April 20, 2015

The Future of Law (Part 14): The New Legal Experts (2)

rhodes[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 pertinent 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 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!

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.

The Future of Law (Part 13): The New Legal Experts

rhodes“All professions are conspiracies against the laity.”
George Bernard Shaw

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, acknowledging instead the 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, you either have the cognitive knack or can learn it. That mental skillset will define 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.

The Future of Law (Part 12): Commoditizing the Law, Cont’d.

rhodesIf you want to do some exploring of 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:

  • I.e., 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 versus 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 versus non-legal advice will have 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 11): Commoditizing the Law

rhodes“A lawyer’s time and advice are his stock in trade.”
Abraham Lincoln

Who’d have thought we’d see the day when Honest Abe would steer us wrong?

The other day at the gym one of the TVs ran an ad for LegalZoom’s business startup services. They’ll set up your business entity, protect your IP, handle contracts, take care of your estate planning, and generally make it possible for the smiling business owner on their website to declare, “I’m making money doing what I love” — which presumably doesn’t include visiting a lawyer.

Welcome to the commoditization of legal services, where lawyers’ time and advice aren’t what’s for sale. We’re not just talking about legal kiosks at Walmart; commoditization is happening on the high end of legal services, too. Click here for a more thorough look.

  • It’s easy to predict we’ll see much more of this.

Commoditization shifts the focus of legal consultation from the one to the many: lawyers don’t advise individual clients based on that client’s circumstances; instead, they presort legal information that is relevant most of the time and package it into immediately useable form. In his book The Future of Law, law futurist Richard Susskind calls this new kind of lawyer an “engineer of legal information”:

What, then, might the lawyer’s role be as an engineer of legal information? The main task . . . will be that of analyst—it will be for the lawyers, with their unparalleled knowledge of the legal system, to interpret and repackage the formal sources of law (legislation and case law) and articulate it in structured format suitable for implementation as part of a legal information service.

As legal service becomes a form of information service, and lawyers package their knowledge and experience as information services designed for direct consultation by non-lawyers, the work product of individual lawyers will no longer be devoted only to one case and to one client. Instead, the legal information will be reusable and for that purpose cast in a form well suited to repeated consultation.

The impact of commoditization on the law will be as follows:

  • The marketplace consensus of what is relevant for the many, as embedded in systems-based legal products, will increasingly be regarded as the law itself.

Susskind describes this new kind of law as follows:

[Commoditization] has extremely profound implications for the law. It is possible, for example, that the information which will be accessible on the global highway will guide our social, domestic, and working lives more directly than the primary sources (legislation and case law) themselves. In a sense, this legal guidance itself may come to be regarded as the law itself and not just a representation of it. This may indeed become the prime illustration of what the legal sociologist Eugen Ehrlich, earlier this century, called the “living law” — the law which actually reflects and conditions behaviour in society.

Historical notions of the attorney-client relationship recoil at commoditization, but it is all bad? Maybe not. Susskind describes one key benefit: greater access to legal advice:

The number of [users of commoditized legal information] will be vastly greater than the number of conventional clients of today; and the frequency with which these legal information services will be consulted will greatly outstrip the frequency of consultations with lawyers today. The difference will lie in the emergence and realization of the latent legal market, as innumerable situations in domestic and business life are enlightened by the law when this would or could not have happened in the past. (Emphasis in original.)

More on legal commoditization next time.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon (also available for the Kindle). A promotional free download is also available from Smashwords, Barnes & Noble, iTunes, and Scribd.

The Future of Law (Part Ten): Mindfulness Doesn’t Mean Wimpy Lawyers

rhodesMindfulness is another trend driving change in the law. Here’s DU Law professor Debra Austin’s definition from her Killing Them Softly law review article:

[M]indfulness is attention without labels, ideas, thoughts, or opinions. Mindfulness means “being fully aware of something” and paying attention to the moment, with acceptance and without judgment or resistance. It requires “emotion-introspection rather than cognitive self-reflection,” and specifically does not involve the analysis of thoughts or feelings. Mindfulness is a form of self-understanding involving self-awareness rather than thinking.

My CLE workshops don’t talk about or teach mindfulness, but they do require comparable reflection and self-awareness. Occasionally someone worries out loud that too much of this kind of thing will make you lose your edge, become less zealous as an advocate.

In other words, mindful lawyers are wimps.

I don’t know about you, but the most mindful people I know are rarely comfortable to be around. Penetrating, insightful, honest, no-nonsense, yes. Laid back and careless, no. The “mindfulness is for wimps” assessment no doubt comes from the Legal Borg, which has its own issues with fostering cognitively- or chemically-impaired lawyer brains, and never mind that there’s plenty of research and experience out there to support the notion that mindfulness provides a competitive advantage.

