 
### Cyborg Lawyers

Kevin Rhodes

Revised Smashwords Edition

Copyright 2017 Kevin Rhodes

_This ebook was formerly published as_ The Legal Times They Are A-Changin'

**Smashwords** **License Notes**

Thank you for downloading this ebook. This book remains the copyrighted property of the author, and may not be redistributed to others for commercial or non-commercial purposes.  
If you enjoyed this book, please encourage your friends to download their own copy from their favorite authorized retailer. Thank you for your support.

### About This Revised Edition

The original blog posts collected in this volume contained numerous hyperlinks to cited articles, defined terms, etc. Those hyperlinks were also included in the original ebook version. Unfortunately, experience has shown that an over-abundance of hyperlinks doesn't translate well to an ebook, and therefore they have been reluctantly omitted from this volume. They remain in the original blog posts, which were published simultaneously at _The Now of Law_ and the Colorado Bar Association's _Legal Connection_ ezine.

This volume also contains a revised Preface from the author explaining its new title _Cyborg Lawyers_.

### Also By Kevin Rhodes

Law, Enlightenment, and Other States of Mind

Life Beyond Reason: A Memoir of Mania

Not This Day! Special Features  
(with co-author Gillian Rhodes)

Running For My Life: When Impossible is the Only Option

Apocalypse: Life on the Other Side of Over

Ethos

Tell Me A Story: 104 Short Stories in 52 Weeks  
(with co-author Gillian Rhodes)

### CONTENTS

PREFACE

SAVING OURSELVES FROM OURSELVES

We Are The Borg

It's Not A Personal Problem

Escaping the Borg

Following Your Heart

THE FUTURE OF LAW

Beyond the Borg

New Ethos, New Ethics

Globalization

Democratization

Democratization Cont'd

What's Trending?

Disruptive Innovation

The Sharing Economy

Hacking the Law

Commoditization

Commoditization Cont'd.

The New Legal Experts

The New Legal Experts Cont'd.

Law by Algorithm

The New Law Masters

How Long Before the Future Gets Here?

How Long Before the Future Gets Here? Cont'd.

Don't Wait, Create!

Some Final Meta-Thoughts

The Future Couldn't Wait (1)

The Future Couldn't Wait (2)

The Future Couldn't Wait (3)

The Future Couldn't Wait Finale

THE CULTURE OF LAW

Peace of Mind

It's An Inside Job

Brainwashed

Changing Our Default Setting

Culture By Agreement

Sit Down You're Rockin' the Boat

Cultural Evolution

Bleak House and Epigenetics

Show Me The Money

Don't Show Me The Money

Time is Money

To Epiphany or Not to Epiphany?

Where Culture is Trending (1)

Where Culture is Trending (2)

An Antidote For a Left-Brain Dominated World

Hacking the Law (Redux)

Culture and Meaning

ABOUT THE AUTHOR

### Preface:  
Why This Collection?

My book _Law, Enlightenment, and Other States of Mind_ collected several years of my blog posts for the Colorado Bar Association's Legal Connection ezine. It ended with a series called _Killing Them Softly_ , featuring the work of University of Denver Law professor Debra S. Austin. _Killing Them Softly: Neuroscience Reveals How Brain Cells Die From Law School Stress And How Neural Self-Hacking Can Optimize Cognitive Performance, 59 Loy. L. Rev. 791 (2013_ _)._

_Research studies and media stories about lawyer depression, anxiety, substance abuse, and suicide are legion, but Prof. Austin's_ _Killing Them Softly_ _sounded a new kind of alarm through its application of_ neuroscience to the chronic stresses of law school and legal practice and its depiction of how law students and lawyers suffer cognitive brain damage that impairs them from doing precisely what their studies and practices require.

How's that working for you, if you're a client? Or an educator? Or a spouse? Or any number of other people with vested interests in law student and lawyer health and performance?

The more I blogged about _Killing Them Softly_ , the more I wondered: if we know we're hurting ourselves, then why don't we stop it? I'd blogged about that before; the legal world's confounding indifference to its own welfare is an inescapable question for anyone who writes about lawyer career and personal satisfaction. This time, I broached the topic in a short series called _Saving Ourselves From Ourselves_ , using Star Trek's bad guys The Borg to lighten the inquiry. I mean, it was the end of the year (2014) and holiday time, after all. My attempt at levity didn't help. Not really. The topic was too disturbing and the Borg "you will be assimilated" metaphor too appropriate. The law profession's entrenched willingness to tolerate and continue its unhealthy and performance-impairing practices wasn't going away that easily.

Meanwhile, I'd noticed that an emerging subset of the legal profession seemed to be having a more upbeat experience. These were the new legal entrepreneurs, who seemed to have cornered the market on inspired action and were busy creating a bold new future for law practice. And yet, from what I could tell, the mainstream of lawyers remained unaware of the seismic shift in the legal profession happening right under their feet. They simply didn't have ears to hear or eyes to see; they didn't and apparently _couldn't_ feel the tremors. Once again I wondered: Why not?

I had written about trends in law practice before as well, but armed with new research, I launched a new series at the start of the new year (2015) on _The Future of Law_. And then, for some reason I couldn't articulate then and still can't, I decided to play like a futurist and predict where the future of law was going. The predictions flowed easily once I focused on the larger trends driving the entrepreneurial initiatives, such as globalization, commoditization, democratization, and big data. Those trends were mostly finding expression in new legal practice models and technologies, and in hindsight my predictions in that arena frankly weren't all that remarkable, although they certainly seemed so to me when I wrote them.

No surprise, then, that one week I would predict something, only to discover within short order an example of it. No, I hadn't developed a new gift of clairvoyance, I was only tapping into what was already happening. In fact, I was fast being left behind: not only were the legal entrepreneurs busy creating a new future for law practice, but both legal and popular media were equally busy covering it. I had just come late to the party.

I helped myself liberally to the news as I wrote my blog, but then a more stunning realization about the future of law began to dawn in my awareness. This realization came to me in a series of waves, each amplifying the others:

The new practice models and technologies wouldn't only change how law is practiced, they would invariably re-create lawyers themselves -- who they are, and what they do.

As a result, a new kind of lawyer would engage in a new kind of law practice, alongside a new kind of legal expert who wouldn't even qualify to be called a lawyer in today's regulatory environment.

Alongside both of them, consumers (no longer "clients") would themselves also practice law in a wave of legal DIY aided by artificial intelligence algorithms engineered by cyber geeks and served up online.

The combined impetus of all these developments would create _a new kind of law_ \-- new in both substantive content and in how it is created, shaped, communicated, and applied.

In particular, this new kind of law would be created and disseminated, and would grow and change, by processes other than the historical reliance on legislation and appellate precedent and in-person lawyer-to-client communication.

Finally, the advent of a new kind of law would transform _the law's role as a foundational institution in the larger cultural context_.

Seismic change, indeed.

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 long-debated 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 wired in law school and upon entry into legal practice. Among other things, I learned that culture (including the law profession's culture) is formed in individual brains, then transmitted from one brain to another in the form of cultural agreements the culture's members make about what is real and appropriate. I also learned that culture is changed the same way: it begins with individuals thinking differently and expands from there 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.

Which brings us back to the question I asked above: Why this collection?

The original cover and title of this volume mimicled Bob Dylan's seminal 60's album and its anthem "The Times They Are A-Changin'." Referencing Dylan and the 60's was not a me-too grab for social revolutionary status, it was 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.

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. 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 hear the challenge, or respond to 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, these times of staggering change will become a once-in-forever 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?

Having revisited these issues recently in my further research and writing, I felt this volume should have a new title and cover -- _Cyborg Lawyers_ \-- to recognize that the world of law is already in an advanced state of change, and to underscore the real, present, and urgent need for our response to these once-in-a-generation questions.

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

Kevin Rhodes  
June, 2017

### SAVING OURSELVES FROM OURSELVES

" _We are the Borg. You will be assimilated.  
Lower your shields and surrender your ships.  
We will add your biological and technological distinctiveness to our own.  
Your culture will adapt to serve us.  
Resistance is futile."_

Saving Ourselves From Ourselves (1): _We Are The Borg_

The Borg is a shared consciousness, an ethos. I Googled "ethos" and here's what came on top:

Ethos: the characteristic spirit of a culture, era, or community  
as manifested in its beliefs and aspirations.

The law profession is a culture and community with its own ethos, manifested in both expressed and unspoken rules of belief and aspiration. From the moment we applied to law school, we've been giving our implied consent to being assimilated into this ethos. Little did we know it included its own version of the Borg: as we saw in the _Killing Them Softly_ series, our assimilation can result in cognitive- and performance-impairing brain damage.

I spent last week witnessing the legal profession's Borg Ethos in action as I conducted my "Beyond Burnout" CLE workshop in Cincinnati, Columbus, and Cleveland. Some attendees found it within themselves to escape assimilation. As one said in his course evaluation, "Today I moved closer to taking the steps I need to take to rediscover the creativity, vigor, and passion which came so naturally before I learned to think like a lawyer."

Like him, we can save ourselves... if we want to.

The workshops were prompted by a new Ohio CLE mandate for instruction in "mental health issues." Ohio also requires instruction in not just the Rules of Professional Conduct but also the Ohio "Lawyer's Creed" and "Lawyer's Aspirational Ideals." Those requirements contain some fascinating anti-assimilation provisions.

Consider for example this excerpt from The Ohio Lawyer's Creed:

To my colleagues in the practice of law, I offer concern for your reputation and well-being.

And this from The Lawyer's Aspirational Ideals:

As to my colleagues in the practice of law, I shall aspire... to offer you assistance with your personal and professional needs.

Amazing. Ohio lawyers have an _ethical duty_ to be _concerned for the_ _well-being_ of fellow lawyers, and to _offer assistance with their personal needs --_ such as helping each other to not be assimilated by the legal profession's Borg Ethos.

This goes way beyond Model Rule 8.3, the Colorado version of which says we must report something that "raises a substantial question as to [another] lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." In my legal ethics class, we called this the "Rat-On Rule," and we all knew we would _never_ do that. That's how the Borg Ethos works: it sucks us in, detaches our normal sensibilities -- even the evolutionary survival parts of our brains that instinctively want to look out for the safety and well-being of the other members of our tribe. By contrast, Ohio has made this _duty to care_ explicit. Truly amazing.

When we see a duty to care appearing in CLE ethics requirements, we know that the winds of change are truly blowing in our profession. We're going to hoist our sail to them in this series. To prepare, we do well to follow the advice the shrunken head on the Knight Bus in _Harry Potter and The Prisoner of Azkaban_ :

"Fasten your safety belts, clench your buttocks! It's going be a bumpy ride!"
Saving Ourselves From Ourselves (2): _It's_ _Not a Personal Problem_

To recap from last time:

Ethos is "the characteristic spirit of a culture, era, or community, as manifested in its beliefs and aspirations."

Like any institution, the law profession has its own ethos, manifested in expressed and unspoken beliefs and aspirations that guide our attitudes and behaviors.

What I'm calling the "Legal Borg" (c'mon, we gotta have a little fun every now and then!) is that portion of the law ethos that is responsible for the cognitive- and performance-impairing brain damage we learned about in the _Killing Them Softly_ series, also for lawyers' high rates of depression, anxiety disorders, substance abuse, and suicide.

The Legal Borg is the part of our professional ethos that's out to get us. It's stealthy and insidious. It avoids detection not by hiding but by convincing us we're not seeing what we're seeing. Or that what we're seeing isn't worth the bother.

Take lawyer career dissatisfaction, for example: it's been on the rise for decades; we know that personally and anecdotally, also from numerous bar association polls and university research studies. Same thing with lawyer psychological distress. The Borg's response? To convince us -- individual and collectively -- that these things are a personal problem. Some people just can't handle the stress. Too bad for them; the rest of us have work to do. If you need help, get it, it's out there. In the meantime, we don't like thinking or talking about it, so don't ask, don't tell.

Further, if we dare question whether we're okay with that, the Borg isolates us, labels us aberrant. For example, work-life balance initiatives are all over the legal profession, in bar association initiatives and in law firms. Statistically, these initiatives have been largely populated by female lawyers, although that is slowly changing. So what does the Borg do? It declares that this is primarily a "women's issue," or perhaps a "parents issue," and creates "alternative" career paths for these outliers. "We'll accommodate them, but we all know that's not where the real action is." So says the Borg.

As for law firms with wellness programs, that's a California or Europe thing, but not in our house! Besides, you need to be careful with those programs -- there have been cautions recently about knowing too much about your employees, and thus violating Federal employment laws.

And so it goes. That's the Legal Borg working overtime to promote the perception that for everybody but an irrelevant, dissenting few who have some kind of personal problem, things in the profession are as they have always been, and we're all better off that way.

It's a strategy that's worked for a long time, but there are signs everyday that that the Borg's grip is weakening -- enough to make you wonder if the tipping point may have already been reached. We looked at one of those signs -- an ethical initiative in Ohio -- last time. Consider another recent Ohio initiative sponsored by the Supreme Court of Ohio Commission on Professionalism on "Preparing the Leaders of Tomorrow's Changing Legal Profession."

That initiative's title may be misleading. We may not be talking about "tomorrow" anymore. The future may already be here. _More on that next time._
Saving Ourselves From Ourselves (3): _Escaping the Borg_

In his book _Between Two Ages: The 21st Century and the Crisis of Meaning_ , futurist and Washington think-tanker Van Wishard says this:

America is at the vortex of a global cyclone of change so vast and deep that it is uprooting established institutions, altering centuries-old relationships, changing underlying mores and attitudes.... It is not simply change at the margins; it is change at the very core of life. Culture-smashing change.

The law is among the "established institutions" currently being "uprooted" by "culture-smashing change." Consider, for example, the legal service ventures we looked at in the _Winds of Change_ series. The magnitude of change these ventures indicate was unthinkable ten, even five years ago. Many of them are driven by young lawyers. No surprise there. More surprising is the legal profession's apparent inability to recognize and explain the exodus of talent out of established practice models into new ones.

For example, a recent ABA compilation of Martindale-Hubbell data concluded that the legal profession is getting older, citing a rise in median age from 39 to 49 over the 25-year period ending in 2005. Indiana University law professor William Henderson offered several possible explanations for these findings at  Legal Whiteboard, and concluded:

Arguably, the simplest explanation for these patterns is that it has gotten much harder over time to parlay a JD degree into paid employment as a licensed lawyer. So, faced with a saturated legal market, law school graduates have been pursuing careers outside of law.

