A systematic approach to looking at what comes next
Periods of change bring many questions with them. Foremost among them is the question, “What comes next?” Lawyers and other players in the legal industry have been focused on this question for many years now. It is a hot topic at conferences and other legal industry gatherings. When I write blog posts about the future, they invariably rank among the posts with the highest number of readers.
We all know that most predictions about the future are wrong. If nothing else, the shear number of predictions and variety mean that most of them will be wrong . Knowing predictions are wrong does not stop us from wanting to read them. Most of us will search through forecasts until we find one that fits with our views of the future. We feel comfortable with that one and usually adopt it as our view of what will happen. We try to bring others to our point of view. In law firms, this means setting strategic plans based on that favored view. In law departments, it means marrying the company’s business forecast with what will happen in the legal industry. For others, such as law companies, it may mean setting strategic directions for product development, areas of the industry to target, or growth plans.
At this point, psychology becomes a major player. If in the near term our view of the future plays out, we are heartened and believe we have a handle on how to predict the future. If it doesn’t, it wasn’t because we did a bad job, it was because of an unexpected element (who among us could have predicted the last presidential election). We find a new view of the future that fits well with what we believe and move on.
Jason Moyse calls this living in the “echo chamber”. We talk and listen to those around us who probably share and reinforce our views, especially if those views call for little or no change in what we think. If you want a more official sounding term, call it the “status quo bias” that Daniel Kahneman and Amos Tversky researched. We prefer to stick with the way the world is today and perceive change as a loss. Either way, we have a strong preference for finding something that fits well with how we see the world and following views that advocate no real change.
The Legal Futurists
An alternative approach is to look around and find those who we think are knowledgeable about future trends. They write and talk with self-assurance, seem to know what is happening, and are familiar with the all-important technology trends. When they talk, as the old E.F. Hutton advertising campaign went, people listen. The knowledge of technology trends is particularly important. People assume, and not incorrectly, that technology will dominate our future. To know where technology is headed is to know the future.
As tempting as this line of reasoning is, it misses most of the dimensions that are important to understanding the future. Clearly, technology will play a big role. Underneath that umbrella, however, there are many factors that will shape how our industry evolves. Beyond the obvious, most predictions (including mine) have been wrong for deeper and more interesting reasons. The good news is that we can improve those predictions, which will help providers and clients alike.
Start At The Fringe
When I was learning how to drive, I was taught to pay attention to what was in front of me and to use the side view mirrors and rear mirror to pay attention to what was around me. But, I was also taught to be aware of the bigger picture — what was happening outside of those lines of sight. You could describe this area as the fringe of the driver’s vision.
If I saw children playing in a driveway ahead, I should slow down and anticipate that a ball or child might come in front of me. If I was approaching an intersection, I should watch for those cars coming from the far right or left that may not have caught the light change. It was the bigger picture things, the things at the fringe, that might have the biggest impact on me when I was driving.
Amy Webb, a “quantitative futurist”, adjunct professor at the NYU Stern School of Business and founder of the Future Today Institute, has identified 10 areas of interest that she focuses on when attempting to predict the future: wealth distribution, education, government, politics, public health, demography, economy, environment, journalism, and media. To determine what she should focus on in each of these areas, Webb looks for what is happening at the fringe. (To learn Webb’s methodology for predicting the future, read The Signals Are Talking: why today’s fringe is tomorrow’s mainstream.
Trends in any of these areas could impact the future of an industry. The trick, according to Webb, is to separate the trendy from the trend when looking at the fringe. Yet, when most of us look at the legal industry, we go back to the echo chamber and ignore what is happening in these other areas. We talk to other lawyers and players in the industry and then base our projections of the future on what they think and what we believe.
Charting A New Path
I cannot do justice to a full “future of the legal industry” in this post, but we can look at some things happening in some of the factors Webb identified to see how they could affect that future. For example, trends in wealth distribution, politics, and public health could have meaningful impacts on the future of our industry.
As we look at these potential trends, keep in mind the 10 questions Webb suggests we ask as we think about how trends can affect our industry (quoted from the Future Today Institute 2018 Tech Trends Report):
1. How does this trend impact our industry and all of its parts?
2. How might global events — politics, climate change, economic shifts — impact this trend, and as a result, our organization?
