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, 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 follow up article on lawyer substance abuse, 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
I’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.