Do you ever get that feeling that the universe is trying to communicate some idea or message to you? I do. There are times I find myself besieged with a persistent theme through a range of sources, from my personal reading to blog posts to conversations I’m part of. While I don’t always notice until much later, every so often I snap to attention right away.
This week has been like that. Lately, I’ve been reading and hearing a lot about the process of experimenting as a means to uncover a solution to a problem. This is, of course, the basis of scientific exploration, but as a liberal arts graduate, I mostly glaze over when the subject turns to sciences and therefore have generally been able to avoid the topic of experiments.
Nonetheless, I’ve noticed recently that the idea of experimentation is crossing the borders of science, even into the bastions of the legal profession.
Here on Slaw, for example, Nicole Aylwin wrote last month about taking social labs approach to solving access to foster innovation in justice systems. Then, a few days ago, I was in a meeting and heard more about use of social labs to solve seemingly intractable social problems and how that approach might be used to supplant the more common pilot-testing approach typically used in the social development sector.
Yesterday, Yves Faguy, on the National Blog caught my attention with a post on experimenting as a means to resolve the challenges within family law systems, referencing Aylwin’s post and other recent pieces on the subject by Nancy Cameron and John-Paul Boyd.
Today, Lee Rosen posted on his blog about an experiment he conducted in his law office with respect to expanded service hours. Although he judged the experiment a failure, Rosen concluded that:
“Experimenting is essential. It’s the root of all growth. Every hire is an experiment. Every new form is an experiment. Every change is the lobby background music is an experiment. You either maintain the status quo, or you grow. Growth is about experiments.”
A post on Lawyerist soon followed, taking up Rosen’s point and suggesting other ways in which lawyers might experiment within their own law practices.
The idea of experimenting as a means to innovation in legal practice comes up several times in the CBA’s Futures Final Report. That report talks about experimentation in a number of different contexts, including legal practice, regulation of the profession and pre-call training. The Report notes that:
“Innovation happens through a process of experimentation, testing and validation. It is important for the legal profession to recognize that all true innovation requires initial failure in order to refine ideas. The profession will have to learn from its mistakes, and accommodate some risk in the interests of improvement and future benefit.”
As noted in the Futures report, lawyers are trained not to experiment, relying instead upon tried and true precedents and proven methods to get the job done. Fear of professional discipline or malpractice claims, coupled with the natural risk aversion of many lawyers makes experimentation a difficult sell to the legal profession.
Yet, without breaking out of old moulds, without trying something new from time to time, without accepting that trying and failing is a necessary step to growth, the legal profession and justice system as a whole cannot effectively move past the current challenges with respect to access to justice, homogeneity of the profession, technological innovation and consumer demand for change.
The status quo isn’t working for everyone, least of all for those who need and are not obtaining legal help. There is likely more than one path to achieve the changes required and we’re going to need to run a few experiments before we find what will work best in this new environment.
Experimenting requires design and testing, data collection and evaluation. And then more experimenting based on those findings. It’s something of a circuitous route and that may require some patience for linear-thinking lawyers. But unless new ways of working are attempted, there won’t be any real progress towards transforming the delivery of legal services in Canada. That couldn’t be more any clear.