Take the latest management aphorism about change from the CEO of a large corporation. Apply it to the legal system, and recommend that law firms around the world act accordingly. What could possibly go wrong?
I've just read an article in which a legal change guru does just this. Now, I've read a bit of this guy's work, and he's no idiot. This is why I am not naming him: I don't wish him ill. The legal futurism business is pretty lucrative, however, and for all that money changing hands, I do expect a relatively high quality product.
At minimum, I should not have to be correcting, for free, what someone is peddling to the legal system for money. But correct it I must, and I'm the more annoyed at having to do so because the point is so simple: systems are not corporations. Systems are not even organizations, or institutions. Systems are SYSTEMS.
A system includes corporations. It includes organizations. It includes government agencies or ministries. But the way in which these elements are hooked together creates a unique entity that is best described as a system.
The aphorism in question is usually not wrong. It may even be relevant for certain parts of the system that function under matching opportunities, constraints, and incentives. But to the extent that management wisdom makes reference to clients, it is highly misleading. The second-most misunderstood thing about systems is who their clients are - and that each component organization may have a different client. Furthermore, in systems, the client and the funder are usually separate entities - and may be different again from the business generator, that is, what causes the clients to walk into the room.
And because no one understands who the client is, the aphorism is usually misapplied. It may not do any immediate harm, beyond raising false expectations and creating complacency, but usually it will cost a bunch of money before it runs its course. That money and time could have been spent generating improvement, but instead it just circulated misinformation through the system and generated bad decision-making that lowers the internal standard. So in the long run it does a great deal of harm indeed.
The most misunderstood thing about systems is what they are incentivized to do. Absent checks and balances, they are incentivized to do precisely two things, regardless of their function: to grow, and to fail. The easiest way to grow is to fail at their core assignment, and only in the presence of strong disincentives to fail will success occur. The absence of a profit motive is regarded as a good thing because most people remain blissfully unaware that the alternative is a growth motive. Growth of funding. Growth of empire. Growth of power.
And systems usually have power over us to start with, as most have a fundamentally regulatory, not service, mandate.
Systems absolutely thrive on dead-end change exercises. Aphorism in hand, the people in systems form committees or societies, have important meetings, hold conferences, consult extensively, write colourful reports, hold news conferences, dress well and have great briefcases, give each other awards and tweet out admiring selfies, and often eventually go into politics. Obviously, dead-end change exercises require the addition of new staff, sometimes the creation of whole new departments or agencies. They grow the system exponentially.
And once the system has grown by an order of magnitude, try changing that sucker now. You have no hope. The bigger the system is, the harder it is to change, because it has more power. The whole point of power is to resist change. And the more people there are whose jobs rely on the continuance of the continued dead-end change cycle, the more prone the system is to latch onto the next CEO aphorism and rally around it.
It is a deadly, deadly cycle because it means that, relative to the systems on which we (the public) rely, each of us individually becomes both less well-served by the system, and less able to do anything about it. In the meantime, it becomes steadily more expensive, and what is worse, our elected officials become powerless in relation to it.
The Education Model holds true
In system attraction to facile management maxims, here yet again there is a convergence between the worlds of law and education. Having spent 20 years studying education reform up close and personal, and having observed trends episodically in other systems such as librarianship, engineering, medicine, academe, veterinary practice, child welfare, nursing, sport, and others, as I turn my attention to legal reform, the patterns are so familiar to me that they fairly leap off the page or screen.
One of those patterns is the emergence of the internal consultancy that set me off today: practitioners who claim expertise not only in the field itself, but in management of the system in which the field practices. In education, I have seen these teacher/consultants - who sustain an exhausting schedule of speaking, publishing, and tweeting - come up with incredibly dumb stuff that is absolutely lapped up by practitioners in the field who trust them simply on the basis that they are fellow teachers. They lap this stuff up to the degree that they actually believe these people can predict the future.
"Chaos theory" is one example that comes to mind. Teacher-turned academic-turned dean of ed or superintendent scans the management literature for something that will help him understand why simple performance improvement in the grade one teaching of arithmetic seems to be beyond the reach of university-trained teachers, and the only thing that offers him any insight is bloody "chaos theory." So he picks it up, misunderstands it, misapplies it, and propagates his foolish interpretation to thousands of other teachers/academics/principals/superintendents who believe him, not because he is an expert in management, but because he is an expert in the failure he is trying to solve. I am not making this up.
This is the quality of thinking that goes into running the system to which we entrust 500,000 children, in British Columbia alone, for 2600 days of their lives over a 13-year period.
