Latent barriers to legal innovation

There are regularly calls for lawyers to be more innovative. Identifying the hidden road blocks is the first step to overcoming them, writes Samuel J Woff.

A balancing act

If it has been observed once, it has been observed with duplicity: lawyers are very conservative. Innovation therefore is not something that comes readily.

Being conservative, of course, is not inherently a bad thing. As Australians it is impregnated into our minds that if we have the slightest concern about a dark spot on our skin, we should immediately get it professionally checked lest it is the early stages of a skin cancer. In this instance, taking a conservative approach is inherently sensible, and thus conservatism per se should not be viewed in pejorative terms. Sometimes it is entirely appropriate.

Further, just as in a diversified portfolio of high risk and low risk investments, lawyers arguably play an important role in the diversification of risk throughout society. We play it safe, and provide a stable foundation, so others can feel free to engage in more speculative and risk ventures. Progress requires both. Entrepreneurialism and adventurous risk taking to drive progress, and conservatism and stability to keep the lights on in case (as is often the case) the risky venture does not pan out. In doing so, the societal portfolio as a whole balances the need to grow with the need to avoid bankruptcy (that is, extinction).

So while the observation that lawyers are very conservative is often made as part of a broader lament, we should not automatically demonise the trait of conservatism. It is part of a dualistic approach to life that requires balance, ying and yang, risk and safety, in order for life to continue and grow. If we all were conservative, progress would be impossible, and if we were all risk takers, humans would long be extinct.[1]

However, that all being said, there might be some occasions, particularly when managing our own internal affairs, where we wish to imbue a little additional adventureness and innovation into our legal mindset. After all, as above, it’s necessary for growth. If we take lawyers as a microcosm of a society in and of ourselves, we can see that if we all act conservatively, all of the time, internal progress is stunted and we end up falling of the pace of progress in society.

One way to encourage greater innovation is to make expressly clear the obstacles and barriers we face to doing the same. These barriers are often hidden, latent, and ill-appreciated, and I hope the following discussion encourages us to overcome them by first dragging them into the spotlight.

Risk aversion

The first barrier is psychological. We are so used to advising clients as to the lowest risk option, the one that exposes them to the least legal risk, that we start to believe that “risk” is an inherently bad word.

Of course, when you view it in isolation, that is it’s connotation and common use. But when viewed as part of the duality with “opportunity”, we can, just by changing our language slightly, see how “high risk” can indeed be a good thing. For when “high risk” actually also means “high opportunity”, it looses it’s inherently dirty meaning and takes on an assessment of the appropriate balance to be struck between potential losses and potential gains.

After all, if you were to advise someone whether to enter a lottery, it’s not particularly sensible to merely focus on the fact that the investment is “high risk” (in the sense of it being likely to lose money) without also considering the other side of the equation — the opportunity for gain.

As lawyers, however, we don’t do this well. For instance, when managing our internal affairs, we might propose an idea for change. The almost immediate, and overwhelming response from our colleagues is almost inevitably to brainstorm five hypothetical risks which could occur from the new idea (new ideas always carry risks, so this is no great intellectual triumph, particularly from those whose livelihood consistent of snuffling out or hypothesising risks), with the consequence that the life of the idea is very Hobbesian (“nasty, brutish and short”). The new idea is therefore stuffed out, from a one sided assessment of costs and benefits. The “risk” side of the equation gets all the airtime, while the “potential benefits” or opportuntities in the idea are not contemplated or discussed. They are bypassed.

This is not balanced. As the old busniness school analytic tool SWOT analysis (strengths, weaknesses, opportunities, threats) shows us, wherever there are threats, there are associated opportunities. Threats exist in the uncertain future, as do opportunities, so if you can identify that something bad might happen in the future (that is, identify a “risk”), you must also, in the name of analytical balance and intellectual integrity, also be willing to concede that “opportunities” might also be lurking in the uncertain fog of the future. By gazing forward from the bow and only seeing the rocks and reefs ahead, we blind ourselves to the potential of a new land, new resources, and new opportunities. We also doom ourselves to never stepping into any adventure at all.

So when considering any new idea, it’s appropriate to consider, with equal vigour and effort, what could go “right” as well as what might go “wrong”. Unfortunately, this is almost never done. And a consequence, no one should be surprised when we shy away from new things for fear of the risks, and consequentially spin our wheels in the same spot year on year.

