I would have to say that lawyers are, as a group, unconscious philosophers. Whether we recognize it or not, we carry out the scholastic tradition begun in late Antiquity and brought to flower in the much-maligned 12th Century of the Common Era. After all, lawyers read, reflect, critique, add and subtract to a living corpus of thought (the law), do so with an eye toward logic and tradition, and necessarily presuppose an ordered universe (or at least a universe emerging from chaos). Just like our hair-shirted forebears.
Lawyers as Rationalists
If this is true, then lawyers are, essentially, believers in “the rationalist” approach to seeing that world. That is, we read about, understand and view the world through the prism of analysis, reason and structure. We are thus “rationalist” philosophers who essentially see ourselves as separate from that which we observe.
In philosophical terms, lawyers have thus unavoidably divided the “subject” from the “object”; the viewed from the viewer. In other words, we see ourselves, as did Descartes, as ultimate realities in our own minds distinct from the phenomena of the world. We fundamentally and temperamentally agree with cogito ergo sum, which is to say that our fundamental, irreducible reality is the fact of our own thoughts, our own consciousness; all the rest can be done away with, and is ultimately unproven: fundamentally, then, it is not real. Therein lies the rub.
Really, Really Real
It is this very philosophical position (conscious or otherwise) that is hindering, I believe, the wholesale adoption of the management reforms, the global growth, the creativity in creating new legal products and new client partnership dynamics that are necessary to take the practice of law through the inescapable changes that new market realities demand. We cannot as a group re-conceive of our practice, our profession and our industry in new ways because the market “realities” are not “real enough.”
Managing-Partner Existential Angst
Any law firm leader worth her salt has seen legion articles, been to numerous conferences and had countless sleepless nights contemplating the challenges that face our industry. Most of these changes are bound up in the new reality of a one-world global market for legal services (as there is a one-world global market for everything else!). But the problem is, as just about everyone will agree, is that law firms will not or will not do so in the short term. They are stuck.
Fighting the Hypo
Specifically, and by way of example, lawyers, law firms, and even many of their consultants, are attempting to stick their collective heads in the sand about the massive capital investments that will be required to stay competitive in the coming two decades. Many lawyers still hold up the straw man of “law as profession” versus “law as business”, as if there were any vitality in making the two mutually exclusive. Some believe that facilitating larger firms is irrelevant because larger firms only correlate weakly with increased PPP, or that the capital infusions that could be made possible by law firm IPOs are unnecessary because no one will know what to do with the cash, or yet again that the globalization of firms is not necessary because firms can get along fine with just associating with a series of foreign “friendship” partners. I suppose reasonable minds can disagree on these issues—but that doesn’t make the other reasonable minds right, I’m afraid.
What is the catalyst, then, that will allow law firms, and thus a critical mass of individual lawyers, to embrace the incredibly vital, exhilarating and terrifying opportunities presented by 21st-Century practice, and thus finally discard 19th-Century models of behavior like the old wineskins that they are? No amount of sermonizing will apparently make a difference. No amount of stating and re-stating the opportunities makes much of a dent on some of these Teflon minds. No reiteration of the economics involved can convince many that the market realities are realities that actually affect them, which in turn means THEY MUST ACTUALLY CHANGE.
Dasein: The Great Marriage of Phenomenon and Perception
What then? It goes back to fundamental beliefs, aka, philosophy. It is the very nature of the implicit philosophical bent of the “lawyer mind” that is keeping us as a profession from embracing all that is available to us. That rationalist bent that I described briefly above is to blame. It is that belief that we can analyze apart from the reality that gave rise to the analysis that hinders us. The antidote? Some good old-fashioned existentialism. We need to make the tectonic shift away from “cogito ergo sum” to “Dasein”, “being-in-the-world”, and “being there.” If you need a full refresher on existentialism, dust off your college-days copy of Heidegger’s “Being and Time.”
Briefly, this new paradigm sees the UNITY between phenomenon and thought. It advocates a perspective that there is no artificial disconnect between the world as it is, and how we perceive it. In short, Dasein is a construct that imbues our thought processes with an understanding of temporality: all things are moving, all things are passing, and we must be a dynamic part of that movement.
Get With the Program: Irrationality Is Part of the Equation
The upshot, the “bottom line” (horrid phrase) of all this is just this: we cannot sit back and wait for our logic to dot all “i”s and cross all “t”s. Rather, we must embrace the chaotic nature of human existence. We must be willing to engage with the world as it is: a fluid state of “absurdity” and non-rationality that the true geniuses among us truly grasp. And it is those geniuses that create new products, envision new needs, create new modes and means of interacting with consumers, and how consumers interact with their world. In short, we must allow our analysis to “be good enough.” We cannot wait for an historical precedent to validate our hunches—we must act on them!
Corporate Existentialism: Corporate Identity
And to get at those hunches, we must be “existential” as organizations. That means that as an organization (a particular law firm) we must determine who we are first and foremost (our strategic advantages in terms of product and service) and then extrapolate what we have been and what we WANT to be into that ever-changing milieu of the global—the universal—market.
If we can do that, if we can embrace that shift, we can get fully into the deep water, the center of the channel of our client’s world—and thereby also, not only become better capitalists and managers, but become better lawyers.