Meanwhile, somewhere else in the twitterverse, people with actual expertise in systems (or with the information the system needs to hear to improve its service, whether they are experts or not) talk, publish, or tweet in vain, because even the powers that be who run the system fall into the trap of believing that perspective from the system's practitioners holds the key to the future, as all too often does the public. This results, in education systems, is everyone from premiers and education ministers down to the frustrated clientele itself spouting the same ghastly propositions for change, which result ultimately in continued system growth with a concomitant deterioration in quality.
Naturally, teachers, librarians, engineers, health care workers, academics, veterinarians, child care workers, nurses, athletes, and others will bristle (and do bristle) at the idea that anyone outside their system could possibly know more than they do about how it operates or how it should change. Lawyers, too, are conversing among themselves about legal reform as if they had the same level of expertise in systems as they do in law, and are a bit offended (with a few exceptions) at outside contributions.
To this I have two answers: one is a quote purportedly from Alexis de Tocqueville that forms the header of the blog orgtheory.wordpress.com (aka orgtheory.net): "...the science of association is the mother science; the progress of all the others depends on that one." I'm intrigued by the quote and will go hunting for it in context, because organizational science is fairly modern. The quote, if it is real, shows that the understanding that there is a separate science of association goes back a fair bit further than I thought. But the fundamental message is sound. All biological life forms have a pattern of behaviour, and organizations and systems are biological life forms. Like an animal, person, bacterium, insect, or plant living in captivity, unless the organizational entity is put in conditions that meet its needs, it will either die or behave unexpectedly, uncontrollably. So, whether the topic is law or dentistry, in order for legal or dental excellence to be achieved, the environment must be conducive. Lawyers and dentists are not experts in creating that environment, but in doing law and dentistry within it.
My second answer is that I remember being part of a system as a dietitian working in the infrastructure of cancer care, and in the medical system generally. I remember exactly how much I understood of the system from a systemic perspective: zilch. In fact, I got myself in a bit of trouble thinking I knew more than I did. It is necessary here to distinguish between internal and external knowledge. I certainly knew the operation itself inside out, and I knew my field of expertise from a practical perspective (being able to supply what patients needed) and had the supporting knowledge base demanded by professional practice standards. But as for the decision-making apparatus that created the place where I worked; that funded it and guided it; and its relationship with the public, let me be perfectly clear: I had no clue.
I'm not going to be as harsh about others, such as lawyers, legal gurus, or judges who today are discussing and even enacting legal reform. I think today we are all more aware of systems than any of us were in the 1980s. Thinking back to my entire peer group, I think we were all at best dimly aware that politics created our workplace, but even those who were more on top of things than I was were a bit idealistic and - no offence intended - a bit delusional.
Lawyers today may also be better positioned than I ever was in health care because lawyers' expertise is very systems-oriented. Law is the invisible framework of everything we do, and one of the reasons I was so clueless about my own work system was that I had no awareness of the law underlying it. A law education consists of learning the framework of life that no one else can see, so there is some basis for lawyers to think they can evaluate and correct their own framework with the expertise that they have.
So lawyers, almost alone among practitioner groups, may have the capacity to understand the nuances of their system, but it's interesting that they don't use it. Law, the thinking seems to go, is complicated, while change is simple.
This behaviour reflects the power of system design and incentive structure. Lawyers and judges are all smart people - too smart to fall for simplistic aphorisms under most circumstances. The fact that even they can fall into the self-destructive dead-end change cycle reveals that incentives trump intelligence and good intentions.
Thus the paradox exists in law, as in education, that for system users, owners, and managers to change the system, we need to actually tune out the voices of the practitioners within the system to make changes that serve us.
But what are lawyers and judges supposed to do on the issue of change?
If they do want to be part of the change process, lawyers and judges might find this article about the nature of expertise illuminating: http://quillette.com/2016/07/27/what-experts-do-and-dont-know/. There are actually two important messages embedded in the article about how lawyers and judges can change law and legal practice. One is to recognize that expertise has boundaries, and the further the topic gets from what a person is expert in, the lower the status of the purported expert, and the more likely it is that someone else's expertise should be ceded to - and that is not necessarily the next expert over, but someone with "mundane knowledge."
The second message, not as clearly stated but much more intriguing, is that lawyers should be confident in their voices, actions, and perceptions within the boundaries of their expertise. It is my premise that in law, as in education, the best revenge against the gurus and critics and the system's preference for failure is to practice well, and to use internal conversation to keep standards of practice high.
Simple good practice according to the doctrine and principles of law is an act of conscientious rebellion in a system where failure creates growth and power. This is why I have said more than once, on this blog and others, that the most pressing problems in law lie deep within the law itself where only the judiciary, and to a lesser extent lawyers, can challenge them, and that they are the problems that should be tackled first.
