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Back to the Future! The Revenge of the Legal Futurist

So, I read Brian Tannebaum’s recent post in Above the Law entitled “R.I.P The End of the Law Futurist. Tannebaum critiques Jordan Furlong’s recent Future of Law Survival Kit as a demonstration that those advocating for change in the legal profession must face the cold reality that the profession need not look forward, need not adapt, need not look to adjust to what are arguably significant structural problems. That, instead, as Tannebaum puts it: “Those that belong in the legal profession appear to be ready [for the future].”

In short, I think Jordan’s mostly right that the future will require some serious adjustments and that Brian couldn’t be more wrong when he says that those in the profession “appear to be ready [for the future].” But before you read what I think, you should read Jordan’s post as well as Brian’s.

Now, I’m neither a thinker of Jordan’s caliber nor a lawyer of Brian’s. And, it may be just as Brian suggests: that I don’t belong in the legal profession. However, as a guy who thinks that the profession needs some serious help, here’s why I’m buying Jordan’s line and not Brian’s:

Jordan’s top five results were the following:

1)      Emotional Intelligence or EQ: Your high emotional intelligence fosters great relationships, especially with clients.

2)      Connections: Strong and productive relationships with clients in your chosen field.

3)      Moral Fibre: You’re renowned for strength of character and high levels of integrity.

4)      Legal Knowledge: Good, old-fashioned legal know-how, the black-letter kind.

5)      Innovation: A talent for and enthusiasm about improving upon current practices.

Let’s take each one in turn:

1)      Emotional Intelligence:  “Wow! If there’s one thing that I think that my lawyer does, it’s that he/she hears me. I really feel like he/she listens to me, listens to my problems, and genuinely wants to help. My lawyer is very emotionally intelligent!” Said no client ever. How many law schools teach a course in emotional intelligence? None. How many bar associations give CLE credit for training in emotional intelligence? Next to none.  How many lawyers even take the notion of emotional intelligence seriously? . . .  You get the point. I agree that EQ has absolutely nothing to do with technology but it certainly has something to do with the practice of law today and everything to do with the future of the practice of law. Lawyers of the future will have to come down from the ivory tower and actually engage with other human beings. While Brian’s practice may currently require a great deal of human interaction and while Brian may excel at it (I honestly don’t know), I’m willing to bet that it’s a pretty big blind spot for a lot of lawyers. And , despite its prevalence in other industries, no one in law schools or in bar associations seems to be doing much about.  It doesn’t sound like today’s lawyers are ready on this front.

2)      Connections: This is one where technology is incredibly relevant. But let’s step back for a moment: it’s unlikely that anything will ever entirely replace face-to-face contact.  A lawyer must be able to meet and interact with clients like a normal, emotionally present human being. See point #1 above.  That said the younger generations experience a kind of intimacy through digital media that those of us from even Generation X can’t appreciate. I’ll be honest that I’m not totally onboard with the fully digital law practice. It’s hard to say how technology will disrupt the practice of law, though it surely will. However, it is undeniable that digital media can be used to identify, cultivate, enhance and strengthen personal relationships. And, it’s also undeniable that this will be more and not less the case in the future. Think about it this way: what are the chances of a lawyer maintaining and developing relationships without a website or an email address? They might be OK but I have to say I like the chances of a lawyer with an email address and website a lot better. Do email and a website replace that lawyer’s need to meet and develop relationships in real life? No. But it is entirely possible and probably even likely that a lawyer or a law firm of the future who does not have a blog, or an active and useful Twitter feed, or who does not utilize other to-be-invented communication technologies will be at a serious disadvantage to those who have them. Again, I’ve got to back Jordan here.

3)      Moral Fibre: This is an interesting one. Here I will concede that technology is probably not the answer. But I will suggest that Brian couldn’t be more wrong that “. . . those that belong in the legal profession appear to be ready.” The train wreck that is the legal profession could not more clearly demonstrate the profession’s current total dysfunction: clients are unserved, underserved, or unhappy, young lawyers are hugely in debt and out of work, and the rate of substance abuse among older lawyers is, frankly, alarming. As a profession, can we honestly look at ourselves and say: “We appear to be ready for the future!?!?!” As the executive director of the state bar in which I live said: “We are a profession that has lost its ethos as a profession.” I’ll agree wholeheartedly with Brian that technology is probably not the answer to this future need but denying that we need to change certainly isn’t.

4)      Legal Knowledge: My response here is a combination of my responses to the two prior points. Technology won’t fix the need to develop or an actual lack of knowledge of solid black letter law. However, I do take issue with the manner in which black-letter law is being taught in law schools today. Sarah Glassmeyer just posted a great critique of the problems with legal education and the case method if you want a good quick read. Is technology the panacea to insure that all law students get properly educated? No. That said is it reasonable to apply technology, along with just some of the key adult learning principles – such as experiential learning – that have been developed over the last half a century, to legal education to make sure that students are actually learning? Absolutely. The Paper Chase just celebrated its fortieth anniversary. When I graduated from law school 5 years ago, I have to admit that my law school experience was disappointingly similar to the way law was taught in that movie. Again, I’ve got to go with a hope for change in the future over the status quo here.

5)      Innovation. Interestingly, Brian didn’t seem to mention this one. This is huge and nothing says technology like innovation. Arguably, its response average on Jordan’s survey was lower than the other four – which were much more closely clustered together – but its appearance in the top five shouldn’t be ignored. For my discussion on the need for entrepreneurship and innovation in the legal profession see my section on entrepreneurship in a recent post on Northwest Sidebar. Brian didn’t mention innovation so, absent his commentary, and my obvious biases I’ve got to go with Jordan here too.

In sum, I’m struggling to see how Jordan’s survey results suggest anything but that the profession needs to take a long hard look in the mirror and figure out what in the world went wrong. I’m not enough of a legal futurist to suggest that technology, branding, and marketing will fix everything or even the majority of things that are wrong with the legal profession. However, as a member of the profession I can say that our problems are too big to be automatically taking solutions such as technology off of the table even if one small survey suggests either that no one thinks such a solution will work or that “we think we’re fine without it, thank you very much.”

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