Source: Cat Moon

It’s time to be ignited.  

Prologue

I was spurred by Jae Um’s Home Alone in New York (146) story here to write something about #makelawbetter dot org. (Many thanks for the shout-out, Jae!) After reading, I reached out to Bill who graciously accepted my offer to share the #makelawbetter story with Legal Evolution readers.

And, all week I’ve been trying to summon the creative energy to actually write. Like many of us in this time, high levels of anxiety have sapped my creativity. At just the moment I have unexpected time and space to be creative. One of many COVID-19 ironies, I suppose.

I’m finally writing now, a full week later, and I realize that this post is going to be about a couple of things. It’s going to be about #makelawbetter, which I’m calling a movement. And it’s going to also be about how this time is affecting the movement, shared through a tiny lens of my experience living in this moment.

And in this moment, I’m reminded of the lesson Mary Oliver shares in her poem “What I Have Learned So Far”: “All summations have a beginning, all effect has a story, all kindness begins with the sown seed.”

Ultimately, #makelawbetter is about sharing stories and through them learning and collaborating to build new and better ways. By sharing our stories, we are sewing seeds — essentially publishing the data that will help us learn from this moment, as we emerge on the other side. Whatever that may look like.

It is in this spirit, that I share the following.

Why #makelawbetter?

Can one be passionate about the just, the
ideal, the sublime, and the holy, and yet commit
to no labor in its cause? I don’t think so.

Mary Oliver, from “What I Have Learned So Far”

While the current moment informs #makelawbetter dot org, the movement itself predates the COVID-19 epidemic. I haven’t pinned down the first use (by me or anyone else) of the #makelawbetter hashtag on Twitter. But I’ve been using it consistently since early 2018.

As my hashtag of choice, #makelawbetter captures perfectly the goals so many of us seek for the legal profession and our legal systems: to make things better, anywhere and everywhere along the spectrum of “legal”.

We #makelawbetter by expanding access to justice and legal information and legal understanding. We #makelawbetter by improving the delivery of legal services, from BigLaw to SmallLaw. We #makelawbetter by creating a more diverse legal workforce, diverse in both the roles we fill and in the people filling these roles. We #makelawbetter by prioritizing mental health and wellness across the profession. And, we #makelawbetter in a thousand other ways.

Simply put, #makelawbetter fits no matter what challenge you focus on. This makes incredible sense to me, as my priority is to move the needle across the legal spectrum by connecting silos and facilitating collaborations that are so very much greater than simply the sum of their separate parts.

Because, we are a profession of silos within silos. And this is often of systemic necessity. Folks working in legal aid organizations focus very narrowly and by necessity on their specific challenges. While folks in BigLaw focus solely on their flavor of BigLaw problems. Let’s consider that these two vague and general groups anchor the spectrum of legal practice, essentially on opposite ends. And you have a world of folks falling in between, including solo practitioners and those in small firms along with in-house counsel and government lawyers and those in law companies and “alternative” legal service providers and legal tech companies and I could keep going, but hopefully, you get the point.

And the spectrum also traverses across traditional legal institutions, from courts to law schools to public interest organizations to government agencies.

All along this spectrum, we face challenges and problems, sometimes small and often very big. Data exist at every point to establish that aging, ill-designed systems are broken, or very close to it.

And, people are working very hard across this spectrum to solve these challenges and create opportunities. To make it better. At their discrete point, along the spectrum. So very many of us want to #makelawbetter and we do what we can, where we are, with what we have.

And the many systemic constraints on our individual impact are real. For example, far too often we duplicate efforts. Someone in this silo creates a solution to their discrete challenge and because many others have essentially the same challenge, people in other silos start building the exact same solution. From scratch and unaware of the other solutions. I come across this so often it makes my head spin.

This isn’t the time or place for a deep exposition into why this is so. I ask that you simply embrace the premise that THIS IS SO. And, the fact that this is so is a major obstacle to the advancement of individual #makelawbetter efforts.

THIS is why I started using the hashtag often and generously. This is why I obtained the #makelawbetter dot org domain in March of 2018. I saw the simple phrase as a way to communicate and promote and connect our efforts across the spectrum more broadly, no matter the silo. A way to unite and mobilize the many passionate people who are committed to laboring in this just cause.

#makelawbetter: Phase I

I always envisioned #makelawbetter dot org being a platform for connection and collaboration amongst the various silos and across the legal spectrum. But in 2018, I didn’t have bandwidth to explore experimenting with it. I had courses to design and teach and an executive education platform to design and launch. This was (and still is) a passion project and of course those typically get the least oxygen.