Judging from the strength of the mindfulness trend, this is another area in which the Legal Borg is losing its grip on the legal profession’s cultural ethos. An ABA Journal article last year announced that “Mindfulness in Law Practice is Going Mainstream.” As evidence of that, check out these resources:

Mindfulness in Law: Articles, books, websites, exercises, with categories for bar associations, law schools, the judiciary, and lawyer groups.

The Mindful Lawyer: More programs, resources, events, and articles, collected by lawyer and educator Scott Rogers, founder and director of the Institute for Mindfulness Studies, the University of Miami School of Law.

How will the mindfulness trend change the law?

  • We will see the emergence of new “best practices” that address and reverse areas of chronic dissatisfaction with the law among both lawyers and clients. For example, toxic stress and intentional destruction — both uncivil behavior toward other lawyers and self-destructive lawyer responses to stress — will simply no longer be tolerated in the legal profession or the legal marketplace.
  • In their place, mindfulness practice will foster a new kind of “thinking like a lawyer” that will create new laws and legal procedures characterized by the kinds of benefits mindfulness produces in the individuals who practice it — e.g., decisiveness, clear thinking, intolerance for “brain noise” (drama, distraction, histrionics), and an uncanny awareness of invisible factors driving behavior.
  • As the law takes on the characteristics of mindfulness practice, the result will be more self-appraising, self-guiding, and self-correcting pathways to legal end results. The result will be more efficient and satisfying legal options and outcomes.
  • A new equity system — maybe formal, certainly informal — will arise in which the process of getting to results through informed collaboration will be valued, encouraged, and enforced.

Next in our excursion into futurology, we’ll look at the increasing polarization of three divergent pathways in legal practice and the law: commoditizing, expertise, and mastery.

Kevin Rhodes’ Legal Connection blog posts for the past three years have been collected into an ebook which is currently available as a promotional free download from Smashwords, Barnes & Noble, iTunes, and Scribd, and for a nominal price from Amazon. 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 Nine): Hacking the Law

rhodesHackers used to be known by the color of their hats: black, white, and gray. There were good guys, bad guys, and in-between guys. Nowadays, hacking is the new caché in the self-improvement culture. Self-hacking is the ultimate DIY — it’s how you step up, take responsibility, get it done.

Remember DU Law professor Debra Austin from the Killing Them Softly series? Here’s her advice on neural self-hacking for stressed-out lawyers. Or check out this video on neural self hacking, Google style. And how about this conference in London last summer on The Future of Self-Hacking that asked:

What are the best methods for “hacking” improvements on ourselves? What do recent insights from science and technology have to say about self-development? What methods are likely to become more widespread in the not-too-distant future?

At that conference, an all-star group of presenters talked about:

  • Smart methods to improve our consciousness, memory, and creativity;
  • Meditation as self-engineering;
  • Diet, drugs, and supplements — impacts on fitness and performance;
  • Actions based on self-measurement (QS = quantified self);
  • Best insights into goal-setting, affirmations, etc.; and
  • Risks and opportunities in the frontier lands of DIY brain-hacking and mind-hacking.

Hacking may be enjoying a surprising new respectability in its social status, but not all quarters of the hacking culture are so benign. Hacking still has an edge where the radicals hang out, playing a sort of X Games version of the democratization of knowledge. That’s where you find WikiLeaks, open source social entrepreneurship, corporate open source and its anti-intellectual property orientation, and the rest of the voices denouncing the keeping of ANY kinds of secrets or protecting proprietary interests in them.

  • In the realm of law, these radical players will increasingly bypass conventional modes of entry into the legal profession and law practice, and will offer their own alternative solutions to perceived injustice and inequities.
  • These radical players are already changing the law, hacker-style.
  • And they will continue to do so.

Consider, for example, the swift race towards justice we see daily in online news, as surveillance footage and ubiquitous smart-phone videos capture people in the act. Or consider the kind of visceral responses we make to images captured on police body cameras. As lawyers debate about them, these technologies are already changing evidentiary standards and criminal investigative methods. It’s not hard to imagine other applications — if you need to prime the pump, Google “whistle-blowing as cultural ethos” and check out what comes up.

Hacker law is the law of outcry and outrage, fueled by an insistent impatience that flies in the face of the law’s historical emphasis on rational, language-based deliberation. Are those who practice it vigilantes? Anarchists? Underground heroes? Tomorrow’s Gandhis and MLKs? It depends on where your sympathies lie, but like it or not, the hacker ethos has invaded the law. And, as is true of all the trends we’re looking at in this series, we’ve only seen the start of it.

Kevin Rhodes’ Legal Connection blog posts for the past three years have been collected into an ebook which is currently available as a promotional free download from Smashwords, Barnes & Noble, iTunes, and Scribd, and for a nominal price from Amazon. 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 Eight): Strange Bedfellows—Commercial Law and Legal Ethics

“Misery makes strange bedfellows.”
Shakespeare, The Tempest

rhodesThis 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.

