The Legal Times They Are A-Changin’ (Part Two)

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(The following is taken from the Preface to a just-published collection of my blog posts from the past year. This is the second of a two-part miniseries.)

The Culture of Law

Having followed new practice models and technologies all the way to a new role for the law in human culture, I stumbled across one more stunning realization:  In order for the legal entrepreneurial practice models and technologies to sustain themselves within a context still recognizable as what we consider to be the legal profession today, a new law culture would need to arise with them. Without a new law culture, the new law would be patched onto the old version of the legal profession and the garment would tear, leaving what was left of the profession to degenerate into non-visionary squabbling over issues like non-lawyer ownership of legal services and multi-jurisdictional legal entities. The big picture would be lost in a myopic preoccupation with making new developments fit existing paradigms. Meanwhile the larger legal paradigm would keep shifting, resulting in a haphazard and messy arrival.

That realization led to a follow up series on The Culture of Law, which occupied the second half of 2015. Following Prof. Austin’s lead and my personal interest in neuroscience, I examined how culture is formed from the inside out — beginning literally with how lawyers’ brains are re-wired in law school and entry into legal practice. Among other things, I learned that culture is formed and changed in individual brains, and is transmitted from one brain to another until the Tipping Point is reached and the collective brains of the culture find themselves wondering how it is that the old culture seems so entirely gone and the new one so entirely present. When that day comes, the New Normal will be the only normal some people in the law culture have ever known. Pause for a moment and try to get your head around what that would be like, if that were true of you.

Why this collection?

Dylan album for book coverYou noticed, of course, that its cover and title mimic Bob Dylan’s seminal 60’s album and its anthem “The Times They Are A-Changin’.” Referencing Dylan and the 60’s is not a me-too grab for social revolutionary status, it’s a recognition of the social revolution that is already upon us. Something much, much bigger than new practice technologies and non-lawyer ownership of legal service providers is shaking underfoot. The practice models and cultural dynamics that make up the legal profession’s status quo today simply will not be with us in 50 years. Some won’t be here in 20, maybe not in 5 or 10. Some are gone already. As they disappear — one by one, and in batches — a new world of law will emerge to replace them. And when it does, the law’s role in human society — and thus human society itself — will have changed with it. All of that will happen though a process that is evolutionary, inevitable, and already well underway — begun, literally, in the re-wiring of law student and lawyer brains.

And yet…

In the midst of all of this seismic change, there is yet one essential element waiting to fully play its hand:  us — that is, those of us who inhabit the legal profession, who consider it an essential milieu of our work and our lives, and who care enough to lend a hand in creating its new future and culture, which wait for our participation to bring them fully into existence. The question is not whether the new future and culture of law will arrive, it is whether we’ll lend a hand in bringing it about.

“The best way to predict the future is to create it.”

Suddenly Dylan’s lyric has new relevance:

“Your old road is rapidly fading/
Please get out of the new one if you can’t lend your hand.”

The lyric is both a challenge and an invitation, which brings us back to that question about the legal profession’s curious indifference to its own welfare. As it turns out, our neurological wiring has such an innate allegiance to status quo — even to our own detriment — that most of us simply won’t get the invitation, or won’t open it if we do. But for those who do, and who choose to engage with the massive professional and societal developments already underway, change will become not merely evolutionary, but revolutionary. For them, the times will become a once-in-forever passion and opportunity.

Revolutions spawned in changing times require extraordinary visionary courage, expressed ultimately not merely in ideas but in action. Which is why both the Future of Law and Culture of Law blog series ended the same way, with the same insight:  “The best way to predict the future is to create it.” And why both offer us the same choice:

Will we rise to the challenge and create the future of law
and a new culture of law to support it?

Or will we simply hunker down and go along for the ride,
letting the unpredictable forces of cultural evolution handle it for us,
at the risk of ending up somewhere we never intended to go?

I would be delighted if this collection helps us to frame our response.

(The quote “The best way to predict the future is to create it” has been ascribed to a lot of different people, including Peter Drucker and Alan Kay. But according to the Quote Investigator, it appeared first in 1963 in the book Inventing the Future by Dennis Gabor, who was later awarded a Nobel Prize in Physics for his work in holography.)

The Legal Times They Are A Changin 4 33%The Legal Times They Are A-Changin’ is the second collection of Kevin’s blog posts focuses on the future and culture of law, including insights on technology, innovation, neuro-culture, and entrepreneurship. Extensively researched, visionary, and written in a crisp, conversational style by a man on a mission to bring wellbeing to the people who learn, teach, and practice the law.

