Starting with the economic downturn of 2008, the legal world has experienced a tightening related to billing pressures. Today, the field is under pressure from several forces: the increased staffing of in-house legal departments, the advance of digital legal services such as Legal Zoom, the encroachment of Big Four/Consulting practices, and Limited License Legal Technicians. All of this has occurred while the value the public places on “the professions” has decreased, leading some to describe the phenomenon as the “Death of Expertise.”
Author Tom Nichols is a Professor of National Security at the Naval War College, adjunct at the Harvard Extension School, and a former US Senate aide. He recently published The Death of Expertise to document his observations on the prevalent rejection of expertise and learning.
Nichols opens his book by acknowledging the natural independence of Americans to have and assert their own knowledge of the world. “To reject the advice of experts is to assert autonomy – a way to insulate our increasingly fragile egos from ever being told we’re wrong about anything,” Nichols says.
Advice and the Ego
Now, an in-house attorney seeking advice from an esteemed law firm partner would seem to negate the primary assertion in that statement because the corporate counsel seeks the best advice, right? The key is in the secondary part of Nichols’ statement: our increasingly fragile egos. Anyone who’s read Freud or taken a basic Psych 101 course knows Freud had a deterministic and pessimistic view of the ego, one that later leaders in the field modified toward the concept that social interaction and internal motivations shape human behavior. The corporate counsel’s motivation is toward obtaining the best advice possible for a given situation…but would he or she be strong enough to accept advice that negates or proposes a change to their own position, even when shown good reason, because of the effect on their perceived value of self-worth?
Rejection of the Sages
We see this conflict daily in Twitter’s 140 characters as well as in other social media platforms and website blogs. More and more, people are displaying a militant deafness when it comes to opinions outside their own. It’s gone beyond someone turning to WebMD for a diagnosis or Wikipedia for historical reference. According to Nichols, patients and clients are outright rejecting professionals, and will even tell those professionals why their advice is wrong. They dismiss professional, licensed experts frequently and with anger.
How might this come to affect your client relationship?
How does this rejection mindset affect a jury trial?
“Not only is everyone as smart as everyone else, but we all think we’re the smartest people ever. And we couldn’t be more wrong.” ~ Tom Nichols, The Death of Expertise
He notes that we all bring our own biases into conversations even when seeking outside advice. One such example is Confirmation Bias, where we may ask a question, but ultimately will only listen for answers that confirm a position we already hold true. The problem with Confirmation Bias is that it is “nonfalsifiable” as Nichols describes it: “MY evidence is always the rule; YOUR evidence is always a mistake or exception. By definition, MY position is never wrong.”
Nichols believes we are in a time when people have convinced themselves that “everything is going wrong…and the experts (are responsible…)” Nichols is clear in his book, and reiterated in the recent CSPAN broadcast of his Heritage Foundation presentation, that his position is not to say we should resignedly obey what experts say. He believes that experts are servants, not the masters, that experts are here to serve the rest of society. He agrees, of course, we have to question (experts) – but the overemphasis on egalitarianism – that we all must be partners – is part of the problem. He spoke with a frustrated surgeon who said he’s to the point of putting the surgical instruments on a tray and telling a prospective yet patient, “Okay, you’ve consulted Dr. Google, you fix your knee.”
Nichols followed up to say he is skeptical of medical ads that say, “Everyone else has told you no? We’ll tell you yes.” I believe a similar situation confronts the practice of law.
IMPACT FOR LAWYERS
Nichols’ depiction of what has transpired in the general public is a new phenomenon, and it is happening outside of your control, without you. That doesn’t mean you can’t affect perception. Because of the atmosphere of questioning or even denouncing professionals, it becomes all the more necessary to tell your own story, to take control of your version of the conversation – online. If the average person, whether acting in their personal capacity or in their role representing a business or organization, is increasingly more skeptical of another’s capabilities and acumen, then the content you place online and the strategic way in which you leverage that content can help you demonstrate your value.
When you explain why your knowledge and experience matter (instead of just listing achievements and accolades), you provide evidence as well as factors that can inspire a reader to value the depth of experience you have to offer. Again, it's not how many notches you have on your belt so much as the stories you tell to explain how those notches came to be and why they matter.
Further, as I have noted in recent blogs on Artificial Intelligence and the automation coming to legal tech, the more you can add to your arsenal of skills, the more unique your particular brand of expertise, and the more difficult it is to replace you with an automated option. Some attorneys may go so far as learning how to code, and no doubt as newer lawyers are minted, some of them will have learned to code prior to law school. Coding is not a necessary requirement to gain an edge in the changing economy. If you learn enough about legal technology and the technology affecting your clients' businesses to be a conversant member of their business teams, you will continue to be esteemed for your wisdom and ingenuity. The keys are leveraging new tech for knowledge and for efficiency, because today's clients demand it.
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