So far so good, but we might further speculate that some of those "careers outside of law" are actually moves into the new legal service ventures, in which lawyers (and non-lawyers -- which is a whole other issue) _are providing_ _services that_ _have historically been considered practicing law._ If so, then at least some licensed lawyers are still parlaying their law degrees into paid employment, but doing so in settings outside of the Martindale-Hubbell database, which for that 25 year period was focused on traditional law firm practice.

This is more than a data collection issue. Neurological research suggests that our observation and cognitive faculties are linked to culture, which explains why the old (traditional law practice culture) has trouble seeing the new (the new legal service ventures). Columbia University's Norman Doidge, M.D. summarizes this research in his book _The Brain That Changes Itself_ :

The idea that culture may change such fundamental brain activities as sight and perception is a radical one.

Culture can influence the development of perceptual learning because perception is not (as many assume) a passive, "bottom up" process that begins when energy in the outside world strikes the sense receptors, then passes signals to the "higher" perceptual centers in the brain.

The neuroscientists Manfred Fahle and Tomaso Poggio have shown experimentally that "higher" levels of perception affect how neuroplastic change in the "lower," sensory parts of the brain develops.

In other words, our cultural point of view determines what we see and don't see, and can literally blind us to new developments happening in our midst.

Thus it's possible that the future of law has arrived right under the Borg's unseeing gaze. The new legal services entrepreneurs certainly think so: their pitches offer both lawyers and consumers relief from the things about traditional law practice that drive them crazy.

"Culture-smashing change" indeed.
Saving Ourselves From Ourselves (4): _Following Your Heart_

The "Legal Borg" is responsible for the cognitive brain damage and psychological distress we learned about in the _Killing Them Softly_ series. The Borg also damages another organ we rarely associate with cognition: the human heart.

In his book _The Transformational Power of Fasting_ , Stephen Harrod Buhner, author, international lecturer, master herbalist, nutritionist, and all-around out-of-the-box thinker, describes the heart's role in cognition as follows:

While modern science generally insists that the heart is only a muscular pump, it is also true that there are more than forty thousand sensory neurons in the heart, the same kind of neurons that are found in the brain.

Each individual section of the brain contains thousands to millions of neurons, several billion when all added together. Significantly, certain crucial subcortical centers of the brain contain the same number of neurons as the heart. The heart possesses its own nervous system and, in essence, actually is a specialized brain that processes specific types of information. The heart is tightly interwoven into the neuro-physiology of the brain, interconnected with the amygdala, thalamus, and cortex. These three brain centers are primarily concerned with (1) emotional memories and processing; (2) sensory experience; and (3) problem-solving, reasoning, and learning.

What this means is that our _experience_ of the world is routed first through our heart, which "thinks" about the experience and then sends the data to the brain for further processing. When the heart receives information back from the brain about how to respond, the brain analyzes it and decides whether the actions the brain wants to take are going to be effective. There is a neural dialogue between heart and brain, and in essence the two decide together what to do. While the brain can and does do a great many things with the information it receives, the heart can override it, directing and controlling behavior if it decides to do so.

Over the past twenty years, researchers in an emerging specialty, neurocardiology, have discovered that the heart really is a specialized brain in its own right. It can feel, sense, learn, and remember.

As the heart senses the world outside us, it generates emotions in response to the type of information or the meaning embedded within the information that we are receiving.

Many of the emotional experiences that flow through the heart are stored as memories within the heart, much as memories are stored in the brain. The heart literally learns from the emotional experiences it has and begins to act in certain ways on the basis of what it learns. It begins producing hormones and creating different beating patterns depending on what experiences flow through it and what it decides about those experiences.

Buhner observes that the modern world has lost touch with the heart's way of learning and decision-making, and concludes by saying, "There is a reason that heart disease is the number one killer of people in the Western world."

The Borg is wrong: resistance is not futile. We saw last time that some lawyers have escaped assimilation by entering a new law culture outside of the Borg's influence. We don't all have to follow their path -- there are others -- but all paths away from assimilation take courage, allowing our hearts to "override" our brains, "directing and controlling [our] behavior."

I wish you courage this New Year.

Thanks for reading, and see you next year!
THE FUTURE OF LAW

According to Wikipedia, futurology is an "attempt to systematically explore predictions and possibilities about the future and how they can emerge from the present."

We're not going to be systematic here. Instead, we'll engage in some _moderately-well-informed-but-we-don't-know-what-the-insiders-know_ curiosity.

Should be fun. So draw the shades and polish up your crystal ball... and let's take a look!

The Future of Law (1): _Beyond the Borg_

We finished last year talking about the law profession's cultural ethos, and how new practice models and wellness initiatives are liberating lawyers from its harmful aspects (the Legal Borg). An earlier 2014 series also looked at alternative practice models. Another considered how the law's cultural ethos can cause stress-induced cognitive impairment and how mindfulness practice can help.

These developments may have sneaked in mostly unnoticed, but now they've become the elephant in the room, and it's time to deal with them. They're causing a seismic shift in the profession's ethos, and a new ethos requires a new ethic: i.e., new standards for how to enter the profession and how to behave once you're in it.

The ABA Journal published a piece on that very topic on New Year's Day, entitled _Does The UK Know Something We Don't About Alternative Business Structures?_ The article begins as follows:

For two nations sharing a language and legal history, the contrast in the visions at play in the legal systems of the United States and United Kingdom is more than striking. It's revolutionary.

The debates in the U.S. go on: Should ethics rules blocking nonlawyer ownership of law firms be lifted? Is the current definition of unlicensed law practice harming rather than protecting clients? What about the restrictions on multidisciplinary practices?

And those debates are by no means ending: Witness the newly created ABA Commission on the Future of Legal Services. Though ABA President William C. Hubbard does not mention ethics rule changes in the commission's primary task of identifying the most innovative practices being used in the U.S. to deliver legal services, some of those practices have been questioned as possible ethical breaches. Meanwhile, the rules and restrictions stay in place. The situation in the United Kingdom couldn't be more different: Such restrictions have largely been lifted, and under the Legal Services Act the creation of new ways of providing legal services—including through alternative business structures—is more than simply permitted; it is actively encouraged.

Nonlawyer ownership of law firms, unlicensed practice, multidisciplinary practice... those are big issues. We'll let the ABA tackle them. If you've been following these issues for awhile, you'll remember the ABA did just that at their summer convention 17 years ago, and again the following year.

This blog won't try to keep pace with the big boys on that debate's current version. We will, however, do some guessing of our own about how current trends in law practice and lawyer wellbeing might change not just lawyers and law practice, but our very stock and trade: _the law itself_. A new cultural ethos in the law will do precisely that. It is already. We're going to talk about that, and speculate about what it might look like going forward.

According to Wikipedia, futurology is an "attempt to systematically explore predictions and possibilities about the future and how they can emerge from the present." We're not going to be systematic here. Instead, we'll engage in some _moderately-well-informed-but-we-don't-know-what-the-insiders-know_ curiosity.

Should be fun. So close the shades, polish up your crystal ball, and let's take a look!
The Future of Law (2): _New Ethos, New Ethics_

Our first prediction is an easy one:

**The Model Rules of Professional Conduct will be changed to accommodate multijurisdictional practice and nonlawyer ownership of law firms.

This will happen when the tipping point of all the new practice developments we've been talking about is reached. The creation and adoption of the new rules will come quickly after that, because a new cultural ethos _must_ have new ethical standards. In the meantime, the snowball is already rolling down the mountain -- see, e.g., the ABA Commission on the Future of Legal Services we looked at last time.

The new Model Rules will trigger a cascade of related and derivative developments. None of these are hard to foresee. Here's a sampling of what I see at the moment:

**The process of adopting the new Rules will of course happen state by state, starting slowly, with intense polarization between adopters and non-adopters. The historically progressive states will lead the way.

**Some states will be opportunistic in the early going, vying for status as the go-to jurisdiction. (Think Delaware corporate law. I saw this in my law practice when domestic asset protection trusts came into vogue, and states like Alaska and South Dakota jumped to the front of the line. The same thing happened when LLC's first appeared, and Wyoming and Colorado jumped in.)

**Because the new rules will be vigorously contested, a decision comparable to the lawyer advertising case (Bates v. State Bar of Arizona, 433 U.S. 350 (1977)) will be required to pave the way.

**Once the new Rules are in place, professional corporation and similar laws governing law firm ownership will be revised.

**Confidentiality and privilege will be expanded to nonlawyers in the new organizations.

**With respect to clients, the earliest versions of implementation will be based on client disclosure, waiver, and consent, and likely will also require registration of the organization and its principals with the state (with background checks required).

**There will be supervisory mandates governing the roles of the lawyers involved in the new multidisciplinary practice models.

**BigLaw will jump in with both feet. Mergers with multidisciplinary and multijurisdictional partners will become the news _du jour_.

**Group and prepaid legal service organizations, legal franchisors, and comparable market players will also be quick to jump in.

**And so will industries that have historically worked closely with law firms -- e.g., insurance, stockbrokers, financial planners, accountants, investment bankers.

**But not too quick: these industries are highly regulated, and therefore new enabling laws and administrative rules will be required.

**The malpractice industry will get a complete makeover.

**Bar Associations will reinvent themselves to accommodate the newcomers who aren't members of the bar.

**There will be a huge CLE bonanza around all these developments.

**Law schools will restructure curriculums to both teach the new rules and to offer classes in legal organization structures and business management that entrepreneurial lawyers are currently getting elsewhere.

**Litigation and legislation and administrative proceedings will abound, and the whole thing will become a massive growth industry.

And so on and so on and so on.

It will take at least a full generation to assimilate all these changes, but 50 years from now lawyers and their nonlawyer colleagues will wonder what all the fuss was about.

Stay tuned for more predictions coming up re: how all of these and other developments  
will change not just law practice but the law itself.
The Future of Law (3): _Globalization_

In his book _Between Two Ages: The 21st Century and the Crisis of Meaning_ , futurist Van Wishard introduces globalization this way:

Sir Fred Holye was an eminent British mathematician and astronomer. He made a remark in the 1940's that was prophetic: "Once a photograph of Earth, taken from the outside, is available, a new idea as powerful as any in history will be let loose. That photograph was taken in 1969 from the moon, and it provided a visual symbol of globalization for humanity. Globalization [is] the long-term effort to integrate the global dimensions of life into each nation's economics, politics and culture. In my judgment, this is the most ambitious collective experiment in history.

Thus far, most of the globalization action has been along cultural and economic lines, while the law has remained mostly aloof. That will end: the law will become increasingly globalized.

Globalization is a megatrend, which one CLE presentation defined as follows:

Mega trends are global, sustained and macro economic forces of development that impact business, economy, society, cultures and personal lives thereby defining our future world and its increasing pace of change.

Megatrends cut a wide swath; lesser trends derive from them and follow in their wake. Legal trends deriving from the megatrend of globalization will realign law beyond the federal and state distinctions we're used to, adding new regional and supranational lines as in the European Union. Along the way, globalization will substantially reshape several practice areas, beginning with commercial, intellectual property, immigration, environment, natural resources, banking, and tax. In general, international law will step out of its esoteric shadows into mainstream prominence.

The implications of legal globalization are tough to get your head around. It's useful to keep a few things in mind that a trend is not a destination; it's a vector, the direction and magnitude of which are rarely known at the time. Trends take us to surprising places, known only after the fact. Which leads to these predictions:

**In the arena of law, globalization will require choice. Pop culture and technology readily cross political and geographic borders; the law will need to be deliberate about how it does so.

**The law is culturally resistant to change, therefore its participation in globalization will likely be driven by national or international activating incidents or disruptive technologies that make embracing it no longer optional.

Van Wishard sees a big upside to globalization:

If it succeeds, humanity may enter an epoch of opportunity and prosperity for a greater proportion of the earth's inhabitants than ever before.

A global civilization will be a human civilization in a far higher sense than any that has ever been before, as it will have overcome the constricting social, ethnic and national limitations of the past.

But there's a corresponding downside:

If [globalization] fails, it could retard progress in some nations for generations.

The birth pangs of such a new consciousness will bring infinite suffering as familiar attitudes and institutions fall away.

There is no doubt that the globalization of law will see its share of both "opportunity and prosperity," "birth pangs" and "infinite suffering." We're in for it, one way or another.
The Future of Law (4): _Democratization_

We looked last time at the globalization megatrend and its impact on the law. Democratization is another megatrend having similar impact. It's not just about flash political revolutions, it applies in other spheres as well, particularly technology, information, and -- of particular interest to lawyers -- knowledge.

The legal profession, like others, has long enjoyed protected status as a commercial monopoly characterized by the specialized knowledge and skill (e.g., professional judgment and the ability to "think like a lawyer") of its members. Not just anybody can practice law or do so correctly -- that's been the creed, and the non-lawyer public has agreed (they don't always like lawyers, but they like _their_ lawyer).

Democratization is changing that. The "lawyers know best" ethos has eroded. Non-lawyer legal service practitioners and their customers have stormed the professional citadel, gobbling up free access to legal knowledge and putting it to work for themselves. Lawyers can argue all day that they practice law better than non-lawyers, but we're talking to ourselves. Knowledge is power, and democratization is on a mission to give that power to the people.

The specialized knowledge that was formerly the sole province of the profession _must_ be transformed under this non-professional handling. To recognize that this is already happening and predict we'll see more of it is to come late to the party. So I'll make the only prediction left to make: not only is the democratization of the law going to continue, but we ain't seen nothin' yet.

Anything that starts with "Wiki" is at the forefront of the democratization of knowledge. The creation of a common people's knowledge base is empowering, and there's been a lot of euphoria over full and free access to information and the creation of a citizen-based common body of knowledge. But second thoughts about all this are surfacing from within the revolution's highest ranks: Larry Sanger, one of the Wikipedia founders, left to start a competitor he's calling _Citizendium_. Why? To provide an expanded role for _experts_ in the determination of what knowledge is worth knowing.

Sanger's Citizendium manifesto is entitled Who Says We Know: On the New Politics of Knowledge. We'll let him speak his piece at some length here, since his framing of the issues is spot on for the legal profession:

So today, if you want to find out what "everybody knows," you aren't limited to looking at what _The New York Times_ and _Encyclopedia Britannica_ are taking for granted. You can turn to online sources that reflect a far broader spectrum of opinion than that of the aforementioned "small, elite group of professionals." Professionals are no longer _needed_ for the bare purpose of the mass distribution of information and the shaping of opinion. The hegemony of the professional in determining our background knowledge is disappearing—a deeply profound truth that not everyone has fully absorbed.