The Culture of Law (17):  Culture and Meaning

Iain McGilchrist has guided our consideration of brain-based culture. Let’s hear from him one last time:

“Despite the brittle optimism constantly proclaimed by advertising, and not infrequently by government spokesmen, the defining mood of the modern era is one of disappointment. That is not just my opinion; it’s as near a fact as such things can be. People are measurably less happy today than they were fifty years ago, when we first started measuring, despite staggering improvements in material well-being. There is much to feel proud of, of course, advances in conquering disease being just one example, and we live longer — but prompting the question, for what?” From The Divided Brain And The Search For Meaning

“For what?” is a question about meaning. According to McGilchrist, how we answer depends which side of the brain prevails. If the left side, we will focus on being reasonable and rational, on working out utilitarian solutions. If the right, we’ll broaden the discussion to the pursuit of meaning, which has much to do with our own happiness.

Of course, we could avoid the cultural debate altogether, and let cultural evolution take care of it, meanwhile continuing to embrace without examination the cultural norms that make law culture “recognizable as such to both members and non-members” — including behaviors they label alternately as “admirable” and “distasteful.

We could be sedated into thoughtlessness and soullessness by the “staggering improvements in material well-being” our professional offers us in our show me the money moments. Or we could take a contrarian monetary outlook, and embrace the don’t show me the money alternative.

We could argue and debate, and feel righteous about the positions we take, even though what we’re actually doing is defending our neuro-cultural status quo for the sake of our own neurological peace of mind.  Or we could argue “on the other hand” and advocate hacking (in either its outlaw or gentrified character) the law into something more suited to our preferred cultural imperative.

In other words, we could act like lawyers, working one side of the table, then the other. Nothing wrong with lawyers acting like lawyers, especially in matters of the law. But on the topic of law culture, we might want to broaden our inquiry, and entertain the “for what?” question from the fullness of what it means for us to be human, lawyers or not. To make that choice is to end detachment and instead engage ourselves with the meta-issues of our profession. As McGilchrist declares in his wrap up:

“Meaning emerges from engagement with the world
not from abstract contemplation of it.”

The stakes of engagement are higher, and the effort required of us more demanding, than the stakes and effort of detachment. Ultimately what’s at issue is not merely the future context in which law will be practiced by those in the profession — including the entrepreneurial newcomers — or how the profession will be regarded by the public it serves, but the happiness of us all.

We will find meaning in the law for ourselves by creating it through the neuro-cultural collective agreements we wish the other members of the culture to reciprocate. And once those agreements have found their places in our neural pathways, they will go on shaping our culture and us with it, creating meaning in our lives which we will demonstrate through our behavior as lawyers until we become “recognizable  as such to both members and non-members” in our newly re-created profession.

Cultural evolution can’t and won’t give us our future of choice. We can only give that to ourselves by deliberate, focused action which may at times clash with the traditions of our cultural genetic coding.

Engaging with shaping the culture of law will lead us into the search for meaning… if we dare.

Those who dare will make brave choices and commitments, and they and those closest to them will invariably suffer as we and our law culture are neurologically re-shaped. All the while, we will continue to  try cases, negotiate and close transactions, and do all the other things our profession requires all day (and all night) long, but ultimately, we won’t do better for ourselves or others than to create meaning in our law culture, beginning with the meaning we create inside our own skins and skulls.

Those who dare will shape law culture for themselves, their colleagues, and ultimately the world that needs the law to be a living, dynamic, in-spirited agency of human happiness.

Not a bad notion to keep in mind as the holidays are upon us.

The Culture of Law (16):  Hacking the Law (Redux)

If we’re either unwilling to either let Iain McGilchrist’s culture predictions come to pass without a tussle or wait for whatever unpredictable developments cultural evolution might serve up, we need to get proactive. We might try hacking the law and its culture.

“Hacking” has become the new shorthand for initiative, self- improvement, DIY, entrepreneurialism. Take a moment and Google “hacking for better ______.” Fill in the blank however you like:  home, health, money, relationships, law, religion… and you’ll be amazed (at least, I was) at the hits you’ll get. I mean, What Would Jesus Hack in The Economist?! Or how about this Harvard “Hackathon,” staged to solve a problem that has long perplexed (and probably depressed) scholars:

“Legal scholars can spend years or decades researching a topic, then publish an article in the most prominent law reviews and academic journals, only to find the work never reaches public consciousness. In the past the only way to remedy that situation was to get a mainstream news outlet to write about your research…. Now there’s a second option—get computer programmers to build an app based on your work.”

