Bringing The Two Faces Of Legal Innovation Together

"Innovation" is a broader concept than you might think.

No doubt about it, Henry Ford was a disruptive innovator, twice-over. Ford’s invention of the Model-T disrupted the horse-and-buggy-economy, gave rise to the birth of the suburbs and even helped chip away at segregation by giving black people a way to travel without the indignity of sitting at the back of the bus. Likewise, Ford’s design of the assembly line disrupted the then-existing manufacturing process speeding up production and driving down costs (not to mention alienating workers from ownership of the means of production and reducing them to a fungible commodity, at least according to Karl Marx).

Ford’s genius shows that innovation comes in two flavors: innovation of form (the assembly line) and innovation of substance (the automobile). Trouble is, many of those who inhabit what my fellow columnist Bob Ambrogi described as the legal innovation echo chamber don’t recognize the innovation dichotomy. As a result, today’s conversation about legal innovation focuses almost entirely on innovation in form — workflows and client journeys and forms and automation and kanban boards and design thinking — while ignoring an equally interesting innovation challenge for today’s lawyers: specifically, how can we adapt existing jurisprudence and precedent to ensure the continued protection of fundamental rights like privacy, equality and individual due process in a digital, techno-charged era.

For some lawyers, the process of running a firm or mapping efficient processes is exciting because it can increase profits or expand the types of clients that the firm serves. But for other lawyers, this kind of technology in and of itself is snooze-inducing. “I went to law school to build a more efficient client intake process….” said no lawyer ever. I’m an ardent believer that tech can make lawyers better, faster, and cheaper — but even on its very best days, the technology that we have right now plays only a supporting behind-the-scenes role; a bland second fiddle to the real work that lawyers do. As such, it’s hard for working lawyers to justify taking time out of their schedule to pay more attention to work that has traditionally been managed by IT professionals.

Moreover, because of technology, the law itself is changing faster than ever. New advancements have opened a Pandora’s box of potential horribles like cyberbullying and biased algorithmic decision-making and invasive biometric tracking that threaten our right to be left alone or to be judged on the merits of our individual case rather than the statistical probability of success. In a period of disruption, we also need lawyers who can take on the hard work of substantive innovation — devising the kinds of new case theories and arguments and perspectives — that will allow technology to progress while preserving our democracy and our freedom.

The mistake of many innovationists is to equate disinterest in innovation of form to resistance to technology or innovation generally. Not so. It’s just that many lawyers — myself included — would rather be known as the person who invented the automobile rather than the person who built the assembly line. That said, both types of innovation are important and we can bring both sides to the table by organizing events that focus on both innovation of form and innovation of substance.

Postscript: After I drafted this post, I saw that Professor Bill Henderson covered the same ground in a much more detailed post at the Legal Evolution blog.


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Carolyn ElefantCarolyn Elefant has been blogging about solo and small firm practice at MyShingle.comsince 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practicesocial media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at elefant@myshingle.comor follow her on Twitter at @carolynelefant.

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