The Lonely Worker

lonely office

In four years, my law firm went from me and my laptop to $800,000 and climbing, and suddenly we were twelve of us in newly decked out offices complete with $100,000 in telecommunications and electronics upgrades.

Obviously we’d hit a sweet spot, and we were having fun. We laughed a lot. We ate together, visited each other’s homes. We took firm ski days and watched the Rockies at Coors Field. We had crazy non-policies like “take as much vacation as you need to come to work refreshed.” We had the coolest Christmas event ever. And we did kick-ass legal work.

But then the numbers got bigger and I got serious. An accountant said our vacation policy was unsustainable — we needed one, in a real live employee manual. I wrote one but never had the heart to show it to anyone. We sat in meetings with consultants formulating heartless strategic plans we all ignored. We had an employee retreat that was just plain weird.

The worst thing I took seriously was myself. I totally blew the lesson basketball Hall-of-Famer and Orlando Magic founder Pat William put in the title of his book Humility:  The Secret Ingredient of Success. Time and chance had favored us — I’d stumbled  into doing the right thing in the right place at the right time. Work had often been a rollicking, happy social occasion. But then I decided I must  have been responsible for it, and paved Paradise, put up a parking lot, and didn’t know what we had ‘til it was gone.

We’d been in our new offices one week. My wife and I had flown  back the day before from a cushy five-day CLE at a resort in San Diego, and I was heading out to visit our new satellite office when the phone rang. It was the associate-soon-to-be-partner  we’d put in charge. “There’s something going on you need to know about,” he said.

The date was September 11th. The second plane had just hit the second tower.

Our clients — mostly small businesses — got hammered in the mini-recession that followed. As a result, so did we. I sought advice from two Denver law firm icons. They were sympathetic — they’d done that, too — expanded too much too quickly and paid for it in a downturn. A couple other people said you have to let people go — I followed their advice and let one person go — a move I mourn to this day. That’s when I decided we’ll survive or go down, but we’re doing it together.

We limped along until January 2004, when the new leader of our major referral source called to say they were “moving in a new direction” and March 31st would be the date we were officially toast. For the next three months I wrote job recommendations, we gave people their furniture and computers, sold the rest, archived files….

When I went to the office on April 1st (April Fool’s Day), the place echoed. I’d never felt so lonely in my life. Rotten timing, victim of circumstance, happens to everyone… yeah maybe, but all I could think was I miss my friends.

We don’t usually associate loneliness with work. We ought to, says Emily Esfahani-Smith in her book The Power of Meaning:  Crafting a Life That Matters. She cites findings that 20% consider loneliness a “major source of unhappiness in their lives,” that 1/3 of Americans 45 of older say they’re lonely, and that close relationships at work are a major source of meaning. Former Surgeon General Vivek Murphy agrees and then some:

“There is good reason to be concerned about social connection in our current world. Loneliness is a growing health epidemic.

“Today, over 40% of adults in America report feeling lonely, and research suggests that the real number may well be higher.

“In the workplace, many employees — and half of CEOs — report feeling lonely in their roles.

“At work, loneliness reduces task performance, limits creativity, and impairs other aspects of executive function such as reasoning and decision making. For our health and our work, it is imperative that we address the loneliness epidemic quickly.

“And even working at an office doesn’t guarantee meaningful connections: People sit in an office full of coworkers, even in open-plan workspaces, but everyone is staring at a computer or attending task-oriented meetings where opportunities to connect on a human level are scarce.

“Happy hours, coffee breaks, and team-building exercises are designed to build connections between colleagues, but do they really help people develop deep relationships? On average, we spend more waking hours with our coworkers than we do with our families. But do they know what we really care about? Do they understand our values? Do they share in our triumphs and pains?

“These aren’t just rhetorical questions; from a biological perspective, we evolved to be social creatures. Over thousands of years, the value of social connection has become baked into our nervous system such that the absence of such a protective force creates a stress state in the body.”