The radical fringe element of the hacking world is still out there:  you find it in the online “hacktivist” collective Anonymous; it’s probably also responsible for the “Die Hipster Scum!” t-shirt I saw the other day. But mostly, hacking has gone mainstream. In fact, it’s been gentrified — so says a brilliant analysis recently featured in online Aeon MagazineHow Yuppies Hacked the Original Hacker Ethos, by radical financial thinker Brett Scott. The whole article is worth a read, but here’s a taste:

“Unlike the open uprising of the liberation leader, the hacker impulse expresses itself via a constellation of minor acts of insurrection, often undertaken by individuals, creatively disguised to deprive authorities of the opportunity to retaliate.

“It’s a trickster spirit, subversive and hard to pin down.

“Gentrification is the process by which nebulous threats are pacified and alchemised into money. A raw form – a rough neighbourhood, indigenous ritual or edgy behaviour such as parkour (or free running) – gets stripped of its otherness and repackaged to suit mainstream sensibilities.

“We are currently witnessing the gentrification of hacker culture. The countercultural trickster has been pressed into the service of the preppy tech entrepreneur class.

“Silicon Valley has come to host, on the one hand, a large number of highly educated tech-savvy people who loosely perceive themselves as rebels set against existing modes of doing business.

“Thus the emergent tech industry’s definition of ‘hacking’ as quirky-but-edgy innovation by optimistic entrepreneurs with a love of getting things done. Nothing sinister about it: it’s just on-the-fly problem-solving for profit.

We need to confront an irony here. Gentrification is a pacification process that takes the wild and puts it in frames. I believe that hacking is the reverse of that, taking the ordered rules of systems and making them fluid and wild again. The gentrification of hacking is… well, perhaps a perfect hack.”

True, the gentrified version of hacking takes the subversive, outlaw edge off, which gives change agents a voice in even the stodgiest forums — including the law. But sometimes we need that edge, and would miss it if it were to vanish altogether.

The Aeon article ends with “Go home, yuppies.”

“Die, Hipster Scum.”

Same dif.

For a fascinating anthropological study of Anonymous, check out Hacker, Hoaxer, Whistle-Blower, Spy:  The Many Faces of Anonymous. And, just for the fun of it, compare the cultural dynamics you see there to a vastly different kind of culture in another anthropological study, When God Talks Back:  Understanding the American Evangelical Relationship With God. Trust me, put those two side by side, and you’ll never think about culture the same ever again.

And speaking of the gentrification of a radical culture, there may not be a more extreme example (hackers aside) than the gentrification of the annual ultra-bizarre cultural experiment know as Burning Man.

We looked at the subversive hacker culture e as an agent of change in the law a couple times in the Future of Law series earlier this year, along with related topics such as the democratization of the law and open source/access. Both the Future and Culture of Law series will be collected in a new book, The Law It Is A-Changin’, to be out in early 2016.

The Culture of Law (15):  An Antidote for a Left-Brain Dominated World

The last of Iain McGilchrist’s predictions:

“We would expect there to be a resentment of, and a deliberate undercutting of the sense of awe and wonder.

“It would become hard to discern value or meaning in life at all; a sense of novelty and boredom before life would be likely to lead to a craving for novelty and stimulation.

“There would be a … downgrading of non-verbal, non-explicit communication. Concomitant with this would be a rise in explicitness, backed up by ever increasing legislation.…

“Visual art would lack a sense of depth, and distorted or bizarre perspectives would become the norm.

“Music would be reduced to little more than rhythm.

“Technical language, or the language of bureaucratic systems, devoid of any richness of meaning, and suggesting a mechanistic world, would increasingly be applied across the board, and might even seem unremarkable when applied to descriptions of the human world, and human beings, even the human mind itself.”

And then, after all this, McGilchrist makes one last, entirely understated observation:

“This is what the world would look like [under left-brained dominance]. It’s hard to resist the conclusion that [this outcome] is within sight.”

Lawyer brains are trained to argue both sides of an issue, and to be dispassionate about it. We can regard McGilchrist’s analysis and predictions that way, but I have to say that, now that I know about brain-based culture as I’ve been describing it in this Culture of Law series, I personally find them chilling — mostly because I wrote a whole blog series on the Future of Law earlier this year which revealed them already playing out at a runaway pace.

McGilchrist published his predictions eight years ago, but spent twenty years researching them before he did so. I hadn’t read them before I wrote the Future of Law series. Now that I have, I see them reflected over and over in that series, in concepts such as the commoditization of the law, the new legal experts, law by algorithm, the focus on task- and systems-oriented expertise. the unmanageable (except by technology) proliferation of law “data,” the predominance of technology as a change agent, the acceptance of technical language as normative, the proliferation of bureaucracy and its endless rules and regulations… and so on and so on.

