Oregon State Bar Bulletin — JULY 2008

Twenty-five years ago I met an attorney who was himself a futurist. I was a Ph.D. student investigating how information technology, then in its infancy, might change organizational culture. This particular attorney had just purchased one of the first IBM personal computers that I had ever seen. He invited me to the downtown office of his firm, a rather large one, so that I could observe not only his IBM computer, but also the firm’s system of Wang word processors, and the cadre of typists who occupied a special room in which the Wang machines were located.

I remember being quite impressed, feeling as though I was seeing science fiction come to life, as a group of smartly dressed young people transferred words from paper or audio tapes into hyperspace. The attorney and I chatted about the future of the practice of law, as he envisioned electronic records, electronic filing of documents and even went so far as to imagine that there might come a day when depositions might be taken via video conference.

This was an attorney who was interested, obviously, not just in anticipating the future but also in trying to shape it. These twin objectives of "thinking in the future tense" capture the fundamental purposes for pausing from time to time to consider the future: We try to anticipate the future in order to see what might change the game so that we might prepare. And, we imagine alternative and preferred futures so that we might devise strategies that make them more likely.

The legal system has a rich tradition, actually, of "futuring." As far back as the early 1980s, when I was meeting with our futurist attorney, the Hawaii judiciary and the U.S. Council of State Policy and Planning Agencies were initiating projects in environmental scanning and futures planning. The Virginia courts and others followed, and by the early 21st century more than 24 American states had established judicial foresight commissions. These were usually chaired by the chief justice in the state, and often involved broad judicial and public input.

The state of Oregon, in fact, was an early entrant in the futures game. Under the leadership of Chief Justice Wallace P. Carson, Jr., in 1995 the state published "Justice 2020: A Vision for Oregon’s Courts," and followed in 2001 with a white paper on the Oregon Judicial Department’s Vision Project.

Recently, the National Center for State Courts sponsored a dialogue among futurists and leaders of state judicial and legal system future visioning projects, on whether the various efforts to anticipate the future have made a difference and also to imagine the next set of challenges facing the courts and, by extension, the legal profession. This dialogue, available in the NCSC annual report, Future Trends in State Courts, is revealing in that the court administrators and futurists agree that the futuring efforts have made a substantial contribution to court development, but rarely as much a difference as hoped for.

Your legal firm, too, especially if it is larger than a few people, almost surely engages in strategic planning on a regular cycle. Yet, the experience of many is that planning is seen as an interruption of work. Literally, a typical response is to say something like, "Man am I glad that strategic planning retreat/activity is over, so we can all get back to work." Little real connection is seen between the planning, and the work.

Yet, we know that we wake up each day to a future that is not what it used to be. Is there a way to be more effective at anticipating and shaping the future? The answer begins with a process for long range futuring that has three phases. First, it is important to engage in strategic thinking, or developing foresight. The short time horizon we favor when planning — one to three years is typical — is insufficient for developing adequate foresight.

I have argued for, and most often work with organizations when they want to look much further into the future — one, two or three decades into the future at least. Only by looking over the horizon, beyond today’s concerns, can we really see the big patterns with which we will be dealing in the years ahead.

The second phase of long range futuring is strategic decision making. This is the process of deciding on directions and results in agreement to a vision, a strategic intent, or a big hairy audacious goal (BHAG), to use three different popular terminologies. The key in this second phase is that at some point in a long range planning process a decision must be made: "Today we are here; tomorrow we want to be over there."

The third phase of long range futuring is strategic planning. Literally, we mean developing the web of specific near term actions, and the longer term sets of actions called strategies, that will take you from where you are now, to where you want to be. The bias here is toward the very short term. A plan becomes obsolete in six to 12 months, so action plans must focus on the near term. While strategies often take more than a year to accomplish, still the bias is shorter term than in the first two phases.

It is my position that strategic planning, as most often practiced, is neither very strategic nor very effective as planning. Why? Because the strategic part is typically too short range, and the planning part is too long range. This in fact, has been a standard challenge for court system futuring efforts. They have often been quite good at seeing long range futures, and at describing worthwhile visions for the future. But, due to a variety of factors they have found it difficult to follow-through on short range action plans and then to sustain the effort over time.

If we do a bit of long range strategic thinking ourselves, what are some of the events, trends and developments (ETD’s) with which we will be dealing in our firms and practices? Here are a few.

Continued Evolution of Technology
Three things stand out in the realm of information technology. First, just in mid-May of 2008 it was noted that the ultra-fast Internet, unknown in the U.S. until now, is about ready for public consumption. This next net, operating at 100 megabits a second (eventually 10 gigabits by 2015) enables 3-D HDTV to become a reality. If you have ever personally experienced the HP Halo system or the Telepresence system from Cisco you have a feel for what this will be like. Second, e-filing and electronic access to court proceedings is raising very sticky issues over protection of private information. Possible remedies range from limiting public access, limiting what records are stored electronically, or more simply redacting certain personal information like Social Security and phone numbers. The third information technology-related issue is the biggest, electronic discovery. Electronically stored information (ESI) has become the way we do things. At least 93 percent of all information created is now stored electronically. Employees in an organization of 100 people will transmit at least 1.2 million messages a year, and the vast majority of all organizational information will be contained in e-mails or attached to them. While in the past a typical legal case may have involved 30,000 documents, now 30 million in a huge case is not unusual, and cases involving100 million documents have been reported. Half of all businesses have no formal process for holding such records. And, for the legal firm, the unprecedented, perhaps humanly impossible, task of searching such documents is raising huge issues of cost, not to mention burning out young attorneys at an alarming rate.

Demographic Dynamics
The three dominant population trends of our time continue to impact the legal system. These are aging, the emergence of digital natives and diversity. Oregon is impacted by all three trends — shifting to a state population in which more than one-fifth will be over 65 and many will be much older. Having led the nation in death with dignity, now you will face issues of guardianship monitoring, pension and retirement class actions in an uncertain economy, and also the simple issue of how long attorneys themselves might continue to work and how firms might accommodate a longer work life. Second, the young people now graduating law school are the first wave of the digital natives, having grown up with computers, and having done all of their school work on the net. This generation will look at novel technology as normal, and they will wonder why your firms are so archaic, as they push for new methods. Finally, Oregon continues to become more diverse, particularly due to recent immigration from Latin America. This will challenge us with respect to immigration law, equal access to the law, language issues and more. It is worth noting, as one writer recently did, that we fool ourselves when we think this is new. One hundred years ago, Cincinnati had four German newspapers, four hospitals with German-speaking staff, and more than 70 area churches that conducted services in German. So we’ve seen issues of immigration before. It has been only in the past couple of decades that we have begun to differentiate between legal and illegal immigrants.

Globalization and Investor Ownership
This is the not terribly invisible elephant in the U.S. legal living room. Recent developments in Australia and the United Kingdom toward allowing investor ownership of law firms, as well as the general and powerful trend toward globalization of business combine to suggest that American firms may not be immune to fundamental change in the relatively near future.

Years ago I learned from a great systems theorist and teacher that all systems resist change — no surprise there. However the most important lesson he taught is that only a system whose survival does not depend on its performance can afford to ignore the future and fail to plan. The future is not something that just happens to us, though it often seems so. Rather, the future is something that we do.

Glen Hiemstra is the founder and owner of Futurist.com. He has advised government, business and nonprofits for two decades.Hiemstra will be the keynote speaker at the Oregon State Bar Conference on the Future of the Legal Profession Sept. 12, 2008, in Bend.

© 2008 Glen Hiemstra

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