5/1/16

Outside Counsel Guidelines and Collective Conversations

I hate outside counsel guidelines. Hate. It's visceral. I have never encountered a set of guidelines I liked. My antipathy includes guidelines I had a hand in writing.

As an associate I worked for a client whose guidelines forbade time entries that suggested any form of communication between lawyers--meetings, conversations, conferences, correspondence. So, too, any form of research and many other essential elements of producing work that were impossible to avoid within the delivery framework within which we were operating.

The client's guidelines did not change the underlying behavior. The SOP remained:

  1. Get assignment from the partner (which necessitated communication)
  2. Do whatever research needs to be done
  3. Draft
  4. Iterate - ask questions of or receive feedback from partner (more communication)
  5. Do additional research
  6. Repeat ##3-5 until product satisfies partner

Because lawyers are pretty good at playing games with language, this would all be captured under "write motion" or some other acceptable description. While guidelines saved the client no money, they did waste considerable time. Because the client had an extensive external review process, the firm had an intensive internal review process to make sure the billing language satisfied the client's guidelines. Internally, entries were constantly being sent back for rewrite but not writedown.

Few associates mastered the word games because we actively avoided working on the account. Beyond the painful time-entry protocol, the client had negotiated steep discounts. That's fine in and of itself, except the firm was then experimenting with making associate bonuses and promotion (instead of partner compensation) dependent on revenue and realizations, rather than just hours. Associates chafed at being forced to do work that generated little revenue and reduced their realizations with each hour recorded--accountability without authority is aggravating. The result was that the client did not benefit from the accumulation of intellectual capital within the firm.

From where I sat, the relationship screamed out for a fixed fee or other AFA. I still believe that. But leaving pricing aside, I understand the client's urge to play a role in shaping the way legal services were being delivered. What I object to is the counterproductive combination of micromanagement and blunt instrument.

For all the effort that both put sides into satisfying and enforcing the guidelines, they would have been much better served to engage in a structured dialogue about continuously improving project management (communication) and knowledge management (research), as well as other aspects of service delivery such as templates, automation, analytics, and staffing. With respect to staffing, the client should have been interested in maintaining a stable team that was familiar with their work. Which, of course, means that I just suggested a new guideline as part of a screed against guidelines. I'm a bit of a hypocrite.

While I disdain billing guidelines, I consider them a necessary evil. Clients need to communicate how and when invoices are to be submitted. Clients should have policies on traditional pass-through costs like ediscovery, court reporting, and expert witnesses. We can debate the merits of particular policies and prohibitions, but I have yet to meet anyone who advocates for a total abolition of billing guidelines. After all, "send invoices to" is a billing guideline.

And, yet, there's a problem: we don't really have a forum to debate particular policies and prohibitions. Outside counsel guidelines are presented as a fait accompli. Pushing back on them in the context of the relationship is hard. Simon Chester, the former GC of the former Heinan Blake, has detailed many of the problems in billing guidelines and believes that firms "have to be prepared to walk away" from the engagement. But how many firms can afford to walk away in a world of flattening demand, lateral hypermobility, and inherently fragile firm structures?

Content is not the only challenge. Outside counsel guidelines are sometimes quite long--they are, after all, written by lawyers. And they tend to be all over the map, not just in requirements but in language and structure. Billing guidelines are frequently not read, let alone followed, by outside counsel or even the inside counsel who were not part of the drafting team. Guidelines are often treated as formalities, trivialities, and inconveniences more honored in the breach.

Compounding the problem is that firms often provide, and clients frequently sign, engagement letters that contradict the guidelines. These, too, often go unread. In not being read, guidelines and engagement letters are like 99.9% of the executed contracts in existence. As litigators know well, most people only read the contract when something goes wrong, which, frankly, is not too often in percentage terms but is common enough in raw numbers to keep us employed.

Ironically, the law department/firm relationship is among the worst papered commercial relationships a corporation will enter into because their lawyers are otherwise so vigilant when it comes to the business units' commitments and obligations. Most of the time it's fine. Except when it isn't. And then it is bad. I didn't realize how bad until I had a recent chat with someone who audits legal bills for a living. We're talking five to seven figures and immense stress on relationships. He explained to me that violations of the billing guidelines were, by far, the lowest hanging fruit.

Both law departments and law firms have a contract management problem.

