April 2003

Scenario-building

by Jan Michels, WSBA Executive Director

I'm a reader — I read anything and everything. My husband, Alan, and I subscribe to magazines from The Atlantic Monthly and The New Yorker to Discover and Scientific American. Throw in Motor Trend, Skiing, Bicycling, Consumer Reports, and most state bar magazines from around the country, and I get a very rich mix of intellectual stimulation and juxtaposition. On a recent ski vacation at Whistler I used the long, tired evenings to catch up on these materials.

Three articles from different sources (and the Board of Governors' December retreat) melded into this thought: We need to build some creative scenarios about the future practice of law and plan toward them, or we risk having a profession where outside forces, not lawyers themselves, define how lawyers practice.

I'll start with an article by Jeffrey Goldberg in the February 10 issue of The New Yorker titled "The Unknown." Goldberg traces the history of U.S. intelligence-gathering in both the State Department and the CIA. He speculates about the defects (he doesn't like the term "failure" in this context) that allowed international events such as Pearl Harbor, the 1998 nuclear test in India, 9/11, and the nuclear threats in North Korea to surprise us. Goldberg ascribes this defect to lack of imagination. We were unable to get beyond pure facts and get outside a narrow U.S. worldview. He suggests that we knew objective facts, had bits of information, but could not imagine what they meant and where they were going — a defect he labels "analytic timidity." He calls for all intelligence information to include speculation about the "unknown" — then even a further imagining of the "unknown unknown" — what he calls "scenario-building."

Legal futurist Stuart Forsyth, speaker/facilitator at the December board retreat, spent some time describing the mental picture legal professionals have of themselves and the profession. He described how this mental picture inhibits the profession's ability to discern trends and use available information (i.e., understand the meaning and significance of this "intelligence") to develop realistic assessments about what trends, public opinion and globalization may mean about the future of the legal profession.

In an essay on the state of America, "The American Paradox," in the January/February 2003 issue of The Atlantic Monthly, Ted Halstead discusses some of the paradoxes in U.S. achievements. While the United States ranks among the top of advanced democracies in biotechnical research, we rank near the bottom in infant mortality. While we are at the top in productivity, we are near the bottom in income inequity. And while we are near the top in GNP, we are at the lowest in universal health care. Halstead's point is to call for a revised social contract, but what caught my attention was his concluding speculation that even without governmental or political intervention, the requisite conditions for a reinvented social order — conditions that will promote fundamental social change — are coming together in a "near perfect political storm." All major social upheavals have coincided with the coming together of a major war, shifts into a new era (e.g., the information age), and wide economic disparities. So, he concludes, major social change is imminent.

The third article, "2016: Diary of the Last Lawyer," from the ABA Futures Committee, has built a dystopic scenario of the future of the legal profession. This article, as well as the full Futures Committee report, was recommended to the board by Stuart Forsyth. While the picture presented is unhappy, it does fit the prescription of getting beyond the legal profession's mental picture of itself, and it incorporates Halstead's perfect-storm cultural conditions. Social contract for justice demands access, affordability, expediency and predictability; and in 2016 an artificial-intelligence system delivers it without lawyers, judges, and today's "contentious advocacy" (a term from the Diary)!

Dr. Alan Kay had it right: "The best way to predict the future is to invent it." We can use current intelligence about what comprises public justice, acknowledge the "perfect conditions" for social change, and imagine a new scenario. Scenario-building is imaginative and fun; it can open up the profession's mental picture of practicing law and encourage optimistic future planning.

If you have an interest in joining the discussion, please contact me at 206-727-8240 or janm@wsba.org.