Recently, a well-known individual in the legal profession, a person who has been a driving force for positive change, decided to take at least a year off. According to her message, she isn’t just taking a year off from the battle for change, she is stepping away from the industry for a year.
Many of her reasons for doing so are excellent — family, personal time, reflection and meditation, and re-connecting with artistic and creative interests. There is, however, one thing she mentioned that I found disturbing:
I was originally motivated in my work by the idea that I could make an impact on the legal profession, educate lawyers to use technology to improve the delivery of legal services, and that I could help increase access to justice. At the core, I wanted to help people who couldn’t afford a traditional lawyer to get the help they needed. After fighting up-hill battles, winning a small handful of victories, and still seeing the pace of adoption and attitude change go at a snail’s pace, I’ve decided to stop trying, at least for awhile. I’m not helpful to anyone (lawyers or the people in our country who deserve legal assistance) when I’m in a state of cynicism and burnout.
As an isolated comment from one person, it is something we can understand and should not give undue weight. Unfortunately, it is not isolated. I hear this comment often, so often that it has become a regular part of discussions I have with people who are looking to make a change in the legal industry. If burnout is high among lawyers, then burnout among those who are fighting to improve the profession and industry is reaching epidemic levels.
Idealists Hit the Wall
The discussions I have start on a high plane. The person who approached me has an idea, has developed an interesting software package, wants to start a new business, or simply wants to improve the world where they currently work. He or she started down the path of introducing change in the legal industry, when they hit the wall.
The wall is the reaction of lawyers to any force attempting to change the status quo. Jeff Carr calls it “massive passive resistance,” but unfortunately much of the resistance isn’t passive. The resistance also isn’t isolated to one area within the industry. It starts in education, extends into law firms, and from there reaches out into all corners of the industry. It is so wide-spread and so virulent that you might think it is organized; something on the level of a campaign to right some great societal wrong.
For many lawyers, the wall is a visceral reaction to the intrusion of the modern world into their cloistered guild. Lawyers have successfully ignored wave after wave of innovation that swept through clients and society. The introduction of Frederick Winslow Taylor’s scientific method in the early 1900s, project management in the mid-1900s, and process improvement in the late 1900s did not even scratch the surface of the legal industry, though they dramatically changed how the corporate world functions.
Even the introduction of the personal computer, which some thought would revolutionize law practices, has been of only casual interest to lawyers. Wander the halls of law firms and you can find most lawyers using their computers as glorified typewriters, still religiously starting paragraphs with five spaces and adding two spaces after the period at the end of a sentence.
The Problem Really Is With Those Opposing Change
Given the massive resistance that has continued over such a long time, one might think the problem lies not with the naysayers, but with those of us who challenge them. Perhaps the problem isn’t that lawyers won’t listen; perhaps the problem lies with the message. Can it really be that 1.1 million lawyers in the U.S. are wrong and that the few of us in excess of that number are correct?
While it might be easy to think that way, it would be wrong. We have developed a substantial body of literature over the years that speaks to the many problems in the legal industry. The historical books include The American Legal Profession in Crisis, The Lawyer Bubble, The Vanishing American Lawyer, The Betrayed Profession, The Destruction of Young Lawyers, and The Lost Lawyer.
More recently we have Deborah L. Rhode’s books Lawyers as Leaders and The Trouble with Lawyers and Benjamin H. Barton’s book Glass Half Full. Add to those, the series of books from Richard Susskind on the existential risk to lawyers, including The End of Lawyers?, Tomorrow’s Lawyers, and most recently (co-written with his son Daniel Susskind) The Future of the Professions.
This body of literature, and the many blog posts, law review articles, white papers, and trade show presentations that bulk it up, does not alone suggest the change agents are right and the resistors are wrong. But, when added to the $8 billion of services corporate clients have yanked from large law firms, the decline in jobs for law graduates, the low enrollment rates at law schools, and the rise of individuals from outside the guild who are pushing aside lawyers to serve clients, it suggests there is more to the message than the mid-life angst of some malcontents.
Interesting, But Now What
So what now? We have lost, at least for a year, another colleague in the battle to reform a centuries old and creaking profession. We will be jealous of her freedom to enjoy life without the constant throbbing ache from banging her head against the wall. Reports so far indicate that 2016 will be another successful year for most of the 200 largest law firms in the U.S. This will lead to another round of articles, posts, and presentations in 2016 telling us that prognostications of doom and gloom for the legal industry were far off the mark, the sun did come out tomorrow, and that by staying the course our wise elders have once again proved that stability is best for the legal industry.
Despite out best efforts and Hadoop-ensconsed data sets, we can’t predict tomorrow. We know what we know, don’t know what we don’t know, and guess a lot about the things we know we don’t know. But this is the rub and we can’t avoid it. Technology advances every day and there is no turning back. Even if we wanted to stop or just slow it, we can’t. Somewhere in some garage, a teenager is writing the algorithms for an amazing new artificial intelligence system that will blow away what the experts are doing. He will do it not because he expects to get rich from it or even knows what it ultimately will do; he will do it because it will be absolutely the coolest thing he and his friends have ever seen. And then he will turn it loose on the world.
The moment will come when technology takes one more step and that is the step that pulls most of the work off lawyers’ desks. Ten years ago, eDiscovery wasn’t much of a thing and today lawyers get in the way of the eDiscovery technology. If lawyers continue to fight technology, continue to fight against using simple tools to get rid of all the junk they do that adds value to nothing and no one, and continue to fight against the idea that everyone should have access to justice not just the one-percenters, then change will arrive to find a legal industry composed of some multi-millionaires and lower middle-class functionaries struggling to get by. The middle will be gone replaced for better or worse by technology and the choice to work with a human will be gone.
I don’t think fighting the future is futile. I also don’t think it is our privilege to enjoy the present to the hilt and let others deal with the future. Doing so means hundreds of millions continue suffering the ills that lack of access to justice could prevent. It means anyone wanting to access the Federal courts will face a record backlog of cases and have to wait, in many cases more than three years, to get their legal problems resolved. It means that the U.S. may struggle to hold its rank of 66th out of 99 countries on access to civil justice, penalizing millions of citizens for no good reason.
So what now? Lawyers need to embrace technology. Not all lawyers need to code for the future. But learning how to use the basic technology that sits on their desks and that they carry in their pockets would be a start. They need to learn how to share space with technology. Let the technology do what it can do; and let the humans do what they can do. If the day comes when technology can do all that humans can do, you won’t be worrying about your legal practice so don’t let it worry you now.
Stop looking for clients who will pay you to work until 2 a.m. and concentrate on the clients who will pay you to leave at 6 p.m. because you did more for them at better quality and lower cost than the poor soul who stayed. Don’t ask what technology will take away from you; ask what it can do for you. General Shinseki said, “If you dislike change, you’re going to dislike irrelevance even more.” For lawyers, perhaps the saying should be, “If you dislike irrelevance, you’re going to like obsolescence even more.”