Kevin Rhodes’ Legal Connection blog posts for the past three years have been collected into an ebook which is currently available as a promotional free download from Smashwords, Barnes & Noble, iTunes, and Scribd, and for a nominal price from Amazon. 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 Seven): The Law Gets Faster, Goes Micro, and Eats at a Communal Table

rhodesHarvard professor Clayton M. Christensen coined the phrase disruptive innovation in the late ’90s.

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.

Kevin Rhodes’ Legal Connection blog posts for the past three years have been collected into an ebook which is currently available as a promotional free download from Smashwords, Barnes & Noble, iTunes, and Scribd, and for a nominal price from Amazon. 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 Six): What’s Trending?

rhodesWe’re looking at trends in the law, and wondering out loud where they might be going. Since we’ve been talking about the democratization of knowledge, we’ll let Wikipedia tell us about trend analysis:

Trend Analysis is the practice of collecting information and attempting to spot a pattern, or trend, in the information. In some fields of study, the term “trend analysis” has more formally defined meanings.

The anonymous article writers (they’re from the U.K., I’d guess, because they spell “behaviour” with a “u”) tell us that some kinds of trend spotting are all about the numbers:

In project management trend analysis is a mathematical technique that uses historical results to predict future outcome. This is achieved by tracking variances in cost and schedule performance. In this context, it is a project management quality control tool.

In statistics, trend analysis often refers to techniques for extracting an underlying pattern of behaviour in a time series which would otherwise be partly or nearly completely hidden by noise. A simple description of these techniques is trend estimation, which can be undertaken within a formal regression analysis.

We learned regression analysis in the MBA program. I used it for years in my practice. It told me our revenues were somewhat seasonal. I might have figured that out some other way…

And then there’s Investopedia’s definition of trend analysis, which is a cousin to project management. Both try to predict the future by what happened in the past — driving forward by looking in the rearview mirror. Good luck with that.

Finally, Wikipedia sort of gives up and says

Today, trend analysis often refers to the science of studying changes in social patterns, including fashion, technology and consumer behavior.

That’s more like what we’re doing in this series, although I wouldn’t call it “science.” Art on a good day; guesswork any other.

Finally, here’s a trend analysis term I’d never heard until Wikipedia told me about it: coolhunting. That sounds like those messages I get online: See what’s trending on Facebook! See what’s trending on Twitter! Usually it’s some celebrity’s off-camera or off-field drama. I always wonder if I’m supposed to care.

The point is, someone cares about all of this. And if that someone cares enough to jump into a trend, and enough other people do the same, then we’ll all need to care, because the trend just moved from outliers to early adopters to mainstream. At that point, we’re all going along for the ride, like it or not.

Trends aren’t destinations, they’re movements of human energy. As soon as people start engaging with the trend, they affect where it’s going — shaping, redirecting, resisting, thwarting, or bulldozing it through. Trends are collective; we’re not the only ones steering the ship. If we jump onboard, there’s no assurance we’ll end up anywhere we think.

In the coming installments of this series, we’ll continue to look at changes in “social patterns, including fashion, technology and consumer behavior” (well, not fashion) that are affecting the law, and make predictions about them. Think of these not as possible outcomes, but as energies. Some will accelerate in size, speed, and impact — those we’ll need to reckon with. Others will fade away — like all that momentary coolness on Facebook and Twitter. Along the way, some of us might want to dive in and see if we can shape some of these trends the way we’d like.

Kind of like the rainstorm game I used to play as a kid, damming up water pouring along the gutter.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

The Future of Law (Part Five): The Democratization of the Law (Cont’d.)

rhodesWe’ve looked at the ethos of the legal profession before. Here’s that definition again:

Ethos: the characteristic spirit of a culture, era, or community
as manifested in its beliefs and aspirations.

Democratization has its own ethos. Its characteristic spirit is a popularized impatience, a marketplace riot in which “power to the people” pushes aside the traditional gatekeepers (lawyers) of specialized knowledge (the law). We looked last time at some of the beliefs and aspirations undergirding the democratization of knowledge, and the kinds of philosophical debate they generate.

It’s one thing when lawyers take the law in directions we didn’t anticipate (like what happened when RICO and HIPAA drifted from their originally intended moorings); it’s quite another when consumers and non-lawyers do that. (HIPAA’s original intent: “to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs.” RICO’s intent: to provide for criminal and civil redress “for acts performed as part of an ongoing criminal organization.”)

The law might have seen it coming. Democratization often creates high leverage events that seem sudden — e.g., the Arab Spring — but there’s usually a backstory of chronic popular discontent stonewalled by those in power, until one day enough is enough and the trend busts through.

