A Simple Desultory Philippic (or how I was innovated into submission)

From the great north of the profession, Slaw, the legal magazine of Canada, invokes the truism, if at first you don’t succeed, try, try again.  Being an admirer of tenacity, though not necessarily persistence, it’s hard to challenge the old adage.  And yet I will.

The argument opens in a curious way:

“I know lawyers who are very innovative and lawyers with very traditional practices. The latter seem to make much more money,” says Noel Semple, a self-described “lapsed lawyer and aspiring professor.”

And there, in a nutshell, appear two of the biggest impediments to innovation in the legal field: the idea that if it ain’t broke, it doesn’t need fixing, combined with the real possibility that the innovation will fail – or at the very least, that the innovator will be scrambling for money until the idea catches on.

As with so many things in life, the take-away is less a matter of content than a matter of bias. While Semple’s observation seems rather straight forward, and most readers would interpret it to mean that for all the hoopla of innovation, the traditional practice of law remains not merely a viable approach, but the one more likely to be successful, Slaw saw it as acquiescence to failure.  Love innovation much?

To characterize success as evidence of yet another old chestnut, “if it ain’t broke, don’t fix it,” seems quite facile.  It would come across differently f it was characterized as, “if it leads to success, then it is worthy of emulating.”  While the latter makes traditional law practice sound a lot better than some old codgers who refuse to adapt as their ship slowly sinks, it fails to honor the religion of innovation.  That’s the bias that colors Slaw’s vision.

The post goes on to explain:

Innovations in the legal sector – and the impediments thereto – were the subject of the CBA Legal Futures Initiative’s first November Twitterchat hosted by Monica Goyal, the founder of My Legal Briefcase and a member of the initiative’s business structures and innovation team.

Aside: Twitterchat? Could there be any inherent bias in a twitterchat?

When Saskatchewan lawyer Alex Shalashniy described himself early on as a failed entrepreneur, Goyal suggested that not wanting to fail is an impediment to innovation in the profession.

“Lawyers shouldn’t fear innovation, it’s a concept right in the heart of jurisprudence development – take existing tools and apply them to new situations,” Shalashniy replied. “That should inform a proper risk appetite for change.”

The vilification of anyone who questions the generic heading of innovation immediately starts with “fear.”  Fear of what? Failure? Being “left behind”? Being unable to keep pace with those on the cutting edge?  Fear of change.

Do lawyers fear innovation?  As a group, we likely aren’t inclined toward being at the cutting edge, risking failure first.  But then, a point rarely mentioned is that our blind leap into the abyss of innovation comes at the expense of our clients as well as ourselves.  It is simplistic to call lawyers risk averse; we are not averse to calculated risk. It’s what we do in almost every case, for almost every client.

Think about the television show Shark Tank, where the second best dressed brother in the Cuban clan plays a billionaire on TV. Every contestant on the show appears with the belief that he or she has the next greatest thing ever, and if only someone will fund it, it will be HUGE!!!  The “sharks,” in most instances, rip the idea to shreds, explaining why it will fail.  But sometimes, they blow kisses and throw money.  Sometimes.

The point is that there is no shortage of attempts at “innovation” out there.  It’s just that most of it is crap, ideas that may sound as if they would work but, in the eyes of people who scrutinize it as carefully as if they were putting their own money on the line, won’t.  Sometimes it’s because the ideas themselves have no legs. Sometimes it’s because it won’t scale. Sometimes it’s because the presentation of the entrepreneur is unsound, or the entrepreneur himself lacks the traits or skills to perform.

Innovation is wonderful, but only if it serves a desired purpose and works.  One of the roadblocks to innovation in the law is that we function within a regulatory scheme. It’s the one that says lawyers aren’t allowed to deceive. It also says non-lawyers aren’t allowed to own law firms or share legal fees.  The latter has become a target of innovators, holding back the fabulous potential of change they see through their innovation-loving eyes.

As the Slaw post finally gets around to its point, it offers:

Author and legal futures commentator Mitch Kowalski said what’s needed is an “ecosystem that allows for any capital infusion and any structure,” because “new structures will spur innovative juxtapositions.”

Does that make it clearer to you?  Don’t you want to “spur innovative juxtapositions?” Would a line this meaninglessly jargonistic make Mark Cuban cover his eyes and shake his head from left to right?

The calls used to be to love the internet, and any business founded on a digital platform was blessed by the innovation gods.  To question their efficacy was heresy. It’s innovation, dammit.

But the new challenge is to fundamentally alter the regulatory scheme for lawyers that is blocking innovation.  The promise is that innovative juxtapositions will be spurred if only we release lawyers from the chains that bind them to the past.  After all, only a dinosaur clings to the adage, “if it ain’t broke, don’t fix it.”

So what if traditional law practices are more successful than innovative law practices. So what if the regulatory scheme tries, even if it doesn’t succeed very well, to prevent the myriad ills of deception and conflict of interest born of putting finance ahead of client service.

The promise is if we just stop being so afraid of innovation, it will change everything.  And if it fails, as most of it will, we can just change everything again.  Who’s ready to hop on the innovation train?

8 comments on “A Simple Desultory Philippic (or how I was innovated into submission)

  1. REvers

    I think I prefer the good old days of paradigm shifts to the new-fangled innovative juxtaposition stuff. But, of course, I’m not a thought leader so what the hell do I know….

  2. John Neff

    Is the penalty for using the phrase “New structures spurring innovative juxtapostion.” death by a thousand laughs?

    I have heard the statement “If it is not broken, don’t fix it.” applied to the law but I have no ideas how and who decides if it is broken or unbroken.

      1. Fubar

        You quoted it first. So, it’s your fault that I wasted my whole Saturday morning trying to figure it out.

        A Simple, Desultory Villanelle: Law 2.0, Juxtaposed and Innovated.
        (With apologies to some old Irish guys, and some even older French guy.)

        Is fear of innovation law’s condition?
        Risk appetite for change might be quite proper.
        New structures spur innovative juxtaposition.

        This handcart rolls us nigh unto perdition,
        The staid inveigh. For montebanks the cropper
        Is fear of innovation, law’s condition:

        Cap’tal infusion ends abject contrition
        To yesterday! For th’ brave new early adopter,
        New structures spur innovative juxtaposition!

        Yet counsel wise and learn’ed through tradition,
        Warn appetite for risk’s a losing whopper.
        Is fear of innovation law’s condition?

        Should counsel tweet with Darwin’s intuition,
        Note whether, if and when they’re in the hopper,
        New structures spur innovative juxtaposition?

        Law’s a rough beast’s proper jurisdiction,
        Its slouching tapdance always some show’s stopper.
        Is fear of innovation law’s condition?
        New structures spur innovative juxtaposition.

          1. Fubar

            How kind of you!

            Were poetaster a status offense, I’d be doing LWOPP. My jailhouse habeus writs would argue that darkly snarky poetic larceny should be a complete defense.

  3. John Barleycorn

    You silly citizen. Automated reasoning via a series of game theory algorithms have long been in place for the greater good of the Nation.

    As the judicial appointment calculus in congress reaches ideal cloacal exstrophy parameters nothing shall stand in the way.

    Soon, very soon, all the adversarial variables mucking up the “glorious march to innovation” will be taken care of one input variable and brief after the other.

    Supreme precedent/s will guide us to the promise land as one and all take their seats in the coliseum for the quarterly Secure Society briefing followed by the flogging of the criminals.

    1. SHG Post author

      And we will be firmly ensconced in perfectly functioning but eminently safe mediocrity, assuming all goes well.

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