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 (22): The Future Couldn’t Wait II

Last week I reported a couple “the future is already here” developments, and said I would tell you a couple more this week. But one of them deserves its own post.

To set the context, this is from Law by Algorithm, earlier in this series:

Google customizes the news you see. Amazon suggests if you like this, you might like that. Your cellphone carrier, bank, and pretty much everybody else you deal with on a regular basis gives you the option to customize your own account page.

  • The new commoditized/democratized purveyors of legal products will also give this option to consumers. The days of “mylaw.com” are upon us.

Welcome to law by algorithm:  artificial Intelligence at work, serving up the customized law you need personally and for your work and business. And you don’t have to go looking for it — it will come to you automatically, based on your preference settings and past choices.

And this is from The New Legal Experts:

The world of commoditized law dispenses legal advice not by lawyers in individual consultations with clients, but instead through IT distribution channels, to a wider market of similarly situated consumers. Legal content is subsumed into the greater context in which the advice is pertinent, so that the consumer (no longer a “client”) gets comprehensive, multidisciplinary advice in one stop shopping, without the need to separately consult a lawyer and other relevant professionals.

Expert lawyers do this already, dispensing advice in the context of one-to-one client relationships. The legal experts of the future will do this on a wider scale, creating more broadly applicable IT products embedded with legal advice.

  • The creators of this new kind of legal advice will be much in demand in the new world of law.

Against this background, meet Catherine Hammack — a “new legal expert” and founder of Jurispect, whose website greets you with these slogans:  “Regulatory Intelligence For Companies” and “Real-Time Regulatory Analytics for Better Business Decisions.” Ms. Hammack began her career by being in the right place at the right time (all of the following quotes are from this National Law Review article):

“Catherine was present on two momentous occasions in U.S. financial history: as an intern at Arthur Anderson when Enron was indicted, and as a first-day associate at Bingham McCutchen the day Lehman Brothers filed for bankruptcy, and the start of the financial crisis in 2008.”

She took that experience to the epicenter of commoditization:

“Following her time at Bingham as a financial litigator, she transitioned to join Google’s Policy team, where her perspective on legal services dramatically changed.”

At Google, she learned, commoditization, multidisciplinary perspective, IT marketing and distribution channels… all the things we’ve been talking about in this series. And then she turned it all into a Law by Algorithm company.

“As Catherine elaborated in a post-conference interview: “There was a huge gap between the way law firms traditionally provide counsel and the way companies need information to make business decisions.” She was surrounded by engineers and data scientists who were analyzing vast amounts of data with cutting edge technology.  Catherine became interested in adapting these technologies for managing risk in the legal and regulatory industries.  Inspired by Google’s data-driven decision making policies, she founded Jurispect.

“Jurispect’s team of seasoned experts in engineering, data science, product management, marketing, legal and compliance collaborated to develop the latest machine learning and semantic analysis technologies. These technologies are used to aggregate information across regulatory agencies, including sources such as policy statements and enforcement actions.  Jurispect also analyzes information in relevant press releases, and coverage by both industry bodies and mainstream news.  The most time-saving aspect of Jurispect are the results that coalesce into user-friendly reports to highlight the importance and relevance of the regulatory information to their company.  Users can view this intelligence in the form of notifications, trends, and predictive analytics reports.  Jurispect makes data analytics work for legal professionals so they spend less time searching, and more time on higher level competencies.  As Catherine elaborated, “We believe that analytics are quickly becoming central to any technology solution, and the regulatory space is no exception.”

We’ll look at another new legal expert offering next time.

The Future of Law (16):  The New Law Masters

 [I wrote last week about open source law. Check out this article on that topic from The Lawyerist  that was posted the same day. Yes, the future of law is already here.]

I Googled “definition of expert” and got this: “a person who has a comprehensive and authoritative knowledge of or skill in a particular area.”

  •  We will still see legal experts in the future, but not as we currently know them.

As we saw earlier in this series, the legal experts of the future will be systems thinkers who can fashion comprehensive, multidisciplinary, mass-appeal, consumer-oriented IT products with legal solutions embedded within them. And, as we saw last time, Law by Algorithm will increasingly provide the “think like a lawyer” artificial intelligence needed to create those products.

On the other hand, in his book Tomorrow’s Lawyers, law futurist Richard Susskind anticipates the ongoing need for lawyers (using human brains, not artificial intelligence) who can fashion legal solutions beyond the “think like a lawyer” work product.

  • Those lawyers will emerge as a new class of legal masters.

Consider this quote from Ken Coleman. host of The Ken Coleman Show and author of One Question, in which Coleman captures the essence of the commoditization we’ve been talking about.