It is legitimate to be cautious. Balancing risks and benefits and, on sober consideration, preferring no action is true and appropriate conservatism. But considering only the negative side of the equation and then vetoing any action is just one eyed blindness.

Step one therefore to encouraging greater innovation is to ensure every new idea gets a fair trial, that risks and opportunities are considered and weighed equally, rather than just defaulting to the hackneyed “I can spot a risk, therefore no”.

Deification of the old

The second latent barrier to innovation is that there is an unbalanced level of deification of old things that occurs in the law, imbuing times and institutions which are old with a level of reverence which is not always objectively warranted. Old firms are more prestigious than new firms. Old judgements, particularly very old judgements, take on a biblical type quality akin to the Ten Commandments. Old lawyers have more credibility than young lawyer. New laws add to uncertainty, whereas old laws are signs of stability.

Of course, sometimes age shows the enduring quality of a thing, which might show it is better than a more modern equivalent (as in “they don’t make them like they used to”). However, most of our modern lives consist of advancements which have usurped old things, and everyone is usually happier and healthier because of it. No one, I think, pines for the days when infections were cured with leeches rather than anti-biotics, nor when the pinnacle of ambulation technology was horse-based transport, and certainly not for the times when sanitation consisted of a bucket and a second story window. Most of the time, in most things, newer, not older, is better. We should therefore cautiously check our reverence to old ways of doing things. It might (might) be that the old way is truly better. But we must not fall into the trap of unthinking and obstinately assuming so. If medicine did this we would have never progressed past bloodletting. And I am certain that, in pockets of the profession, a legalistic form of blood letting, under a different name, still occurs because it has always been done that way and no one has ever questioned that there could be a better way.

Apprenticeship model

The third less than obvious barrier to innovation is in how we train new lawyers.

It has been said that law is the quintessential apprenticeship-based profession, where junior lawyers “learn their craft” by watching and working closely with an older, more experienced professional. This is usually accepted without question, and as a means of transmitting the more subtle and tacit aspects of experience (rather than codifiable knowledge) it is effective.

However, the downside (and there is always a yang to the ying) is that it tends to produce apprentices who become a miniature version of the master. They do things as the master did, behave as the master did, and think master-like thoughts. They become professional children of the senior lawyer, and absorb all the traits and characteristics of their senior. As above, this may be the best way to transfer professional skill and knowledge from generation to generation. But it is a very poor way of encouraging diversity of thinking in the professional.

In many ways, the apprentice model enslaves the current generation of lawyers to the habits, traits and thinking of the generation proceeding them. Lawyers are therefore stuck with being, acting and thinking at all times, at least X years out of date.

To provide a worked example:

· Harvey began working as a lawyer in 2000. In the first five years, he worked closely with Tom, and learnt the skills of the trade from Tom. Tom himself learnt this skills from his mentor in 1995.

· So Harvey, between 2000 and 2005, learnt a set of skills which were appropriate to the era of 1995.

· In 2010, Harvey took on a new apprentice lawyer, and taught her everything he knew. He passed on the skills which he learn between 2000–2005, which in turn were based on skills which were learnt in 1995.

· In 2010, Harvey is therefore passing on “best practice” from 15 years ago.

You could fiddle with the dates and timeframes, and make some allowances for learning new skills, yet the point is that the apprenticeship model encourages us to learn and pass on knowledge which is often outmoded. Historically this may not have been such an issue, as the figurative distance between lawyering in 1710 and 1720 might not be that great. But given the rapidity of change in the last decade (a trend which will only accelerate with the speed of technological development), the gap between lawyering in 2010 and 2020 represents a wide gulf indeed.

Another example can demonstrate the extent of this chasm. I am a technology native. All through school and university I lived a digital academic and personal life, and aside from my text books and situations (like exams) where pen and paper were mandatory, I embraced the paperless revolution. I looked upon greeting cards as the quaint hangovers of my grandparent’s time.

Yet when I started working as a lawyer at one of the country’s top tier law firms, I was shocked to find that folders of papers and printed documents were the norm, and I was inducted into the process of filing and using hard copy documents. This was a practice which was, by this point in time, at least X years out of date with the advances in modern technology. Yet it is what the senior lawyers had grown up with, it was the system they knew, and therefore it is what what they passed onto me as “best practice” professional knowledge.

