Black Swans, Gray Rhinos, and Lessons from the Pandemic for our Justice System
One of the questions asked in response to the pandemic was whether the pandemic was a black swan or a gray rhino. Black swans are high-profile events that are hard to predict—rare or even unimaginable events. Such events have shaped history in the areas of technology, science, business, and culture; as our world becomes more connected, the consequences of such events are becoming even more consequential. Nassim Nicholas Taleb, who popularized this term for the unpredictable, catastrophic, and rare event in his 2007 book of the same name expressed frustration in April 2020 with the description of the pandemic as a black-swan event, given the many early warnings of such an event—including his own.
Michele Wucker, analyst and author of The Gray Rhino: How to Recognize and Act on the Obvious Dangers We Ignore, has urged that “one of the biggest lessons from the COVID-19 pandemic has been the folly of ignoring warnings about highly likely, high-impact risks that are a matter of when, not if.” Unlike the black swan, which can encourage fatalism and willful ignorance of what we can prevent, a gray rhino is a highly probable, high-impact threat that you should see coming. “The gray rhino is the massive two-ton thing with its horn pointed at you, stomping the ground and getting ready to charge—and, most important, giving you the chance to act.” Wucker urges that paying attention to the gray rhino is a far better use of our time, as we can then work to head off the things we can see that are directly in front of us:
The gray rhino is most helpful when looking ahead, where there are plenty of red flags pointing to problems we can confront aggressively now instead of waiting for disaster. The increasing number of record-setting temperatures, storms, droughts, wildfires and other extreme weather-related disruptions are getting harder to ignore, as is the scientific consensus over the role of human activity in creating it. Technology has been changing the workplace while adding to inequality and uncertainty. In turn, education and social safety net systems need to adapt. America’s infrastructure is crumbling, inadequate for the present, much less for a changing future. We’re behind on dealing with all of these challenges and more.
One of the key lessons of the pandemic is that we need to pay more attention to the gray rhinos that are headed our way with massive weight—and great potential for impact. One of the first steps in dealing with gray rhinos is recognizing them. The greater awareness we have for the risks, the more we can debate and develop solutions. Businesses apply this theory of gray rhinos to problems, situations, and risks of all sizes and types. The key is to look ahead at upcoming challenges rather than treat incidents as black-swan events in the rearview mirror. Our justice system needs to follow this lead.
Like the rest of the world, the pandemic has forced courts and lawyers to work differently. As former Michigan Chief Justice Bridget Mary McCormack has noted, the pandemic was the “disruption we needed” to address the growing access-to-justice crisis in this country. As a result of the pandemic, “[i]nnovation leapt into our courtrooms and our practices. Lawyers, judges, and court administrators were given the chance to rethink what they do and rebuild how they do it, and they seized the moment.” The pandemic has required our courts to radically rethink almost everything—and that has caused rapid reform to our systems, our processes, and how we collaborate. Significant barriers remain in our justice system, and there is great potential to backslide back to pre-pandemic approaches and thinking.
There is also great (and unfortunate) potential to view the pandemic as a black-swan event for our justice system. In actuality, the pandemic was a gray rhino—a high-probability, high-impact event that we could have anticipated and mitigated against. The state courts held a national Summit on Pandemic Preparedness in 2019, with court leaders and representatives from the legislative and executive branches of government in over 30 states. This type of forward thinking is essential for our justice system, and it should continue to be encouraged. As we seek to learn from the impacts of the pandemic on our justice system, I urge us not just to focus on how to maintain the momentum of the disruptive change that has resulted. We also need to look ahead at the red flags pointing to other problems that we can confront aggressively.
Now is the time to prepare for and understand high-impact events. While it is easy to prioritize work based on what is most urgent on a day-to-day basis—and there is much that is urgent daily in our courts—it is imperative that we also carve out time to look forward. As Wucker has highlighted, “The black swan has one benefit, which is that it encourages people to expand their ideas of what might happen. . . . The coronavirus is an opportunity for a reset in mentality to put these obvious risks front and center.”
In May of this year, IAALS published a report, The Past & Future of State Court Filings, which explored a longer-term view of civil filings in our state courts. Filings can be affected by several factors that occur both internally and externally to the courts and the justice system, and the report provided a framework to think about those different factors. The filings in our justice system are a reflection of the problems in peoples’ daily lives, and that includes the impacts of increasing disorder and threats: natural and manmade disasters; climate change; local, national, and global health crises; environmental injury and chemical exposures; and cyber threats. The knowledge about these areas is evolving rapidly, and it is important to evolve our understanding of the impacts of these areas on people, our court system, and the delivery of justice.
The National Center for State Courts’ Just Horizons report is another great example of anticipating and preparing for future challenges and opportunities. The report explores driving forces of change in our society and key areas of vulnerability challenging our courts, noting that “[t]ackling these court system vulnerabilities requires a concerted and sustained effort by all who work in and use the courts.” We must continue to look forward to identify those challenges that will significantly impact people’s lives in the future—and recognize that those same challenges will significantly impact the delivery of justice.
IAALS’ and HiiL’s US Justice Needs study has shed light on the prevalence of legal issues in people's lives in the United States. Access to justice is a broad societal problem—66% of the population experienced at least one legal issue in the past four years, with just 49% of those problems having been completely resolved. On an annual basis, 55 million Americans experience 260 million legal problems. Of those legal problems, according to the people 120 million legal problems are not resolved fairly every year. The consequences of these legal problems in peoples’ lives is far-reaching, including negative emotions, mental health strains, financial losses, and time burdens. To ensure access to justice, we must proactively anticipate future risks, such as climate change and evolving technology, and their potential impact on peoples’ lives. These emerging threats—akin to the pandemic—pose immediate and substantial risks to both our society and the justice system. As climate change intensifies, disputes over resources and environmental damage will rise, necessitating a responsive justice system. Additionally, evolving technology like AI demands forward-thinking legal approaches to address the many related legal issues—and corresponding impacts—that are inevitable in peoples’ lives.
Effective leadership should preemptively address these issues and facilitate collaboration among legal, technological, and environmental experts, all while investing in education and fostering innovation. Rather than viewing these as black-swan events, we should recognize them as gray rhinos—highly probable, high-impact threats that require early intervention. Similar to the pandemic’s impact on justice, we must maintain vigilance and proactivity to address these impending challenges and uphold access to justice.
One of the greatest lessons from the pandemic should be that leaders across the justice system must be forward looking and innovative, even today. Let’s put in place a mindset that looks forward to the key issues of tomorrow, heeds warnings, and acts on them in advance rather than after the fact.