Lawyers and law firms have a well-deserved reputation for resisting change and failing to embrace innovation. Is there something about us, our training or our profession that makes us resisters of change and advocates of the status quo? If so, is this good or bad for our businesses, the profession and the legal system? Or is it a mix of both?
I think part of our resistance to change comes from our legal training. Trained in the precedent system, we inherently look to the past to guide both the present and future. “Outside the box” thinking can be foreign to us as we are trained to operate and advise clients within defined, known, legal frameworks of statutes, cases and regulations. Rarely does a lawyer have a Steve Jobs moment and ask “what if….?” as if there was an open field of infinite possibility in front of them. Our training also makes us wary of the unknown or the unknowable, which in many ways is at the heart of any change.
In addition to our training, the legal profession is both regulated (which means someone is always looking over our shoulders) and is “standard of practice” driven (which drives us to stay as close as possible to the middle of the bell curve when it comes to how we practice). Venture outside the regulatory framework or the middle of the bell curve and you create risk, which is something most lawyers seek to avoid. Safety for lawyers is staying with how the “herd” operates, so unless the entire heard changes direction, it is highly unlikely that a couple of lawyers or law firms will.
Our personalities (whether by training or nature) also tend toward doubt over blind belief. We are also willing to argue the other side of any issue, which may be a simple way of saying that for any issue involving lawyers and change, there will always be opponents.
Our business structures (at least in most law firms) overwhelmingly operate through a consensus making decision process. This means that introducing any kind of change or innovation into a legal organization requires a lot of groundwork and time to get the necessary support.
So, is our resistance to change good or bad for lawyers, our profession and society? On the positive side, all legal systems need stability and predictability. Without it, things can fall apart. If laws, court procedures, contract interpretations and the like could change at will, many of the key functions of society would be deeply impacted. In many ways, having lawyers as the “guardians of change” for our legal system has been an important role for us to play from a societal point of view.
On the negative side, our aversion to change means we are often the last to embrace new ways of doing things and new technologies that could lower legal fees, improve access to legal services as well as make the lives of practicing lawyers better. Email was first used in 1983 and was widely accepted by 1990, but it was not until 1999 that the ABA opined on its use in client communications. Websites were in wide use by 1994, but law firm websites and their use did not receive an ABA ethics opinion until 2010.
A reluctance on the part of lawyers and law firms to deploy new technologies amazingly goes all the way back to the introduction of the telephone. In 1891, the New York and New Jersey Telephone Company had over 7,000 commercial telephone customers, but only 146 of those customers were lawyers. There were six times as many doctors with telephones and twice as many liquor stores and horse stables with phones as there were lawyers. What was the main reason articulated against the use of this new communications technology? “It doesn’t create a written record” like the trusty, old telegraph.
What do you think? Are we laggards when it comes to change and innovation and is that good or bad for us and our profession? If it is bad, what can and should we do about it?