And, then, in August 2019, I followed my own advice and just put it out there. I had a tiny push, in the form of Chicago-Kent Law’s #MakeLawBetter conference. I was invited to speak and with no real parameters imposed on my topic, I seized the moment to put #makelawbetter dot org out into the world.

In my talk (titled “Failing to #makelawbetter”), I made the case that (1) despite the valiant efforts of so many, we are failing to do the work we are charged with doing, and (2) we actually need to fail more in order to ultimately succeed in our efforts to #makelawbetter. (Yes, my goal to inspire audible gasps from the audience upon announcing this second point was achieved.)

And I still believe this point no. 2, now more than ever. For a long time, the multitude of challenges we face across the legal spectrum have demanded creative thinking and innovative solutions. And our continued comfort in maintaining the status quo has constrained us to the point that we no longer see with clarity the significant damage being done. So often, we squarely disregard data about the status quo while simultaneously demanding data about proposed solutions before we will even agree to try said solutions.

I hope you see the conundrum. Even when we acknowledge that current systems fail (terribly) to achieve their purpose, those with the power to do so refuse to change anything. Allegedly because we don’t have data to validate the change. Why don’t we have the data? Because we never try anything new.

And, this is exacerbated by our hubris. Because those who lead may do so with best intentions bolstered by the confidence of “we’ve always done it this way,” we apparently are excused from having to measure actual outcomes. Intention trumps results.

So, with this context, back to my #makelawbetter point no. 2: We have no choice at this point but to try things that are new and therefore unproven, if we are ever to move beyond a failing status quo. To innovate demands experimentation and an experiment, by definition, means we don’t know the exact outcome. If we did, then it would not be an experiment.

Experiments can, and I submit in the context of #makelawbetter, must be designed intelligently and intentionally, and in ways that limit as much as possible unintended and negative consequences. Scientific experiments that make our modern world possible are designed and run in this way. So, guess what? It is possible for us to do the same. To design informed, intelligent, and intentional experiments to #makelawbetter.

Which means we need to try things that sometimes won’t work — this is the failure part — and learn from what doesn’t work to inform how to keep experimenting and iterating and never stopping because this is the only way we will succeed to #makelawbetter.

We must experiment more which means we will fail more. And we must learn from the failure, to inform our continued efforts. This is how the truly important work that moves humanity forward happens.

And, instead of embracing this truth, we pull our blanket of hubris more tightly around us, finding a fleeting moment’s comfort in our good intentions.

We need a new blanket, friends. Hubris is not serving us well. We need to find comfort not in the status quo but instead embrace the ambiguity that is our current reality and the reality going forward, forever. This world only becomes more complex with the passing of time. The gift of embracing ambiguity is that we no longer must exist beholden to the status quo. Ambiguity is permission to imagine and create new potentialities — new contingencies for the multitude of possible futures we could face.

If this scares the hell out of you, that’s okay. It does for most of us. Our lizard brain does not play well with ambiguity. But if we can’t move beyond the status quo and we ultimately shut down in the face of ambiguity, we will not be the architects of our future. The people who can embrace the ambiguity will design the future of law, our human OS (see Epilogue).

So, circling back around, this is why we must experiment and fail more. And, this is what I invited folks to do that day from the stage at Chicago-Kent Law. I launched Phase I of #makelawbetter dot org and invited any and all to share their experiments: share the ones you want to run and the ones you’re running and share outcomes, including both successes and failures.

Some folks showed up. A few shared. Curiosity was piqued. I continued to tweet and connect with fellow #makelawbetter provocateurs here and there. And, as my bandwidth continued to be consumed by my day job, for the most part #makelawbetter just sat there. A place for legal innovators to stumble across and share their experiments.

#makelawbetter: Phase II

Which made #makelawbetter dot org perfectly situated for the world we currently find ourselves in. Just as Phase I happened organically, so did Phase II.

Richard Susskind

The COVID-19 pandemic was upon us instantly. And practically overnight, we had a global #keeplawopen challenge. Richard Susskind asks if courts are a service or a place and the answer now seems clear. As physical spaces are shut down, the work must continue — across the legal spectrum.

