What do you want the future to be?

If we just surrender to our past choices and accept our current conditions, the legal sector will never get better. It's time to imagine the legal world we want and resolve to bring it into reality.

Illustration by Midjourney

I hate spoilers. I’m still annoyed that I learned about the twist in The Sixth Sense beforehand. I spent years trying to keep Luke Skywalker’s parentage a secret from my kids (in vain). I don’t even like watching the “coming next week” segment at the end of a TV episode. So if you offered me an opportunity to somehow see into my future, I’d take a hard pass. I want to experience life as it comes — I want the future to stay right where it is until I’m good and ready for it.

That does not describe most lawyers; they really want to know the future, at least in their professional capacity. Half the questions they get from their clients amount to, “What will happen if I do this?” Lawyers are in the business of minimizing future risk and steering clients away from potential pitfalls. Litigators, famously, never want to be surprised. “Guess what happened?” is not the way to open a happy conversation with a lawyer.

That might explain why I still sometimes get hired to talk to lawyers about “the future of law” — foreknowledge of what’s coming is a lawyer’s hedge against uncertainty and risk. But I’ve never called myself a “futurist,” because actual futurism is a specialized discipline that requires a wide array of skills and knowledge, and I’m just a rando who spends an inordinate amount of time thinking about the law. So when I stand up in front of a group of lawyers, I generally take them through a four-part process:

• assessment of the current and impending state of the (legal) world,

• analysis of why things are like this and what it all means,

• predictions about where all these trends are taking us, and

• advice about how to prepare for what’s coming our way.

I gave a lot of those presentations before the pandemic, and I’m starting to get more such inquiries now, although I’d prefer to focus on my advisory work for regulators, educators, and law firm leaders, as well as (of course) my writing. But an article I read last week (HT Matt Homann’s Ideas Surplus Disorder newsletter), written by an actual futurist, got me thinking about whether I’ve been going about this the wrong way.

The article is “The Future Thinker’s Dilemma,” by Frank Spencer. It’s kind of a challenging read and I don’t agree with all its observations, but its central point is this: Most futurism tries to solve present-day problems without addressing the extractive and exploitative present-day systems and habits that produced the problems. “Foresight/futures thinking should be offering us an entirely different way of perceiving the world that supersedes our limited assumptions, our system-defined problems, and our context-limited solutions.”

Spencer goes on to quote design professor and philosopher Cameron Tonkinwise, whose observation below I think really nails the issue (my emphasis):

“There is no reason to be ‘future-oriented’ other than to try to change things, from now on. This means that you must be very careful when trying to ‘future’ to ensure that you are not unwittingly reproducing implicit past patterns. When doing futures thinking, you can, and to some extent must, explicitly choose aspects of the past that you believe will extend, or should be extended, into the future. But futuring is of little value, perhaps even dangerous, if it extrapolates into the future things that will not and should not be there, but which are because those doing the ‘futures thinking’ did not adequately think about them.”

That struck an ominous chord with me. When I’m doing my best work, I feel like I’m giving people a very different — yet still plausible and desirable — vision of what the legal sector could and should be. I’m thinking about how to make the legal world better, and encouraging you to do the same. But now I’m worried that too often, what I’ve really been doing is forecasting, whereas I ought to have been doing more imagining.

If you’re just a forecaster, you only need to understand the effect of macro-level forces on present circumstances and anticipate where their combined trajectories will lead us, so that you can either profit from that future state or protect yourself against it. You don’t question the legitimacy of those circumstances or challenge those forces — in fact, the last thing you want to do is change them, because that’s just going to mess up your projections. To cite an overused aphorism from my neck of the woods: You’re simply in the business of predicting where the puck is going, so that you or the people you advise can skate to where it will be.

But forecasting of this type is passive and fatalistic. It assumes our present circumstances, and accepts our current maladies, and resigns itself to our deteriorating structures and wayward habits and unscrupulous profit models. Maybe you can predict where the puck will be — but if you don’t particularly care whether the ice surface is level or whether one team has all the best players or even whether scoring a goal is what you should be focused on, then what good are you doing? Why bother looking to the future if you’re not also looking to make it better?

Futurism should be about imagining a world that’s radically different and markedly better — not just than the one we live in today, but also the one we’ll inhabit tomorrow if we keep doing what we’ve been doing. Any idiot can tell you the world will be hotter in 2050 than it is today (and it’s plenty hot now, thanks) and advise you to invest in sunscreen. A futurist should be thinking about a cooler world in 2050 and then working backwards to figure out how that can be accomplished.

Likewise, legal futurism shouldn’t simply extrapolate current trends and circumstances and figure out where they’ll lead us down the road. It definitely shouldn’t overlook or implicitly endorse those trends and circumstances, so that they continue to barrel unchecked through the profession and society for years to come. Legal futurism should look beneath this sector’s present-day problems to identify the choices that produced them, and then envision the new and better legal world tomorrow that would result from making new and better choices today. It should forecast less and imagine more:

• Forecasting says: Law firms will keep dictating brutal working conditions for new lawyers because they’re so deep in debt. Imagining says: Breaking down financial barriers to professional entry will liberate new lawyers to pursue their desired careers from day one.

• Forecasting says: Lawyers will keep prospering in the legal market because lawyer-controlled regulators protect their profitable monopoly. Imagining says: Transferring regulatory control to other stakeholders will massively increase the supply of legal services.

• Forecasting says: Lawyers will keep suffering through mental and emotional crises because the life of a lawyer is inherently punishing. Imagining says: Upgrading lawyers’ entry-level competence and culturally de-stigmatizing mental illness will rejuvenate the profession’s health.

I plan to do a better job, when speaking to lawyers about the future, of imagining what ought to be rather than extrapolating forward what’s already here and coming our way. And I hope to do a better job, in this newsletter, of identifying the choices we’ve made that have led us here, and recommending we make different choices from now on, so that we can go someplace better. We have agency here, you and I. We have the chance to turn the pages over. We need to take it.

Technology visionary Alan Kay famously said: “The best way to predict the future is to invent it.” I think his observation was incomplete. In order to invent the future, we first have to imagine it. And to imagine it, we have to ask ourselves: What do we want the future to be? And why?