But if lawyers have less power than judges overall in the system, in the management of their own firms they know their own business best. So when gurus about law firm change, for example, start calling lawyers dinosaurs if they don't adopt technology fast enough, or lecturing about necessary changes in the pricing paradigm, lawyers should trust their guts, not the gurus. Is everything peachy in law pricing or law firm organization? Hardly. Normal responsiveness to emerging forces is required, and there should be a variety of price points on offer. But if you run a boutique law firm with hourly charge-out rates in the 500 dollar per hour range, and the clients keep walking in the door and paying for your paper-based practice, why would you pay attention to the gurus who say your price has to drop? Your price will have to drop, or you will have to adopt new technology, when no one is walking in the door, but if you do it before that, you are simply giving business away.
While overall, it is a good thing that lawyers can participate in system change from within, the downside is that every opportunity created is quickly exploited by interests who are already the biggest, toughest dogs. There is a always an oligarchy.* Which oligarchy has an advantage changes from time to time, but that doesn't make oligarchy capture of legal doctrine at any given time any more palatable.
But oligarchy is not lawyers' problem. I've been accused of being addicted to metaphor, which I concede without regret: often, a metaphor best makes the point. So for example, even as a medical procedure like hernia repair is made more efficient with easier recovery, the most advantaged people will still be at the front of the line. Faced with this situation, doctors can either get all wrapped up in techniques for egalitarian wait list management - not their area of expertise - or they can put their energy into ensuring that no matter when a person comes into the operating room, or who they are, their hernia repair is always done to the highest possible standard. They can do this individually as practitioners, and collectively through their self-regulating mechanisms.
In the same way, I submit that pure law, practiced well, for the clientele available to you, is the best antidote that lawyers can offer to keep public confidence intact, reduce barriers to justice, and to induce legal change. It is the best way to equalize legal advantage enjoyed by oligarchies, to include excluded groups, to limit the reach of profiteering corporations, and to keep services affordable. It is not a risk-free life nor is it necessarily easy street, but the pursuit of excellence rarely is.
Final question: can futurists and legal pundits be useful? Yes, they actually can. Instead of holding forth on what can or should change, and how, they can talk about what is actually already changing, why it changed, what the implications are, and how those changes are being achieved. This would be a useful and empowering conversation that would provide clarity and insight for both lawyers and the public. This is not about reorganizing law offices, but about how law is actually changing, for better or for worse. In my last post, for instance, I talked about the Ururyar case, which illustrates a tragic capture of law by the special interests of militant feminism.
There are many cases that result in legal change where the law is clarified and equalized in a good way by novel claimants, novel interpretations, or novel arguments. But there are others, like Ururyar, in which the law is twisted off its foundation and lies in a crumpled heap at the feet of the goddess of justice.
Such events in pure law and the implications for law practice - those are things futurists in law should be discussing and projecting, and that lawyers should be talking about. Instead, the discussion of the legal issues is being done by (other than by people who believe that the principles of feminism should supplant the rule of law) people like journalists (not lawyers) Christie Blatchford and Barbara Kay, Diana Davison on her youtube channel in which she (not a lawyer) dissects legal cases involving militant feminism, pseudonymous posters (not lawyers) on Reddit, court interpreter Lise Lasalle (not a lawyer), American writer (non-lawyer) Cathy Young, and me (not a lawyer), in the previous post on this blog. But on Slaw, for instance, or any of the many other legal blogs to which I subscribe? Not a word. In the mainstream media, an expert legal analysis as an op-ed, or an interview? Nope. On Twitter, from the lawyers and futurists I follow? Nada.
I mean, this is idiotic. People who are not experts in law are the only ones discussing it. Lawyers, ignoring the law, are talking about how to change their system.
I completely understand that "officer of the court" status and rules of professional collegiality (paired uneasily with the adversary system and law firm competition) limit what lawyers can say about each other and about the courts. But they can talk about the law, which begs the question, why don't they? Why do they talk instead about change and access to justice?
Legal pundits, where are you on the sexual assault file? False accusations are slamming into boys and young men with hurricane force, and the legal profession has not a word on line anywhere to provide an expert in-depth analysis of the legal underpinnings and decision-making matrix of this phenomenon. (NB: if I have missed such a resource, on line, on air, or on paper, please refer me to it. I just heard about another false accusations case locally). What's going on in law in response to this trend?
In short, the lawyer's recipe for addressing legal change should be: stick to your knitting, but LOVE your knitting; work hard at it. Talk about it a lot. It's what you're best at, and we all want to hear from you on this topic. Talk about what's in your wheelhouse, not what's outside it.
By the way, Mr. Ururyar was recently released on bail, an appeal having been heard with unusual speed because it was an "unusual" case. No kidding. https://www.thestar.com/news/crime/2016/08/03/student-convicted-of-raping-mandi-gray-released-on-bail.html
(last edited August 7, 9:20 am)