April 2005

One or two steps forward, then, maybe, another

by Bar News Editor Lindsay Thompson

This year some legislators in Olympia caused a flurry of headlines by introducing a bill to petition Congress to divide Washington down the ridgeline of the Cascades, making one state into two.

The consensus among the panel shows and editorial pages has been that the idea’s more than a bit daft, and won’t go anywhere. That’s too bad. It would be interesting to see a “what if we did it?” study. Then you’d have something to talk about. We’d be able to get beyond normative evaluations of one side being too liberal, the other side too dependent on tax transfers, or whether Spongebob Squarepants is really gay, or just drawn that way.

All really interesting ideas start out looking and sounding odd, or even threatening. Machiavelli famously commented that reformers are always at great risk, because on the one hand are those who profit by the existing order, and want to keep it that way. On the reformers’ other side are those who fear the unknown effects of change, and so oppose it.

Combine human nature with the modern mania for process and you find there are so many ways to kill off ideas, it’s a wonder anything ever gets done. I’ve lost count of the retreats, gatherings, workshops and small-group sessions I’ve attended where over-scheduling, facilitators who steer toward outcomes rather than help participants find their own, and the tyranny of butcher-paper brainstorming skew results toward the status quo.

Butcher-papering is the worst. It gives the impression that all will have a say in the outcome. Literally, of course, they do. Every idea gets thrown up on a sheet.

But then comes the winnowing. Sometimes it’s arbitrary: “You have to agree on three priorities.” Other times it’s small groups having to combine their lists into those of other small groups. They always result in a bland, middle of the road set of choices. It’s planning as purée.

A newer idea for where to send ideas to die is that of the “parking lot.” All you need is an easel and more butcher paper. Anything that occurs to someone that’s off topic, off agenda, or off the wall, goes to be written up on the parking lot. Those things will be brought up later at an appropriate time, one’s told. But they rarely are. The parking lot is a space of exile, where things are sent that the majority doesn’t want to bother with. Over time, things stop getting written there, because everyone has figured out the lot has no exits.

Like all human institutions, WSBA suffers at times from change anxiety. When the Board of Governors was looking to revive WSBA’s long-moribund foundation, they settled for a cautious, uninspiring route. There’s nothing wrong with how it operates, mind you, it’s just that no one looked for the opportunity to find something really innovative to do. Similarly, my impression of the task forces looking at WSBA governance is that they are tending toward incremental, easy solutions that will leave the structural problems of, say, how we elect presidents, uncured.

Having said that, however, I have to give WSBA good marks where they are earned. Over the last decade WSBA leadership has evolved to a point where the old “nothing should ever be done for the first time” knee doesn’t automatically jerk at the unveiling of every idea. Leadership has shown an increasing willingness to address hard topics like making the Board of Governors more broadly representative; trying to tackle the student loan problem for young lawyers in Washington; trying to move lawyers with fixable problems into diversionary programs to make them whole and productive again instead of just running them all through the disciplinary chute; and trying to do something real about meeting unmet legal needs in ways that are not just hand-wringing about unauthorized practice of law. When the Practice of Law Board brought the BOG a concept for addressing unmet legal needs by a licensing of “legal technicians,” the BOG didn’t freeze up and have to reboot. They talked for 90 minutes about “what if we did this, how would it work?” They have in mind giving it some more study this summer.

I don’t know if the Practice of Law Board’s ideas will work. They are certainly thinking outside the box. They may be beyond where boxes exist at all. And that’s good. There ideas lie — some fanciful, some eccentric, some completely unworkable, and some that may be extraordinarily successful, given time for study and growth.

Lindsay Thompson can be reached by e-mail at tradelaw@hotmail.com.

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