The concern about the future – which is an expression that conveys in itself real redundancy – is, to a greater or lesser extent, an essential feature of human beings, and its intensity will probably vary according to the level of maturity of each one, considering two extremes: those who have little or no maturity at all, and do not care about the future because, in their view, they do not have anything to provide for it; and, on the other hand, those who have truly matured, and know that the future does not exist precisely because it is still to be built, and what matters is the present – a gift, as the word itself suggests.
However, living in the present does not mean that planning forthcoming events is wrong; on the contrary, small or large jobs involve some planning. Although we may accept that much of what is about to happen depends on imponderable factors, which are beyond our will, yet human beings, who are responsible for their own fate, need to “read” the past, to understand the present, and to see the alternatives that the future offers. If improvisation and the unexpected sometimes give life an incomparable flavor, it is true that most of the time planning is necessary. Although we often have just an illusion that we can control what is coming, this is even preferable to the inertia that may make us to pathetically complain about our fate. In short, it is up to us to do our part and let fate take charge of what is inexorable.
A good illustration to this situation is the impact that technology has on the modalities of businesses and professions. The global computer network, the social media, the applications to run on the mobile devices seem to be to the economic agents likewise what must have been to the dinosaurs the huge meteor that struck the planet. And, if some activities were not extinguished, they have been remodeled and are continually searching for their new identity. This happened in journalism, in the provision of services (private and public), in the real estate market, and so forth.
As far as law practice is concerned, it is common to give the new areas of activities – either real or prospective – an optimistic highlight. Even though this is something correct, we should be realistic (= see the present) and understand where we are heading to.
Firstly, the so-called “telecommuting”, or working from home, has been increasing. The link between a certain physical space and the accomplishment of professional tasks has become more and more relative thanks to the different communication media, which allow the performance and the submission of tasks at a distance. It is a phenomenon that has advantages and disadvantages, from both the professional and social sides – after all, a fundamental role of the professional activity is (or it should be) the social coexistence. In the public area, it is a way of action that needs to be carefully watched, given the principles that rule the civil service and which can not simply be superseded by a more efficient argument – to be checked.
Secondly, there is the reality of the computer work using ‘artificial intelligence’, which in many cases is capable of giving seemingly more efficient and accurate solutions than could be provided by human intelligence. The fertile ground for this – at least today – is the massification of the social and economic relations, and, consequently of the conflicts resulting from this. However, luckily or unluckily, it is not all about repetition, and although efficiency is a relevant value, true justice – aimed at flesh and blood human beings – is not apparently satisfied with the generalizations and distinctions that a computer program could provide. Anyway, this is one of the issues we will have to deal with and which, in addition to corporate concerns, may have implications in the law market, and in the quality of judicial decisions.
Thirdly, law practice understood as an activity focused on the defense (in a broad sense) of parties seeking a decision to be adjudicated by a third party (judge or arbitrator), if it is not exactly coming to an end, it tends to increasingly share the space with actions aimed at consensual (presumably) settlements. In the criminal justice this has been increasing: from the criminal proceedings to the suspended sentence, and ending up in the corporate bargain, which, in turn, is directly linked to settlements made outside the criminal sphere, as for example in the so-called leniency agreements, performed in the competition area, in the financial and in the securities regulation fields.
Thus, the attorney who is exclusively a litigator tends to lose ground to the professional negotiator, who, in any case, can not be the one traditionally qualified just for the formation of contracts, as the agreements that are being litigated will certainly demand the expertise of those who are acquainted with litigation. In addition, it is imperative that not only “alternative” remedies (“adequate” rectius) such as conciliation and mediation be developed, but instead other efficient actions should be considered to avoid the onset and the spread of litigation. The actions intended to ban corrupt practices (compliance) are also a good example.
Even the “litigation” attorney should review traditional points of view and, for instance, make a greater and better use of the possibility, and this means to reverse the traditional logic, of starting with the search for evidence, as in the common law system, which was admitted in the items II and III of art. 381 of the CPC / 15, but very little applied.
All the above will have repercussions for the legal education system, of course. But, that’s another story…