This of course is a little ridiculous. But there is a more subtle threat that lies behind this story. The paper based system was patently anachronistic, but at least it was obviously so. I was able to, externally, piously adhere to the teachings but observe (privately, in my own mind) that “this is completely old fashioned”. The more concerning aspect of this story is in the the lessons and wisdom I was provided with from my senior colleagues that had no physical manifestation in the real world, and therefore I had no way of appreciating that they were just as absurdly outdated. I simply absorbed this equally old fashioned guidance, unthinkingly, and accepted it as gospel. I now worry profusely that I have shackled my understanding of the best way to practice law to the unnamed ghosts of generations past, and that I am regurgitating the same stale lessons to the upcoming generation.

It’s useful therefore to appreciate that the apprenticeship model, for all it’s benefits, does tend to propoagte old fashioned thinking. And if we are all living X years out of date, any “innovation” merely helps us narrow the deficit to the advancement level of the general population. Appreciating that we may be sitting hopelessly, but subconsciously, behind the spirit of the times hopefully will inspire the necessary mindset shift for lawyers to get a bit more creative.

Herd thinking

Finally, the final subtle barrier to innovation is the extent to which lawyers are hobbled by herd based thinking.

The extent of our groupthink is readily proven. When lawyers or other professionals are accused of professional negligence, one defence available to them is what is known as the “Bolam” defence. In invoking this defence, the lawyer says (in essence) “I wasn’t negligent, because I acted in a way which was widely accepted among other lawyers”. The group consensus therefore becomes the the yardstick by which a lawyer’s behaviour is measured. This tends, quite obviously, to encourage a high degree of conformity and group-think among lawyers. If they go out on their own, and do something different, they are exposed and vulnerable to a claim of negligence, whereas when they follow the herd, there is safety in that conformity. This of course can have a chilling effect on lawyer’s willingness to do anything outside the mainstream of orthodoxy.

As John Maynard Keyes said:

“A sound banker, alas, is not one who foresees danger and avoids it, but one who, when he is ruined, is ruined in a conventional and orthodox way along with his fellows, so that no one can really blame him.”

There is safety in doing what others would do, even if ultimately (as Keyes observes) the collectively are simply lemmings driving for the cliff.

The contrast with the rest of the world could not be more marked. A business which only did what other business did would struggle to differentiate itself and probably go out of business. A lawyer who only ever does what his peers do on the other hand is likely to have a safe and solid career.[2] None of this encourages diversity in thinking, or even the willingness to be slightly adventurous.

One wonders how the in house lawyers at Apple manage to reconcile this urge to converge with the herd with Apple’s stated imperative to “Think Different”. No doubt with inner turmoil and sleepless nights.

Conclusion

The above discussion is by no means an exhaustive treatise on the barriers lawyers face to innovation.

We could include also the often observed fact that we are a profession obsessed with precedent, where we are constantly looking to the past for the legal answer to present problems. This becomes a habit, as we reflexively look to how things were done last time as guidance to how things should be done this time. Innovation is not encouraged by such habits.

Or we might point to the hierarchical nature of the profession, which encourages deference to the opinions of those who were trained decades ago.

These are equally valid barriers, but are more patent and therefore more frequently discussed. The object of this essay has been to uncover some of the more latent barriers to innovation and bring them to a higher plane of collective consciousness. For if we have no appreciation of how innovation is suppressed in the profession, it is very difficult to prescribe action to avoid it.

Yet with a greater illumination of the issues we can, hopefully and collectively, find it within ourselves to be, at least slightly, more innovative when the situation calls for it.

About the author

Samuel J Woff is a commercial construction lawyer and construction litigation specialist, speaker and published author. He has broad experience across a range of construction litigation matters including domestic and international arbitrations, litigation in the Victorian Supreme Court and security of payment adjudications.

Copyright 2023 Samuel J Woff

[1] Nassem Nicholas Taleb inspired this observation about the need to have some conservative members of society with his discussion of the barbell strategy in his book “Anti-fragile”.

[2] For further discussion about this desire towards conformity, see the discussion in “Tomorrowland: Scenarios for law firms beyond the horizon” by Bruce MacEwen.