Who would have thought five years ago that lawyers would be talking seriously today about the law of driverless cars, or drones, or 3-D printing, or blockchains, or a host of other cool new technologies that were in their infancy then but are now presenting legal issues as they gain applications? Well, some lawyers did, and they’re the ones who are now building practices around those technologies. And you know what they say about the early bird.
Keep an Eye on Emerging Trends
One way to be one of the early birds is to keep your eyes and ears out for emerging technological, economic, environmental, or social trends and build scenarios around their possible futures that resonate in a legal context. This is not the same as predicting the future (though doing that well would be even better!). Rather, scenario building is a well-defined discipline used in a variety of applications and industries, including military strategy, the insurance industry, and transportation planning. Lawyers can use it too!
A scenario is essentially a story constructed around hypothetical events set in the future. The goal is to describe a possible chain of causal events and the decision points they present.
The Four Main Steps of Good Scenario Planning
- Identify existing and emerging drivers of change and the frameworks in which they are operating.
- Brainstorm a wide variety of scenarios, even those that seem outlandish, to test possible trajectories and issues.
- Consolidate several scenarios representing a range of plausible trajectories and develop them more fully.
- Identify the issues arising from each trajectory as it plays out.
Scenario Building Generally Falls into Two Categories
- Descriptive scenarios rely on alternative extrapolations designed to present a range of future-likely alternative worlds.
- Normative scenarios include goals as drivers and are designed to help formulate and implement policy objectives.
The primary focus of legal scenarios is on building descriptive scenarios of the legal environment in order to test normative scenarios of legal responses. Developing legal scenarios thus will involve a blend of nonlegal and legal futures.
Nonlegal and Legal Descriptive Scenarios
For example, rewind the clock several years to before the time when drones hit the scene. You read an article one day about the new drone technology and some company’s vision of it being used for package delivery. Start building nonlegal descriptive scenarios: How will that work? How else might drones be used for news coverage, mapping, surveillance, or deliveries? Who will be using them? And so on.
Next, build legal descriptive scenarios: What existing laws and doctrines might stand in the way of or facilitate those uses? Federal and state regulation of navigable airways comes to mind. So do private property airspace rights.
Normative Legal Scenario
Finally, build the normative legal scenario: If demand for drone applications rises, what legal reforms might be proposed to the existing legal context, and by whom? What are possible public policy goals, and how will they be implemented? What kind of advice will clients who want to use drones need?
Of course, the drone train has already left the station, and the lawyers who tested scenarios five years ago are leaders in the field today. The trick is to be the early bird on the next new thing! Getting there will require reading widely and being attentive to spot news of the newly emerging. Play out scenarios with friends and seek experts in the field as well to help inform your scenarios. Track the trend from the start with automatic searches on search engines, both legal and nonlegal. And start writing—in blogs, client-alert letters, and bar journals—to position yourself as one of the early go-to lawyers in the field. Of course, not every new trend will pan out, but it’s better to be on the front end of the one that does. Be the early bird!