Even recognizing all this, what is to be done? If you are a client and want to write new, improved guidelines, where do you start? For the firm, while a few clients may actually have really good guidelines (some do), the good ones still won't align with the disparate guidelines from all your other clients. Both clients and firms may, understandably, be inclined to turn to technology. But technology vendors have to deal with the same problems of lack of standardization and the attendant need for deep customization, especially on the firm side.

I don't have a solution. But, if there is a solution, it will probably not be unilateral. I once wrote a piece on a billing guidelines project that did not get off the ground. Here was my take:
Conformity gets a bum rap. Absent the crowd, there is nothing to stand out from. Common standards bring clarity, provide bases of comparison, and establish frames of reference. Total separation from the herd is isolation, not freedom. Indeed, the entire idea of coming together as [organization] is to bring collective resources to bear on common challenges. In many areas, clients are probably not conformist enough.
Thus, the newly formed [sub-group] invites you to submit your outside counsel guidelines (or legal procurement policies or master outside counsel relationship document or matter engagement agreements or….) to [email address]. The billing guidelines committee, under the leadership of [awesome person from awesome company] is expanding on a project begun by [other awesome person]—also on the committee—to collect and synthesize member guidelines. The tactical objectives are to create a set of model guidelines and an automated template assembly tool that will permit any member to craft custom guidelines by selecting from a series of dynamic menus. The strategic goals are far more profound.
The immediate value of the collected billing guidelines are the similarities. By pulling out common language on, for example, photocopying charges, the committee can craft model clauses for each of the standard approaches (e.g., price limits, requirement that jobs above a certain size go to a pre-selected vendor). Offering these model clauses within an automated tool will make it much easier for members to update their guidelines, for law firms to understand their obligations, and for technology vendors to embed automated rules in the products used by both inside and outside counsel.
The intermediate value of the shared resource is gaining statistical insight about variation. The existing guidelines submitted and the guidelines produced through the document-assembly tool will reveal consensus or the lack thereof. Where there is consensus, the data will provide communal reinforcement and establish member expectations for our firms and vendors. The baseline consensus will relieve members of the burden of discussing standard industry and instead focus their supplier outreach efforts on their unique requirements. Likewise, by exposing areas where consensus is absent—e.g., whether law firms should be required to pay a fee to the client’s ebilling vendor—the [organization] will be able to identify topics that warrant further constructive debate. The most interesting panels are usually those where the panelists disagree.
The long-term value of the project will most likely to be found in the outliers. That is, not the areas where most member companies agree or have reached divergent conclusions, but in those areas where only a few members have even thought to create policies. The outliers are where the innovations happen. By establishing a communal resource, the committee hopes to create a new mechanism to introduce those innovations into the collective consciousness. Precedent is a powerful force in the legal marketplace. Our community is well served to collect and learn from our own precedents, especially those that have yet to become part of our paradigm. New ideas always feel a little foreign, and we need a means to shift the Overton Window.
The Overton Window is an idea that for a new policy to gain traction it must, at the very least, be within a window of acceptable alternatives.


The sweet spot is in the middle. Too much distance on either side of center means a concept is not ready for prime time. The initial step is to establish the Window. The next step is to identify those policies that fit within the Window. The final step, however, is to shift the Window so that once radical ideas can be deemed acceptable, sensible, and popular on their way to becoming policy. The [sub-group's] billing guidelines project has the potential to accomplish all three (establish the Overton Window, identify the policies that fit within it, and shift the Window over time).
The project has considerable potential. But realizing that potential depends on you. This is a collective effort. It begins with members submitting their outside counsel guidelines to [email address]. This is an ongoing duty. New or updated guidelines should also be submitted. The guideline-assembly tool will make that easier. Finally, it is incumbent on us all to innovate, introduce those innovations to our fellow members, and participate in the on-going discussion of what innovations are worth spreading. Conformity gets a bum rap because it is too often another way to refer to unthinking complacency. Neither descriptor—“unthinking” or “complacent”—attaches to the members of [organization].
So that didn't happen. But I am reflecting on what could have been because something that has the potential to be better has filled the vacuum. The members of the Corporate Legal Operation Consortium (CLOC) recently published some mercifully short model Industry Billing Guidelines. In addition, CLOC made the decision to invite everyone--law firms, alternative providers, law schools, vendors--to participate in their CLOC Institute (starts tomorrow).

