“The future is already here — it is just not evenly distributed.” If this William Gibson aphorism is true, then there was an extra heavy concentration of the future of the legal profession in Tribeca last Wednesday at the inaugural meeting of a new organization, the Forum on Legal Evolution. (The Forum is spearheaded by some names familiar to ATL readers, Bill Henderson (Indiana-Maurer/Lawyer Metrics), Bruce MacEwen (Adam Smith Esq/JDMatch), and Dan Katz (Michigan State Law/ReInvent Law).
While the rest of the business world has embraced off-shoring, Six Sigma, right-sizing, and what-have-you in pursuit of efficiencies and greater productivity, we are still waiting for the long-promised technology-driven transformation of the legal profession. When compared to other industries, actual changes thus far amount to so much fiddling around the margins. The Forum is premised on the idea that a way must be found to propel earlier and wider adoption of innovations.
The invitation-only Forum is intended as both a high-level networking community and as a resource for briefings on new technologies and trends. Think TED talks, but for senior in-house lawyers, law firm leaders, tech entrepreneurs, and academics. In other words, the entire legal supply chain. Without identifying them, we can confirm the room was sprinkled with the legal world’s equivalent of bold-faced names, including current and former Biglaw managing partners and Fortune 100 corporate counsel.
For such a forward-looking gathering, it was a little surprising then that it began by harkening back to Iowa cornfields during the Great Depression…
To start things off, Professor Henderson provided an overview of the current state of innovation in the legal industry by placing it in the context of something called the Rogers Diffusion Curve.
First some background: as everyone knows, the founding document for the research specialty of diffusion innovation was a 1943 paper in the journal Rural Sociology that detailed the gradual adoption of hybrid seed corn among Iowa farmers during the 1930s. (Diffusion is the process by which an innovation is communicated among a social system.) The hybrid seed corn produced a superior crop yield in addition to being drought resistant. It baffled many observers why farmers adopted it so gradually. This rate of adoption turned out to be due to a host of non-economic factors, including good old-fashioned prejudice and inertia. Interestingly, the adoption of the new seeds varied among states:
So by about 1940, basically all Iowa corn farmers had adopted the hybrid seed corn. On the other hand, by the mid-50s, only about 70% of Alabama farmers had done so. As a thought experiment, Professor Henderson asks us to swap out “state” for “industry” and “seed corn” for “state of the art process management” (or the like) and so now our graph looks like this:
In other words, when it comes to adopting the latest innovations, Law = Alabama. To be sure, Alabama has some wonderful qualities, but “innovation” (except in the recruitment of football players) is not among them.
Eventually, as innovation diffusion research matured, the Rogers Diffusion Curve was developed. The Curve has become the widely accepted description of how innovation spreads within industries. It looks like this:
Henderson places the legal industry as just beginning the transition from Innovator to Early Adopter stage. This is a fraught point in the process; the aforementioned prejudice and inertia can stymie the promoters of new technologies, whether hybrid seeds or predictive coding. So, how to accelerate change along the curve?
According to Henderson, perhaps the most imposing barriers to the legal industry’s innovation are the ethics rules prohibiting co-ventures between lawyers and non-lawyers. In his view, important productivity advances that reduce both cost and risk will require lawyers to collaborate and co-venture with experts from other disciplines.
Everett Rogers, he of the eponymous Curve, identified a set of variables affecting successful diffusion of innovations. It is all well and good to be able to describe the innovation’s relative advantage (i.e., that it is the better/faster/cheaper technology or process). But in order to get people to actually adopt the innovation, its champions must, among other things, “create observability” and “allow trialability.” Many of the Depression-era corn farmers experimented with the newfangled hybrid seeds in one section of their fields, allowing corn-to-corn comparisons with their previous methods. The same goes for today’s legal industry innovators: they must create incremental pilot programs so success stories can be observed and shared.
With all this abstract talk of “innovations,” what specifically was everyone talking about? In the case of last week’s Forum the focus was on predictive analytics and process management.
Chris Zorn and Evan Parker-Stephen of Lawyer Metrics delivered a briefing on the fundamental principles of predictive analytics, that powerful set of tools designed to improve decision making by reliance on data. Predictive analytics is already deeply entrenched in industries ranging from finance to professional sports. It is just now making its first inroads into law. One-sentence briefing takeaway: Properly employed, predictive analytics focuses on the “causes of effects” rather than the “effects of a cause.”
Ray Bayley, CEO of NOVUS Law, presented a program on process management — the application of manufacturing methodologies and supply chain logistics to legal work. One-sentence briefing takeaway: The current “batch and queue” approach to document-related discovery is redundant, wasteful, shockingly expensive, and must be replaced by a “lean” approach.
Finally, there was not much if any talk of “disruption,” that most fetishized of all tech tropes, at the Forum. Bruce MacEwen pointedly noted that this was not intended as a platform for “bomb throwers” — those who would tear down the edifice. For one, the law firm model has proved more resilient and adaptable than many had thought. Moreover, the organizers of the Forum have taken Rogers’ findings about incrementalism, trialability, and reducing complexity to heart.
The Forum’s use of the term “evolution” is telling. The latest vision of Darwinian evolution is one of “punctuated equilibrium” (as opposed to some linear progression). This “punctuated equilibrium” model posits that it is times of great environmental stress (e.g., a meteor striking the earth) that precipitate experimental “speciation.” A natural cataclysm sends evolution off in fits and starts into experimental directions. The analogy with the legal industry is obvious: these early years of the New Normal are seeing a flourishing of new technologies and ideas. As Dan Katz put it, “We already have the good corn.” But to paraphrase Gibson, these new technologies and ideas aren’t yet evenly distributed.