Professional Paradigms New and Old (5): Why change if we don’t have to?

Why change if we don’t have to?

Good question. I Googled it. The most hits were about the hazards of not changing your car’s oil, plus a few along the same lines about furnace filters or the water filter on the fridge. There was one about changing your underwear, and a few about lifestyle changes related to health issues. All of those are maintenance issues — mechanical, hygiene, health — which we would generally consider have to’s.

What about changing to keep up with the competitive pressures of the marketplace? There’s a lot of keep up with the Joneses thinking out there, but in my observation, making yourself afraid of what the competition might do rarely results in anything other than drama. No have to in that.

Recently, at a CLE workshop in South Carolina, a participant  asked, “Aren’t there some things we don’t need to change?” The question brought me up short, reminded me why we were investing a whole day talking about change:  we were there to enhance professionalism, help us do our work better, keep us ethical, and maybe even help us to be happy practicing law — or find the courage to get out. That’s why we needed to talk about things like law school inflicted brain damage, lawyer substance abuse, depression, anxiety, and suicide, and the value of personal happiness in supporting ethical behavior. Some things are broken and need to be fixed, and some things we do to keep our edge — both are necessary maintenance, part of our professional have to’s.

But there was a second part to my answer. Beyond those maintenance issues, I agree:  let’s not change if we don’t want to. I’m not sure it’s even possible. I do know that grudging change never seems to work.

I say that even though I think and write a lot about change — particularly the psychological and neurological dynamics of personal transformation. (You may have noticed.) If I were still in law practice, I would no doubt be incorporating the not-so-futuristic practice developments into my firm, and otherwise actively engaging with the huge paradigm shift happening in our profession.

But that’s not everybody’s choice, and I get that. They’re content to let those developments play out by the process of cultural evolution. If a day comes that threatens obsolescence beyond mere fear-mongering, it will become a shared maintenance issue, and we’ll take care of it together… but probably not before.

All that went into my answer to the question in South Carolina. Which made me ask myself once again what’s behind my own commitment to change. Bottom line is, I have a personal, real-time, vested interest in change because I’ve been on a steep personal transformation learning curve for nearly a decade — for all sorts of reasons I’ve written about in my books, my personal blog, and sometimes in this column. Thinking and writing about it is my way of being proactive about my own best interests.

More next time on why that’s relevant to this blog.

Professional Paradigms New and Old (2): You Had Me At The Creds

I met a friend for a beer last Thursday, and told him about my blog post that day about the future (actually the end) of the professions.

“I’ve got a story for you about that,” he said. “I thought now that I’m retired, I should get my affairs in order.”

I practiced estate planning, so my ears perked up. He told me about all the useful information, forms, and software he’d found online, also about the estate planning seminars he’d attended and the presenting lawyers’ “don’t try this at home” pitches. And his incredulous response to their fee quotes “for things I could do myself.”

He’s newly retired from an illustrious teaching career — an Ivy League grad, six published books, awards and accolades everywhere. He has a huge and healthy respect for the professions and professionalism. And he had more to say.

“In education, it’s gotten to the point where it’s, why even bother to go to school? It’s all available online. You can learn what you want, your own way.”

Then he paused. “But I still wouldn’t go to a surgeon who didn’t have the credentials.”

Ah, the credentials. Is that why people still go to law school, med school, get a CPA, a teaching certificate?

Yes, in part, but the world of professional credentials is changing. I talked about this in a post last March called Strange Bedfellows:  Commercial Law and Legal Ethics. Here’s an excerpt:

“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.”

In that post, I made these two predictions (among others):

  • The peer-to-peer dynamic will prevail in significant economic sectors — including the professional service sector of which the legal profession is a part.
  • The resulting consumer satisfaction data will have a curious side effect as a new kind of legal ethics watchdog.

As for the latter, I said this:

“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.”

In other words. the professional paradigm will shift — in fact, is already shifting — to include peer-to-peer review as an alternative form of professional credentialing.

True, the typical consumer still wants law school and bar admittance credentials for the legal equivalent of surgery, but for the rest, we’re seeing a major shift in consumer attitudes toward my friend’s — to the point where the consumer is more likely to buy from someone (lawyer or not, which is its own topic) who gets 20 five-star ratings for estate planning offered at a reasonable price (which my buddy gave as 10% of what the seminar lawyers were charging). They’ve got the creds the consumer wants… just a different kind.

Like it or not, it’s happening out there in the New Economy marketplace, and we’ll see more of it in our house. We’re not all the way to lawyers posting client ratings on a five-star scale yet, but one day… I’ll bet it happens. I also bet that day will come way sooner than most lawyers would care to predict.

For Bill Gates’ take on the value of a college education credentials, check out his post yesterday on LinkedIn Pulse.

And for a toe dip into the New Economy, take a look here and here.

The Legal Times They Are A Changin 4  33%

 

Check out this collection of last year’s Future of Law blog posts. It’s a FREE download. Also included is the Culture of Law series from the second half of 2015. Click this link or the cover for downloading details.

The Culture of Law (1): Peace of Mind

“The best way to predict the future is to create it.”

Dennis Gabor, Nobel Prize Winner in Physics

Since the first of the year, we’ve been talking about the future of law. We’ve seen how the practice of law is undergoing a massive paradigm shift, mostly driven by technology, entrepreneurship, and worldwide trends such as democratization and commoditization. We’ve looked at how these forces are changing law practice and lawyers, and we’ve speculated about how all this will ultimately change the law itself.