Work And The Loneliness Epidemic: Reducing Isolation At Work Is Good For Business, Harvard Business Review (2017)

He offers these remedies:

  • Evaluate the current state of connections in your workplace.
  • Build understanding of high-quality relationships.
  • Make strengthening social connections a strategic priority in your organization.
  • Create opportunities to learn about your colleagues’ personal lives.

And, he might have added, you might want to rethink your stingy vacation policy.

For more, see Work Loneliness and Employee Performance, Academy of Management Proceedings (2011).

If you like this blog, you might enjoy the new Iconoclast.blog, which explores several themes that have appeared in this blog over the years, such as how belief creates culture and culture creates behavior, and why growth and change are difficult but doable. You can also follow Iconoclast.blog on Facebook,

Utopia For Realists Cont’d.

“Like humor and satire, utopias throw open the windows of the mind.”

Rutger Bregman

utopia for realistsContinuing  with Rutger Bregman’s analysis of utopian thinking that we began last week:

“Let’s first distinguish between two forms of utopian thought. The first is the most familiar, the utopia of the blueprint. Instead of abstract ideals, blueprints consist of immutable rules that tolerate no discussion.

“There is, however, another avenue of utopian thought, one that is all but forgotten. If the blueprint is a high-resolution photo, then this utopia is just a vague outline. It offers not solutions but guideposts. Instead of forcing us into a straitjacket, it inspires us to change. And it understands that, as Voltaire put it, the perfect is the enemy of the good. As one American philosopher has remarked, ‘any serious utopian thinker will be made uncomfortable by the very idea of the blueprint.’

“It was in this spirit that the British philosopher Thomas More literally wrote the book on utopia (and coined the term). More understood that utopia is dangerous when taken too seriously. ‘One needs to be believe passionately and also be able to see the absurdity of one’s own beliefs and laugh at them,’ observes philosopher and leading utopia expert Lyman Tower Sargent. Like humor and satire, utopias throw open the windows of the mind. And that’s vital. As people and societies get progressively older they become accustomed to the status quo, in which liberty can become a prison, and the truth can become lies. The modern creed — or worse, the belief that there’s nothing left to believe in — makes us blind to the shortsightedness and injustice that still surround us every day.”

Thus the lines are drawn between utopian blueprints grounded in dogma vs. utopian ideals arising from sympathy and compassion. Both begin with good intentions, but the pull of entropy is stronger with the former — at least, so says Rutger Bregman, and he’s got good company in Sir Thomas More and others. Blueprints require compliance, and its purveyors are zealously ready to enforce it. Ideals on the other hand inspire creativity, and creativity requires acting in the face of uncertainty, living with imperfection, responding with resourcefulness and resilience when best intentions don’t play out, and a lot of just plain showing up and grinding it out. I have a personal bias for coloring outside the lines, but I must confess that my own attempts to promote utopian workplace ideals have given me pause.

For years, I led interactive workshops designed to help people creatively engage with their big ideas about work and wellbeing — variously tailored for CLE ethics credits or for general audiences. I realized recently that, reduced to their essence, they employed the kinds of ideals advocated by beatnik-era philosopher and metaphysicist Alan Watts. (We met him several months ago — he’s the “What would you do if money were no object?” guy. )

alan watts cartoon

The workshops generated hundreds of heartwarming “this was life-changing” testimonies, but I could never quite get over this nagging feeling that the participants mostly hadn’t achieved escape velocity, and come next Monday they would be back to the despair of “But everybody knows you can’t earn any money that way.”

I especially wondered about the lawyers, for whom “I hate my job but love my paycheck” was a recurrent theme. The Post WWII neoliberal economic tide floated the legal profession’s boat, too, but prosperity has done little for lawyer happiness and well-being. True, we’re seeing substantial quality-of-life change in the profession recently (which I’ve blogged about in the past), but most have been around the edges, while overall lawyers’ workplace reality remains a bulwark of what one writer calls the “over-culture” — the overweening force of culturally-accepted norms about how things are and should be — and the legal over-culture has stepped in line with the worldwide workplace trend of favoring wealth over a sense of meaning and value.