In the case of law, a significant component of the backstory was chronic consumer dissatisfaction. For example, clients have been unhappy with hourly billing (and other fee practices) for a long time. (Billable hours are no picnic for lawyers, either.) Or consider the well-documented client dissatisfaction with the litigation process: e.g., this 2002 article about “just how pernicious litigation is for the average non-repeat player,” or this 2008 article about the problems judges face when litigants represent themselves. The latter notes that “These trends present real and significant challenges to a legal system designed for representation by trained advocates.” That pretty well sums up democratization’s impact on the law.

This week’s prediction: the legal democratization megatrend will spawn several powerful derivative trends that will erode the ethos of the law and the legal profession, in favor of a push to outcomes unencumbered by traditional legal process. For example, we can expect:

  • A break from reliance on the sacrosanct cornerstone of precedential appellate authority in legal decision-making.
  • Non-traditional practitioners executing transactions without what we would consider adequate contractual consideration, and resolving disputes without regard to historical evidentiary strictures (who cares about — or for that matter understands — hearsay anyway?).
  • Along the way, we’ll witness the continued diminution of the economic value of the knowledge base and skillset traditionally learned in law school and developed in the early years of law practice.

There will be other derivative trends as well; each will have gentler and more extreme versions. We’ll look at some of those in coming posts. Meanwhile, the debate about who can practice law better — the experts, or the empowered people — will rage on, mostly in vain. Democratization is a juggernaut that already can’t be stopped, and — in the law anyway — it doesn’t even have a full head of steam yet.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

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

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

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

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

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

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

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

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

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

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

As wonderful as it might be that the hegemony of professionals over knowledge is lessening, there is a downside: our grasp of and respect for reliable information suffers. With the rejection of professionalism has come a widespread rejection of expertise—of the proper role in society of people who make it their life’s work to know stuff. This, I maintain, is not a positive development; but it is also not a necessary one. We can imagine a Web 2.0 with experts. We can imagine an Internet that is still egalitarian, but which is more open and welcoming to specialists. The new politics of knowledge that I advocate would place experts at the head of the table, but—unlike the old order—gives the general public a place at the table as well.

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

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

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

The Future of Law (Part Three): The Globalization of the Law

rhodesIn his book Between Two Ages: The 21st Century and the Crisis of Meaning, futurist Van Wishard introduces globalization this way:

Sir Fred Holye was an eminent British mathematician and astronomer. He made a remark in the 1940’s that was prophetic: “Once a photograph of Earth, taken from the outside, is available, a new idea as powerful as any in history will be let loose.” That photograph was taken in 1969 from the moon, and it provided a visual symbol of globalization for humanity. Globalization [is] the long-term effort to integrate the global dimensions of life into each nation’s economics, politics and culture. In my judgment, this is the most ambitious collective experiment in history.

Thus far, most of the globalization action has been along cultural and economic lines, while the law has remained mostly aloof. That will end: the law will become increasingly globalized.

Globalization is a megatrend, which one source defines as follows:

Mega trends are global, sustained and macro economic forces of development that impact business, economy, society, cultures and personal lives thereby defining our future world and its increasing pace of change.

Megatrends cut a wide swath; lesser trends derive from them and follow in their wake. Legal trends deriving from the megatrend of globalization will realign law beyond the federal and state distinctions we’re used to, adding new regional and supranational lines as in the European Union. Along the way, globalization will substantially reshape several practice areas, beginning with commercial, intellectual property, immigration, environment, natural resources, banking, and tax. In general, international law will step out of its esoteric shadows into mainstream prominence.

The implications of legal globalization are tough to get your head around. It’s useful to keep a few things in mind:

A trend is not a destination; it’s a vector, the direction and magnitude of which are rarely known at the time. Trends take us to surprising places, known only after the fact.

In the arena of law, globalization will require choice. Pop culture and technology readily cross political and geographic borders; the law will need to be deliberate about how it does so.

The law is culturally resistant to change, therefore its participation in globalization will likely be driven by national or international activating incidents or disruptive technologies that make embracing it no longer optional.

Van Wishard sees a big upside to globalization:

If it succeeds, humanity may enter an epoch of opportunity and prosperity for a greater proportion of the earth’s inhabitants than ever before.

A global civilization will be a human civilization in a far higher sense than any that has ever been before, as it will have overcome the constricting social, ethnic and national limitations of the past.

But there’s a corresponding downside:

If [globalization] fails, it could retard progress in some nations for generations.

The birth pangs of such a new consciousness will bring infinite suffering as familiar attitudes and institutions fall away.

There is no doubt that the globalization of law will see its share of both “opportunity and prosperity,” “birth pangs” and “infinite suffering.” We’re in for it, one way or another.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.