The first part, common billing guidelines, is good. The second part, an ecosystem approach to addressing communal problems, is intriguing. You'll notice that the proposal I wrote about only contemplated input from corporate counsel. While I take a client-centric view of the legal market, I think it is folly to treat clients as the sole stakeholders or as somehow having a monopoly on insight.

As our environment becomes more complex, the need for collective conversations grows. We do not need unanimity on every detail, but consensus frameworks around billing guidelines, task codes, cybersecurity standards, etc. would go a long way towards making everyone's life easier. Clients would not need to reinvent the wheel. Law firms would benefit from clarity of obligations and settled expectations. Vendors would have the critical mass necessary to embed rules in their systems.

Per usual, I am note sure if I am skeptical optimist or an optimistic skeptic. I do not expect magic. I do not expect the industry to change overnight. But I do see the existence and orientation of the CLOC Institute as another sign that incremental improvement continues and may be speeding up. We may not be anywhere close to perfect (a world that has no need of outside counsel guidelines), but we do seem on track for better.


++++++++++++++++++++++++++++
Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right business outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. The SDR is premised on rigorous collaboration and the fact that law departments and law firms are not playing a zero sum game--i.e., there is more than enough slack in the legal market for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. One obstacle is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him on Twitter (@DCaseyF).

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4/24/16

Size Matters for Legal Innovation (Toronto Edition)

The median number of equity partners in an Am Law 100 firm (ranked by PPP) is 170. The number is arbitrary, but it probably isn't random.

W.L. Gore & Associates, the maker of Gore-Tex, is known for a "radically nonhierarchical management structure." One aspect of the Gore approach that makes the company so radical is the limitation on office size to 150 workers. When a branch exceeds 150 employees, the company splits it and builds a second office. As discussed in Gladwell's The Tipping Point, self-governing communes of the Hutterites do the same thing--divide into separate communities--at the same number. For related reasons, hunter-gatherer clans tend to splinter after reaching 150 or so members. A similar numerical sensibility has long been applied to military organization:
recent studies have indicated that humans are best able to maintain stable relationships in a cohesive group numbering between 100-250 members, with 150 members being the common number (see Dunbar’s number). Again, a military unit on the order of no more than 100 members, and perhaps ideally fewer, would perhaps present the greatest efficiency as well as effectiveness of control, on a battlefield where the stress, danger, fear, noise, confusion, and the general condition known as the “fog of war” would present the greatest challenge to an officer to command a group of men engaged in mortal combat. Until the latter half of the 19th century, when infantry troops still routinely fought in close order, marching and firing shoulder-to-shoulder in lines facing the enemy, the company remained at around 100, or fewer, men.
Dunbar's number is a fascinating sociological theory. We can be acquainted with many people (see Facebook) but we can only maintain a finite number of deep, stable interpersonal relationships. Dunbar's number has all sorts of implications for group dynamics. In short, size matters.

Communities smaller than the number are able to enforce informal rules (norms) through informal means (gossip, shame). Communities that exceed the number have to rely on more formal rules (laws, regulations) and enforcement mechanisms (hierarchy, legitimized violence). For enterprises, increased size introduces diseconomies of scale like communication overhead, duplication of effort, office politics, and the tendency for larger organizations to become top heavy.

But size has its own virtues. There are the traditional economies of scale and scopeWeak ties can be an important factor in success. And we should value social learning to avoid of echo-chamber effects and remain cognizant of the benefits of diversity in driving the wisdom of crowds. Dunbar's number is usually treated as a cognitive limit of individuals and a functional limit on units (military companies, Gore offices), not a cap on organization size.

Optimal size is task and context specific. There are, for example, many theories on appropriate team size that are much lower than Dunbar's number. Amazon's Jeff Bezos has promulgated the two-pizza rule: never have a meeting where two pizzas couldn't feed the entire group. Harvard Business Review runs articles like "Smart Innovators Value Smaller Teams Over Better Processes." The associated research reaches conclusions such as, "As group size increases, the difficulties of agreeing objectives, ensuring appropriate participation in decision making, achieving consensus on what constitutes high quality, and eliciting unanimous support for innovation, all increase."

Goldilocks is a fickle....person. While there is no exact science of size, size does matter. Structure should follow strategy. But, often times, the reverse is true. Strategy is constrained by structure. Being the optimal size to pursue a particular objective is sometimes a matter of happenstance.

That is a long way of saying: I ♥ Toronto. I'm inspired to mention this fact because Ryan and I will be there this week to speak at #LexTech16, a conference created by MaRS LegalX cluster and McCarthy Tetrault.

