The new legal physics
When I went to law school, I had the sense that we all pretty much knew what the role of lawyers was. This view was such an essential part of the legal landscape that we took it for granted, much as we take for granted the idea that there is such a thing as an identifiable moment in time or a persistent “identity” for any given person.
Lawyers were skilled advocates standing in the well of a court (literally, inside the bar). Lawyers were capable of looking up regulations and understanding them deeply, so that they could give advice on the details of a rule. Lawyers were counselors, framing transactions in light of the facts in the past and the legal risks involved. We were also told, my very first week in law school, that we were “off the treadmill.” We didn't know exactly what that meant, but it sounded good. We weren't going to be doing menial tasks, even while we were busy (presumably) looking things up.
At that time, the universal rules of American lawyers seemed fixed. Constant, understandable. We were going to be hardworking, we were going to follow the rules, and we were going to have an “off the treadmill” life. This Newtonian view made sense to me. Wisdom would come in time, as it had come to all of the generations before us. (Most importantly, from my perspective, I would be able to support myself. But that's not what this little post is about.)
Things have changed.
In the electronic world we now inhabit, most lawyers rarely argue before courts; anyone can look up a rule; and deals get done by the lawyers who have done exactly that type of deal before and can pull it off for the lowest price. We my be finding (like Einstein) that many of the classical assumptions we started off with don't work in a world that is very different from the one in which those assumptions were born and grew up. This is disturbing. It's just as disturbing as the notion that time depends on the observer, and the idea that each of our identities changes in light of our life experience and the influence of the minds of the people around us. But it could free us up to be different kinds of lawyers.
In Investigations, Stuart Kauffman tells the story of a squirrel who leaps from a tree to escape
a predator and is amazed to find she can fly - those ugly folds of skin
under her arms, which had led to her exclusion from the clan, turned
out to be extraordinarily useful. Here's the idea: lawyers have pre-adaptations (Kauffman calls them “exaptations”) that are very useful for the new physics of lawyering.
One exaptation lawyers have is the ability to tell stories and to
analogize using concrete real-life events. We're also a very visual
bunch, and we can see what's important from a stream of information -
we're great at patterns. Lawyers' neuroplasticity is their great
value-add - they learn how to learn. Now the key may be to be able to structure visual online planning resources of various kinds (to avoid liability, to provide inexpensive tools for avoiding disputes, to visualize risk) that embody advice without the lawyer actually having to be there in the flesh. We'll have to use our exaptations to build great planning/advice-giving platforms. This takes awareness of the new physics: the importance of peripheral vision, the role of visualization generally, and the centrality of design and algorithm.
Nothing ever goes away. Law firms aren't going to disappear in my lifetime. But it does seem to me that lawyers will have to evolve to deal with a system that is vastly different from what was in place just twenty years ago. Everyone has access to all the information, so lawyers can't charge for looking things up. They can only stay “off the treadmill” if they let go of the idea that they have some omniscient brooding right to charge for the kinds of tasks they used to do. Like newspapers, movie studios, telephone companies, and post offices, lawyers will have to adapt to the new physics of the internet.