Posted on
March 8, 2012 in
I am, in case you didn't know it, interested in innovation in the practice of law. I don't believe that "because lawyers have always used yellow legal pads" is a good reason for using yellow legal pads. I went to the Trial Lawyers College, where I learned to use psychodrama in trial preparation and trial; I have studied improv, hypnosis, NLP, and various other disciplines that might be useful in trial. The next time I have some spare time, I may get my criminal-defense skunkworks going.
But I also recognize that the practice of law has evolved over millennia.
Here's my friend Don's theory of the evolution of tools:
Buy a standard 10mm combination wrench at Sears, or at Harbor Freight, or off the Snap-On truck, and it's going to be about the same length: 6.25 inches. You can get a longer 10mm wrench, but it is "long-pattern," not standard. A standard 10mm box wrench has evolved to the length it is so that you can't comfortably apply more torque than a fastener with a 10mm head can handle (around 10 ft-lbs, so 20 pounds of pressure in a small area on the palm of your hand); if you apply a long-handle wrench to a standard problem, you can easily apply more torque, and you are likely break something. (I've wanted for years to work that into a post; check it off the list).
In much the same way that tools have evolved so that their form follows their function, the practice of law has evolved.
Tim Harford wrote in Adapt: Why Success Always Starts with Failure about the conditions necessary to finding new solutions to problems. His view is an evolutionary one: that ideas are like organisms; the fittest survive. In biology, there will be many failed mutations for every successful adaptation; in society (or any human system) there will be many ideas that fail for every successful innovation. ("I have not failed. I've just found 10,000 ways that won't work.")
In order for a system or a society to adapt with new ideas, it has to generate lots new ideas, and many of those new ideas have to have space to fail.
Which brings us back to innovation in the practice of law.
What I know best is criminal law; in criminal defense there is little room for innovations to fail. If I try something radically new in the courtroom, and it flops, someone is liable to go to prison. (Nobody has to know that it was my innovation that lost the case, which creates another problem for courtroom innovation: it's difficult to measure success.)
Sometimes the old ways really are the best, and it's not immediately apparent why. Sometimes it takes years of practice with the old ways and experimentation with the new to see that the old ways really are superior. Not always, mind you—before John Ackerman started using psychodrama in trial, that invaluable tool had gone unused. But the law is a conservative profession for a reason: if a lawyer uses the wrong tool, he's liable to break something.
I suppose that there are areas of the law in which innovation has fewer risks. If you practice in one of these areas, please consider: if a failed experiment can't have serious adverse effects on your client, then you are just not that important. And if you have chosen an area of the law in which you are just not that important, your work can be offshored.
Have fun innovating, because it's just a matter of time: if your work can be offshored, it will be.
This argument assumes a relatively stable background of objects on which the standard tool kit is deployed. But that isn’t apt, because the nature of the tasks is shifting. You can’t use 1980s case management tools on 2010s terabyte discovery dumps. (For example.) In this area of practice, at least, you need something “radically new.”
As for the argument from risk, consider medicine. The risk of error there is every bit as grave. Yet no doctor is ever going to say, “I don’t use cutting-edge technologies because they build in unknown levels of risk, and anyway scalpels have worked since Hammurabi!” Sure, a failed experiment has risks. But failing to experiment has risks too.
Then again, these observations are all consistent being very cautious and conservative, so maybe it’s just a matter of emphasis.
Yes. This was a very brief gloss on the subject.
OK–I’ve joined this century and now read blogs! Yours is now on my Favorites bar. Don’t let this go to your head–I’ll still fuss at you when you deserve it, and probably when you don’t, because I’m old now and entitled to the irrationality I’ve always sported!
In medicine, a lot of the really innovative, really risky stuff is reserved for the otherwise hopeless cases–seems like that could work in criminal defense law too. But I think voir dire is a great place for the innovations we learned at TLC and those we’ve discovered elsewhere or developed on our own in pretty much any trial case and often in negotiation too (I’m using the general “our” here, not being especially creative myself, sadly).