From my perspective, Toronto offers an almost ideal mix of size and geography when it comes to innovation in the legal space. Toronto is the 10th largest financial centre in the world (big but not too big). Canada's four biggest banks are the country's four most profitable companies. The bank headquarters are also a five-minute walk from each other. By comparison, the four most profitable companies in the United States are located in Cupertino (CA), Houston (TX), San Francisco (CA), and Redmond (WA). And the geographical dispersion of the 50 other U.S. companies that would also qualify for the top four Canadian slots is even greater.

Unsurprisingly, Canada's 10 largest firms all have their largest offices in Toronto and are all (as far as I know) within the same five-minute walk radius as the banks. The 105 American law firms with domestic operations as large as Canada's tenth largest firm (423 lawyers) are, literally, all over the map.

There are substantial economies of agglomeration that accompany being able to get a nation's most powerful clients and law firms together without anyone needing to do much more than take the lift downstairs from their office. Every time I travel to Toronto, I am struck by how much everyone talks to one another. Everyone seems to know everyone (Dunbar's number). The extensive communication, cooperation, and collaboration is not only among clients and among firms but also between clients and firms.

As someone who spends too much time thinking about collective conversations, both formal and informal, the issues of size and geography loom increasingly large in my mind. Despite my love of digital mediums, I have to remind myself that only seven percent of word of mouth happens online. Seeing people and interacting with them in meatspace remains essential.

It's not just money and institutions that are concentrated in Toronto. Also technological talent. Many of you may have seen Canadian Prime Minister Justin Trudeau lauded 35-second explanation of quantum computing. Lost in the coverage is that Trudeau was announcing an additional $50M government investment into Perimeter Institute for Theoretical Physics, which is just one piece of the Toronto-Waterloo Innovation Corridor that boasts the most artificial intelligence PhD's and second highest density of startups in the world.

The focus on innovation is making its way into legal with companies like KiraROSSBeagle, Law Scout, StandIn, and ClauseHound, as well as the aforementioned LegalX cluster (an approach to legal R&D that deserves its own post) and the Legal Innovation Zone.

The Canadian Bar appears to be also moving in the direction of increased innovation with its fabulous Futures Initiative. And while I am loath to comment on the regulatory landscape, I am quite intrigued by the fact that Deloitte formed an alliance with Kira (Toronto-based machine learning for legal documents) and then a week later announced its affiliation with Conduit (Toronto-based NewLaw outfit) to "offer outsourced lawyers to support in-house legal teams, meet business needs on-demand at law firms, and deliver short-term projects or special engagements." Let the hand-wringing about the encroachment of the Big 4 on legal services in North America commence, if it hadn't already.

I don't really have a compelling conclusion beyond the observation that the Toronto legal market is extremely dynamic and worthy of attention. Indeed, I hope someone is working on a long-form piece that brings together these various strands (economic heft, geographic concentration, technological innovation, regulatory opening) into something coherent and captivating.


CAVEATS: Apologies not only for rambling but also for all the things I missed. I am not a Toronto expert. I've just been very impressed with what I've seen thus far. Apologies, too, to the rest of Canada. I'm a huge fan of Fred Headon (Montreal, immediate past President of the Canadian Bar, driving force behind the Futures Initiative), Clio (Vancouver, major player in the legaltech space), and many other sources of innovation that do not hail from the Canadian city with NBA and MLB teams. Candidly, I don't know enough about the other markets to even fabricate sweeping generalizations.

Further, I concede extreme bias. I have vested interests. I owe considerable debts. My company is proudly part of the LegalX cluster, and I have the good fortune of the attendant guidance from Aron Solomon and Jason Moyse. I'm also on the advisory board of NextLaw Labs, which made the wise decision to invest in ROSS. When I first started reading about innovation in the legal space, I was immediately taken with the content from Mitch Kowalski, Peter Carayiannis (founder of Conduit), and Jordan Furlong. Then, when I decided to interject some of my own thoughts into the conversation, it was the redoubtable David Allgood (then of RBC, now of Dentons) who, as Chair of the Association of Corporate Counsel, was responsible for getting me a perch at the ACC Docket. And it was his lieutenant, the remarkable Emily Jelich (then of RBC, now of TD Securities) who introduced me to the Toronto legal market.

