The Legal Times They Are A-Changin’ (Part One)

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The following is taken from the Preface to a just-published collection of my blog posts from the past year.

Killing Them Softly 

Law enlightenment 2nd edition 33%My book Law, Enlightenment, and Other States of Mind (now available in a revised second edition) collected several years of my blog posts for the Legal Connection. It ended with a series called Killing Them Softly, featuring the work of University of Denver Law professor Debra S. Austin. (See Killing Them Softly: Neuroscience Reveals How Brain Cells Die From Law School Stress And How Neural Self-Hacking Can Optimize Cognitive Performance. See also her article Drink Like a Lawyer.)

Research studies and media stories about lawyer depression, anxiety, substance abuse, and suicide are legion, but Prof. Austin’s Killing Them Softly sounded a new kind of alarm through its application of neuroscience to the chronic stresses of law school and legal practice and its depiction of how law students and lawyers suffer cognitive brain damage that impairs them from doing precisely what their studies and practices require.

How’s that working for you, if you’re a client? Or an educator? Or a spouse? Or any number of other people with vested interests in law student and lawyer health and performance?

The more I blogged about Killing Them Softly, the more I wondered:

If we know we’re hurting ourselves, then why don’t we stop it?

We Are The Borg

Resistance-is-futile-Picard-BorgI’d blogged before about the legal world’s confounding indifference to its own welfare. This time, I broached the topic in a short series called Saving Ourselves From Ourselves, using Star Trek’s bad guys The Borg to lighten the inquiry. I mean, it was the end of the year (2014) and holiday time, after all. My attempt at levity didn’t help. Not really. The topic was too disturbing and the Borg “you will be assimilated” metaphor too appropriate. The law profession’s entrenched willingness to tolerate and continue unhealthy and performance-impairing practices wasn’t going away that easily.

Meanwhile, I’d noticed that an emerging subset of the legal profession seemed to be having a more upbeat experience. These were the new legal entrepreneurs, who seemed to have cornered the market on inspired action and were busy creating a bold new future for law practice. And yet, from what I could tell, the mainstream of lawyers remained unaware of the seismic shift in the legal profession happening right under their feet. They simply didn’t have ears to hear or eyes to see; they didn’t and apparently couldn’t feel the tremors. Once again I wondered:  Why not?

The Future of Law

I had written about trends in law practice before as well, but armed with new research, I launched a new series at the start of the new year (2015) on The Future of Law. And then, for some reason I couldn’t articulate then and still can’t, I decided to play like a futurist and predict where the future of law was going. The predictions flowed easily once I focused on the larger trends driving the entrepreneurial initiatives, such as globalization, commoditization, democratization, and big data. Those trends were mostly finding expression in new legal practice models and technologies, and in hindsight my predictions in that arena frankly weren’t all that remarkable, although they certainly seemed so to me when I wrote them.

No surprise, then, that one week I would predict something, only to discover within short order an example of it. No, I hadn’t developed a new gift of clairvoyance, I was only tapping into what was already happening. In fact, I was fast being left behind:  not only were the legal entrepreneurs busy creating a new future for law practice, but both legal and popular media were equally busy covering it. I had just come late to the party.

I helped myself liberally to the news as I wrote my blog, but then a more stunning realization about the future of law began to dawn in my awareness. This realization came to me in a series of waves, each amplifying the others:

  • The new practice models and technologies wouldn’t only change how law is practiced, they would invariably re-create lawyers themselves — who they are, and what they do.
  • As a result, a new kind of lawyer would engage in a new kind of law practice, alongside a new kind of legal expert who wouldn’t even qualify to be called a lawyer in today’s regulatory environment.
  • Alongside both of them, consumers (no longer “clients”) would themselves also practice law in a wave of legal DIY aided by artificial intelligence algorithms engineered by cyber geeks and served up online.
  • The combined impetus of all these developments would create a new kind of law— new in both substantive content and in how it is created, shaped, communicated, and applied.
  • In particular, this new kind of law would be created and disseminated, and would grow and change, by processes other than the historical reliance on legislation and appellate precedent and lawyer-to-client communication.
  • Finally, the advent of a new kind of law would transform the law’s role as a foundational institution in the larger cultural context in which it lives and moves and has its being.

Seismic change, indeed.

Continued next time.

The Legal Times They Are A Changin 4 33%The Legal Times They Are A-Changin’ is the second collection of Kevin’s blog posts focuses on the future and culture of law, including insights on technology, innovation, neuro-culture, and entrepreneurship. Extensively researched, visionary, and written in a crisp, conversational style by a man on a mission to bring wellbeing to the people who learn, teach, and practice the law.

 

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 (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).

 

 

The Future of Law (Part 4): The Democratization of the Law

Follow this link for a collection of my past three years of blog posts. It’s a FREE download!