The votaries of Web 2.0, and especially the devout defenders of Wikipedia, know this truth very well indeed. In their view, Wikipedia represents the democratization of knowledge itself, on a global scale, something possible for the first time in human history. Wikipedia allows everyone equal authority in stating what is known about any given topic. Their new politics of knowledge is deeply, passionately egalitarian.

Today's Establishment is nervous about Web 2.0 and Establishment-bashers love it, and for the same reason: its egalitarianism about knowledge means that, with the chorus (or cacophony) of voices out there, there is so much dissent, about _everything,_ that there is a lot _less_ of what "we all know." Insofar as the unity of our culture depends on a large body of background knowledge, handing a megaphone to everyone has the effect of fracturing our culture.

As wonderful as it might be that the hegemony of professionals over knowledge is lessening, there is a downside: our grasp of and respect for _reliable information_ suffers. With the rejection of professionalism has come a widespread rejection of expertise—of the proper role in society of people who make it their life's work to know stuff. This, I maintain, is not a positive development; but it is also not a necessary one. We can imagine a Web 2.0 with experts. We can imagine an Internet that is still egalitarian, but which is more open and welcoming to specialists. The new politics of knowledge that I advocate would place experts at the head of the table, but—unlike the old order—gives the general public a place at the table as well.

In other words, as cool as the unrestrained democratization of knowledge may be, we may still need experts and professionals after all. At least one Wikipedia founder thinks so.

It's a fascinating debate, but now that we've given it an airing, we'll turn to further predictions about how the democratization of the law will change it in ways "not everyone has fully absorbed" or -- especially for many in the profession -- will absorb any time soon.
The Future of Law (5): _Democratization (Cont'd.)_

We've looked at the ethos of the legal profession before. Here's that definition again:

Ethos: the characteristic spirit of a culture, era, or community  
as manifested in its beliefs and aspirations.

Democratization has its own ethos. Its characteristic spirit is a popularized impatience, a marketplace riot in which "power to the people" pushes aside the traditional gatekeepers (lawyers) of specialized knowledge (the law). We looked last time at some of the beliefs and aspirations undergirding the democratization of knowledge, and the kinds of philosophical debate they generate.

It's one thing when lawyers take the law in directions we didn't anticipate (like what happened when RICO and HIPAA drifted from their originally intended moorings); it's quite another when consumers and non-lawyers do that. (HIPAA's original intent: "to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs." RICO's intent: to provide for criminal and civil redress "for acts performed as part of an ongoing criminal organization.")

The law might have seen it coming. Democratization often creates high leverage events that seem sudden -- e.g. the Arab Spring -- but there's usually a backstory of chronic popular discontent stonewalled by those in power, until one day enough is enough and the trend busts through.

In the case of law, a significant component of the backstory was chronic consumer dissatisfaction. For example, clients have been unhappy with fee practices for a long time-- especially hourly billing. (Never mind that billable hours are no picnic for lawyers, either.) Or consider the well-documented client dissatisfaction with the litigation process: e.g., a 2002 article about "just how pernicious litigation is for the average non-repeat player," or concerns about the problems judges face when litigants represent themselves. The latter notes that "These trends present real and significant challenges to a legal system designed for representation by trained advocates." That pretty well sums up democratization's impact on the law.

This week's prediction:

**The legal democratization megatrend will spawn several powerful derivative trends that will erode the ethos of the law and the legal profession, in favor of a push to outcomes unencumbered by traditional legal process. For example, we can expect:

**A break from reliance on the sacrosanct cornerstone of precedential appellate authority in legal decision-making.

**Non-traditional practitioners executing transactions without what we would consider adequate contractual consideration, and resolving disputes without regard to historical evidentiary strictures (who cares about -- or for that matter understands -- hearsay anyway?).

**Along the way, we'll witness the continued diminution of the economic value of the knowledge base and skillset traditionally learned in law school and developed in the early years of law practice.

There will be other derivative trends as well; each will have gentler and more extreme versions. We'll look at some of those in coming posts. Meanwhile, the debate about who can practice law better -- the experts, or the empowered people -- will rage on, mostly in vain. Democratization is a juggernaut that already can't be stopped, and -- in the law anyway -- it doesn't even have a full head of steam yet.
The Future of Law (6): _What's Trending?_

We're looking at trends in the law, and wondering out loud where they might be going. Since we've been talking about the democratization of knowledge, we'll let Wikipedia tell us about trend analysis:

Trend Analysis is the practice of collecting information and attempting to spot a pattern, or _trend_ , in the information. In some fields of study, the term "trend analysis" has more formally defined meanings.

The anonymous article writers (they're from the U.K., I'd guess, because they spell "behaviour" with a "u") tell us that some kinds of trend spotting are all about the numbers:

In project management trend analysis is a mathematical technique that uses historical results to predict future outcome. This is achieved by tracking variances in cost and schedule performance. In this context, it is a project management quality control tool.

In statistics, trend analysis often refers to techniques for extracting an underlying pattern of behaviour in a time series which would otherwise be partly or nearly completely hidden by noise. A simple description of these techniques is trend estimation, which can be undertaken within a formal regression analysis.

I learned regression analysis in my MBA studies, and used it for years in my practice. It told me our revenues were somewhat seasonal. I might have figured that out some other way....

And then there's Investopedia's definition of trend analysis, which is a cousin to project management. Both try to predict the future by what happened in the past -- driving forward by looking in the rearview mirror. Good luck with that.

Finally, Wikipedia sort of gives up and says

Today, trend analysis often refers to the science of studying changes in social patterns, including fashion, technology and consumer behavior.

That's more like what we're doing in this series, although I wouldn't call it "science." Art on a good day; guesswork any other.

Finally, here's a trend analysis term I'd never heard until Wikipedia told me about it: _"coolhunting."_ That sounds like those messages I get online: See what's trending on Facebook! See what's trending on Twitter! Usually it's some celebrity's off-camera or off-field drama. I always wonder if I'm supposed to care.

The point is, _someone_ cares, about _all_ of this. And if that someone cares enough to jump into a trend, and enough other people do the same, then we'll _all_ need to care, because the trend just moved from outliers to early adopters to mainstream. At that point, we're all going along for the ride, like it or not.

Trends aren't destinations, they're movements of human energy. As soon as people start engaging with the trend, they affect where it's going -- shaping, redirecting, resisting, thwarting, or bulldozing it through. Trends are collective; we're not the only ones steering the ship. If we jump onboard, there's no assurance we'll end up anywhere we think.

In the coming installments of this series, we'll continue to look at changes in "social patterns, including fashion, technology and consumer behavior" that are affecting the law, and make predictions about them. (Well, maybe not fashion -- although there's no doubt it has a place in law practice!) Think of these not as possible outcomes, but as energies. Some will accelerate in size, speed, and impact -- those we'll need to reckon with. Others will fade away -- like all that momentary coolness on Facebook and Twitter. Along the way, some of us might want to dive in and see if we can shape some of these trends the way we'd like.

Kind of like the rainstorm game I used to play as a kid, damming up water pouring along the gutter.
The Future of Law (7): _Disruptive Innovation_

Harvard professor Clayton M. Christensen coined the phrase disruptive innovation in the late 90's.

The theory of disruptive innovation... explains the phenomenon by which an innovation transforms an existing market or sector by introducing simplicity, convenience, accessibility, and affordability where complication and high cost are the status quo. Initially, a disruptive innovation is formed in a niche market that may appear unattractive or inconsequential to industry incumbents, but eventually the new product or idea completely redefines the industry.

Until recently, the legal profession and the law remained mostly aloof from the impact of innovative disruption, moving instead at an analog pace of change driven by reasoned discourse and scholarly input. Think of the usual pace of legislation, appellate review, uniform laws and legal restatements.... But life in the slow lane is ending, and therefore:

**The analog pace of changes in the law is already breaking down. Legal practice developments are already moving at the digital pace of disruptive innovation. Changes to the law itself will soon follow suit.

Disruptive innovation doesn't wait for reasoned discourse. It moves fast and impulsively, riding on trends fueled by democratized access to information. Disruptive change in the law will create new modes of change that simply will not wait for the historical pace of precedent and consensus.

**These law changes will first follow the new practice models serving legal niche markets, where "simplicity, convenience, accessibility, and affordability" are essential. (I.e., they will be "micro-law" in nature. We looked at the micro trend in a post last summer (now collected in my book _Law, Enlightenment, and Other States of Mind_ ).

**This new way of creating and changing applicable law will go mostly unnoticed to "industry incumbents" at first, because the changes will be narrowly focused on the particular needs of emerging niche markets, which will make them "unattractive or inconsequential."

**In time, however, this way of creating and changing the law will gain wider usage and impact.

Other practice innovations already in place have disruptive potential as well. Consider, for example, ediscovery and due diligence. These practices began as digital versions of their former analog practices, and mostly retain that character, but possibly not for long.

**These digital innovations could easily morph from their case-specific beginnings into more widely accessible databases of searchable information.

**If so, they will change the overall fact-specific context of dispute resolution and transactional law.

**And if they do that, new standards of pleading and disclosure will arise, and will require new rules and procedures to guide their use.

And finally:

**This new way of changing the law will likely arise from an informal collaborative process which will further -- by a quantum leap -- the goal of bringing more "simplicity, convenience, accessibility, and affordability" to dispute resolution and commercial transactions.

In this regard, think of disruptive innovation as a sort of communal table process for changing the law. You've noticed the community tables springing up in restaurant and coffee shops. They're more than a new style of seating arrangements: they're changing the dining/drinking industry and the dining out experience. (For a wonderful analysis, see this March 31, 2014 article in The Atlantic: _Alone Together: The Return of Communal Restaurant Tables_.)

These developments will create some fascinating new bedfellows. Next time we'll look at one such pair: commercial law and legal ethics.
The Future of Law (8): _The Sharing Economy_

" _Misery makes strange bedfellows."  
Shakespeare, The Tempest_

This week's first prediction:

**The law of commercial transactions will take on a bitcoin dynamic.

This is from the Bitcoin website:

Bitcoin uses peer-to-peer technology to operate with no central authority or banks; managing transactions and the issuing of bitcoins is carried out collectively by the network. Bitcoin is open-source; its design is public, nobody owns or controls Bitcoin and everyone can take part.

That's pure democratization, folks! The key is "peer-to-peer": if you and I agree that a business or network or other medium of exchange has value, then it does, and conventional metrics be damned. Think Amazon and Facebook: both have an immense market capitalization; neither of them shows a profit.

Peer-to-peer is what's driving the new sharing economy. Consider this from a recent article in Time Magazine:

The key to [the sharing economy] was the discovery that while we totally distrust strangers, we totally trust people \-- significantly more than we trust corporations or governments. Many sharing-company founders have one thing in common: they worked at eBay and, in bits and pieces, recreated that company's trust and safety division. Rather than rely on insurance and background checks, its innovation was getting both the provider and the user to rate each other, usually with one to five stars. That eliminates the few bad actors who made everyone too nervous to deal with strangers.

I can therefore predict:

**Peer-to-peer will alter the key commercial concepts of valuation and contract consideration.

**Commercial trust -- deciding who you're going to do business with -- and related issues such as fairness and fraud will be built increasingly on the ratings you get from the people you do business with.

The sharing industry has more than a toehold on the economy: a graphic in the Time article shows that it has already raised billions of dollars in startup capital. It will only get bigger, despite the fact that...

It's unclear if most of this is legal. The disrupters are being taken on by governments and the entrenched institutions they are challenging... [T]here are thousands of companies -- in areas such as food, education, and finance -- that promise to turn nearly every aspect of our lives into contested ground, poking holes in the social contract if need be. After transforming or destroying publishing, television and music, technology has come after the service sector.

The legal profession is of course busy representing the "governments and entrenched institutions" trying to tax, license, and otherwise bring the sharing economy into conventional legal boundaries. Lawyers will win some and lose some, but in time...

**The peer-to-peer dynamic will prevail in significant economic sectors -- including the professional service sector of which the legal profession is a part.

**As a result, peer-to-peer review of commercial transactions will extend to the parties' legal counsel.

**The resulting consumer satisfaction data will have a curious side effect as a new kind of legal ethics watchdog.

Peer-to-peer is the ultimate in self-policing, which makes its extension to legal ethics unlikely but logical. Rule 8.3 \-- the duty to report unethical behavior among our peers -- has long been a part of the Model Rules of Professional Conduct, but has been more honored in the breach than the observance. The new, democratized marketplace will take this matter into its own hands.

Strange bedfellows, indeed.
The Future of Law (9): _Hacking the Law_

Hackers used to be known by the color of their hats: black, white, and gray. There were good guys, bad guys, and in-between guys. Nowadays, hacking is the new caché in the self-improvement culture. Self-hacking is the ultimate DIY -- it's how you step up, take responsibility, get it done.

You may remember DU Law professor Debra Austin from last year's _Killing Them Softly_ series, and her advice re: neural self-hacking for stressed-out lawyers. Google has also created its own internal course for employees on neural self-hacking. And how about this conference in London last summer on The Future of Self-Hacking that asked:

What are the best methods for "hacking" improvements on ourselves? What do recent insights from science and technology have to say about self-development? What methods are likely to become more widespread in the not-too-distant future?

At that conference, an all-star group of presenters talked about:

Smart methods to improve our consciousness, memory, and creativity __

Meditation as self-engineering __

Diet, drugs, and supplements - impacts on fitness and performance

Actions based on self-measurement (QS: quantified self)

Best insights into goal-setting, affirmations, etc _._

Risks and opportunities in the frontier lands of DIY brain-hacking and mind-hacking. __

Hacking may be enjoying a surprising new respectability in its social status, but not all quarters of the hacking culture are so benign. Hacking still has an edge where the radicals hang out, playing a sort of X Games version of the democratization of knowledge. That's where you find WikiLeaks, open source social entrepreneurship, corporate open source and its anti-intellectual property orientation, and the rest of the voices denouncing the keeping of ANY kinds of secrets or protecting proprietary interests in them. Hence these predictions:

**In the realm of law, these radical players will increasingly bypass conventional modes of entry into the legal profession and law practice, and will offer their own alternative solutions to perceived injustice and inequities.

**These radical players are already changing the law, hacker-style, and they will continue to do so.

Consider, for example, the swift race towards justice we see daily in online news, as surveillance footage and ubiquitous smart-phone videos capture people in the act. Or consider the kind of visceral responses we make to images captured on police body cameras. As lawyers debate about them, these technologies are already changing evidentiary standards and criminal investigative methods. It's not hard to imagine other applications -- if you need to prime the pump, Google "whistle-blowing as cultural ethos" and check out what comes up.