Nor do I deny that innovation is happening everywhere. My affinity for CLOC, for example, is well documented. And I am convinced that the group's origin among clustered companies in the Bay Area is a major source of its coherence and ability to affect the conversation. But it is a testament to CLOC members that they have been able to meet as regularly as they have for as long as they have. Leaving aside their expansion throughout the U.S., CLOC members based in the Bay Area have offices that are often one to two hour drives from each other. And I think they made the right choice in organizing their upcoming Institute to really expand the conversation to the remainder of the ecosystem. While it would be just plain silly to downplay the agglomeration effects of Silicon Valley (ROSS joined Y Combinator for good reason), it is sometimes easy to forget how many of the largest U.S. companies are not based there (only 9 of the Fortune 100) or even in the tech sector (only 8 of the Fortune 100), let alone how few of the largest US firms (3 of the top 100) are headquartered in the Bay Area. I would never limit CLOC's potential. But in marveling at what they accomplish, I maintain a healthy respect for the logistical hurdles they overcome.

Toronto seems big enough (from a financial perspective) to have an impact, compact enough (from a geographic perspective) to have a high incidence of informal cooperation, and consolidated enough (from the number of players in the market) for innovations to diffuse quickly. Goldilocks would like it there.


++++++++++++++++++++++++++++
Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right business outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. The SDR is premised on rigorous collaboration and the fact that law departments and law firms are not playing a zero sum game--i.e., there is more than enough slack in the legal market for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. One obstacle is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him on Twitter (@DCaseyF).

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4/22/16

Espresso Machines are Lousy Substitutes for Law Library Leadership

Image [cc] Cory Doctorow
A fellow law librarian pointed me toward a Daily Report article yesterday entitled "Kilpatrick Transforms Library Into Modern Collaboration Hub—With Latte." The story is a well-worn tale of how the law library space was cut and transformed into a collaborative space with workstations and high-end espresso machines.

These sort of articles don’t really bother me anymore. I, as a law librarian, read it more as the library material and the space that houses it is superficial, not the service and research provided. The way I interpret it is that the firm is really saying this:
We had allocated 3,000 sq ft of space to house books that no one needed, but we were too afraid that someday, someone, somewhere, might need one of these books, so we spent $60K+ a year in rental as an insurance policy… so to make us feel better about it, let’s cut that to 1,500 sq ft and serve lattes and pretend it’s a collaboration space. Problem solved.
However, a non-law librarian, especially law firm leaders, and consultants who are brought in to guide these types of spacial decisions, may take articles like this and pull out key passages like "little-used," or "she didn't know where [the law library] was," to mean the library, as a service, is irrelevant. That approach is something that I stand against and will argue is short-sighted and will have damaging long-term effects.

If you have read anything I've written in the past decade, you know I'm not a library space guy. I'm a service-first, people-oriented, space-as-needed, law librarian. My largest office has no central library space. None. We went from around 6,000 sq ft of space in the old location to zero by embedding the collections into the practice areas.

The primary reason? Attorneys do not leave their floors. (We even have fancy coffee machines, and attorneys that have never used them because the machine is one floor away.) Therefore, we put the relevant material close to them, and focus on the research services and people skills that we provide. Instead of creating a space and attempting to lure people to the library, we turned that around and put the library people in the lawyer space. For us, it works very well and solidifies our approach of people and knowledge first, and information and resources second.

One of the biggest issues I have with this article isn't what's in it, but rather what's missing. Someone from the Law Library explaining how this enhances the services we provide by moving the focus away from the space, and toward the service and people. Not a single word. Now, granted, this is a piece focused on collaborative space, not about law libraries, but I would think that someone at Kilpatrick would want to stress that this is a win-win for collaboration as well as how they share knowledge and information.

From what I am hearing, the probably reason for omitting this part of the story is something that we are seeing too much of lately. A long-time law library leader has left/retired, and no succession was established to replace this leader. These leadership voids for the evolving law library service are becoming more and more visible, and many firms are wasting opportunities to embrace a new style of law librarianship and research/information services. It feeds into the narrative of law libraries are irrelevant, and in my opinion, will come back to bite these short-sighted firms in the end.

Law Librarianship is not about the number of books on the shelf. It is not about turning shelves into collaboration spaces or coffee bars. It is about positioning the firm in a manner that aligns resources, internal and external; human and information, in a way that puts the firm on a better competitive footing. It's about risk-management. It's about negotiating the best deals with very expensive vendors. It's about evaluating what is, and what is not needed to support the practices of the firm. It takes a strong leader, one with vision of where the law library fits in the strategic goals of the firm, in order to guide the firm on the correct path. Leaving these leadership positions empty, or eliminating them altogether may have short-term financial gains, but long-term repercussions that will plague firms for many years to come.

