Question: Why is change so difficult for so many lawyers?
Answer: It shouldn’t be such a challenge. But lawyers’ training doesn’t help.
Legal teams often struggle with change. This can make transformation of legal organizations difficult. For non attorneys who often are the catalysts, early champions, and long-term drivers of transformation in legal organizations, the resistance of many lawyers to innovation can be confounding. Is there something different, or special, about attorneys that causes them to distrust change?
In a word: yes. Notwithstanding the diversity of U.S. attorneys’ backgrounds, personalities, interests, and tendencies, they generally share three key things in common, each of which militates against change. First, the vast majority of lawyers in this country practice under the common law system. Second, almost all U.S. lawyers have attended (endured? suffered through? survived?) law school. Third, U.S. attorneys practice in a system that is laser-focused on risk. These three common experiences have tended to shape lawyers’ attitudes towards change in important ways.
The common law system. The common law system is built on a vast body of court rulings, over hundreds of years, in individual cases, that collectively define principles of law and equity. These decisions tend to reason by analogy to prior cases involving arguably similar (or, depending on one's point of view, arguably dissimilar) facts. The key word here is prior. The common law system is forever looking in the rearview mirror at what was decided before. How should a current issue of contract or tort be decided? Well, how was it decided 23 years ago (or 230 years ago) by another judge in a (perhaps) somewhat analogous case? Lawyers of all stripes—litigators, transactional lawyers, regulatory lawyers, government lawyers, you name it—have been trained, taught, and tested to think this way. They reason by analogy, by precedent—in other words, by what worked before. This is a valuable tool. But for some lawyers, it becomes nearly the only tool. Or, at least, the only tool they really trust when it comes to the central issue on which they focus: risk.
Legal education. Legal education is where it all begins. Many aspiring law students wouldn’t know a precedent from a precipice (the one off of which they are about to step). But from their first days as 1Ls, they are steeped in the case method: the precedent system. They are drilled in it, and conditioned to it. It becomes second nature. It’s what many law schools and law professors mean when they reference “thinking like a lawyer.” But there’s a bug, or bias, built into this way of thinking. Specifically, as noted above, it nearly always references the past. That’s great, if the past has all the answers. Perhaps, maybe, it does not. Perhaps, maybe, looking to how lawyers did things (badly) in the past leads lawyers to do them (badly) in the present—and limits their ability to improve in the future.
In this regard, it is important to note that not all professions and disciplines harbor this backward-looking bias. Others rely on different value and reasoning systems that are more future-oriented and creative, and that reference different types of inputs than law. These differences explain, in part, the accelerating pace of business in relation to law, and the widening gulf between the expectations of the former and the service provided by the latter.
The Focus on Risk. Precedent system, meet risk and high stakes. Marry the inherently backward-looking precedent system, which is what newly-minted lawyers have been told constitutes “thinking like a lawyer,” with high profile, high-dollar legal matters, and lawyers’ risk meters go into overdrive. (Factor in professional liability standards, and the effect is overwhelming.) Thus, when confronted with a new client issue or challenge to solve, lawyers’ training kicks in. What worked before? How did someone else solve the problem (or, at least, some problem that superficially looks a little bit like this one)? That must be the answer. That must be safe.
But what if focusing on precedent, on the past, obscures better answers than the past is able to provide? What if this approach actually creates risk? In fact, it does, and among those risks are missed opportunities: to work in new, different ways; to utilize technology that wasn’t available before; to define new solutions and approaches that are better, faster, and fairer than what previously was possible. These missed opportunities are a cost built into the precedent system. Missing them is a risk unto itself. But because lawyers aren’t trained to think about these sorts of risks, they tend to go unnoticed.
So: what does the past have to teach us? Much. But not all. And to see beyond it, attorneys need not only to “think like lawyers,” but also simply to think. Broadly, expansively, and creatively.
To successfully reach and persuade a group of people, it is important to know and understand them. The common experiences of most U.S. lawyers animate how many of them think about change in their organizations, how they react to new ideas and new systems, and how they object. Because lawyers will object. In addition to being trained in precedent, they are trained to be advocates. And advocate they will— in ways both loud and quiet, direct and indirect. To meet and overcome these objections, it is critical for forward-looking professionals who help legal teams modernize and improve to understand the objections on the merits, but also to understand what motivates them, and what can persuade this uniquely tough audience—not only that change is possible, but maybe even positive.