Hacker law is the law of outcry and outrage, fueled by an insistent impatience that flies in the face of the law's historical emphasis on rational, language-based deliberation. Are those who practice it vigilantes? Anarchists? Underground heroes? Tomorrow's Gandhis and MLKs? It depends on where your sympathies lie, but like it or not, the hacker ethos has invaded the law. And, as is true of all the trends we're looking at in this series, we've only seen the start of it.
The Future of Law (10): _Mindfulness_

Mindfulness is another trend driving change in the law. Here's DU Law professor Debra Austin's definition from her _Killing Them Softly_ law review article:

[M]indfulness is attention without labels, ideas, thoughts, or opinions. Mindfulness means "being fully aware of something" and paying attention to the moment, with acceptance and without judgment or resistance. It requires "emotion-introspection rather than cognitive self-reflection," and specifically does not involve the analysis of thoughts or feelings. Mindfulness is a form of self-understanding involving self-awareness rather than thinking.

My CLE workshops don't talk about or teach mindfulness, but they do require comparable reflection and self-awareness. Occasionally someone worries out loud that too much of this kind of thing will make you lose your edge, become less zealous as an advocate.

In other words, mindful lawyers are wimps.

I don't know about you, but the most mindful people I know are rarely comfortable to be around. Penetrating, insightful, honest, no-nonsense, yes. Laid back and careless, no. The "mindfulness is for wimps" assessment no doubt comes from the Legal Borg, which has its own issues with fostering cognitively- or chemically-impaired lawyer brains, and never mind that there's plenty of research and experience out there to support the notion that mindfulness provides a competitive advantage.

Judging from the strength of the mindfulness trend, this is another area in which the Legal Borg is losing its grip on the legal profession's cultural ethos. An ABA Journal article last year announced that _Mindfulness in Law Practice is Going Mainstream_. As evidence of that, check out these online resources:

_Mindfulnessinlaw.org:_ Articles, books, websites, exercises, with categories for bar associations, law schools, the judiciary, and lawyer groups.

_Themindfullawyer.com:_ More programs, resources, events, and articles, collected by lawyer and educator Scott Rogers, founder and director of the Institute for Mindfulness Studies, the University of Miami School of Law.

How will the mindfulness trend change the law?

**We will see the emergence of new "best practices" that address and reverse areas of chronic dissatisfaction with the law among both lawyers and clients. For example, toxic stress and intentional destruction -- both uncivil behavior toward other lawyers, and self-destructive lawyer responses to stress -- will simply no longer be tolerated in the legal profession or the legal marketplace.

**In their place, mindfulness practice will foster a new kind of "thinking like a lawyer" that will create new laws and legal procedures characterized by the kinds of benefits mindfulness produces in the individuals who practice it -- e.g., decisiveness, clear thinking, intolerance for "brain noise" (drama, distraction, histrionics), and an uncanny awareness of invisible factors driving behavior.

**As the law takes on the characteristics of mindfulness practice, the result will be more self-appraising, self-guiding, and self-correcting pathways to legal end results. The result will be more efficient and satisfying legal options and outcomes.

**A new equity system -- maybe formal, certainly informal -- will arise in which the process of getting to results through informed collaboration will be valued, encouraged, and enforced.

Next in our excursion into futurology, we'll look at the increasing polarization of three divergent pathways in legal practice and the law: commoditizing, expertise, and mastery.
The Future of Law (11): _Commoditization_

" _A_ __lawyer's_ time and advice are his _stock_ in _trade_."  
Abraham Lincoln_

Who'd have thought we'd see the day when Honest Abe would steer us wrong?

The other day at the gym one of the TV's ran an ad for LegalZoom's business startup services. They'll set up your business entity, protect your IP, handle contracts, take care of your estate planning, and generally make it possible for the smiling business owner on their website to declare, "I'm making money doing what I love" -- which presumably doesn't include visiting a lawyer.

Welcome to the commoditization of legal services, where lawyers' time and advice aren't what's for sale. We're not just talking about legal kiosks at Walmart; commoditization is happening on the high end of legal services, too.

**It's easy to predict we'll see much more of this.

Commoditization shifts the focus of legal consultation from the one to the many: lawyers don't advise individual clients based on that client's circumstances; instead, they presort legal information which is relevant most of the time and package it into immediately useable form. In his book _The Future of Law_ , law futurist Richard Susskind calls this new kind of lawyer an "engineer of legal information":

What, then, might the lawyer's role be as an engineer of legal information? The main task... will be that of analyst--it will be for the lawyers, with their unparalleled knowledge of the legal system, to interpret and repackage the formal sources of law (legislation and case law) and articulate it in structured format suitable for implementation as part of a legal information service.

As legal service becomes a form of information service, and lawyers package their knowledge and experience as information services designed for direct consultation by non-lawyers, the work product of individual lawyers will no longer be devoted only to one case and to one client. Instead, the legal information will be reusable and for that purpose cast in a form well suited to repeated consultation.

One impact of commoditization on the law will be as follows:

**The marketplace consensus of what is relevant for the many, as embedded in systems-based legal products, will increasingly be regarded as the law itself.

Susskind describes this new kind of law as follows:

[Commoditization] has extremely profound implications for the law. It is possible, for example, that the information which will be accessible on the global highway will guide our social, domestic, and working lives more directly than the primary sources (legislation and case law) themselves. In a sense, this legal guidance itself may come to be regarded as the law itself and not just a representation of it. This may indeed become the prime illustration of what the legal sociologist Eugen Ehrlich, earlier this century, called the "living law" -- the law which actually reflects and conditions behaviour in society.

Historical notions of the attorney-client relationship recoil at commoditization, but it is all bad? Maybe not. Susskind describes one key benefit: greater access to legal advice:

The number of [users of commoditized legal information] will be vastly greater than the number of conventional clients of today; and the frequency with which these legal information services will be consulted will greatly outstrip the frequency of consultations with lawyers today. The difference will lie in the emergence and realization of the _latent legal market_ , as innumerable situations in domestic and business life are enlightened by the law when this would or could not have happened in the past. (Emphasis in original.)

More on legal commoditization next time.
The Future of Law (12): _Commoditization Cont'd._

If you want to further explore the topics we've been considering in this series, here are couple wonderful resources:

Check out _100 Innovations In Law_ , the ABA Journal's cover story, just published yesterday. The article begins this way:

People tend to think of the law as slow-moving, immutable and disconnected from daily life. And lawyers have a reputation of being cautious and resistant to change. But in fact, when technology or sweeping changes are necessary to better serve their clients, improve access to justice or simply make their work easier, lawyers can be pretty progressive.

While fundamental change can take decades, in the past 100 years legal professionals have eagerly adopted technological innovations, streamlined the law and launched new practice areas that were unimaginable just a century ago. The innovation of written laws dates to 1750 B.C., but many of the most important innovations in the law have come in just the last century. Here is a list of 100 technological, intellectual and practical innovations that have fundamentally changed the way law is practiced.

For a futurist perspective on the law spanning the past twenty years, Richard Susskind is the mother lode. I'm chagrined to be just discovering him and his work after all these weeks of making my own predictions, but we'll be hearing more from him. He writes mostly about law practice -- less so about the law itself. You can Google him and get to his website, where his books are listed. I recommend all of them, although there is some repetition as time goes on.

And now, back to our consideration of the commoditization of the law that we began last time.

In his 2008 book _The End of Lawyers_ , Richard Susskind predicts that, as the law is increasingly presorted and prepackaged for delivery in the commoditized marketplace, the awareness of what is actually legal advice will fade, dissolved into more comprehensive packages of multidisciplinary service and product offerings:

[T]he compartmentalization of information into legal and other such conventional categories will itself fade away in time. The information products and services available... will be packaged and oriented towards providing practical and directly implementable guidance with little or no distinction between the disciplines from which the final information product has been derived. A user who has a problem which traditionally may have needed, say, accounting and banking expertise as well as legal, may consult a service which provides a synthesis of these three sources of guidance, but there will be no particular need or benefit in the overall guidance being broken down into units which reflect their original structure.

I predict that a key result of this shift in advisory practice will be a narrower field of vision concerning what the law actually is or isn't:

**The law in its commoditized form will increasingly be regarded as the law itself, as opposed to what the law theoretically might be. Therefore law changes will occur within this narrower field, not the wider. more theoretical field of possibilities.

**As a result, legal advice will narrow in scope as well. Historical lawyer-like answers such as "it depends" and "on the one hand this vs. on the other hand that" will be less valued, and legal complexity will fade as a commonly-accepted paradigm.

I also predict that the lack of distinction between what is legal vs. non-legal advice will have side effects on law practice, such as:

**As the legal profession loses its monopolistic grip on legal advice, policing the unlicensed practice of law will become increasingly difficult. As a result, lawyers and legal processes will lose their exclusive franchise as the creators, interpreters, and changers of the law, opening its content to wider influences.

**Informal collaboration among allied disciplines and practitioners will be increasingly replaced with comprehensive, integrated, ready-to-implement information product offerings. As a result, the current practices of inter-disciplinary networking and referrals will become less important for law practice and career building.

Further, these developments will create a need for a new kind of legal expertise. _We'll talk about that next time._
The Future of Law (13): _The New Legal Experts_

" _All professions are conspiracies against the laity.  
George Bernard Shaw_

What if, Mr. Shaw, consumers could get timely, pertinent, accessible, and affordable legal expertise indirectly -- because it is incorporated into democratized and commoditized legal service offerings -- without the need to confer with a lawyer? Would that end your "conspiracy"?

Good questions.

We saw earlier in this series that one of the Wikipedia founders has backtracked on the radical democratization of knowledge, acknowledging instead the need for experts:

As wonderful as it might be that the hegemony of professionals over knowledge is lessening, there is a downside: our grasp of and respect for _reliable information_ suffers. With the rejection of professionalism has come a widespread rejection of expertise—of the proper role in society of people who make it their life's work to know stuff. This, I maintain, is not a positive development

From Larry Sanger's _Citizendium_ manifesto entitled _Who Says We Know: On the New Politics of Knowledge_.

**It's not hard to buy Sanger's position and predict there will still be a need for legal experts in the future.

But what will their expertise be, exactly? And how will they obtain it? More good questions. We'll take them in reverse order.

Until now, conventional wisdom has been that new lawyers should develop expertise Malcolm Gladwell-style, logging their ten thousand hours in a career path legal futurist Richard Susskind described this way in his 2008 book _The End of Lawyers?_ :

Traditionally, lawyers have developed their skills and evolved to the status of specialist by apprenticeship and then ongoing exposure to problems of increasing complexity

Susskind also foresaw that legal commoditization could end this career path:

Given that this book suggests IT would eliminate, streamline, and proceduralize increasing amounts of conventional legal work, does this not eliminate the very training ground upon which all lawyers cut their teeth and rely upon in progressing to specialist positions?

It was a rhetorical question. The answer was yes, of course, and five years later, Susskind's book _Tomorrow's Lawyers_ cited multiple lawyer surveys revealing what most of us already knew: this practice was flawed anyway, since it takes only a few of those ten thousand hours to learn due diligence, discovery, and the other kinds of work that pass for lawyer training. No, it seems that the real reason for this '"training" was law firm economics:

[W]e should not confuse training with exploitation. It is disingenuous to suggest that young lawyers are asked to undertake routine legal work largely as a way to them learning their trade. Rather, this delegation has been one mainstay in supporting the pyramidic model of profitability that has enjoyed such unchallenged success until recently.

Hence these predictions:

**Regardless what we think about this path to expertise, it will end as "routine legal work" is increasingly commoditized.

**The new legal experts will be lawyers who are proficient with the kind of systems thinking that commoditization requires.

Commoditized law requires people who can understand the larger context in which legal knowledge will be used, and then package it into self-executing, self-correcting, automated sequences to be used not just for a single client but over and again. You don't learn this skill from ten thousand hours of legal grunt work, you either have the cognitive knack or can learn it. That mental skillset will define tomorrow's legal experts.

More next time.
The Future of Law (14): _The New Legal Experts Cont'd._

The world of commoditized law dispenses legal advice not by lawyers in individual consultations with clients, but instead through IT distribution channels, to a wider market of similarly situated consumers. Legal content is subsumed into the greater context in which the advice is pertinent, so that the consumer (no longer a "client") gets comprehensive, multidisciplinary advice in one stop shopping, without the need to separately consult a lawyer and other relevant professionals.

The creators of these products must be able to see the entire context in which the legal advice is needed, and then break down the legal aspects into separately implementable steps. In his book _Tomorrow's Lawyers_ , law futurist Richard Susskind calls this process "decomposing" the law, and provides examples of decomposing litigation and business transactions. The idea is to unbundle the law into its separately applicable components, combine the ones that have similar dynamics, and put them back together into steps that can be taken to completion after collecting pertinent data.

Expert lawyers do this already, dispensing advice in the context of one-to-one client relationships. The legal experts of the future will do this on a wider scale, creating more broadly applicable IT products embedded with legal advice.

**The creators of this new kind of legal advice will be much in demand in the new world of law.

**The means of entry into the professional will be altered to admit them into practice.

**As we saw last time, they will follow a career development path not encumbered by the former "training" model which in truth was driven by law firm economics.

**To help them serve the burgeoning legal commodities market and move more quickly to expert status, legal training in law school and law practice will increasingly promote systems thinking.

As for the law itself:

**These new experts will have a more direct and substantial impact on shaping the law.

**They will shape it around from the end-user's perspective.

**As a result, the law will be reorganized into practicable modules, replacing historical knowledge/content areas such tort, contracts, real property, etc.

As the future's expert lawyers conduct their decomposing, embedding, and reorganizing, they will need to deal with an unprecedented challenge: the sheer bulk of the law. Technology's speed and storage capacity have resulted in a massive proliferation in the volume and complexity of the law. Although lawyers have access to sophisticated digital repositories of all this law, they typically use analog means to assimilate it.

**The analog processing of legal developments -- i.e., by their assimilation into individual lawyer's brains via CLE and similar means -- is a holdover from the law's analog past that will end in the future.

**What will replace it? Law by Algorithm. _We'll look at that next time._

Do these developments signal the end of legal solutions expertly-tailored to individual client needs? The surprising answer is, not at all. In fact, just the opposite:

**Thanks to Law by Algorithm, the law of the future will be more personally-tailored than it is now.

Further, when we agree with Larry Sanger that the world will still need experts for the foreseeable future, we may actually mean something beyond experts and expertise: we may be talking instead about a new kind of legal _mastery_.