Alan Watts’ ideals were widely adopted by the burgeoning self-help industry, which also rode the neoliberal tide to prosperous heights. Self-help tends to be long on inspiration and short on grinding, and sustainable creative change requires large doses of both. I served up both in the workshops, but still wonder if they were just too… well, um…beatnik … for the law profession. I’ll never know — the guy who promoted the workshops retired, and I quit doing them. If nothing else, writing this series has opened my eyes to how closely law practice mirrors worldwide economic and workplace dynamics.  We’ll look more at that in the coming weeks.

The Anti-Motivation Strategy (Part 4):  Why You Should Never Hire a Motivated Lawyer

aw schools and law firms kill brain cells, impairing the highly-motivated high achievers who populate them from doing what they’re required to do, which is to think clearly and make sound judgments, and in the meantime banishing law students and lawyers to unhappiness and maybe an early grave.

Employee-Motivation resized

Why not? Because there’s a good chance that motivated lawyer is cognitively impaired.

In a series in Fall 2014, I looked in depth at the research of University of Denver law professor Debra S. Austin, J.D., Ph.D., and her seminal law review article Killing Them Softly:  Neuroscience Reveals How Brain Cells Die From Law School Stress And How Neural Self-Hacking Can Optimize Cognitive Performance. Prof. Austin’s research findings line up with the Mayo Clinic’s analysis we looked at last time:

“Neuroscience shows that the aggregate educative effects of training to become a lawyer under chronically stressful conditions may undermine the efforts of legal educators by weakening the learning capacities of law students. Stress in legal education may also set the stage for abnormally high rates of anxiety and depression among lawyers.

“The stresses facing law students and lawyers result in a significant decline in their well-being, including anxiety, panic attacks, depression, substance abuse, and suicide. Neuroscience now shows that this level of stress also diminishes cognitive capacity. The intricate workings of the brain, the ways in which memories become part of a lawyer’s body of knowledge, and the impact of emotion on this process indicate that stress can weaken or kill brain cells needed for cognition.

“When stress persists for a few hours or days, a law student may experience a bad mood. Longer-term stress can cause stress-related disorders such as panic attacks, anxiety, or depression; the physical effects include increased blood pressure, heart palpitations, breathlessness, dizziness, irritability, chest pain, abdominal discomfort, sweating, chills, or increased muscle tension.

“Long-term elevated levels of glucocorticoids resulting from chronic stress have been associated with the following physical conditions:

  • Impaired immune response;
  • Increased appetite and food cravings;
  • Increased body fat;
  • Increased symptoms of PMS and menopause;
  • Decreased muscle mass;
  • Decreased bone density; and
  • Decreased libido.

“Chronic stress also produces the following emotional conditions:

  • Increased mood swings, irritability, and anger;
  • Increased anxiety; and
  • Increased depression.

“The impact of stress on law student cognition includes deterioration in memory, concentration, problem-solving, math performance, and language processing. Curiosity is dampened, and creativity is diminished.”

In other words, law schools and law firms kill brain cells, impairing the highly-motivated high achievers who populate them from doing what they’re required to do, which is to think clearly and make sound judgments, and in the meantime banishing law students and lawyers to unhappiness and maybe an early grave.

Law schools and law firms don’t have to disclose all that.
Maybe they should.

ivy league admissions tours

Time For an Anti-Motivation Strategy

By now the flaw in the typical motivation strategy is evident:  motivation becomes its own loop, circles back on itself, becomes its own focus, its own end game. We’re no longer practicing motivation with a performance goal in mind, we’re practicing it for its own sake. Motivation becomes a short-term, stressful preoccupation that hampers sustainable long-term performance. In the meantime, we become tentative, uncertain, indecisive, and unfocused, which means our performance becomes tenuous, weak, and unreliable.

There’s got to be a better way. There is, and we’ll look at it, starting next time.

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

Legal Times banner (2)

(The following is taken from the Preface to a just-published collection of my blog posts from the past year. This is the second of a two-part miniseries.)

