”

At that conference, an all-star group of presenters talked about:

  • Smart methods to improve our consciousness, memory, and creativity
  • Meditation as self-engineering
  • Diet, drugs, and supplements – impacts on fitness and performance
  • Actions based on self-measurement (QS: quantified self)
  • Best insights into goal-setting, affirmations, etc
  • Risks and opportunities in the frontier lands of DIY brain-hacking and mind-hacking.

Hacking may be enjoying a surprising new respectability in its social status, but not all quarters of the hacking culture are so benign. Hacking still has an edge where the radicals hang out, playing a sort of X Games version of the democratization of knowledge. That’s where you find WikiLeaks, open source social entrepreneurship, corporate open source and its anti-intellectual property orientation, and the rest of the voices denouncing the keeping of ANY kinds of secrets or protecting proprietary interests in them.

  • In the realm of law, these radical players will increasingly bypass conventional modes of entry into the legal profession and law practice, and will offer their own alternative solutions to perceived injustice and inequities.
  • These radical players are already changing the law, hacker-style.
  • And they will continue to do so.

Consider, for example, the swift race towards justice we see daily in online news, as surveillance footage and ubiquitous smart-phone videos capture people in the act. Or consider the kind of visceral responses we make to images captured on police body cameras. As lawyers debate about them, these technologies are already changing evidentiary standards and criminal investigative methods. It’s not hard to imagine other applications — if you need to prime the pump, Google “whistle-blowing as cultural ethos” and check out what comes up.

Hacker law is the law of outcry and outrage, fueled by an insistent impatience that flies in the face of the law’s historical emphasis on rational, language-based deliberation. Are those who practice it vigilantes? Anarchists? Underground heroes? Tomorrow’s Gandhis and MLKs? It depends on where your sympathies lie, but like it or not, the hacker ethos has invaded the law. And, as is true of all the trends we’re looking at in this series, we’ve only seen the start of it.

The Future of Law (Part Eight) Strange Bedfellows:  Commercial Law and Legal Ethics

“Misery makes strange bedfellows.”
Shakespeare, The Tempest

 This week’s first prediction:

  • The law of commercial transactions will take on a Bitcoin dynamic.

This is from the Bitcoin website:

“Bitcoin uses peer-to-peer technology to operate with no central authority or banks; managing transactions and the issuing of bitcoins is carried out collectively by the network. Bitcoin is open-source; its design is public, nobody owns or controls Bitcoin and everyone can take part.”

That’s pure democratization, folks! The key is “peer-to-peer”:  if you and I agree that a business or network or other medium of exchange has value, then it does, and conventional metrics be damned. Think Amazon and Facebook:  both immensely valuable; neither shows a profit.

Peer-to-peer is what’s driving the new sharing economy. Consider this from a recent article in Time Magazine:

“The key to [the sharing economy] was the discovery that while we totally distrust strangers, we totally trust people — significantly more than we trust corporations or governments. Many sharing-company founders have one thing in common:  they worked at eBay and, in bits and pieces, recreated that company’s trust and safety division. Rather than rely on insurance and background checks, its innovation was getting both the provider and the user to rate each other, usually with one to five stars. That eliminates the few bad actors who made everyone too nervous to deal with strangers.”

(For more on this topic, see this week’s stories in Forbes and USA Today.)

  • Peer-to-peer will alter the key commercial concepts of valuation and contract consideration.
  • Commercial trust — deciding who you’re going to do business with — and related issues such as fairness and fraud will be built increasingly on the ratings you get from the people you do business with.

The sharing industry has more than a toehold on the economy:  a graphic in the Time article shows that it has already raised billions of dollars in startup capital. It will only get bigger, despite the fact that…

“It’s unclear if most of this is legal. The disrupters are being taken on by governments and the entrenched institutions they are challenging… [T]here are thousands of companies — in areas such as food, education, and finance — that promise to turn nearly every aspect of our lives into contested ground, poking holes in the social contract if need be. After transforming or destroying publishing, television and music, technology has come after the service sector.”