**The future world of law will feature both experts and masters, and we'll need them both. _We'll be looking at this next time as well._
The Future of Law (15): _Law by Algorithm_

[A few posts back, we noted legal futurist Richard Susskind's opinion that commoditization would improve access to legal advice in the future, in what he termed the "latent legal market." Would that include clients of moderate means? I think so. As an example, the ABA recently offered a new book re: creating a virtual office to serve this market -- yet another example of how technology is creating the new world of law.]

Google customizes the news you see. Amazon suggests if you like this, you might like that. Your cellphone carrier, bank, and pretty much everybody else you deal with on a regular basis gives you the option to customize your own account page.

**The new commoditized/democratized purveyors of legal products will also give this option to consumers. The days of "mylaw.com" are upon us.

Welcome to law by algorithm: artificial Intelligence at work, serving up the customized law you need personally and for your work and business. And you don't have to go looking for it -- it will come to you automatically, based on your preference settings and past choices.

**Law by algorithm will enable consumers to self-diagnose legal issues and access legal "remedies" for what ails them.

**We'll also see online diagnostic networks geared for legal professionals only -- similar to those that already exist for physicians.

Think WebMD. And yes, we will see WebJD -- someone is already working on it. Also check out A2J Author, sponsored by the Center for Access to Justice & Technology, a project of the Chicago-Kent School of Law. The Center's purpose is "to make justice more accessible to the public by promoting the use of the Internet in the teaching, practice, and public access to the law." And for a thoughtful introduction to online legal diagnosis, check out the work of Stephanie Kimbro, MA, JD, a Fellow at Stanford Law School Center on the Legal Profession and Co-Director of the Center for Law Practice Technology.

**Law by Algorithm will take us all the way to its extreme expression: to open source law.

Forbes reviewed open source applications in the law back in 2008 -- again, ancient techno history. Seven years later, open source law is no longer mere speculation; we are already living in the  Outer Limits (remember that show?) of this future legal reality.

We aren't talking here about the law concerning open source software , we're talking about open source practice applied to the law itself. In his book _The End of Lawyers?,_ Richard Susskind describes open source law as sustained, online, mass collaboration re: the application and creation of the law, where content is user-generated, derived from public sources such as judicial and regulatory filings. Open source users engage with this data, extracting, analyzing, applying, and _creating_ the law they need.

Thus open source law takes the creation of the law out of the exclusive hands of lawyers and the legal system as we have known it, and instead puts it into the hands of end-users, using artificial intelligence algorithms that incorporate the best of "thinking like a lawyer." (Without, we might add, the risk that the lawyer doing the thinking might be suffering from stress-related cognitive impairment.)

Which takes us back to the topic we looked at last time: the place of _human_ legal experts in the future of law. _We'll look at that topic again next time, with a new twist._
The Future of Law (16): _The New Law Masters_

_[I wrote last time about open source law._ The Lawyerist _published an article on open source law that same day. Yes, the future of law is already here.]_

I Googled "definition of expert" and got this: "a person who has a comprehensive and authoritative knowledge of or skill in a particular area."

**We will still see legal experts in the future, but not as we currently know them.

As we saw earlier in this series, the legal experts of the future will be systems thinkers who can fashion comprehensive, multidisciplinary, mass-appeal, consumer-oriented IT products with legal solutions embedded within them. And, as we saw last time, Law by Algorithm will increasingly provide the "think like a lawyer" artificial intelligence needed to create those products.

On the other hand, in his book _Tomorrow's Lawyers_ _,_ law futurist Richard Susskind anticipates the ongoing need for lawyers (using human brains, not artificial intelligence) who can fashion legal solutions beyond the "think like a lawyer" work product.

**Those lawyers will emerge as a new class of law _masters_.

Consider this quote from Ken Coleman. host of The Ken Coleman Show and author of _One Question_ , in which Coleman captures the essence of the commoditization we've been talking about: "Society seems to favor mass production from its citizens. We dress alike, behave similarly, and speak with a common vernacular. Thanks to the gifts of the digital age, anyone today can become an "expert."

In a blog interview with author Daniel Pink -- bestselling author of _Drive_ and _A Whole New Mind_ \-- Coleman and Pink agree that what's really needed is not expertise but mastery, and share some thoughts about how you get it. Further, a recent blog post on that topic from _The Lean Thinker_ had this to say: "Put another way, the 'expert' knows. The 'master' knows that there is much to learn."

Here are this week's predictions about the new law masters:

**The law masters of the future will be valued not as repositories of knowledge, but for their inquiring minds, and especially for the ability to ask important, relevant questions whose answers aren't already embedded in commoditized legal products.

**The new law masters' key proficiency will lie not in knowing the law (the job of experts), but in _knowing how to develop it_.

**The new law masters will shape the law using innovative new methods not currently part of the law landscape. (What these might be is anybody's guess.)

**And the law itself will reward them for this expertise, by continuing to provide plenty of gray areas and unanswered questions, commoditization notwithstanding.

In his book _The End of Lawyers_? _,_ Richard Susskind notes that disruptive innovation is disruptive to lawyers, not clients. This comment suggests another role for the new law masters:

**They will profoundly and skillfully shape the assimilation of  disruptive innovation into the law and law practice.

**For example, they will have the sage ability to understand and guide the law and law practice when the law goes multimedia, as it inevitably will (another topic Richard Susskind takes up in his book The End of Lawyers?).

As for the latter, just try to imagine what the law will be like when it is detached from its Gutenberg printing press moorings in language and logic.

I can't either.

Which is precisely why we'll need the new law masters to help us out.
The Future of Law (17): _How Long Before The Future Gets Here?_

Well, for one thing, the future is already here. The signs of it are everywhere; this blog has been looking at them for a couple years. But for another, we're talking about a paradigm shift here -- a major change in perception and operative dynamics. Paradigm shifts don't become the new normal until a critical mass of recognition has been reached.

Physicist and philosopher Thomas Kuhn introduced the term "paradigm shift" 53 years ago. His work was itself a paradigm shift in how we view the dynamics of change:

[Kuhn's] vision has revolutionized the way we think about science, and has given us as well a new way to look at change in all of life.

From an untitled paper published online in the early days of the internet (circa. 1992) by Prof. Tim Healy, Santa Clara University

Kuhn created what has come to be known as the Kuhn Cycle to describe how new paradigms replace old ones. Here's a schematic from an article on Thwink.org, which introduces the cycle as follows:

The _Kuhn Cycle_ is a simple cycle of progress described by Thomas Kuhn in 1962 in his seminal work _The Structure of Scientific Revolutions_. In _Structure_ Kuhn challenged the world's current conception of science, which was that it was a steady progression of the accumulation of new ideas. In a brilliant series of reviews of past major scientific advances, Kuhn showed this viewpoint was wrong. Science advanced the most by occasional revolutionary explosions of new knowledge, each revolution triggered by introduction of new ways of thought so large they must be called new paradigms. From Kuhn's work came the popular use of terms like "paradigm," "paradigm shift," and "paradigm change."

Kuhn used the term _incommensurability_ to describe the clash of old and new paradigms. The following is from a post on _Thwink.org_ :

People and systems resist change. They change only when forced to or when the change offers a strong advantage. If a person or system is biased toward its present paradigm, then a new paradigm is seen as inferior, even though it may be better. This bias can run so deep that two paradigms are _incommensurate_. They are incomparable because each side uses their own paradigm's rules to judge the other paradigm. People talk past each other. Each side can "prove" their paradigm is better.

Writing in his chapter on _The Resolution of Revolutions_ , Thomas Kuhn states that:

If there were but one set of scientific problems, one world within which to work on them, and one set of standards for their solution, paradigm competition might be settled more or less routinely by some process like counting the number of problems solved by each.

But in fact these conditions are never met. The proponents of competing paradigms are always at least slightly at cross-purposes. Neither side will grant all the non-empirical assumptions that the other needs in order to make its case.

**Though each may hope to convert the other to his way of seeing his science and its problems, neither may hope to prove his case. The competition between paradigms is not the sort of battle that can be solved by proofs.**

Or, as science historian James Gleick said in his bestseller _Chaos: The Making of a New Science_ , "Ideas that require people to reorganize their picture of the world provoke hostility."
The Future of Law (18): _How Long Before The Future Gets Here? Cont'd._

" _A new scientific truth does not triumph by convincing its opponents  
and making them see the light, but rather because its opponents eventually die,  
and a new generation grows up that is familiar with it."_

Max Planck, founder of quantum theory,  
in his _Scientific Autobiography and Other Papers_

Max Planck's comment is right in line with what we learned last time from physicist Thomas Kuhn's seminal work _The Structure of Scientific Revolutions_ about how paradigm shifts come to be adopted. Kuhn also speculated that it takes a full generation for a paradigm to shift.

How long is a generation? A blog post from biological anthropologist Greg Laden provides a pithy answer:

Short Answer: 25 years, but a generation ago it was 20 years.

Long answer: It depends on what you mean by generation.

If these three scientists are correct, then the trends we've been looking at in this series will take another 20-25 years to become the law's "new normal." That can make us feel either impatient or complacent, but before we get too settled in our position, we might keep in mind the lessons of a year end 2010 _New York Times_ article that points out that we often envision the new normal by extrapolating from the recent past, which makes for a lousy planning strategy. Why? Because we don't take into account a simple, game-changing factor:

The element of surprise.

Many of the predictions made in this series are surprising, to be sure, but even more surprising is that _these things are_ _already happening_ but many of us _just aren't seeing them_. Why not? Because our brains literally can't take them in.

In a post in this blog at th4e end of 2014, we looked at research from the emerging field of cultural neurology that suggests our brains' observation and cognitive faculties are so linked to our cultural context that we simply can't see paradigm shifts when they happen. Our cultural bias blinds us. We're caught in The Emperor's New Clothes syndrome.

Who _can_ see the shift? The new generation. By the time the new paradigm's "opponents eventually die, and a new generation grows up that is familiar with it," the paradigm we can't see now will be the only one the new generation has ever known.

And just to make things a bit more complex, as we've also seen before, some trends don't sustain their momentum, and some paradigms never shift for lack of a following. Which is why passivity doesn't serve us in times of great change.

What's the alternative? We can position ourselves to be surprise _makers_ instead of surprise _takers._ We can grab the new paradigm and run with it, and in so doing help to shape it the way we'd like.

We'll talk next time about how we can do that.
The Future of Law (19): _Don't Wait, Create!_

"The best way to predict the future is to create it."

The above quote has been ascribed to a lot of different people, including Peter Drucker and computer scientist Alan Kay. But according to the _Quote Investigator_ **:**

The earliest evidence appeared in 1963 in the book "Inventing the Future" written by Dennis Gabor who was later awarded a Nobel Prize in Physics for his work in holography.

We are still the masters of our fate. Rational thinking, even assisted by any conceivable electronic computers, cannot predict the future. All it can do is to map out the probability space as it appears at the present and which will be different tomorrow when one of the infinity of possible states will have materialized. Technological and social inventions are broadening this probability space all the time; it is now incomparably larger than it was before the industrial revolution—for good or for evil.

The future cannot be predicted, but futures can be invented. It was man's ability to invent which has made human society what it is. The mental processes of inventions are still mysterious. They are rational but not logical, that is to say, not deductive.

I.e., we can speculate -- as we've been doing in this series -- about where present trends might take us, but it's useful to remember that "we are still the masters of our fate." We can shape where those trends take us by engaging with them, and thus we can invent the future -- the future we want, not just the one that will happen to us.

As Dr. Gabor points out, the process by which we do that is "rational but not logical." We looked at the mindfulness trend earlier In this series. In that spirit, how about we might try a mindfulness approach to creating the future for ourselves? If you're game, here's a simple exercise in four steps:

**Pick one** of the predictions I've made. Go ahead, we'll wait. Is there one in particular that has a lot of energy for you, so that when you read it you say, "Oh yeah!" Or if there are several, is there a theme that runs across them? Don't over-think – just go where you feel a tug – the stronger the better.

**Express it** as a goal or intention -- something you are committed to making happen. Complete this sentence, filling in the blank: "My response to this prediction is to create ________________." Maybe it's a career or practice shift, or something personal. It doesn't matter what your goal is. What matters is your commitment to it.

**Beatify it**. Yes, you read that right. No, we're not making anyone a saint here, we're using "beatify" in the sense of "extreme blissful happiness." Yes, you read that right, too. What we're after here is to take your goal/intention and take it to an extreme level of emotional reward/satisfaction. What would creating it give you that you don't have now and would really like to have? How would it revolutionize you, your career?

**Watch** where your thoughts go with this. What ideas and feelings come up?. Be prepared to write fast and take good notes -- the energy of the idea that grabbed you plus your commitment to it will pop the cork on your creativity.

That's it. Have fun with it. Use it for as many predictions as you like. And then...

Welcome to the future -- the one you're creating.
The Future of Law (20): _Some Final Meta-Thoughts_

The "meta" of something is its higher abstraction, the bigger picture behind the smaller ones. In scholarship, a meta-analysis is an analysis of all the analyses of a topic. Each separate analysis collects and analyzes data. The meta-analysis analyzes all the analyses.

Now that we've looked at various individual current trends and projected them into a vision of the future of law, what's the _meta_ of them? What's the big picture?

Our futurist approach has been mostly based on trend analysis: seeing what already is, then guessing where it's going, meanwhile keeping in mind that we are not passive recipients of the future, but powerful agents of its creation.

If we want to be, that is. If we make the effort.

Some of us want to be, and will. People in this group will engage with the dynamics of change deliberately, consciously, intentionally, mindfully \-- taking action to shape current trends into the future they want.

Some of us don't want to be, and won't. This group will be the change resistors, daring those responsible for disruptive innovation to prove that the trends represent change for the better as the resistors judge it to be.

The first group will feel the energy of personal and cultural transformation moving through themselves and their lives. The second group will wonder what ever happened to the world they once knew. Together, both groups will create what Thomas Kuhn called "the state of incommensurability" between old and new legal paradigms

Regardless of our response, the future is ours, whether we choose to advance or resist it.

All this will happen on countless individual stages, but what's the big show that will play out on the biggest stage? What's the meta of the future of law?

The answer lies in the nature of the law itself. The law is itself a meta-reality -- one of those gigantic, archetypal organizing principles of human life. The law enfolds and expresses our humanity, creates cultural and societal and national context. Those who live and work in the law are unavoidably its guardians and tutors, stewards and caretakers. They _will_ create the law's future, one way or another.

When we create the law, we shape and guide our humanity.

When we do _that_ , we create our world.

And most of all, we create ourselves.