The Culture of Law

Having followed new practice models and technologies all the way to a new role for the law in human culture, I stumbled across one more stunning realization:  In order for the legal entrepreneurial practice models and technologies to sustain themselves within a context still recognizable as what we consider to be the legal profession today, a new law culture would need to arise with them. Without a new law culture, the new law would be patched onto the old version of the legal profession and the garment would tear, leaving what was left of the profession to degenerate into non-visionary squabbling over issues like non-lawyer ownership of legal services and multi-jurisdictional legal entities. The big picture would be lost in a myopic preoccupation with making new developments fit existing paradigms. Meanwhile the larger legal paradigm would keep shifting, resulting in a haphazard and messy arrival.

That realization led to a follow up series on The Culture of Law, which occupied the second half of 2015. Following Prof. Austin’s lead and my personal interest in neuroscience, I examined how culture is formed from the inside out — beginning literally with how lawyers’ brains are re-wired in law school and entry into legal practice. Among other things, I learned that culture is formed and changed in individual brains, and is transmitted from one brain to another until the Tipping Point is reached and the collective brains of the culture find themselves wondering how it is that the old culture seems so entirely gone and the new one so entirely present. When that day comes, the New Normal will be the only normal some people in the law culture have ever known. Pause for a moment and try to get your head around what that would be like, if that were true of you.

Why this collection?

Dylan album for book coverYou noticed, of course, that its cover and title mimic Bob Dylan’s seminal 60’s album and its anthem “The Times They Are A-Changin’.” Referencing Dylan and the 60’s is not a me-too grab for social revolutionary status, it’s a recognition of the social revolution that is already upon us. Something much, much bigger than new practice technologies and non-lawyer ownership of legal service providers is shaking underfoot. The practice models and cultural dynamics that make up the legal profession’s status quo today simply will not be with us in 50 years. Some won’t be here in 20, maybe not in 5 or 10. Some are gone already. As they disappear — one by one, and in batches — a new world of law will emerge to replace them. And when it does, the law’s role in human society — and thus human society itself — will have changed with it. All of that will happen though a process that is evolutionary, inevitable, and already well underway — begun, literally, in the re-wiring of law student and lawyer brains.

And yet…

In the midst of all of this seismic change, there is yet one essential element waiting to fully play its hand:  us — that is, those of us who inhabit the legal profession, who consider it an essential milieu of our work and our lives, and who care enough to lend a hand in creating its new future and culture, which wait for our participation to bring them fully into existence. The question is not whether the new future and culture of law will arrive, it is whether we’ll lend a hand in bringing it about.

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

Suddenly Dylan’s lyric has new relevance:

“Your old road is rapidly fading/
Please get out of the new one if you can’t lend your hand.”

The lyric is both a challenge and an invitation, which brings us back to that question about the legal profession’s curious indifference to its own welfare. As it turns out, our neurological wiring has such an innate allegiance to status quo — even to our own detriment — that most of us simply won’t get the invitation, or won’t open it if we do. But for those who do, and who choose to engage with the massive professional and societal developments already underway, change will become not merely evolutionary, but revolutionary. For them, the times will become a once-in-forever passion and opportunity.

Revolutions spawned in changing times require extraordinary visionary courage, expressed ultimately not merely in ideas but in action. Which is why both the Future of Law and Culture of Law blog series ended the same way, with the same insight:  “The best way to predict the future is to create it.” And why both offer us the same choice:

Will we rise to the challenge and create the future of law
and a new culture of law to support it?

Or will we simply hunker down and go along for the ride,
letting the unpredictable forces of cultural evolution handle it for us,
at the risk of ending up somewhere we never intended to go?

I would be delighted if this collection helps us to frame our response.

(The quote “The best way to predict the future is to create it” has been ascribed to a lot of different people, including Peter Drucker and Alan Kay. But according to the Quote Investigator, it appeared first in 1963 in the book Inventing the Future by Dennis Gabor, who was later awarded a Nobel Prize in Physics for his work in holography.)

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

Legal Times banner (2)

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 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 (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 (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 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!