We looked last time at the globalization megatrend and its impact on the law. Democratization is another megatrend having similar impact. It’s not just about flash political revolutions, it applies in other spheres as well, particularly technology, information, and — of particular interest to lawyers — knowledge.

The legal profession, like others, has long enjoyed protected status as a commercial monopoly characterized by the specialized knowledge and skill (e.g., professional judgment and the ability to “think like a lawyer”) of its members. Not just anybody can practice law or do so correctly — that’s been the creed, and the non-lawyer public has agreed (they don’t always like lawyers, but they like their lawyer).

Democratization is changing that. The “lawyers know best” ethos has eroded. Non-lawyer legal service practitioners and their customers have stormed the professional citadel, gobbling up free access to legal knowledge and putting it to work for themselves. Lawyers can argue all day that they practice law better than non-lawyers, but we’re talking to ourselves. Knowledge is power, and democratization is on a mission to give that power to the people.

The specialized knowledge that was formerly the sole province of the profession must be transformed under this non-professional handling. To recognize that this is already happening and predict we’ll see more of it is to come late to the party. So I’ll make the only prediction left to make:  not only is the democratization of the law going to continue, but we ain’t seen nothin’ yet.

Anything that starts with “Wiki” is at the forefront of the democratization of knowledge. The creation of a common people’s knowledge base is empowering, and there’s been a lot of euphoria over full and free access to information and the creation of a citizen-based common body of knowledge. But second thoughts about all this are surfacing from within the revolution’s highest ranks:  Larry Sanger, one of the Wikipedia founders, left to start a competitor he’s calling Citizendium. Why? To provide an expanded role for experts in the determination of what knowledge is worth knowing.

Sanger’s Citizendium manifesto is entitled Who Says We Know:  On the New Politics of Knowledge. We’ll let him speak his piece at some length here, since his framing of the issues is spot on for the legal profession:

“So today, if you want to find out what “everybody knows,” you aren’t limited to looking at what The New York Times and Encyclopedia Britannica are taking for granted.  You can turn to online sources that reflect a far broader spectrum of opinion than that of the aforementioned “small, elite group of professionals.” Professionals are no longer needed for the bare purpose of the mass distribution of information and the shaping of opinion.  The hegemony of the professional in determining our background knowledge is disappearing—a deeply profound truth that not everyone has fully absorbed.

“The votaries of Web 2.0, and especially the devout defenders of Wikipedia, know this truth very well indeed.  In their view, Wikipedia represents the democratization of knowledge itself, on a global scale, something possible for the first time in human history. Wikipedia allows everyone equal authority in stating what is known about any given topic. Their new politics of knowledge is deeply, passionately egalitarian.

“Today’s Establishment is nervous about Web 2.0 and Establishment-bashers love it, and for the same reason: its egalitarianism about knowledge means that, with the chorus (or cacophony) of voices out there, there is so much dissent, about everything, that there is a lot less of what “we all know.”  Insofar as the unity of our culture depends on a large body of background knowledge, handing a megaphone to everyone has the effect of fracturing our culture.

“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; but it is also not a necessary one.  We can imagine a Web 2.0 with experts.  We can imagine an Internet that is still egalitarian, but which is more open and welcoming to specialists.  The new politics of knowledge that I advocate would place experts at the head of the table, but—unlike the old order—gives the general public a place at the table as well.”

In other words, as cool as the unrestrained democratization of knowledge may be, we may still need experts and professionals after all. At least one Wikipedia founder thinks so.

It’s a fascinating debate, but now that we’ve given it an airing, we’ll turn to further predictions about how the democratization of the law will change it in ways “not everyone has fully absorbed” or — especially for many in the profession — will absorb any time soon.

The Future of Law (Part Two): New Ethos, New Ethics

Follow this link for a collection of my past three years of blog posts. It’s a FREE download!

For our first prediction, we’ll do an easy one:  the Model Rules of Professional Conduct will be changed to accommodate multijurisdictional practice and nonlawyer ownership of law firms.

This will happen when the tipping point of all the new practice developments we’ve been talking about is reached. The creation and adoption of the new rules will come quickly after that, because a new cultural ethos must have new ethical standards. In the meantime, the snowball is already rolling down the mountain — see, e.g., the ABA Commission on the Future of Legal Services we talked about last time.