It seems lawyers, the legal profession, and most importantly the law itself stand to lose a significant “richness of meaning” if these trends are not accompanied with thoughtful reflection on what professionalism means in today’s New Economy. (I wanted to include a link to that term here, but I Googled “new economy” and ended up frozen by the extent of the results;  none rose above the others as fully representative. I therefore invite you to make your own search.)

The future is not a given. The best way to predict the future is still to create it. And the best way to create it is to deliberately, consciously create a newly responsive and sustainable law culture based on thoughtful, whole-brained, human guidance.

Creating the future of law by recreating its culture will require a daring new kind of leadership that will appear at first to be subversive in nature. It has to be that way, because in the absence of subversion, the brain (where culture originates) simply will not depart from its default evolutionary path or risk undermining the cultural vision it already holds as status quo.

We’ll look more at subversive change next time.

The Culture of Law (14): Where Culture is Trending Cont’d.

Continuing with Iain McGilchrist’s predictions about current cultural trends that we began last time:

“The world as a whole would become more virtualized, and our experience of it would be increasingly through meta-representations of one kind or another; fewer people would find themselves doing work involving contact with the real, “lived” world, rather than with plans, strategies, paperwork, management and bureaucratic procedures. In fact, more and more work would come to be overtaken by the meta-process of documenting or justifying what one was doing or supposed to be doing — at the expense of the real job in the living world.

“Technology would flourish…, but it would be accompanied by a vast expansion of bureaucracy, systems of abstraction and control.

“[C]onsiderations of quantity might come actually to replace considerations of quality altogether, and without the majority of people being aware that anything had happened.

“[C]onsciousness changes its nature in work geared to technological production… which means the development of a system that permits things to be reproduced endlessly, and enforces submergence of the individual in a large organization or production line; “measurability,” in other words the insistence on quantification not qualification; “componentiality,” that is to say reality reduced to self-contained units, so that everything is analyzable into constituent components, and everything can be taken apart and put together again in terms of these components….

“The impersonal would come to replace the  personal. There would be a focus on material things at the expense of the living.

“[I]individualities would be ironed out and identification would be by categories:  socioeconomic groups, races, sexes, and so on, which would also feel themselves to be implicitly or explicitly in competition with, and resentful of, on another. Paranoia and lack of trust would come to be the pervading stance within society both between individuals and such groups, and would be the stance of government towards its people.

“Panoptical control would become an end in itself, and constant CCTV monitoring, interception of private information and communication, the norm.

“Measures such as a DNA database would be introduced.

“[P]eople of all kinds would attach an unusual importance to being in control. Accidents and illnesses, since they are beyond our control, would therefore be particularly threatening and would, where possible, be blamed on others.

“According to the left hemisphere view, death is the ultimate challenge to its sense of control, and, on the contrary robs life of meaning. It would therefore have to become a taboo, while, at the same time sex, the power of which the right hemisphere realizes is based on the implicit, would become explicit and omnipresent.

“There would be a preoccupation, which might even reach to be an obsession, with certainty and security.

“There would be a complete failure of common sense, since it is intuitive and relies on both [brain] hemispheres working together.

“Anger and aggressive behavior would become more evident in our social interactions.

“One would expect a loss of insight, coupled with an unwillingness to take responsibility, and this would reinforce the left hemisphere’s tendency to a perhaps dangerously unwarranted optimism..

“We could expect a rise in the determination to carry out procedures by rote, and perhaps an increasing efficiency at doing so, without this necessarily being accompanied by an understanding of what they mean.”

More next time, plus commentary and wrap-up.

The Culture of Law (13):  Where Culture is Trending

It takes something powerful — like an epiphany — for us to break from prevailing cultural norms — even the ones we know are harming us. Or who knows, maybe we’ll get scared into it. We’re just past Halloween:  let’s look at some scary stuff, from a guy who’s scary smart.

Iain McGilchrist makes his living thinking big thoughts. He lives on the Isle of Skye, off the western coast of Scotland. It’s one of the places I visited just before my first professional show me the money moment. If you can’t have epiphanies on Skye, you’re not trying.

His website introduces him this way:

“[McGilchrist] is committed to the idea that the mind and brain can be understood only by seeing them in the broadest possible context, that of the whole of our physical and spiritual existence, and of the wider human culture in which they arise — the culture which helps to mould [no, that’s not a typo, his website is British], and in turn be moulded by, our minds and brains.”

In other words, he’s a brain-based culture guru. His magnum opus is The Master and His Emissary, in which he reinterprets the major periods of history from the point of view of what was going on in the human brain during those times. In the closing chapter, he speculates about where the current state of culture is trending, given its left-brained dominance.

