Legal profession

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Post-modernism in the challenge for legal services

Dr David Cliff argues that although the concept of post-modernism is changing the face of law, the legal profession will continue to have a central role in society.

About the author: Dr David Cliff is founder of Gedanken, a leading-edge executive and business coaching organisation.

We are said to live in an age of post-modernism. This represents a material change in how humans interrelate. A successor to modernism, this paradigm places to one side social conventions and rational approaches that were part of the modernist ideology.

Post-modernism in a societal context

Modernism accompanied scientific rationalism from the growth of Victoriana onwards. It embodied the belief that, ultimately, the world would be understood, and there were immutable rules which could be established both in the scientific and social arenas. We could understand the smallest component of the atom and, at the same time, be capable of understanding social and psychological rules that would allow societies to be ‘socially engineered’. Without doubt, modernism had its flaws as anybody who has seriously evaluated social engineering experiments, including communism, will attest.

Post-modernism, however, is supposed to be the new liberation. Individualism is at its core, with the avoidance of collective rules in favour of free expression, art, commerce, literature, heralding, potentially, a new, liberating Renaissance. Each individual narrative matters, rather than being subject to the powers and conventions of past social structures with glass ceilings, class structures and instruments of social control and privilege.

Nevertheless, this has not worked too well either. Structural preoccupation with how societies should be rarely offer little more than a road map for the complexity of the human psyche and the social phenomena it generates. Yet, with all its faults, post-modernism has provided an opportunity for individuals to throw off the usual class-based boundaries and become entrepreneurs. In addition, there is the prospect that injustices unsung many years ago may be righted, and that the narrative of the ordinary individual can be of value both in the context of social research and, indeed, popular entertainment.

In fact, we can now boast a litany of talent which may be, at best, dubious. However, due to their particular traits, ie, regional accent, or interesting lifestyle or plain outspokenness etc, these individuals have managed to get to the top of the opinion pile in a multichannel, multimedia world.

So, what has this got to do with fee-earners and legal practice?

Well, these things offer both opportunities and threats. An increased societal drive towards individuality means that people will often express their rights, take up causes, and assert themselves through legal systems in ways that were hitherto unprecedented.

We now regularly see people taking class actions for matters that happened years ago. Similar actions are being seen for more contemporaneous events, whether it is the abuse of pension funds or emissions from cars.

We see people taking the very systems that used to administer justice in the past, most notably the police, to task with a range of complaints and High Court actions which would never have been seen previously.

We see a growth of regulation that comes about in a world where human beings respect each other less and require more variants of the rule of law to determine social norms in everything from neighbour disputes to the management of personal data.

Legal practice must adapt and change

Yes, in this post-modern world the face of law is changing, and the traditional approaches of legal practice need to change with it. To a certain extent, this is already evident: we have seen the growth of multiple subspecialisms within the profession. So much so that the singleton, generic high street solicitor can, in some cases, be at a disadvantage once the client requirement goes beyond the traditional fare that the majority of people used to seek.

Larger firms have considerable dominance, with their ability to provide a whole repertoire of specialist support that renders the client experience, potentially, a one-stop shop. For the smaller firm with limited specialisms, the challenge comes to effect good, onwards referral sources and develop collaboration where one can reliably cross refer to another, whose specialism one lacks, in the hope that their professional integrity will ensure that the client returns once the brief has been fulfilled.

Post-modernism also has seen a key change in cognitive bias. We live in a world that is far more governed by emotions, a sense of perceived rights, the primacy of individual egos and, most notably, situations where people are now easily and frequently ‘offended’ by others who hold a different view. As Winston Churchill said about free speech: ‘[S]ome people's idea of [free speech] is that they are free to say what they like, but if anyone else says anything back, that is an outrage’. This observation has its concomitant implications for legal practice; defamation, copyright infringement, employment and industrial matters have all seen their fair share of this social phenomenon giving rise to a panoply of new, complex issues presented to courts.

The new technology, where we place our lifestyles in the public view, can often be subject to misuse. Now, relationships often leave embittered parties with a digital record that can be copied around the world, in perpetuity, as can any views we expressed, which may have changed anyway over time, become a faux pas set in digital ‘stone’.

Conclusion

Individualism - and a healthy avoidance of being pedantic to rules - can be the hallmarks of a growing, developing society; however, there can be many boundary disputes that come out at the interstices wherein discord, uncertainty, moral outrage and plain fury exist. These can offer work for the modern lawyer, who must now also be the mediator of the client’s angst as to whether matters are truly novel or simply the frivolous and vexatious assertion of a client’s own ego and sense of personal power.

The then Secretary of State for Justice and Lord Chancellor Chris Grayling was plainly wrong when he implied, in July 2013, at no lesser event than the inaugural dinner of CILEx Past President Stephen Gowland, that the legal profession was needed less by society. But we knew that anyway: the legal profession can look forward to an interesting and varied, but nonetheless complex and highly specialised post-modern future, secure in the knowledge that the complexities of the modern world, the lack of absolute rules to interpret them and the complex nature of modern ego formation guarantees the profession not only ample opportunities conducive to good business, but a vital social role in times which are more complex than ever before.