“Society seems to favor mass production from its citizens. We dress alike, behave similarly, and speak with a common vernacular. Thanks to the gifts of the digital age, anyone today can become an ‘expert.’”

In this blog interview with author Daniel Pink — bestselling author of Drive and A Whole New Mind — Coleman and Pink agree that what’s really needed is not expertise but mastery, and share some thoughts about how you get it. Further, check out this blog post on that topic from The Lean Thinker, which ends this way:

“Put another way, the ‘expert’ knows. The ‘master’ knows that there is much to learn.”

Here are this week’s predictions about the new law masters:

  • The legal masters of the future will be valued not as repositories of knowledge, but for their inquiring minds, and especially for the ability to ask important, relevant questions whose answers aren’t already embedded in commoditized legal products.
  • The new legal masters’ key proficiency will lie not in knowing the law (the job of experts), but in knowing how to develop it.
  • The new legal masters will shape the law using innovative new methods not currently part of the law landscape. (What these might be is anybody’s guess.)
  • And the law itself will reward them for this expertise, by continuing to provide plenty of gray areas and unanswered questions, commoditization notwithstanding.

In his book The End of Lawyers?, Richard Susskind notes that disruptive innovation is disruptive to lawyers, not clients. This comment suggests another role for the new legal masters:

  • They will profoundly and skillfully shape the assimilation of disruptive innovation into the law and law practice.
  • For example, they will have the sage ability to understand and guide the law and law practice when the law goes multimedia, as it inevitably will (another topic Richard Susskind takes up in The End of Lawyers?).

As for the latter, just try to imagine what the law will be like when it is detached from its Gutenberg printing press moorings in language and logic.

I can’t either.

Which is precisely why we’ll need the new legal masters to help us out.

The Future of Law (14): The New Legal Experts Cont’d.

In the spirit of the developments we’ve been considering in this series, check out these technological innovations changing trial practice.

The world of commoditized law dispenses legal advice not by lawyers in individual consultations with clients, but instead through IT distribution channels, to a wider market of similarly situated consumers. Legal content is subsumed into the greater context in which the advice is pertinent, so that the consumer (no longer a “client”) gets comprehensive, multidisciplinary advice in one stop shopping, without the need to separately consult a lawyer and other relevant professionals.

The creators of these products must be able to see the entire context in which the legal advice is needed, and then break down the legal aspects into separately implementable steps. In his book Tomorrow’s Lawyers, law futurist Richard Susskind calls this process “decomposing” the law, and provides examples of decomposing litigation and business transactions. The idea is to unbundle the law into its separately applicable components, combine the ones that have similar dynamics, and put them back together into steps that can be taken to completion after collecting relevant data.

Expert lawyers do this already, dispensing advice in the context of one-to-one client relationships. The legal experts of the future will do this on a wider scale, creating more broadly applicable IT products embedded with legal advice.

  • The creators of this new kind of legal advice will be much in demand in the new world of law.
  • The means of entry into the professional will be altered to admit them into practice.
  • As we saw last time, they will follow a career development path not encumbered by the former “training” model which in truth was driven by law firm economics.
  • To help them serve the burgeoning legal commodities market and move more quickly to expert status, legal training in law school and law practice will increasingly promote systems thinking.

As for the law itself:

  • These new experts will have a more direct and substantial impact on shaping the law.
  • They will shape it around from the end-user’s perspective.
  • As a result, the law will be reorganized into practicable modules, replacing historical knowledge/content areas such tort, contracts, real property, etc.

As the future’s expert lawyers conduct their decomposing, embedding, and reorganizing, they will need to deal with an unprecedented challenge:  the sheer bulk of the law. Technology’s speed and storage capacity have resulted in a massive proliferation in the volume and complexity of the law. Although lawyers have access to sophisticated digital repositories of all this law, they typically use analog means to assimilate it.

  • The analog processing of legal developments — i.e., by their assimilation into individual lawyer’s brains via CLE and similar means — is a holdover from the law’s analog past that will end in the future.
  • What will replace it? Law by Algorithm. We’ll look at that next time.

Do these developments signal the end of legal solutions expertly-tailored to individual client needs? The surprising answer is, not at all. In fact, just the opposite:  the law of the future will be more personally-tailored than it is now.

Further, when we agree with Wikipedia co-founder Larry Sanger that the world will still need experts for the foreseeable future, we may actually mean something beyond experts and expertise:  we may be talking instead about a new kind of legal mastery.

  • The future world of law will feature both experts and masters, and we’ll need them both.

We’ll be looking at these issues as well. Stay tuned!

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.