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4/15/16

On Why, I am a Gardener


Following on up on my great experience this past week in Austin, TX at the Annual Legal Marketing Association Conference, I thought I would share my thoughts from a few weeks ago when I had a conversation with someone who is thinking of getting into legal marketing.  She's had a vibrant career in other industries and thought legal marketing seemed appealing as a former lawyer and consultant. We chatted for a while and she asked me if the lawyers respected me. I said yes, I believe that at my firm the lawyers do honestly respect the marketing and business development folk. Then she asked me if I was treated like a second class citizen as a result of being a non-lawyer or a non-practising lawyer. Before I could answer, she asked if I was treated the same, better or worse than associates.  I paused to think and then replied – think of legal marketers as you would your gardener.  You want them to show up consistently, do a good job, cut the lawn, trim the hedges, maybe plant a new flower or two and when the summer rolls around, help you with a vegetable garden.  Their job is to alleviate your burden of work, particularly if you know nothing about gardening and you entrust to them the curb appeal of your house and entrance way or the calm composure of your backyard. You are happy to pay them a nice wage, market value or above for the work they do.  You want your gardener to be happy so he or she keeps coming back consistently and you don't have to retrain a new gardener on what colour mulch you prefer or which flowers make you sneeze. But you also don't want them to complain to you about their career satisfaction or growth in the industry. Those topics make you tune out mostly because if you wanted to talk about the trials and tribulations of gardening you likely would have been a gardener.   

Associates on the other hand, are like your teenage children, they can be difficult and/or demanding, they require training and attention but being a teen is a right of passage and you want to see them through the challenging stage of life. You are invested, you've introduced them to you friends (clients), you've nurtured and educated them.   When they complain about career prospects or job satisfaction, you listen intently.  You've been in their shoes and agree or disagree you know they hold the keys to the future (of your firm and your profession).   One is not better that the other - you treat your gardener and your teenagers differently. 

My analogy was further upheld at a Toronto LMA luncheon entitled "Saving Lawyers' Time and Winning New Business", where it was established that  the role of the marketer/business development person is to make the lives of the partner easier so he/she can focus on their strengths.

And so, that is why I am gardener, I have been entrusted with keep the lawn green, the fruits and vegetables growing and the flowers blooming.  And as the warm spring sun pours through my office window, I can tell you it is not a bad gig at all. 
Next week, I will share some more of my thoughts around legal marketing and my post LMA annual conference take-aways.

 

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4/9/16

Bad Lawyering, Not Bad Forms

As Robert Ambrogi has been reporting, Avvo launched a new legal forms offering to compete with LegalZoom. Mr. Contract himself, Ken Adams, reviewed an Avvo form and concluded that Avvo was another of the "hack vendors" that was "foisting crap" and "dreck" on consumers. Avvo responded to Adams's "silliness" in a way that suggests to me that we are witnessing two different debates. Both warrant exploration.

Legal Forms are a Bad Idea

Avvo wants to debate the merits of consumer-facing legal forms. The basic outline of this debate is fairly well settled:

Should lawyers create legal forms? Yes. Anytime that a lawyer repurposes old product--which happens all the time--they are making the case for some form of document assembly or automation. If you have a good indemnification clause it is stupid to draft a new one from scratch.

Should consumers use legal forms? Sometimes. Form contracts are everywhere (home purchases, car lease, software licenses), and we do fine without legal counsel. When the need is straightforward, most people are sufficiently adept at filling out basic forms. Even if they aren't, lawyers are cost prohibitive.

Isn't there a danger? Sure. Not every situation is straightforward. The untrained person is more likely than the trained person to make a costly mistake.

This is where the debate normally heats up. The question becomes where to draw the line. At what point is the provider of the form handing the consumer something too likely to lead to self-inflicted harm. The standard criticism is that the kinds of forms Avvo is providing (prenup, codicil, quitclaim, etc.) are not suitable for consumers to use without guidance from a lawyer. Avvo was ready for that debate.

First, they point out that their target audience is people who are already seeking to use forms rather than hire a lawyer. Second, they explain that the purpose of their free forms is to "upsell" consumers-- i.e., convince the consumers to pay for assistance from a lawyer through Avvo Legal Services.

