I attended an excellent SCL seminar this week on quantum computing. It’s intriguing how once again IT law is starting to adapt to another new development even one based on science so obscure that even the experts do not claim to fully understand it. In the 19th century science was deeply driven by certainty convinced nature followed fixed, discoverable laws. This has all changed and relativity and quantum mechanics suggest a much more provisional understanding. Quantum physics doesn’t describe what things are — it describes probabilities. Instead of saying “this will happen,” it says, “this is the chance it will happen.” Nature, at its deepest level, seems to run on probability, not certainty.
As professionals we are I suggest trained and to a degree expected to operate so as to seek absolute certainty as much as possible in our advice and assistance to our clients. We are a bit like 19th century scientists most at home when we can state “the law says this” or “accounting rules demand” we behave in a particular way. In my experience this is in fact a bit of a myth. Even laws set out with care and precision in statutes or codes in codified legal systems can be and are open to interpretation by practitioners and ultimately the courts. Clauses in complex contracts drafted with care and precision by skilled legal practitioners can be subject to surprising and unexpected interpretations in courts of law. This is especially true in the common law systems where contracts and statutes can be subject to some alternative elucidation not anticipated by the original authors. Sometimes this can be because the judge is seeking to apply an overall approach or principle which would not have been in the minds of commercial negotiators.
I recall working in private practice on a contract negotiation for IT services that was subsequently the subject of a dispute. I was grilled by a litigation partner who asked why we had agreed and documented a particular limit of liability provision which might be disadvantageous to our client if we went to court. It was quite hard to explain that the clause was the best we could achieve after intense discussions – and was far better than where we had started. It had also been carefully explained to our client who understood the compromise we had reached. The litigator expected perfection and certainty, but contract negotiations just aren’t like that however hard we may try as negotiators.
Given all of this I think we need as professionals to take a leaf out of the quantum scientist’s book and recognise that absolute certainty in professional work, be it in negotiation, advice or contract drafting, is just not possible. Perhaps the most we can hope and expect is to get somewhere near the truth or create an effective and workable contract that will probably achieve the reasonable expectations of the parties. AI suggests that “Absolute certainty in professional advice is generally considered an illusion or a dangerous overconfidence rather than an achievable, practical standard.” It proposes that “the most valuable advice is not that which claims to know the future, but that which is based on rigorous, data-driven analysis of probabilities, allowing for flexibility and adaptability.”
In fact, embracing “uncertainty”, questioning the facts and status quo, is whilst potentially unsettling I suggest an essential approach for us to embrace as professionals. See this article Reframing uncertainty as a positive thing proposing, for example, that uncertainty:
Dealing with a lack of certainty is also a key attribute these days for leaders of professional practices. See, for example, this Harvard Business Review article Our Favorite Management Tips on Leading Through Uncertainty whose recommendations include:
As a partner recruiting trainees into a law firm many years ago one of the key qualities we looked for was flexibility and the ability to deal with uncertainty. This is as true today as it was then and if anything with the advances of technology like AI and quantum computing is an even more important and valued attribute. In fact, it seems there is a concept called “AI Anxiety”. See this article AI Anxiety: Strategies for Coping with Change and Uncertainty which suggests that “For some, the growing presence of AI creates a sense of uncertainty, pressure, or fear about what the future might hold. This feeling is often described as AI anxiety—a response to rapid technological change and the unknowns that come with it.” It advocates recognising and managing the emotions that come with change and building practical confidence.
For me as a technology lawyer this is something that, like many of my professional colleagues in this field, we have just had to accept and indeed embrace as an opportunity. Time and again advances like quantum computing have challenged the way we work and demanded change. But as a profession we have risen to the occasion every time and found ways to merge these changes into our practice. It is also perhaps worth remembering how absolute certainty is generally not a way to encourage progress. After all until Copernicus in the 16th century science was convinced the sun revolved around the earth. Questioning conventional scientific or professional wisdom is a healthy trait.
As Abraham Lincoln said “Courage is not the absence of fear. It is going forward with the face of fear.”
While the American theoretical physicist Richard P. Fenyman observed “What is not surrounded by uncertainty cannot be the truth.”
And to conclude an apt comment by Albert Einstein: “If it is correct, it signifies the end of physics as a science.”