Social distancing requires court proceedings to now happen via video conference. See, e.g., Angela Morris, “Judges Rush to Learn Video Conferencing as Shelter-In-Place Orders Spread Across Texas Metros,” Texas Lawyer, Mar 24, 2020.  Lawyers who may never have typed their own emails now must use technology to work remotely because their firms are no longer a place, but rather a distributed collection of people providing a service. See, e.g., Frank Ready, “COVID-19 Pushed Legal Toward Tech, Remote Work. There May Be No Going Back,” Legaltech News, Apr 7, 2020.  Law professors across the US are now teaching from the comfort of their own homes, no longer ensconced in ivy-covered buildings.  Paul Caron, “100% Of Law Schools Have Moved Online Due To The Coronavirus,” TaxProf Blog, Mar 18, 2020.

And too many of us don’t know what to do in this reality. I know this because I’ve been trying for a dozen years to help legal professionals embrace the tools and methods of the Fourth Industrial Revolution, to move us out of the Second Industrial Revolution (100 or so years after it ended). My observation: we are a stubborn tribe, one seemingly hell bent on doing things the way we’ve always done them until we simply can’t anymore.

And, we can’t anymore.

And, this was my first thought in this unprecedented moment: people need help. People across the legal spectrum need help because this shift isn’t optional. We don’t have the luxury of ignoring pleas to embrace 21st century technology. We MUST act to #keeplawopen as a service, even though we have lost all of our places. And many, many people aren’t going to know how to do this.

And, who better to help than the people who have been quietly leading us into the Fourth Industrial Revolution — the army of legal innovators who have been experimenting, some for decades, with tools and systems and processes and methods — and who now may just have a captive audience? As Jordan Furlong observed, the door we’ve been trying to bust down has now been flung wide open. From the inside.

So, I sent out a call. I asked anyone and everyone who wanted to help to sign up and join the movement. The purpose was at least two-fold: First, in creating this database of legal innovators, we now see each other. We see what others are working on. We come out of our A2J and BigLaw and SmallLaw and AltLaw and LegalEd and government and court silos and we can cross-pollinate and collaborate.

Second, others who choose to look can see us. We are visible to any and all who seek help in this moment to #keeplawopen. We bring our experience and expertise and energy to bear to help leaders who face big, hard questions about how they will continue to serve their constituencies — how they will provide their services in the absence of the traditional places.

Recall that, as a tribe, we exist in systems and ways of working that were designed to serve a Second Industrial Revolution world. Most of us still work in these ways, cozy in our comfortable blankets of hubris.

And, as a tribe quite comfortable with the status quo, we typically don’t surround ourselves with advisors on innovation. Even when we give someone this title, we don’t empower them or incentivize others to listen to them. I know this to be true because too many of you with this title tell me this is so. Also, simply witness our behavior. By and large, it is not behavior driven or even influenced by innovators.

And, in this moment, we need the advice and guidance and experience and expertise of the innovators. We won’t be successful in our efforts to #keeplawopen without this help. We will fail, and not in the good way.

So, ultimately, #makelawbetter dot org is a big dare. A dare to leaders across the spectrum to embrace the important work of legal innovators and accept our constant offers and efforts to help you do this critical work to #keeplawopen. In this crisis and beyond.

#makelawbetter is a clarion call to come out from under the comfort of your status quo blanket and seek and accept help.

And, it’s an opportunity for those who want to help to be proactive and create potential solutions for folks who are too scared or proud to ask for it. While the primary goal is one of connection intended to lead to self-directed action, we’ve also launched the #keeplawopen Project 30-60-90 as one example of what is possible when the hive mind gets to work on creative problem-solving. And #makelawbetter innovators are set to launch more projects focused on helping law school students in the immediate future.

#makelawbetter: what’s next?

It seems years ago now, but in January of this year, I listened to Jim Sandman preach at LSC’s Innovations in Technology Conference. Jim said some things in the opening plenary that I think about almost every day.

One: Jim shared that he’s been radicalized. This is a powerful word and I think the right one for this moment in time. We need radical solutions to the many challenges we face across the legal spectrum. Anyone reading this blog likely is familiar with the big ones, but you can quickly get up to speed on many simply by perusing the ABA’s Report on the Future of Legal Services (2016), its first ever Profile of the Profession (2019), or the just-released Principles for Legal Education and Licensure in the 21st Century (2020).

Our core legal systems are failing both those we serve and those doing the serving and the COVID-19 pandemic has simply made our failures even more stark. Radical change is required to #makelawbetter for all stakeholders.

Two: Jim laid out a five-part plan to #makelawbetter, even though he didn’t use the phrase. See Bob Ambrogi, “Jim Sandman’s Five Requirements for Tech to Improve Access to Justice,” LawSites, Jan 20, 2020.  While his recommendation was in the context of using technology to improve access to justice, this plan can apply across the spectrum and to much more than technology.

