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Publication Date

5-2018

Document Type

Article

Abstract

The concept of "disruptive innovation" is vague. Imagining the idea of lawyer "disruption" might conjure a scene from Al Pacino's aggressive role in the 1979 film And Justice for All 9 or embody the tradition of lawyers courageously representing unpopular clients, sometimes placing their lives at risk in courtrooms and on streets. But the panel, I discovered, was more interested in the concept of disruption as descriptive of radical departures from conventional lawyering and conventional discipline.

Recently, as I walked along the narrow cobblestoned streets of Prague--the same streets that Franz Kafka traversed while he was consumed by thoughts of law, courts, trials, and punishment--I wondered how he might approach the subject of disruptive innovations in defense lawyering. Kafka's most prominent take on defense lawyering appears in his classic novel The Trial, in which Joseph K. is charged by an unspecified agency with an unspecified crime. The courtroom is a shabby, airless attic of a tenement. K.'s lawyer, obtained through his uncle, describes the so-called system of justice: guilt is assumed, the bureaucracy is vast and secretive, the rules are secret, and so are the identities of the judges. The lawyer advises K. of his dire situation, brags about the lawyer's connections, and explains his futile efforts to help many of his other hopeless clients. K. is scared about his upcoming trial, but after learning how his lawyer oppressed a former client, he decides to dismiss him and take matters into his own hands.

Kafka didn't like the lawyer. I imagine, most presumptuously for sure, that if Kafka had participated in the SEALS conference in Boca Raton, Florida, and had thought about disruptive innovations to punish bad lawyers, he might have imagined the idea of sending them to his notorious detention facility featured in his famous short story, In the Penal Colony--also the subject of a fine law review article by my colleague, Michael Mushlin. Given Kafka's dark, depressing view of the justice system, and his revulsion for the defense lawyer who represents Joseph K., it is entirely possible Kafka might have employed his "torture machine" as a disruptive innovative device to deal with the miserable performance of bad lawyers generally. Indeed, the quasi-religious epiphany that condemned persons experienced in Kafka's penal colony struck me as exactly the kind of mystical renewal that Kafka might have envisaged for bad lawyers.

Thus was born the idea-borrowed loosely from Kafka-of a "Penal Colony" as a disruptive innovation to improve the quality of American lawyers and punish the bad ones.

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