The new Model Rules will trigger a cascade of related and derivative developments. None of these are hard to foresee. Here’s a sampling:

 

  • The process of adopting the new Rules will of course happen state by state, starting slowly, with intense polarization between adopters and non-adopters. The historically progressive states will lead the way.
  • Some states will be opportunistic in the early going, vying for status as the go-to jurisdiction. (Think Delaware corporate law. I saw this in my law practice when domestic asset protection trusts came into vogue, and states like Alaska and South Dakota jumped to the front of the line. The same thing happened when LLC’s first appeared, and Wyoming and Colorado jumped in.)
  • Because the new rules will be vigorously contested, a decision comparable to the lawyer advertising case (Bates v. State Bar of Arizona, 433 U.S. 350 (1977)) will be required to pave the way.
  • Once the new Rules are in place, professional corporation and similar laws governing law firm ownership will be revised.
  • Confidentiality and privilege will be expanded to nonlawyers in the new organizations.
  • With respect to clients, the earliest versions of implementation will be based on client disclosure, waiver, and consent, and likely will also require registration of the organization and its principals with the state (with background checks required).
  • There will be supervisory mandates governing the roles of the lawyers involved in the new multidisciplinary practice models.
  • BigLaw will jump in with both feet. Mergers with multidisciplinary and multijurisdictional partners will become the news du jour.
  • Group and prepaid legal service organizations, legal franchisors, and comparable market players will also be quick to jump in.
  • And so will industries that have historically worked closely with law firms — e.g., insurance, stockbrokers, financial planners, accountants, investment bankers.
  • But not too quick: these industries are highly regulated, and therefore new enabling laws and administrative rules will be required.
  • The malpractice industry will get a complete makeover.
  • Bar Associations will reinvent themselves to accommodate the newcomers who aren’t members of the bar.
  • There will be a huge CLE bonanza around all these developments.
  • Law schools will restructure curriculums to both teach the new rules and to offer classes in legal organization structures and business management that entrepreneurial lawyers are currently getting elsewhere.
  • Litigation and legislation and administrative proceedings will abound, and the whole thing will become a massive growth industry.
  • And so on and so on and so on.

It will take at least a full generation to assimilate all these changes, but 50 years from now lawyers and their nonlawyer colleagues will wonder what all the fuss was about.

More predictions coming re: how all of these and other developments will change not just law practice but the law itself.

The Future of Law (Part 1): Beyond the Borg

Follow this link for a collection of my past three years of blog posts. It’s a FREE download!

We finished last year talking about the law profession’s cultural ethos, and how new practice models and wellness initiatives are liberating lawyers from its harmful aspects (the Legal Borg). An earlier 2014 series also looked at alternative practice models. Another considered how the law’s cultural ethos can cause stress-induced cognitive impairment and how mindfulness practice can help.

These developments may have sneaked in unnoticed, but now they’ve become the elephant in the room, and it’s time to deal with them. They’re causing a seismic shift in the profession’s ethos, and a new ethos requires a new ethic:  i.e., new standards for how to enter the profession and how to behave once you’re in it.

The ABA Journal published a piece on that very topic on New Year’s Day, entitled Does The UK Know Something We Don’t About Alternative Business Structures?  The article begins as follows:

“For two nations sharing a language and legal history, the contrast in the visions at play in the legal systems of the United States and United Kingdom is more than striking. It’s revolutionary.

“The debates in the U.S. go on: Should ethics rules blocking nonlawyer ownership of law firms be lifted? Is the current definition of unlicensed law practice harming rather than protecting clients? What about the restrictions on multidisciplinary practices?

“And those debates are by no means ending: Witness the newly created ABA Commission on the Future of Legal Services. Though ABA President William C. Hubbard does not mention ethics rule changes in the commission’s primary task of identifying the most innovative practices being used in the U.S. to deliver legal services, some of those practices have been questioned as possible ethical breaches. Meanwhile, the rules and restrictions stay in place. The situation in the United Kingdom couldn’t be more different: Such restrictions have largely been lifted, and under the Legal Services Act the creation of new ways of providing legal services—including through alternative business structures—is more than simply permitted; it is actively encouraged.”

Nonlawyer ownership of law firms, unlicensed practice, multidisciplinary practice… those are big issues. We’ll let the ABA tackle them. If you’ve been following these issues for awhile, you’ll remember the ABA did just that at their summer convention 17 years ago, and again the following year.

This blog won’t try to keep pace with the pros on that debate’s current version. We will, however, do some guessing of our own about how current trends in law practice and lawyer wellbeing might change not just lawyers and law practice, but our very stock and trade:  the law itself. A new cultural ethos in the law will do precisely that. It is already. We’re going to talk about that, and speculate about what it might look like going forward.

According to Wikipedia, futurology is an “attempt to systematically explore predictions and possibilities about the future and how they can emerge from the present.” We’re not going to be systematic here. Instead, we’ll engage in some moderately-well-informed-but-we-don’t-know-what-the-insiders-know curiosity.

Should be fun. So draw the shades and polish up your crystal ball (maybe you prefer this kind, or maybe that) and let’s take a look!