His predictions are particularly relevant to left-brain dominated law culture, but besides that, they’re just plain fascinating. For the next couple weeks, we’re going to sit back and let some excerpts from his predictions scroll down the screen. When that’s done, we’ll regroup and talk about what they mean to law culture.

“Let us try to imagine what the world would look like if the left hemisphere became so far dominant that, at the phenomenological level, it managed more or less to suppress the right hemisphere’s world altogether. What would that be like?

“We could expect, for a start, that there would be a loss of the broader picture, and a substitution of a more narrowly focused, restricted, but detailed, view of the world.

“The broader picture would in any case be disregarded, because it would lack the appearance of clarity and certainty which the left hemisphere craves.

“In general, the “bits” of anything, the parts into which it could be disassembled, would come to seem more important, more likely to lead to knowledge and understanding.

“Ever more narrowly focused attention would lead to an increasing specialization and technicalising of knowledge. This in turn would promote the substitution of information, and information gathering, for knowledge, which comes through experience. Knowledge, in its turn, would seem more “real” that what one might call wisdom, which would seem too nebulous, something never to be grasped.

“Knowledge that came through experience, and the practical acquisition of embodied skill, would become suspect, appearing either a threat or simply incomprehensible.

“The concepts of skill and judgment, once considered the summit of human achievement, but which come more slowly and silently with the business of living, would be discarded in favor of quantifiable and repeatable processes.

“Expertise, which is what actually makes an expert…, would be replaced by “expert” knowledge that would have in fact to be based on theory, and in general one would expect a tendency increasingly to replace the concrete with the theoretical or abstract, which would come to seem more convincing.”

More next time.

The Culture of Law (12): To Epiphany or Not to Epiphany

That is the question, and not easy to answer.

A couple installments back, we looked at lawyers whose personal epiphanies led them to break from the profession’s “show me the money” culture .

Epiphanies find us in our ruts, grab us under the armpits, and yank us out. The view from up top is exhilarating at first, but epiphanies fade quickly without new thoughts, beliefs, and behaviors to sustain them. To get all that, we need new brain wiring, which doesn’t come easily. Plus, once we’re out of our professional rut, we’re out of our other ruts, too, which means that our need for new neurons and neural pathways spills over to our relationships with family, friends, employees, co-workers… all the people most invested in the cultural status quo we intend to change.

In her book Stitches:  A Handbook on Meaning, Hope, and Repair, Anne Lamott writes in her funny-but-so-honest-it-hurts style about the effect our epiphanies have on those close to us, especially when we come from a high achievement family culture.

“The grown-ups we trusted did not share the news that life was going to include deep isolation, or that the culture’s fixation on achievement would be spiritually crippling to those of more gentle character. No one mentioned the peace that was possible in surrender to a power greater than oneself, unless it was to an older sibling, when resistance was futile anyway. Teachers forgot to mention that we could be filled only by the truth that suffuses our heart, presence, humanity. So a lot of us raced around the rat exercise wheel, to get good grades and positions, to get into the best colleges and companies, and to keep our weight down.

“Most of us have done fairly well in our live. We learned how to run on that one wheel, but now we want a refund.

“Most people in most families aren’t going to feel, “Oh, great, Jack has embarked on a search for meaning. And he’s writing a family memoir! How great.” To the world, Jack has figured out the correct meaning. He’s got a mate, a house, a job, children. He’s got real stuff that he should fully attend to. At best, his seeking his own truth is very nice, but it’s beside the point. At worst, one would worry that he was beginning to resemble a native Californian.

“It is not now and never was in anybody’s best interest for you to be a seeker. It’s actually in everybody’s worst interest. It’s not convenient for the family. It may make them feel superficial and expendable. You may end up looking nutty and unfocused, which does not reflect well on them. And you may also reveal awkward family secrets, like that your parents were insane, or that they probably should have raised Yorkies instead of human children. Your little search for meaning may keep you from going as far at your school or your company as you might otherwise have gone, if you had had a single-minded devotion to getting ahead. Success shows the world what you’re made of, and that your parents were right to all but destroy you to foster this excellence.

“So you — I — stuck to the family plan for a long time, because your success made everyone else so happy, even if you made  yourself frantic and half dead trying to achieve it. You couldn’t win at this game, and you couldn’t stop trying. At least it was a home to return to, no matter how erratic, which is better than no home.”

Are epiphanies worth the trouble they bring to our close relationships? Enjoy the humor, take the dose of honesty, breathe deeply, and then… you decide.

Next time:  some scary cultural stuff — too late for Halloween, but worth a look.