The law: our humanity, our world, ourselves. There's a lot at stake here. May we craft the future with care.
The Future of Law (21): _The Future Couldn't Wait_

I intended this series to be over with last week's signoff. Apparently the future couldn't wait. Several developments came to my attention this past week that were just too good to pass up. We'll look at a couple this week, and a couple more next week. And maybe more, and maybe longer... depending on how fast the future keeps arriving.

Part 15 of this series, _Law by Algorithm_ , said this:

Welcome to law by algorithm: artificial Intelligence at work, serving up the customized law you need personally and for your work and business.

Then it made two predictions. Here's the first:

**Law by algorithm will enable consumers to self-diagnose legal issues and access legal "remedies" for what ails them.

Check out this article from two days ago in _Above the Law_ , about LawGeex, which will do exactly that:

The fact is many people could use the help of a lawyer to review everyday documents but either lack the means or simply do not want to deal with the pain of finding a lawyer.

One Israeli lawyer, Noory Bechor, thinks software is the solution and has raised $700K to build LawGeex, an artificial intelligence to analyze your documents against the documents in their database and flag provisions that are "not market." So now, for no cost, ordinary people can negotiate agreements with their landlord, employer or investor just as well as a trained lawyer. The service has already generated buzz with early adopters and, after having LawGeex analyze my new apartment lease, I was ready to learn more.

I went to the LawGeex website, where I was guaranteed my results within 24 hours, for FREE. Nothing personal, but try getting that from your local law firm.

The second prediction from Part 15 was this:

**We'll also see online diagnostic networks geared for legal professionals only -- similar to those that already exist for physicians.

Check out Foxwordy -- a private social network for lawyers, as described in a recent article in The National Law Review,

[Monica Zent, Foxwordy's founder] is an experienced entrepreneur and had already been running a successful alternative law firm practice when she founded Foxwordy. Foxwordy is a private social network that is exclusively for lawyers. Monica reminded the audience that we are, remarkably, ten years into the social media experience and all attorneys should consider a well rounded social media toolkit that includes Foxwordy, Twitter, and LinkedIn.

However, as Monica elaborated in a post-conference interview, LinkedIn, for example, "falls short of the needs of professionals like lawyers who are in a space that is regulated; where there's privacy, [and] professional ethics standards." As an experienced attorney and social seller, Monica understands that lawyers' needs are different from other professionals that use the more mainstream and very public social networks, which is why she set out to create Foxwordy.

Foxwordy is currently available to licensed attorneys, those who are licensed but not currently practicing but regularly involved in the business of law, certified paralegals, and will eventually open up to law students. Anyone who fits the above criteria can request membership by going to the homepage, and all potential members go through a vetting process to ensure that they are a member of the legal community.

Membership includes all the core social features such as a profile page, connecting with others, the ability to ask questions and engage anonymously, exchange referrals, and exchange other information and resources.

I went to the Foxwordy website and signed up. I got an email back thanking me for my interest and reminding me that Foxwordy is by invitation only, that they're looking for the best and brightest, and that they'll let me know if my invite has been accepted.

Apparently membership _does_ have its privileges.
The Future of Law (22): _The Future Couldn't Wait Cont'd._

Last week I reported a couple "the future is already here" developments, and said I would tell you a couple more this week. But one of them deserves its own post.

To set the context, this is from _Law by Algorithm_ , a post earlier in this series:

Google customizes the news you see. Amazon suggests if you like this, you might like that. Your cellphone carrier, bank, and pretty much everybody else you deal with on a regular basis gives you the option to customize your own account page.

**The new commoditized/democratized purveyors of legal products will also give this option to consumers. The days of "mylaw.com" are upon us.

Welcome to law by algorithm: artificial Intelligence at work, serving up the customized law you need personally and for your work and business. And you don't have to go looking for it -- it will come to you automatically, based on your preference settings and past choices.

And this is from another post earlier in this series, _The New Legal Experts Cont'd_ :

The world of commoditized law dispenses legal advice not by lawyers in individual consultations with clients, but instead through IT distribution channels, to a wider market of similarly situated consumers. Legal content is subsumed into the greater context in which the advice is pertinent, so that the consumer (no longer a "client") gets comprehensive, multidisciplinary advice in one stop shopping, without the need to separately consult a lawyer and other relevant professionals.

Expert lawyers do this already, dispensing advice in the context of one-to-one client relationships. The legal experts of the future will do this on a wider scale, creating more broadly applicable IT products embedded with legal advice.

**The creators of this new kind of legal advice will be much in demand in the new world of law.

Against this background, meet Catherine Hammack -- a "new legal expert" and founder of Jurispect, whose website greets you with these slogans: "Regulatory Intelligence For Companies" and "Real-Time Regulatory Analytics for Better Business Decisions." Ms. Hammack began her career by being in the right place at the right time (all of the following quotes are from a recent National Law Review article):

Catherine was present on two momentous occasions in U.S. financial history: as an intern at Arthur Anderson when Enron was indicted, and as a first-day associate at Bingham McCutchen the day Lehman Brothers filed for bankruptcy, and the start of the financial crisis in 2008.

She took that experience to the epicenter of commoditization:

Following her time at Bingham as a financial litigator, she transitioned to join Google's Policy team, where her perspective on legal services dramatically changed.

At Google, she learned, commoditization, multidisciplinary perspective, IT marketing and distribution channels... all the things we've been talking about in this series. And then she turned it all into a Law by Algorithm company.

As Catherine elaborated in a post-conference interview: "There was a huge gap between the way law firms traditionally provide counsel and the way companies need information to make business decisions." She was surrounded by engineers and data scientists who were analyzing vast amounts of data with cutting edge technology. Catherine became interested in adapting these technologies for managing risk in the legal and regulatory industries. Inspired by Google's data-driven decision making policies, she founded Jurispect.

Jurispect's team of seasoned experts in engineering, data science, product management, marketing, legal and compliance collaborated to develop the latest machine learning and semantic analysis technologies. These technologies are used to aggregate information across regulatory agencies, including sources such as policy statements and enforcement actions. Jurispect also analyzes information in relevant press releases, and coverage by both industry bodies and mainstream news. The most time-saving aspect of Jurispect are the results that coalesce into user-friendly reports to highlight the importance and relevance of the regulatory information to their company. Users can view this intelligence in the form of notifications, trends, and predictive analytics reports. Jurispect makes data analytics work for legal professionals so they spend less time searching, and more time on higher level competencies. As Catherine elaborated, "We believe that analytics are quickly becoming central to any technology solution, and the regulatory space is no exception."

We'll look at another new legal expert offering next time.
The Future of Law (23): _The Future Couldn't Wait Cont'd._

I tried to end this series three weeks ago, but the future keeps arriving, and I keep wanting to tell you about it. I realize that just because it's news to me doesn't mean it's news, and this week's topic is a case in point: it was analyzed in a law journal article from three years ago that I just came across this week:

This article is dedicated to highlighting the coming age of Quantitative Legal Prediction with hopes that practicing lawyers, law students and law schools will take heed and prepare to survive (thrive) in this new ordering. Simply put, most lawyers, law schools and law students are going to have to do more to prepare for the data driven future of this industry. In other words, welcome to Law's Information Revolution and yeah - there is going to be math on the exam.

"Quantitative Legal Prediction" is noteworthy because it encompasses several developments we've been talking about:

**Use of data/trend analysis as a _predictive_ legal decision making tool, made possible by technology's ability to sort through massive amounts of data and find what's relevant -- i.e., to think like a lawyer, techno-style.

**The morphing of digital tools such as ediscovery and online due diligence from their case-specific beginnings into more widely accessible databases of searchable information.

**The creation of new law school legal training to promote the systems thinking the future of law requires.

The above all come together in Ravel Law, as described a couple weeks ago in _The Lawyerist_ :

We hear a lot of talk about "big data" and how it will drive law practice in the future. In theory, someday you will have every bit of relevant practice data at your fingertips and you will be able to use that to predict how a judge will rule on a case, have computers crunch through discovery, and realistically predict the cost of litigation. That someday is getting closer and closer, particularly with tools like Ravel.

At its most advanced, Ravel also offers judge analytics, where you can see patterns about how judges rule and what ideas and people influence those judges. That type of analysis could be incredibly helpful in making decisions about settlement, deciding who should argue a case, whether to strike a judge, and how to approach your pretrial motion practice.

The _National Law Review_ said this about Ravel Law last winter:

Data analytics and technology has been used in many different fields to predict successful results.

Having conducted metrics-based research and advocacy while at the Bipartisan Policy Center, and observing how data-driven decision making was being used in areas like baseball and politics, [Ravel Law founder Daniel Lewis] was curious why the legal industry had fallen so far behind. Even though the legal field is often considered to be slow moving, there are currently over 11 million opinions in the U.S. judicial system with more than 350,000 new opinions issued per year. There is also a glut of secondary material that has appeared on the scene in the form of legal news sources, white papers, law blogs and more. Inspired by technology's ability to harness and utilize vast amounts of information, Daniel founded Ravel Law to accommodate the dramatically growing world of legal information.

Ravel's team of PhDs and technical advisors from Google, LinkedIn, and Facebook, has coded advanced search algorithms to determine what is relevant, thereby enhancing legal research's effectiveness and efficiency.

Ravel provides insights, rather than simply lists of related materials, by using big data technologies such as machine learning, data visualization, advanced statistics and natural language processing.

Not surprisingly, Ravel Law has worked closely with law students to develop and market itself:

"We work with schools because students are always the latest generation and have the highest expectations about how technology should work for them." Students have given the Ravel team excellent feedback and have grown into a loyal user base over the past few years. Once these students graduate, they introduce Ravel to their firms."
The Future of Law (24): _The Future Couldn't Wait Finale_

Question: What do mindfulness and meditation, hackers, crowdfunding, a law school offering masters degrees for non-lawyers, and techno-speak all have in common?

Answer #1: They're all the future of law.

Answer #2: And that future is already here.

**Mindfulness and Meditation** must be all the rage when The Wall Street Journal features an article like _Lawyers Go Zen, With Few Objections_. You can check this trend out for yourself next week at the Bar Association's "Better Lawyering Through Mindfulness" workshop with bankruptcy lawyer Jeena Cho, who's quoted in the WSJ article and is on a national tour promoting her book _The Anxious Lawyer: An 8-Week Guide to a Happier, Saner Law Practice Using Meditation._

**Hacker Law**. Legalhackers.org proclaims, "We are explorers. We are doers. We are Legal Hackers." Legal hacking, it says, is "a global movement of lawyers, policymakers, technologists, and academics who... spot issues and opportunities where technology can improve and inform the practice of law."

**Crowdfunding Lawsuits**. It's not just about raising money to hire a lawyer, it's about equal justice for all. CrowdJustice is on a mission to "make justice accessible." "Sometimes petitions are not enough," its website declares, "The law should be available to everyone, big and small. CrowdJustice gives you the tools to raise funds, mobilise your community and publicise your issue." (Yes, they're British.) LexShares is "revolutionizing access to the justice system" while giving you the chance to do well by doing good: you can "earn a return from litigation finance" by taking a piece of the judgment/settlement.

**Legal Mastery for Non-Lawyers**. A Los Angeles Times article from last month describes a new masters degree program:

"Everyday business and regulatory transactions are becoming increasingly complex," said Sean M. Scott, senior associate dean at Loyola Law School, Los Angeles. "That is particularly true in Los Angeles, where the areas of technology, entertainment, healthcare and policing face new legal challenges."

The new Master of Science in Legal Studies (MLS) is designed for those who want to improve their legal fluency in areas related to industry regulations, compliance, deal making and more without committing to three or four years of law school. "The goal is to provide legal literacy," Scott said.

"Loyola is uniquely poised to pivot its JD offerings to a new audience because of its nimble culture. Students may design their own program, pursuing a course of study such as healthcare law or fashion law with classes selected from a wide array of law school course offerings."

Pivoting and nimbleness are key entrepreneurial concepts, and Loyola takes them to heart: i.e., students can benefit from the kind of narrow mylaw.com focus they'll be able to give their business clients of choice. And the best part is, they'll learn without suffering the brain-numbing stresses of law school.

**Techno-Speak** :

Our technology infrastructure ... features multi-homed, fully redundant connectivity and power management controls, providing superior physical and electronic security for your data. Our scalable compute power, architected by industry technology experts, is built on high-performance, high-availability systems. Fully redundant servers, enterprise-class storage, and market-leading infrastructure monitoring and management solutions ensure the integrity, security, and responsiveness of your data.

Um... that's a good thing, right?

That bit of garble is from an ediscovery company's website. Let new lawyers learn the litigation ropes by grinding through discovery? No. Call in the data pros instead--they've already got an electronic approach that includes all that gobbledy-gook.

Okay, we get the point: anything we can possibly imagine about the future of law is already happening. Can we move on? Yes, of course. Our next series will take a fresh look at the culture of law.

### THE CULTURE OF LAW

" _The best way to predict the future is to create it."  
_ Dennis Gabor, Nobel Prize Winner in Physics

### The Culture of Law (1): _Peace of Mind_

" _The best way to predict the future is to create it."  
_ Dennis Gabor, Nobel Prize Winner in Physics

Since the first of the year, we've been talking about the future of law. We've seen how the _practice_ of law is undergoing a massive paradigm shift, mostly driven by technology, entrepreneurialism, and worldwide trends such as democratization and commoditization. We've looked at how these forces are changing law practice and lawyers, and we've speculated about how all this will ultimately change the law itself.

We've seen that the future of law isn't out there somewhere, waiting to descend on us, but that paradigms shift if and when we embrace them, and that the new normal of the future is ours to shape and own to the extent we choose to engage with it. We can make the future happen, or we can let it happen to us. The former is challenging but rewarding; the latter is a quick trip to curmudgeon status.

I.e., we've seen the future, and it is us. Which is why it's time to talk about the culture of law. The law of the future requires the law _culture_ of the future. Culture is the context in which the future will occur. If we understand what culture is and where it comes from, we can most effectively shape both the law and its future -- again, if we choose to do so.

Why would we want to? For our own peace of mind, for one thing. Quite literally. As we'll see, culture is a brain thing. Culture takes shape in our brains, our brains then shape our minds, our minds shape our behavior, and -- _voilà!_ \-- culture happens. When we're out of sync with this process, the result is disruption and dissonance in our brains. We become cognitively impaired in a profession that requires all the cognition we can give it.