We’ve seen that the future of law isn’t out there somewhere, waiting to descend on us, but that paradigms shift if and when we embrace them, and that the new normal of the future is ours to shape and own to the extent we choose to engage with it. We can make the future happen, or we can let it happen to us. The former is challenging but rewarding; the latter is a quick trip to curmudgeon status.

I.e., we’ve seen the future, and it is us. Which is why it’s time to talk about the culture of law. The law of the future requires the law culture of the future. Culture is the context in which the future will occur. If we understand what culture is and where it comes from, we can most effectively shape both the law and its future — again, if we choose to do so.

Why would we want to? For our own peace of mind, for one thing. Quite literally. As we’ll see, culture is a brain thing. Culture takes shape in our brains, our brains then shape our minds, our minds shape our behavior, and — voilà! — culture happens. When we’re out of sync with this process, the result is disruption and dissonance in our brains. We become cognitively impaired in a profession that requires all the cognition we can give it.

Peace of mind isn’t a luxury, it’s enlightened self-interest. Cognitive wellness thrives on it. We need it to think, learn, analyze, decide, make sound judgments. We need it to be ethically competent. Successfully engaging with change instead of avoiding and resisting it brings emotional clearing and cognitive clarity, provides a still point from which to view a world apparently spinning out of control. It’s an essential trait of “supersurvivors” — something I’ll talk about in a short series later this summer.

We’ll tend to our peace of mind if we know what’s good for us, and we  usually do.

Before we go on, we need a working definition of “culture.” We’re familiar with the notion of company or firm culture. This is from Simon D’Arcy, founder of Next Level Culture:

“Think of a culture code as the DNA of an organization, carrying within it a code that defines the character and proficiency of the entire organism. Instead of physical traits, tendencies and aptitudes, it influences how people behave with each other, shaping how they work together as well as the results they produce.”

He’s speaking of organizational culture, which we find in individual firms. Expand that idea to the collective, over-arching culture of the profession within which all those individual firms operate, and now you’re at the level of culture we’re talking about in this series.

Culture on this level isn’t just for BigBox and BigLaw, and it’s not about firm outings and casual Fridays. It’s The X Factor — the difference between creating and sustaining the future we envision vs. waking up one day to just another unfulfilling status quo.

Starting next time, we’ll look at how culture is created from the inside out.

The Future of Law (21):  The Future Couldn’t Wait  

I intended this series to be over with last week’s signoff. Apparently the future couldn’t wait. Several developments came to my attention this past week that were just too good to pass up. We’ll look at a couple this week, and a couple more next week. And maybe more, and maybe longer… depending on how fast the future keeps arriving.

Part 15 of this series, Law by Algorithm, said this:

“Welcome to law by algorithm:  artificial Intelligence at work, serving up the customized law you need personally and for your work and business.”

Then it made two predictions. Here’s the first:

  • Law by algorithm will enable consumers to self-diagnose legal issues and access legal “remedies” for what ails them.

Check out this article from two days ago in Above the Law, about LawGeex  which will do exactly that:

“The fact is many people could use the help of a lawyer to review everyday documents but either lack the means or simply do not want to deal with the pain of finding a lawyer.

“One Israeli lawyer, Noory Bechor, thinks software is the solution and has raised $700K to build LawGeex, an artificial intelligence to analyze your documents against the documents in their database and flag provisions that are “not market.” So now, for no cost, ordinary people can negotiate agreements with their landlord, employer or investor just as well as a trained lawyer. The service has already generated buzz with early adopters and, after having LawGeex analyze my new apartment lease, I was ready to learn more.”

I went to the LawGeex website, where I was guaranteed my results within 24 hours, for FREE. Nothing personal, but try getting that from your local law firm.

The second prediction from Part 15 was this:

  • We’ll also see online diagnostic networks geared for legal professionals only — similar to those that already exist for physicians.

Check out Foxwordy — a private social network for lawyers, as described in this article in The National Law Review,

“[Monica Zent, Foxwordy’s founder] is an experienced entrepreneur and had already been running a successful alternative law firm practice when she founded Foxwordy. Foxwordy is a private social network that is exclusively for lawyers. Monica reminded the audience that we are, remarkably, ten years into the social media experience and all attorneys should consider a well rounded social media toolkit that includes Foxwordy, Twitter, and LinkedIn.

“However, as Monica elaborated in a post-conference interview, LinkedIn, for example, “falls short of the needs of professionals like lawyers who are in a space that is regulated; where there’s privacy, [and] professional ethics standards.” As an experienced attorney and social seller, Monica understands that lawyers’ needs are different from other professionals that use the more mainstream and very public social networks, which is why she set out to create Foxwordy.

“Foxwordy is currently available to licensed attorneys, those who are licensed but not currently practicing but regularly involved in the business of law, certified paralegals, and will eventually open up to law students. Anyone who fits the above criteria can request membership by going to the homepage, and all potential members go through a vetting process to ensure that they are a member of the legal community.

“Membership includes all the core social features such as a profile page, connecting with others, the ability to ask questions and engage anonymously, exchange referrals, and exchange other information and resources.”

I went to the Foxwordy website and signed up. I got an email back thanking me for my interest and reminding me that Foxwordy is by invitation only, that they’re looking for the best and brightest, and that they’ll let me know if my invite has been accepted.

Apparently membership does have its privileges.

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 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).