The legal profession is of course busy representing the “governments and entrenched institutions” trying to tax, license, and otherwise bring the sharing economy into conventional legal boundaries. Lawyers will win some and lose some, but in time…

  • The peer-to-peer dynamic will prevail in significant economic sectors — including the professional service sector of which the legal profession is a part.
  • As a result, peer-to-peer review of commercial transactions will extend to the parties’ legal counsel.
  • The resulting consumer satisfaction data will have a curious side effect as a new kind of legal ethics watchdog.

Peer-to-peer is the ultimate in self-policing, which makes its extension to legal ethics unlikely but logical. Rule 8.3 — the duty to report unethical behavior among our peers — has long been a part of the Model Rules of Professional Conduct, but has been more honored in the breach than the observance. The new, democratized marketplace will take this matter into its own hands.

Strange bedfellows, indeed.

The Future of Law (7): The law gets faster, goes micro, and eats at the communal table

Harvard professor Clayton M. Christensen coined the phrase disruptive innovation in the late 90’s:

“The theory of disruptive innovation… explains the phenomenon by which an innovation transforms an existing market or sector by introducing simplicity, convenience, accessibility, and affordability where complication and high cost are the status quo. Initially, a disruptive innovation is formed in a niche market that may appear unattractive or inconsequential to industry incumbents, but eventually the new product or idea completely redefines the industry.”

Until recently, the legal profession and the law remained mostly aloof from the impact of innovative disruption, moving instead at an analog pace of change driven by reasoned discourse and scholarly input. Think of the usual pace of legislation, appellate review, uniform laws and legal restatements.… But life in the slow lane is ending.

  • The analog pace of changes in the law is already breaking down. Legal practice developments are already moving at the digital pace of disruptive innovation. Changes to the law itself will soon follow suit.

Disruptive innovation doesn’t wait for reasoned discourse. It moves fast and impulsively, riding on trends fueled by democratized access to information. Disruptive change in the law will create new modes of change that simply will not wait for the historical pace of precedent and consensus.

  • These law changes will first follow the new practice models serving legal niche markets, where “simplicity, convenience, accessibility, and affordability” are essential. (I.e., they will be “micro-law” in nature. We looked at the micro trend in this post last summer.)
  • This new way of creating and changing applicable law will go mostly unnoticed to “industry incumbents” at first, because the changes will be narrowly focused on the particular needs of emerging niche markets, which will make them “unattractive or inconsequential.”
  • In time, however, this way of creating and changing the law will gain wider usage and impact.

Other practice innovations already in place have disruptive potential as well. Consider, for example, ediscovery and due diligence. These practices began as digital versions of their former analog practices, and mostly retain that character, but possibly not for long.

  • These digital innovations could easily morph from their case-specific beginnings into more widely accessible databases of searchable information.
  • If so, they will change the overall fact-specific context of dispute resolution and transactional law.
  • And if they do that, new standards of pleading and disclosure will arise, and will require new rules and procedures to guide their use.

And finally:

  • This new way of changing the law will likely arise from an informal collaborative process which will further — by a quantum leap — the goal of bringing more “simplicity, convenience, accessibility, and affordability” to dispute resolution and commercial transactions.

In this regard, think of disruptive innovation as a sort of communal table process for changing the law. You’ve noticed the community tables springing up in restaurant and coffee shops. They’re more than a new style of seating arrangements:  they’re changing the dining/drinking industry and the dining out experience. (For a wonderful analysis, see Alone Together:  The Return of Communal Restaurant Tables.)

These developments will create some fascinating new bedfellows. Next time we’ll look at one such pair:  commercial law and legal ethics.

These blog posts from the past three years have been collected into an ebook which is currently available as a promotional free download. Click here for details. For those who prefer to do their reading in hard copy, the collection will soon be available in that format (details to follow).