At worst, Avvo is providing a free service to someone who was not going to pay for a lawyer under any circumstances. The implicit suggestion seems to be that their free service is better than what the consumer would have otherwise done or, at least, just as good as the forms that the consumer would have paid some small amount for at LegalZoom.

Avvo not only concedes the standard critique--most people would be better off if they consulted an attorney--Avvo's business model is based on convincing consumers of that premise. Avvo's CEO Mark Britton referred to DIY as a "virus" and is adamant that you cannot compare mere forms to the bespoke work product of a trained lawyer:
"This is just silliness. The point that is being missed here, is that you have over 50 percent of people who have money and are potential clients but who are not using lawyers. You have this explosion of DIY that is like a virus. The question is how do you get in front of those people who want to do it themselves. Even though they say they want to do it themselves, they don’t really mean that. You cannot compare a bespoke product from a lawyer that will cost you thousands of dollars to a product that is an entry-level product designed for people who are doing everything they can to avoid a lawyer. Let’s get them that product and then start the conversation from there."
The primary questions in the debate in which Avvo is engaged:

1. Whether consumers are better off consulting a lawyer than using forms

2. Whether the provision of free forms is more likely to convince consumers to use lawyers

3. Whether consumers who are not going to pay for a lawyer under any circumstances are better off with access to free forms

Avvo answers in the affirmative to all three.

Forms are Fine, Lawyers are Bad

Ken Adams is having an entirely different debate. He is stating that Avvo's forms are "crap" on their own merits. That is, Adams is comparing Avvo's form to a good form. He is not comparing Avvo's form to the bespoke work product of a good lawyer.

Adams, however, is famously less than impressed with bespoke work product from putatively good good lawyers. In a previous post, he subjected a LegalZoom contract to the same kind of scrutiny and came to a similar conclusion: "commoditized mediocrity." He then added this gem:
It’s clear why business customers might want to try LegalZoom. Lawyers cost more than LegalZoom. Choosing a lawyer can be a crapshoot. And there’s a fair chance that an NDA produced by a lawyer you retain wouldn’t be any better than LegalZoom’s.
Let that soak in for a second. Adams is absolutely saying that the forms from Avvo and LegalZoom are mediocre. But he is also saying that a fair number of lawyers are just as mediocre, if not worse. Where I made the banal observation that it was stupid to start from scratch if you already have a good indemnification clause, Adams would likely counter that the indemnification clause you have probably isn't all that good and that most lawyers are incapable knowing the difference, let alone writing a good clause on their own. As he writes in the Avvo post, "the quality failure of the consumer market is just part of the quality failure of contract drafting as a whole."

Consider an analogous post where Adams takes the same critical eye to a two-page, simplified cloud contract for which IBM was getting accolades. Adams labels the contract the work of "dilettantes" and then lays out a case that most lawyers should leave contracts to the professionals (i.e., being a lawyer does not make one a contract professional):
What conclusion do I suggest you draw from my markup? That contract language is specialized—it’s best left to specialists. Knowing your company’s transactions doesn’t make you a specialist. And many years of being steeped in traditional contract language doesn’t make you a specialist. You become a specialist only by making a concerted and disciplined attempt to familiarize yourself with the building blocks of contract language, the good and the not-so-good.
If you’re not a specialist, you’re a dilettante. Those responsible for IBM’s new cloud services contract are presumably knowledgeable, enthusiastic, and hard-working, but when it comes to contract language, the shortcomings in the new contract suggest that they’re dilettantes. That’s to be expected. In fact, the contracts ecosystem would work better if contract language were left in the hands of a limited number of “legal knowledge engineers” (to use Susskind’s clunky but apt phrase) working closely with those who have a broader understanding of the business and legal issues.
Adams made similar comments in a post labeling the Google-Motorola merger agreement "a mediocre piece of drafting. It’s bloated and hard to read, and that takes a toll at every stage—drafting, reviewing, negotiating, and monitoring compliance. And there might be lurking in the verbiage some bit of confusion that metastasizes into a dispute down the road."