3. What are the second, third, fourth, and fifth-order implications of this trend as it evolves, both in our organization and our industry?
4. What are the consequences if our organization fails to take action on this trend?
5. Does this trend signal emerging disruption to our traditional business practices and cherished beliefs?
6. Does this trend indicate a future disruption to the established roles and responsibilities within our organization? If so, how do we reverse-engineer that disruption and deal with it in the present day?
7. How are the organizations in adjacent spaces addressing this trend? What can we learn from their failures and best practices?
8. How will the wants, needs and expectations of our consumers/ constituents change as a result of this trend?
9. Where does this trend create potential new partners or collaborators for us?
10. How does this trend inspire us to think about the future of our organization?
We already have seen how trends in wealth distribution have impacted the legal industry. Decades ago, there was a thriving middle class in the United States. That middle class could afford to hire a lawyer to help with legal problems. Starting about 30 years ago, the decline of the middle class coincided with the decline in income for solo lawyers. As Benjamin H. Barton documents in Glass Half Full: The decline and rebirth of the legal profession, the annual income for solo lawyers has stayed at just under $50,000 for the past 30 years. As wealth inequity continues to grow in the United States, what will this mean for the legal industry?
As I noted earlier, few foresaw the election of Donald Trump as President. Since his election, the President and others have called into question the “rule of law” either through words or actions. As the judicial, legislative, and executive branches roles in the rule of law are questioned, the public loses faith in this principle. If the laws do not apply public figures, then many question whether those laws should apply to the average citizen. Put another way, if only the wealthy can afford to work the legal system, then what chance does the average citizen have when confronted with a legal problem? We have seen this trend appear in a number of places. For example, those charged with crimes may forego legal representation and agree to a guilty plea in a felony case, when being represented by a lawyer (including a public defender) could have meant a plea to a misdemeanor. What impact will the public’s growing concern about the rule of law have on the legal industry?
The furious battle over “Obamacare” focused the public’s attention again on the massive and growing cost of healthcare. As a significant portion of the population in the United States ages, more people have become concerned about paying for healthcare if something happens. Combine that with Baby Boomers who have not adequately saved for retirement, and many people will face tough choices: spend money on their health or on other concerns, such as legal issues. Aging Baby Boomers will not have adequate disposable income in old age. What does this mean for the legal industry?
Redirecting Our Attention
Whether you agree that the potential trends I raised are significant to the future of the legal industry, you can see how they could impact the industry. This is key. When looking at the future of the legal industry, or any industry, staring straight ahead to see what is coming will lead you into trouble. It isn’t what is directly in your line of sight, it is what is off to the side in the fringe of your vision that should draw your attention.
Computers were a nice addition to a law office. They enabled lawyers to turn briefs faster, make changes easier, and produce higher quality products (now typos could be fixed easily). But, part of the real impact of computers came from clients using them to generate documents. The world of paper discovery evolved into the world of digital discovery. That change upended the world of litigation. eDiscovery vendors entered the fray, associates were no longer used to do the first review of documents in discovery, and magistrates and judges were confronted with novel questions.
Today, our technology focus is on artificial intelligence and blockchains. We can see how they can directly affect the practice of law. But, that isn’t the only change on which we should be focusing. We should be asking how trends in other areas (for example, the 10 Webb identifies) will affect what society wants and needs from lawyers. Then, we should be running our answers through the 10 questions Webb identifies. We should be looking and listening outside the echo chamber to determine how the world around us will change what we do.
Attempting to predict the future is necessary. Without some idea of what will happen next, we are left to repeat what we do today. Clients will not accept the legal industry standing still, despite what many lawyers think. To survive the future, we must do a better job predicting how trends outside the legal industry will affect the industry. We also must do a better job of modifying our practices and business models so that when the future does not match what we predicted, we can pivot quickly. This is part of why it is so important to build basic skills in areas such as project management, process improvement, and elemental technology. The question won’t be whether our predictions of the future are correct, it will be whether we are agile enough to adapt to the future that arrives.
Ken is an author on innovation, leadership, and on the future of people, processes, and technology in the legal industry. He also is an adjunct professor and Research Fellow at Michigan State University’s College of Law. You can follow him on Twitter, connect with him on LinkedIn, and follow him on Facebook.