Peace of mind isn't a luxury, it's enlightened self-interest. Cognitive wellness thrives on it. We need it to think, learn, analyze, decide, make sound judgments. We need it to be ethically competent. Successfully engaging with change instead of avoiding and resisting it brings emotional clearing and cognitive clarity, provides a still point from which to view a world apparently spinning out of control.

We'll tend to our peace of mind if we know what's good for us, and we usually do.

Before we go on, we need a working definition of "culture." We're familiar with the notion of company or firm culture. This is from Simon D'Arcy, founder of Next Level Culture:

Think of a culture code as the DNA of an organization, carrying within it a code that defines the character and proficiency of the entire organism. Instead of physical traits, tendencies and aptitudes, it influences how people behave with each other, shaping how they work together as well as the results they produce.

He's speaking of _organizational_ culture, which we find in individual firms. Expand that idea to the collective, over-arching culture of the profession within which all those individual firms operate, and now you're at the level of culture we're talking about in this series.

Culture on this level isn't just for BigBox and BigLaw, and it's not about firm outings and casual Fridays. It's The X Factor -- the difference between creating _and sustaining_ the future we envision vs. waking up one day to just another unfulfilling status quo.

Next time, we'll start our look at how culture is created from the inside out.

### The Culture of Law (2): _It's an Inside Job_

We tend to think of culture as something external to ourselves -- as something _out there,_ set in motion and maintained by the cumulative energy of all those other people we live and work with.

Not so. Culture is not out there somewhere; it's right here inside us -- in our brains, to be precise. Culture isn't about what everybody else is doing, it's about our own brain cells (neurons) and the ways they're linked together (neural pathways), plus all the hormones and electrical charges that keep the brain system running. Culture, in other words, is ultimately a personal biological and neurological reality.

In a series a couple years ago, I likened law culture to another biological concept:

Biologist Rupert Sheldrake posits the existence of "morphic fields."

A morphic field is the controlling energy field of a biological entity – either an individual or collective system. The field is made up of both organic and psychological elements. The field is invisible, but its impact is observable. For example, both genetics (organic) and individual and collective conscious and unconscious factors (psychological) invisibly affect our behavior.

When we enter the legal profession, we enter its morphic field. Lawyers work in the _field_ of law – get it? There are certain expectations, dynamics, outlooks, disciplines, judgments, commonly accepted wisdom, urban legends, etc. that come with the territory of being a lawyer.

In law school, we allowed our psyches to be affected by those things – we learned to "think like a lawyer." Our neural pathways were literally rewired, our consciousness was altered, and our physiology was affected as well, so that we were biologically and chemically different beings when we graduated than we were when we started. No kidding. This brain- and body-retraining process continued when we went to work.

I didn't know it at the time, but I was describing neurological cultural patterning. No, I'm not making this stuff up, and this series will look more deeply at how all this happens. But now, as we're getting started, it's useful to note several very practical implications all this has for lawyer personal wellbeing and career satisfaction. Here's the short list:

As we saw last time, brain-originated culture is ultimately about promoting peace of mind -- what one prominent brain researcher calls "concordance." We have an innate biological need for an ongoing, functional match between how things work in our cultural context and our personal needs and expectations.

The culture of law as it existed when we entered the profession becomes our default cultural setting. Our brains, in their pursuit of concordance, continuously seek to reinforce that default culture and conform our experience to it.

The trouble is, as much as our brains would like the default to stay in place, the external world is always changing, which stresses our neurological peace, which in turn stresses our personal wellbeing and professional performance.

If we want to change our experience of the culture of law to promote concordance, we need to get to that default brain cultural setting and change it, and keep doing so as new stressors arise. To do that, we need to consciously promote our brain in developing new neurons and new neural pathways. No kidding.

Coming up, we'll look at how law culture is shaped in lawyers' brains, and how our brains keep our default cultural setting in place unless and until we actively exert our power to change it.

### The Culture of Law (3): _Brainwashed_

This is from Wikipedia, on cultural neuroscience:

Similar to other interdisciplinary fields such as social neuroscience, cognitive neuroscience, affective neuroscience, and neuroanthropology, cultural neuroscience aims to explain a given mental phenomenon in terms of a synergistic product of mental, neural and genetic events.

Heady stuff -- quite literally. In this series, we'll look at all those factors -- mental, neural, and genetics.

I know... but stay with me here....

In his landmark book, _Brain and Culture: Neurobiology, Ideology, and Social Change_ , professor of psychiatry at Yale Medical School  Bruce E. Wexler declared that "concordance between internal structure and external reality is a fundamental human neurobiological imperative."

That "concordance" he speaks of is the peace of mind we've been talking about. It's a brain _necessity:_ our brains work on culture all the time. They do this mostly undisturbed most of the time, but not always. There are particularly intense formative periods of our lives when our brains are particular alive to shifting their cultural points of view.

Dr. Wexler speaks of "the importance of a close fit between internal neuropsychological structures created to conform with an individual's sensory and interpersonal environment _at the time of development_ , and the environment in which the adult individual later finds him or herself." (My emphasis.) Those "times of development" are the key to cultural creation.

Not surprisingly, one of those times is adolescence, which from a brain point of view lasts until age 25-27. New cultural possibilities abound when we come of age, and we make choices from the cultural contexts we are exposed to during that time, literally activating and de-activating genes as we do so. (Which explains why our kids aren't like us.) Then, during our adult lives, our brains and our external lives settle into creating concordance with our adolescent cultural choices.

That's _exactly_ what happens to our brains when we enter the legal profession. Think about it: many law students are under 25-27; nothing personal, but their brains aren't all there yet. What's especially missing are the portions that govern learning and sound judgment. (This explains why older law students experience law school differently than students right out of college -- something you probably noticed if you were an older student yourself, but probably didn't if you weren't.) Add the stress of law school to normal adolescent brain development, and you've got culture formation on steroids.

Although older law students have organically mature brains, stress pulls them into a comparable state of adolescent-like brain patterning, in a process comparable to what happens during boot camp. A former Marine Corps drill sergeant told me how they "greeted" new recruits, stomping into their barracks at 3:00 a.m., shouting and cracking whips. "We had to do that," he said, "Otherwise they weren't going to survive boot camp, let alone the kind of combat we send them into." Once they'd been torn down, the newly malleable recruits were built back up -- thoroughly enculturated into the Marine way.

Like them, law students younger and older enter law practice (the equivalent of Wexler's "environment in which the adult individual later finds him or herself _")_ with brains primed to reinforce the cultural choices we made in that stressful context.

We were brainwashed, all of us. No kidding.

(For a user-friendly analysis of adolescent brain development, see _Change Your Brain Change Your Life Before 25_ , by Jesse Payne. Jesse is the son-in-law of celebrity psychiatrist Dr. Daniel Amen. His courtship of Dr. Amen's daughter required a brain scan conducted by his famous future father-in-law.)

### The Culture of Law (4): _Default Setting_

" _We cannot solve problems by using the same kind of thinking  
we used when we created them."_

Einstein

Let's start this week by revisiting the premise of this series. This from the opening blog post:

The law of the future requires the law _culture_ of the future. Culture is the context in which the future will occur. If we understand what culture is and where it comes from, we can most effectively shape both the law and its future... if we choose to do so.

Those are key words: _If we choose to do so._ We might not. Let's look at what's going on in our heads one way or the other.

As we saw last time, our brains are patterned with our cultural expectations through the creation of new brain cells (neurons) and new brain wiring (neural pathways).

When we resist cultural change, judge new developments as "bad," insist the old ways were better, we think we're making a reasoned assessment of the pros and cons of old vs. new, and we're convinced our assessment is correct. Maybe so, but the neurobiological reality is that our brains are encountering a new cultural model that won't run on their existing neurons and neural pathways. Turns out we're not saving the citadel from the invading hordes, we're experiencing a brain reality: hormones secreting and electrical charges firing within our skulls.

Kinda puts the kibosh on the righteousness indignation, doesn't it?

When we promote cultural change, our brains need to generate new neurons (a process called neurogenesis) and lay down new neural pathways (a process called neuroplasticity). Once in place, this new neurological infrastructure will support the change we want.

Until our brains are rewired to the point where they can find and maintain the internal-external brain concordance Dr. Wexler talked about (see last time), we will continuously revert to our old cultural patterning. This is why we can leave a firm to set up a solo or small firm practice, or launch ourselves on a mission to reform law education. or whatever our focus of change might be, only to wake up one day to find ourselves back in the same culture where we started. We revert and self-sabotage because our brains weren't rewired to support the change we wanted.

We begin the process of deliberate change with an awareness of what our default cultural setting already is, as patterned into us during law school and our early practice years. We heard from Simon D'Arcy of Next Level Culture earlier. Here he is again:

You cannot change what you cannot accept. Creating a thriving team and workplace culture starts with revealing, acknowledging and embracing your default culture.

To know where we're going, we first need to know where we are, which means the cultural beliefs and behaviors, assumptions and expectations currently patterned in our brains. Finding out is an essential exercises in honesty, and honesty requires reflection.

We think we don't have time for reflection. We want results.

We'll get results if we take time for reflection.

New culture means new thoughts and behaviors. We won't have either if our brains haven't been rewired to accommodate them. We won't get anywhere unless we first understand where we are now. And we won't gain that understanding unless we step back and reflect about it.

_That_ is the inside-out game of cultural change.

### The Culture of Law (5): _Culture by Agreement_

We've seen that culture is a matter of individual brain patterning. But how is culture transmitted from one brain to another, so that all brains in a culture have the same wiring?

It begins with a shared experience of cultural formation, which we've looked at. After that, culture is reinforced by agreement. Agreement about what? A shared state of mind:

Because mental states cannot be transferred physically, they must be transferred by being re-created in the mind of the receiving individual.

[W]hat is transmitted is some state of mind that produces behavior.

[The transmitted state of mind includes] a myriad of... beliefs, values, desires, definitions, attitudes, and emotional states such as fear, regret, or pride.

From an article by Philip G. Chase, former Senior Research Scientist and Consulting Scholar at the University of Pennsylvania, in a collection of scholarly articles entitled _Evolution of Mind, Brain, and Culture._

Law students entering law practice observe lawyers thinking and behaving in ways that characterize law culture -- that make it recognizable as such to both members and non-members. Through observation and imitation, they become habituated into cultural norms of thinking and acting, forging implicit agreements about law culture which are reinforced through ongoing experience. In time, they become recognizable as lawyers even when they're not lawyering. It's a mindset: "once a lawyer, always a lawyer."

The same is true of other professional cultures. Think of accountants, engineers, physicians. Meet one, and you can just tell.

John R. Searle, Professor of Philosophy, University of California, Berkeley, has made a career of deconstructing about these cultural agreements, beginning with his landmark book _The Construction of Social Reality,_ where he framed his inquiry this way:

This book is about a problem that has puzzled me for a long time: there are portions of the real world, objective facts in the world that are only facts by human agreement. In a sense there are things that exist only because we believe them to exist. I am thinking about things like money, property, governments, and marriage.

If everybody thinks that this sort of thing is money, and they use it as money and treat it as money, then it is money. If nobody ever thinks this sort of thing is money, then it is not money. And what goes for money goes for elections, private property, wars, voting, promises, marriages, buying and selling, political offices, and so on."

How can there be an objective world of money, property, marriage, governments, elections, football games, cocktail parties and law courts in a world that consists entirely of physical particles in fields of force, and in which some of these particles are organized into systems that are conscious biological beasts, such as ourselves?

Professional culture is not monolithic. In every profession, the cats resist herding. Members of the culture practice some cultural agreements more than others, according to personal preference. We're not all in the same place on the cultural bell curve. Yet there is undeniably an identifiable mindset that characterizes the culture, and a general consensus about what that mindset is, _even if you believe yourself to be an exception_. (I have asked workshop participants about this for years, and the list of what characterizes law culture is always the same. You can write it up for yourself, right now, if you like.)

The seeds of cultural change lie in the tension between the general consensus and individual self-perception. _More on that coming up._

### The Culture of Law (6): _Sit Down You're Rockin' the Boat_

First, a quick review:

Culture derives from a neurological structure created in the brains of the culture's individual members at impressionable times. Individual brain wiring is transmitted by agreement from member to member, and reinforced by experience. Culture thus neurologically shaped is maintained by the brain's need for concordance between expectations and experience. The result is a shared cultural belief system that characterizes how the members engage with the world.

This week looks further into the term "belief system." I Googled it, and the following from an unidentified college paper was one of the more instructive, albeit denser hits that came up:

Belief systems are structures of norms that are interrelated and that vary mainly in the degree in which they are systemic. What is systemic in the Belief System is the interrelation between several beliefs. What features warrant calling this stored body of concepts a belief system? Belief systems are the stories we tell ourselves to define our personal sense of Reality. Every human being has a belief system that they utilize, and it is through this mechanism that we individually "make sense" of the world around us.

A culture's members adopt its belief system not merely as their "personal sense of Reality," but _as_ _a shared belief in how things really are_. I.e., the culture's members don't just believe similar things about how the world works, they also believe in their beliefs, holding them as their common perceptual and behavioral code.

What happens when a culture's belief system is threatened, either from within or by outside pressure?

We met Bruce E. Wexler, professor of psychiatry at Yale Medical School, and his book, _Brain and Culture: Neurobiology, Ideology, and Social Change_ a couple posts back. He's the guy who talked about

... the importance of a close fit between internal neuropsychological structures created to conform with an individual's sensory and interpersonal environment at the time of development, and the environment in which the adult individual later finds him or herself.

Wexler uses his brain-based cultural approach to explain _inter_ cultural conflict this way:

This book argues that differences in belief systems can themselves occasion intercultural violence, since concordance between internal structure and external reality is a fundamental human neurobiological imperative.

I.e., a culture resists change because its shared brain wiring is guarding its neurological peace of mind.

Wexler's analysis also applies to _intra_ cultural conflict. And, as he further points out, ultimately the battle over culture is about whose brain wiring gets to make the rules.

This argument thus provides a rational basis for the apparent fact that people fight not because of differences in religion and other beliefs; they fight to control the opportunity to create external structures that fit with their internal structures, and to prevent others from filling their environment with structures and stimulation that conflict with their internal structures.

All of which explains why "Sit Down You're Rockin' the Boat" -- i.e., resistance to cultural change -- is _always_ an implied cultural norm. Challenges to a culture's belief system are _always_ perceived as a case of,

The devil will drag you under by the sharp lapels of your checkered coat,  
So sit down, sit down, sit down you're rockin' the boat!

From _Guys and Dolls_

### The Culture of Law (7): _Cultural Evolution_

Our _Future of Law_ series earlier this year looked at internal and external trends creating pressure for change in the legal profession. But really... the law has been around for millennia; changes move through it glacially. Can't we just let things work themselves out in due time?