As professionals we are I suggest trained and to a degree expected to operate so as to seek absolute certainty as much as possible in our advice and assistance to our clients. We are a bit like 19th century scientists most at home when we can state “the law says this” or “accounting rules demand” we behave in a particular way. In my experience this is in fact a bit of a myth. Even laws set out with care and precision in statutes or codes in codified legal systems can be and are open to interpretation by practitioners and ultimately the courts. Clauses in complex contracts drafted with care and precision by skilled legal practitioners can be subject to surprising and unexpected interpretations in courts of law. This is especially true in the common law systems where contracts and statutes can be subject to some alternative elucidation not anticipated by the original authors. Sometimes this can be because the judge is seeking to apply an overall approach or principle which would not have been in the minds of commercial negotiators.
I recall working in private practice on a contract negotiation for IT services that was subsequently the subject of a dispute. I was grilled by a litigation partner who asked why we had agreed and documented a particular limit of liability provision which might be disadvantageous to our client if we went to court. It was quite hard to explain that the clause was the best we could achieve after intense discussions – and was far better than where we had started. It had also been carefully explained to our client who understood the compromise we had reached. The litigator expected perfection and certainty, but contract negotiations just aren’t like that however hard we may try as negotiators.
Given all of this I think we need as professionals to take a leaf out of the quantum scientist’s book and recognise that absolute certainty in professional work, be it in negotiation, advice or contract drafting, is just not possible. Perhaps the most we can hope and expect is to get somewhere near the truth or create an effective and workable contract that will probably achieve the reasonable expectations of the parties. AI suggests that “Absolute certainty in professional advice is generally considered an illusion or a dangerous overconfidence rather than an achievable, practical standard.” It proposes that “the most valuable advice is not that which claims to know the future, but that which is based on rigorous, data-driven analysis of probabilities, allowing for flexibility and adaptability.”
In fact, embracing “uncertainty”, questioning the facts and status quo, is whilst potentially unsettling I suggest an essential approach for us to embrace as professionals. See this article Reframing uncertainty as a positive thing proposing, for example, that uncertainty:
- Drives growth and learning – [it] pushes you out of your comfort zone, encouraging you to face challenges and develop new skills.
- Encourages creativity and innovation – [it] can break down rigid thinking patterns and open up new possibilities.
- Builds resilience - when you embrace uncertainty, you strengthen your ability to cope with difficult or unpredictable situations.
Dealing with a lack of certainty is also a key attribute these days for leaders of professional practices. See, for example, this Harvard Business Review article Our Favorite Management Tips on Leading Through Uncertainty whose recommendations include:
- Become a More Courageous Leader. When uncertainty strikes, the default reaction is often to retreat. But courageous leaders don’t wait for clarity—they create it
- Communicating with Your Team When Times Are Tough. When business challenges mount, your team doesn’t need spin—they need clarity.
- Steady Your Team in Anxious Times. In times of uncertainty, your team looks to you not just for strategy, but for reassurance and direction.
As a partner recruiting trainees into a law firm many years ago one of the key qualities we looked for was flexibility and the ability to deal with uncertainty. This is as true today as it was then and if anything with the advances of technology like AI and quantum computing is an even more important and valued attribute. In fact, it seems there is a concept called “AI Anxiety”. See this article AI Anxiety: Strategies for Coping with Change and Uncertainty which suggests that “For some, the growing presence of AI creates a sense of uncertainty, pressure, or fear about what the future might hold. This feeling is often described as AI anxiety—a response to rapid technological change and the unknowns that come with it.” It advocates recognising and managing the emotions that come with change and building practical confidence.
For me as a technology lawyer this is something that, like many of my professional colleagues in this field, we have just had to accept and indeed embrace as an opportunity. Time and again advances like quantum computing have challenged the way we work and demanded change. But as a profession we have risen to the occasion every time and found ways to merge these changes into our practice. It is also perhaps worth remembering how absolute certainty is generally not a way to encourage progress. After all until Copernicus in the 16th century science was convinced the sun revolved around the earth. Questioning conventional scientific or professional wisdom is a healthy trait.
As Abraham Lincoln said “Courage is not the absence of fear. It is going forward with the face of fear.”
While the American theoretical physicist Richard P. Fenyman observed “What is not surrounded by uncertainty cannot be the truth.”
And to conclude an apt comment by Albert Einstein: “If it is correct, it signifies the end of physics as a science.”
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