By Kevin Ryan, Esq., Executive Director, MCBA
I could, of course, write a whole series of posts like my last one with the title “This Is Not About ____.” These posts would ostensibly not be about things like gin, Roman history, The Kinks, early 20th century German literature, neorealism in international relations, ethnomethodology, Mill’s “On Liberty,” Gadamer’s hermeneutics, and so on, but all would find ways to tie some heady message into the topic about which they are not. But wouldn’t that get old after a while? Wouldn’t it get old after the second installment? Sure it would be cute, but like many other cute things (kitten videos come to mind), it would quickly lose its ability to attract the thoughtful (that’s you, my reader).
So this post is not going to be about something about which it is not. And if you followed that, you might be ready for what it really is about.
A common theme (perhaps meme) of contemporary thought is the importance of flexibility and agility. How else explain the enormous growth in the popularity of yoga, a discipline rooted in the cultivation of flexibility and agility?
Yoga, a common practice in Asian cultures, is no longer the avocation of a handful of people in the West. It has become a core practice in the lives of millions of American urbanites and suburbanites; it has entered the lives of professionals in the form of “mindfulness” meditation and other relaxation techniques. And as many coaches and “mental game” experts attest, yoga benefits athletes in all sports by helping them remain calm and in control when facing largely uncontrollable circumstances – you can’t control the umpires or the bad hops or the results, but you can control yourself, and doing so puts you in a position to benefit from the lousy officiating, the wretched field conditions, the skills of the opponents.
And isn’t that the world we live in today – an increasingly chaotic world over which we can exert relatively little control? In Antifragile: Things That Gain from Disorder (2012), Nassim Nicholas Taleb (a former commodities trader who now fancies himself a flâneur) contends that “some things benefit from shocks; they thrive and grow when exposed to volatility, randomness, disorder, and stressors.” These things “love adventure, risk, and uncertainty.” He calls them “antifragile,” the quality of getting better when shocked, disrupted, scrambled. It is the opposite of fragile, and different from (he says “beyond”) resilience and robustness.
I think that the postmodern organization – company, firm, association, team, what have you – must be flexible and agile in the face of ever-changing circumstances. It must be “antifragile” in Taleb’s sense, able to grow when confronted with chaos – because that is exactly what we face in the wildly spinning postmodern world.
At least some of the blame for the chaos of modern life can be placed on the internet. As Jared Cohen and Eric Schmidt of Google tell us, “The internet is among the few things human have built that they don’t truly understand … [It] is the largest experiment involving anarchy in history. Hundreds of millions of people are, each minute, creating and consuming an untold amount of digital content in an online world that is not truly bound by terrestrial laws.” The internet, they tell us, is “the world’s largest ungoverned space.”
Think of the implications of that for the practice of law. An ever-growing chunk of the population does not need a lawyer to tell it what the law is or how to get things done in the legal system – it’s all online in easily accessible places, often translated into real English. And if they do need legal help, they can find it online at minimal cost. And rather than going to the traditional legal system to solve their problems – because that system reminds them of the dark, dusty, dank, mystifying world of Bleak House (even if they haven’t read Dickens’ masterful depiction of the Victorian legal world) – they find other ways to resolve disputes, other ways to work out agreements, other more efficient ways to get things done. Yes, lawyers might be involved in the process somewhere – but it’s not traditional legal work, isn’t being done by a law firm, and isn’t costing what traditional legal services cost. (Don’t believe me? Compare the price of a simple incorporation through LegalZoom with what a corporate lawyer charges for the same solution). Lawyers need to be antifragile to survive in this brave new world; doing it “the way we’ve always done it” isn’t going to fly. And don’t imagine that all you need to do to “modernize” legal practice is to somehow “stick that paper form into the computer.” No, we’re looking at a major transformation – a transmogrification – of legal practice. It will be a different beast entirely, except in the handful of traditional firms still able to make a business out of what Richard Susskind describes as “bespoke” legal services. The rest of us will need to be agile, nimble, and wildly flexible, ready to respond to changes as (even before) they occur.
Think of the implications for the operation of a bar association. Ten years from now (when I still hope to be playing on the MCBA team), the bar association may be unrecognizable. Yes, there will probably still be CLE programs offered, but they will be vastly different from what we offer today, not just in terms of content but in terms of delivery, in terms of shape, in terms of effect on the lives of the attendees. (Actually, I think many bar associations are ready to go there now, but I’m not so sure about MCLE boards, traditional, conservative bodies professionally skeptical of anything new.) Bar associations will need to be online in a fuller, more robust way than they are today – and I don’t mean that they will simply take what they currently do and “online” it (just as modernizing legal practice and court process cannot be merely a matter of “sticking that form into the computer”). No, they will be in the cloud and might be virtual. They will interact with people doing legal work (not just traditional lawyers in traditional law firms) in many different arenas, arenas we can only barely imagine today (just as we can only barely imagine a court system that does not require bricks-and-mortar courthouses to conduct business). Where today bar associations are suppliers of stuff for traditional lawyers lodged in traditional practices, future bar associations (if we play our cards right – if, that is, we are antifragile) will be at the center of things for the new practices of law. Or, perhaps, the language here is wrong. There may not be a center of things; there may only be a decentered disarray in which we must insert ourselves at random but congenial and strategic spots.
Not clear about what this will really look like? Neither am I, but I’m pretty certain that’s where we’re headed. And since we don’t know exactly what it will be, we have to be able to grow and thrive in the face of shock, disruption, and disorder, flexible enough to try new things and blossom in failure, agile enough to keep moving with the fast-flowing current of postmodern life. We must embrace adventure, risk, and uncertainty, and greet the new day in the words of Shakespeare’s Miranda:
How many goodly creatures are there here!
How beauteous mankind is! O brave new world,
That has such people in’t!