The legal profession’s ‘black swan’ problem

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A black swan is an event or occurrence that deviates beyond what is normally expected of a situation and is extremely difficult to predict.

The term ‘black swan’ derives from the story that the English had traditionally defined the word ‘swan’ as a bird that was white. Swans’ whiteness was integral to their ‘swanness’. When the English came to Australia and saw black swans, they were thrown by this completely unexpected event. If swans were by definition white, what was this black bird? It was impossible to have predicted the event of a black swan because of the circumscribed definition of swan.

Author Nicholas Taleb used the term ‘black swan’ in his best selling book. He suggests that we cannot predict the future if we expect the current circumstances to continue on the same trajectory as they have in the past. I think that the legal profession is in such a predicament.

The future of the delivery of legal services is transforming – fast. For all the talk of innovation in legal practice, legal education remains bound by the expectations of the past. Regulation of legal education and training is predicated on a particular image of a lawyer, and the knowledge and skills that make a lawyer. We produce graduates then, who fit this lawyerly image and in doing so, our expectations of lawyerness continue to be satisfied.

In teaching the so-called Priestley 11 (the mandated core doctrinal subjects in Australian law degrees) and in the way we interpret the skills outlined in the Threshold Learning Outcomes for Law, legal academics by and large have in mind a particular understanding of the work of a lawyer, and the threshold capabilities that sound in ‘lawyerness’. I suspect that for the most part, this image has less and less currency as the profession transforms, and different capabilities are called for.

The future requires a very different looking lawyer. Indeed in future, instead of lawyers we may instead need people qualified to deliver legal services. As the context of the law and the practice of law radically transforms, we must equip graduates with skills and knowledge relevant to this new context. Arguably, however, we have not yet developed an understanding of what this skill set is. The New South Wales Law Society’s FLIP Report attempted to identify the range of skills necessary for an innovative future legal profession, but in my respectful view, fell short of the transformation required. In failing to go far enough, I suspect that the Report’s authors were constrained by their ‘black swan’ understanding of lawyering and legal education.

This ‘black swan’ problem is that the legal profession’s definition of what it means to be a lawyer is equivalent of defining a swan as being white. So long as the profession focuses on the white swan (a legacy image of a lawyer and lawyering) the profession will be blind to other ways of being a legal professional. The FLIP Report identified additional skills and knowledge, but did not manage to re-think the existing suppositions about lawyers’ capabilities.

The challenge for the profession (and its regulators) is whether to continue to insist on their existing definition of lawyer or to re-imagine the knowledge, skills, and attributes necessary to deliver legal services. A new legal professional, for an emerging and perhaps transformative new legal services profession, is the black swan – the previously unexpected event that might derail the existing regulatory framework altogether.

It is time to think creatively about what it means to practise law, and to deliver legal services – and whether these are different. The profession and its regulators need to understand the significant shift in requisite entry-level lawyer capabilities, the new order of lifelong learning, and emergent (non-university) forms of credentialing. This requires the profession and its regulators to understand their own role in establishing the benchmark of ‘lawyer’ in their own – perhaps legacy – image. However, I believe that adopting such an approach will better position us to design pathways and learning experiences that will better fit the new order, and fulfill the potential of a robust and future-looking legal profession.

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