Two of these elements are at the heart of #makelawbetter dot org as a movement: First, to create a global, meta-collaboration for strategic blueprints, which first requires creation of a clearinghouse for all of the experiments currently underway. This enables us to learn from each other and stop reinventing the wheel. Through the network of connections, we can start building #makelawbetter blueprints for execution across the legal spectrum. While Jim’s vision was aimed at leveraging technology to create access to justice, this platform could apply to any challenge at any point along the spectrum.

The second element is to encourage, support, and empower collaboration among a broader range of participants. We will never create the best solutions to #makelawbetter if we stay in our silos. We must expand who we let into our decision-making and problem-solving processes.

Right now, in our lawyer-dominated systems, most every single problem solver was trained to solve problems in exactly the same way. Leaders are predominately white males and mostly of a certain age. We get faster, better solutions through collaboration between and among problem-solvers who bring a range of diversity to bear.  See, e.g., Alison Reynolds & David Lewis, “Teams Solve Problems Faster When They’re More Cognitively Diverse,” Harv Bus Rev, Mar 30, 2017.

This is reality: we lawyers can’t do this on our own. We aren’t enough and we never will be.  Cf. Rebecca Sandefur, Access to What?, Daedalus (Winter 2019).  We made the current systems and the systems are failing and unless and until we ask for help, and despite our best intentions and the incredibly hard work of so many, we will continue to fail to #makelawbetter.

If you want to help, please join the movement. If you need help, please ask.  ALL ARE WELCOME.

And let us all live Mary Oliver’s closing lesson: “Be ignited, or be gone.”

Stay and do the hard work ahead of us. Or get out of the way so others can.

Epilogue

I’m an optimistic person. Every day, I choose to reframe challenge as opportunity. I strive to embrace ambiguity because to do so is permission to be creative and design multiple potential outcomes instead of being beholden to a forgone status quo. And, this moment is stretching me, personally and professionally, to stay optimistic.

I believe that the rule of law and all that flows therefrom exist as the operating system for humankind. The legal systems we lead and serve are vital to a functioning global society and only when leaders emerge to act boldly and with courage will meaningful change to #makelawbetter happen. We must be ignited, before all is gone.

This will not happen at the pace our world demands if we treat the current pandemic as a blip and retreat to the status quo the moment the worst has ended. Right now, hundreds if not thousands of #makelawbetter experiments are unfolding around the world. We are innovating overnight to #keeplawopen. All of these experiments are producing data. Data that can inform the decisions we make going forward to fix our broken systems.

One small example: wet signatures, a last bastion of legal tradition, have been abandoned by many states in this crisis. See Emergency Remote Notarization and Remote Witnessing Orders, American College of Trust and Estate Counsel, Apr 29, 2020.

For a big example, look only to what the Supreme Court of Michigan is doing to #keeplawopen in the pandemic, including this order authorizing the pilot of remote jury trials—a real-world #makelawbetter experiment.  See Michigan Supreme Court, Administrative Order No. 2020-10.

And, I personally know of courts in Canada that seek to enact change to #keeplawopen and to maintain and iterate on this change to #makelawbetter far beyond the COVID-19 crisis.  Matthew Black, “Alberta courts adopt digital approach to justice as COVID-19 pandemic continues,” CTV News, Apr 7, 2020.

Right now, most of us are engaged in what can only be described as triage, creating “temporary shelters” to #keeplawopen. As Court of Queen’s Bench Chief Justice Mary Moreau frames it: “It feels a little bit like whack-a-mole sometimes. We are putting out brush fires.” Id.

And, I join Jordan Furlong in his challenge to us that we must concurrently build new systems alongside the temporary shelters. Jordan Furlong, “Pandemic I: What we’re up against,” Law 21, Apr 1, 2020. Our old “places” were already broken (some badly) and by the time the pandemic damage is done, our systems may not be inhabitable. We will need new ones to go to — no longer the traditional places of the status quo but entirely new designs equipped to serve all humans (and not just lawyers) in the Fourth Industrial Revolution and beyond.

So, maintaining my optimism in the face of this enormous challenge is really hard some days. Just as I was about to send this post to Bill for his consideration, Nóra Al Haider’s “Legal Design Summit: Diving Beneath the Surface” was published and I was reminded in its closing paragraphs of my very public commitment to optimism.

I’ll reaffirm it here. I know that together, we will choose to be ignited, and we will #makelawbetter. 👊