Sure, of course. Culture is formed in the brain; it evolves there as well. Cultural evolution brings change slowly, eventually, and inevitably. There's just one problem: evolution of any kind doesn't work from a blueprint and doesn't sweat the small stuff, so you never know where it's going.

The evolved architecture of the brain is haphazard and disjointed, and incorporates multiple systems, each of which has a mind of its own (so to speak). Evolution doesn't design things and it doesn't build systems-- it _settles_ on systems that, historically, conveyed a survival benefit (and if a better way comes along, it will adopt that). There is no overarching grand planner engineering the systems so that they work harmoniously together. The brain is more like a big, old house with piecemeal renovations done on every floor, and less like new construction.

The Organized Mind, by Daniel J. Levitin, Ph.D., Professor of Psychology and Behavioral Neuroscience, McGill University

As a result, cultural evolution's adaptive walk might take us places contrary to our own best interests:

Cultural evolution can yield significant change in behavior in the absence of biological evolution... Such changes need not be biologically adaptive; as a result, fads, fashions, or random variation, attitudes and behaviors may spread through a population that either have no effect on survival or that actually reduce the fitness of the members of a population.

From _Evolution of Mind, Brain, and Culture,_ introduction by Gary Hatfield, Dept of Philosophy, University of Pennsylvania

(Hmmm, did someone just say "billable hour"? Just couldn't resist....)

If we'd prefer something other than an unpredictable evolutionary walk to potential self-destruction, we need to get proactive. Again from Dr. Levitin:

A key to understanding the organized mind is to recognize that on its own, it doesn't organize things the way you might want it to. It comes preconfigured, and although it has enormous flexibility , it is built on a system that evolved over hundreds of thousands of years to deal with different kinds and different amounts of information that we have today.

It's helpful to understand that our modes of thinking and decision-making evolved over the tens of thousands of years that humans lived as hunter-gatherers. Our genes haven't fully caught up with the demands of modern civilization, but fortunately human knowledge has -- we now better understand how to overcome evolutionary limitations.

This is the story of how humans have coped with information and organization from the beginning of civilization. It's also the story of how the most successful members of society \-- from successful artists, athletes, and warriors, to business executives and highly credentialed professionals-- have learned to maximize their creativity, and efficiency, by organizing their lives so that they spend less time on the mundane, and more time on the inspiring, comforting, and rewarding things of life.

Let's see...

The most successful members of society,

[including] highly credentialed professionals [such as lawyers],

maximizing creativity and efficiency,

spending less time on the mundane,

and more time on the inspiring, comforting, and rewarding things of life....

That's the rationale for making the effort to overcome the limitations of evolutionary cultural change.

Anybody up for it?

### The Culture of Law (8): _Bleak House and Epigenetics_

We looked last time at the slow pace and uncertain outcome of evolutionary cultural change. Just how slow is slow? How about no fundamental cultural change in the past 160 years? I'd say that's pretty slow.

Law professor Benjamin H. Barton opens his recent new book _Glass Half Full: The Decline and Rebirth of the Legal Profession_ with these observations:

Charles Dickens wrote _Bleak House_ as a serial in the 1850s and published it as a single volume in 1853. It is a blistering assessment of the English Chancery system and remains one of the most trenchant critiques of the common law system.

Given the bewildering series of technological and societal changes over the last 160 years, there is something remarkable about Dickens's portrait of lawyers in Bleak House: it is utterly familiar to a modern reader.

_Bleak House_ portrays a legal profession little changed from then to now. Dickens describes lawyers meeting in person with clients, or drafting papers, or investigating their cases. English lawyers in 1850 practiced an individualized and bespoke professional service that consisted of paying a lawyer for his time, sometimes in court, sometimes in consultation, sometimes in drafting documents or conducting research.

If we want change faster than cultural evolution can give it to us, we might try analogizing to another scientific concept: epigenetics. David Perlmutter, neurologist and author of bestsellers _Brain Maker_ and _Grain Brain,_ describes epigenetics this way:

Even though genes encoded by DNA are essentially static (barring the occurrence of mutation), the expression of those genes can be highly dynamic in response to environmental influences. This field of study, called epigenetics, is now one of the hottest areas of research.

There are likely many windows during one's lifetime when we are sensitive to environmental impacts.

Epigenetics, defined more technically, is the study of sections of your DNA (called "marks" or "markers") that essentially tell your genes when and how strongly to express themselves.

[O]ur day-to-day lifestyle choices have a big effect on our biology and even the activity of our genes.

Now that we have evidence to suggest that food, stress, exercise, sleep... affect which of our genes are activated and which remain suppressed, we can take some degree of control in all of these realms.

Epigenetics explains why your kids aren't like you. They have your DNA, but the choices they make in their contemporary cultural context alternately activate or shut down certain aspects of their genetic coding. No paternity test needed; they're your kids alright, they've just been practicing epigenetics.

By analogy, law students and lawyers who are "sensitive to environmental impacts" -- either because their brains are still developing while they're in law school or because they're committed to cultural change -- have the ability to turn off their _Bleak House_ cultural coding and embrace something new.

And get this: radical cultural shift doesn't have to be driven only by technology, which was behind much of the change we looked at in the Future of Law series earlier this year. Instead, cultural change can be driven by "day-to-day lifestyle choices" involving things like "food, stress, exercise, sleep." Think about that for a minute: lawyers committed to self-care could turn the whole institution and enterprise of law into a place of brand new vibrancy, creativity, and wellbeing.

That's not pie-in-the-sky, that's epigenetics.

In the next couple installments, we'll look at a topic where lawyers routinely choose historical cultural DNA over epigenetic change: their paychecks.

### The Culture of Law (9): _Show Me The Money_

If you saw _Jerry Maguire_ , you remember the "show me the money" scene. Jerry has a moral epiphany, writes a middle-of-the-night manifesto, and hits the send button. He's greeted at the office with a rousing ovation... as one colleague asks another, "How long do you give him?" His manifesto broke with the cultural status quo; he has to go. He gets fired of course, and now he's dialing for dollars. He takes only one client with him, at the cost of everything he just gained from his awakening.

It's funny, and if you've been there, painful.

I had my own Show Me The Money Moment my first day back in the office after taking the bar exam. My wife and I had escaped for 3½ weeks in the Scottish highlands and islands. The silent remoteness and stark natural beauty were disorienting at first, but in time we settled into it and returned home resolute about creating a more enriching lifestyle.

We flew back on a Saturday. On Monday morning I biked into work early, stopping to take photos of the downtown skyline and the Cathedral Basilica in the red light of the rising sun. At the office, the corporate department was in the middle of a merger on a fast track. I worked until 11:00 that night; I was the first to leave.

Welcome back. Epiphanies are nice, but duty calls. There are clients to serve and paychecks to earn. Culture wins again.

There were more epiphanies and more show me the money moments over the course of my career. I'm far from alone in that. At my CLE workshops on career and personal satisfaction, someone always brings up money. "I'm not happy," they'll say, "But the money is good, so I can't change."

Notice what just happened: they took a cultural reality -- the ability to earn a good paycheck practicing law -- and turned it into a rationale for personal powerlessness -- an attitude that derives from the cultural norm of resisting change we looked at earlier in this series. We saw this attitude at work in our midst a couple years back, when two-thirds of the respondents to a Colorado lawyer salary and career satisfaction survey I reviewed extensively last year (see _Law, Enlightenment, and Other States of Mind_ ) wouldn't recommend their jobs to someone else, but meanwhile the money was good, and 40% felt financially constrained from considering other options.

Yes you can change, I reply, but you will suffer. That's not a challenge to dig deep or rise above, it's a recognition of how hard it is to change our neurological cultural wiring.

Jerry Maguire suffered to get back what he gave up in his Show Me The Money Moment. We will, too. Epiphanies exact a price; we have to pay it. And one of the ways we pay is with money.

If we're going to have epiphanies, we must deal  
with the cultural reality of "show me the money."

That doesn't necessarily mean less money. It wasn't that way for me, or for most of the people I know who've made the cultural break. Next time, we'll look at lawyers who've deliberately opted for career and personal satisfaction over money. Not everyone will make that choice, but reconfiguring our relationship with money -- one way or another -- is a necessary stage along on the path to changing our personal response to dominant law culture.

At least we'll be in good company. A reporter asked Rohan Dennis, winner of this summer's USA Pro Challenge cycling race in Colorado, how he's had such a great year. "You have to learn to suffer," he said.

' _til next time...._

### The Culture of Law (Part 10): _Don't Show Me The Money_

It's not the legal profession's fault that you can make good money at it. The problem is when we use that as an excuse for personal powerlessness.

Personal powerlessness is when we buy into _Sit Down You're Rockin' the Boat_ as a cultural and personal norm that can't be challenged. We think that way because our brains are running on established cultural neural pathways. There are other options out there, but pursuing them will cost our brains their cherished peace of mind.

We don't need a research survey to tell us there are other ways to measure value than money-- consider a recent ABA Journal commentary:

Money and prestige aren't key to career satisfaction, according to findings from a multiyear survey of University of Michigan law grads. Instead, work satisfaction is more closely related to the law grads' perceptions of the social value of their work and the quality of their relations with co-workers and superiors,

If you're willing to try something other than money and prestige, how about...

A Utah lawyer starts a flourishing non-profit law firm, where clients pay based on income.

A recent New York Times story profiles lawyers who have chosen less remunerative law careers:

Of the many rewards associated with becoming a lawyer — wealth, status, stimulating work — day-to-day happiness has never been high on the list. Perhaps, a new study suggests, that is because lawyers and law students are focusing on the wrong rewards.

Researchers who surveyed 6,200 lawyers about their jobs and health found that the factors most frequently associated with success in the legal field, such as high income or a partner-track job at a prestigious firm, had almost zero correlation with happiness and well-being.

However, lawyers in public-service jobs who made the least money, like public defenders or Legal Aid attorneys, were most likely to report being happy.

Lawyers in public service jobs also drank less alcohol than their higher-income peers. And, despite the large gap in affluence, the two groups reported about equal overall satisfaction with their lives.

Some lawyers went straight to these alternatives out of law school, others got there by exiting private practice. That path isn't for everybody, but if you're looking for a different option than show me the money, why not? While you're thinking about it, consider this a BigLaw partner's recent case in _Above the Law_ against being too enamored with the prospect of making money in the law:

Becoming a lawyer is a great way to improve your standard of living if you come from a family of poors who thinks rich people "worked for every penny they had." But if you are a lawyer, your income is pretty much restricted to how many hours you can work in a day. That's no way to live.

("A family of poors"? Hmmm. Never heard that one before.)

Lawyers who opt for greater satisfaction for less pay are bucking a cultural norm that measures value in terms of money, which is in turn a function of hours worked -- another cultural value standard. They've probably had their epiphanies and are on the Jerry Maguire path, and yes, as we saw last time, they will suffer for it.

And so will those close to them, _as we'll see in a couple weeks._

### The Culture of Law (11): _Time is Money_

We've been talking about money, now let's talk about time -- a natural segue for a profession that logs value in 6 minute increments.

Working long hours is a law cultural norm, and never mind that it's no secret any more that working too much is counterproductive. A recent _Time_ article featured popular author, TED talker, and professor Brené Brown:

[Ms Brown] talks about how people use the idea of being "crazy busy" as a sort of armor—a justification for not bothering to pause, evaluate what's going on in your life, and reconsider decisions regarding lifestyle, work, family, and perhaps whether it's really necessary to be "crazy busy."

Also, she reveals that, for the most part, highly successful people understand that perfectionism is not healthy and ultimately gets in the way of progress.

Also never mind that overworked unhappiness abounds on both ends of the legal profession's financial food chain. In a _New Yorker_ op-ed piece a few weeks back, Columbia Law professor Tim Wu fingered the tyranny of technology as the culprit, citing the long hours of litigation as an example.

Consider the litigation system, in which the hours worked by lawyers at large law firms are a common complaint. If dispute resolution is the social function of the law, what we have is far from the most efficient way to reach fair or reasonable resolutions. Instead, modern litigation can be understood as a massive, socially unnecessary arms race.

In older times, the limits of technology and a kind of professionalism created a natural limit to such arms races, but today neither side can stand down, lest it put itself at a competitive disadvantage.

A typical analysis blames greedy partners for crazy hours, but the irony is that the people at the top are often as unhappy and overworked as those at the bottom: it is a system that serves almost no one. Moreover, our many improvements in the technologies of productivity make the arms-race problem worse. The fact that employees are now always reachable eliminates what was once a natural barrier of sorts, the idea that work was something that happened during office hours or at the physical office. With no limits, work becomes like a football game where the whistle is never blown.

We may not like what we're doing, but we do it anyway. Why?

Barry Goldman, arbitrator, mediator, and author of _The Science of Settlement: Ideas for Negotiators,_ cites a psychological trait cognitive scientists call "sphexishness" to explain our stubbornness.

Sphexishness? Maybe. Or maybe workplace unhappiness and a _show me the money_ mentality are embedded in the larger context of American workplace culture. The following is from a _Psychology Today article_ called _"Counterproductive Productivity,"_ by marketing professor Raj Raghuna:

I don't know about you, but it seems that the average American doesn't really enjoy work. If the reason we work harder is because we enjoy our work, then most of us would be happy to go back to work, and we would have restaurants that are called TGIM (Thank Goodness It's Monday) and not TGIF (Thank Goodness It's Friday).

No, we don't work harder because we enjoy our work. Rather, we work harder so that we can earn more money, and so that we can feel, at some level, more important and more successful... And once we get on that gravy train, it's difficult to get off it.

Whatever the cause, we seem to have a problem here, Houston, and next time we'll look at yet another reason why we avoid addressing it.

### The Culture of Law (Part 12): _To Epiphany or Not to Epiphany?_

That _is_ the question, and not an easy one 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.

### The Culture of Law (Part 13): _Where Culture is Trending [1]_

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 Scottish], 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 (Part 14): _Where Culture is Trending [2]_

Continuing with Iain McGilchrist's predictions about current cultural trends:

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]ndividualities 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 (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 (16): _Hacking the Law (Redux)_

If we're unwilling to either let Iain McGilchrist's 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 a 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 Magazine_ : _How 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,_ by Gabriella Coleman.

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,_ by T. M. Luhrmann.

Trust me, read those two books side by side, and you'll never think about culture the same ever again.

### The Culture of Law (Part 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."

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, intentional 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.

###

### ABOUT THE AUTHOR

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it... barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