With respect to the high-prestige drafters of the Google-Motorola merger agreement, Adams anticipates the obvious question:
Mediocre? How can that be! After all, Google is represented by the prominent law firm Cleary Gottlieb—presumably they did the bulk of the drafting. Well, the Google–Motorola merger agreement is mediocre because all big-time M&A drafting—or at least all that I’ve seen—is mediocre.
That should come as no surprise, seeing as the language of mainstream drafting generally is dysfunctional. That’s due to a mix of factors. The root cause is that because any transaction will closely resemble previous transactions, drafting has become largely an exercise in regurgitation, with most contract language being given a pass. Also, law firms aren’t suited to the task of retooling and maintaining template contracts. (For more on these factors, see my article The New Associate and the Future of Contract Drafting; go here for a PDF copy.)
But in addition, most of the M&A luminaries I’ve approached have made it clear that they’re wedded to old habits and conventional wisdom. Perhaps what makes M&A drafting particularly resistant to change is that clients are less inclined to meddle when it comes to “bet the farm” work such as the Google–Motorola deal.
The way to fix M&A drafting would be to turn it into a commodity process. Google, if you want your M&A contracts to be free of shortcomings of the sort manifest in the Google–Motorola merger agreement, I suggest that you enlist some like-minded companies and form a consortium to create a rigorous set of document-assembly M&A templates. You could fund it with spare change retrieved from your couch. Judicious use of the carrot and the stick would get leading law firms to participate. The work could be done quickly and efficiently. The basic idea should be familiar to you—after all, this month Google Ventures invested in Rocket Lawyer, which aims to commoditize, in a much more rudimentary way, some basic consumer and small-business documents.
[In a subsequent post, Adams reviews an actual contract from Rocket Lawyer. The title of the post, "Rocket Lawyer? Contract Automation FAIL"] 
Adams is not opposed to forms. Adams is about the staunchest supporter of forms you can find. He just believes that most lawyers lack the training to author first-rate forms. He is not saying Avvo, LegalZoom, and Rocket Lawyer forms are mediocre because they are forms. He is saying they are mediocre because they are mediocre. He reaches similar conclusions about the bespoke work product of lawyers hired by IBM and Google.

As Compared to What

Avvo's position touches upon the IKEAization of law. Much of IKEA's furniture is disappointingly serviceable. It works for the intended purpose. But it is made of cheap, fragile particle board. It has a high propensity to break and is notoriously painful to put together.


Yet many of us shop at IKEA anyway because it is substantially less expensive than traditional furniture. Should consumers be permitted to make the same tradeoff when it comes to legal services? Slightly worse but radically cheaper.

It's an important question for every legal consumer, including in-house counsel who are not only under pressure to consider less expensive alternatives to traditional law firms but who should always keep in mind the lessons of Do Less Law. Budgets are finite, and resources should be put to their highest and best use. Tradeoffs are unavoidable.

But the question of slightly worse at substantially lower cost is of particular significance for consumers who cannot otherwise afford legal services. The access-to-justice gap is not going to close because we talk about it endlessly. Starting to close the access-to-justice gap will require actually making the structural changes that would provide more access to justice. This includes the tradeoffs necessary to make legal services more affordable.

But the whole IKEAization discussion rests on an implicit comparison. We know, for example, that the Avvo and LegalZoom forms are cheaper than consulting a lawyer. We can do that math. But do we really know whether the end product is worse than what the consumer would have gotten from the lawyer they would have hired (if they could have hired one)? The instinctive answers seems to be that, yes, we know the expensive human lawyer will outperform the inexpensive (or free) form. Adams, however, calls into question our knee-jerk reaction. And even if the forms are worse, the issue of how much worse is significant in a world of tradeoffs. Dangerous and suboptimal are different conclusions with different implications.

I would be interested to hear how crowds of lawyers react to Adams if/when he tells them that most of them are bad at contract drafting. According to Bryan Garner, they "bristle" when tells them that, "on the whole, our profession can't punctuate."  Garner, the authority on legal writing, does more than remark on poor comma usage [so guilty!], he tells rooms full of lawyers that we are bad at writing in general:
For many years in lectures, I’ve likened practicing lawyers, when it comes to writing, to 23-handicap golfers who believe that they’re equal to the touring professionals. For those not golfers, this would mean that pretty poor golfers—those who habitually shoot in the mid-90s but benefit from the big handicap—somehow fool themselves into believing that they really are shooting in the mid-60s, and that they’re about as good as it gets. I’ve been trying, in other words, to say that lawyers on the whole don’t write well and have no clue that they don’t write well.
In the quoted article, Garner discusses Dunning-Kruger, or illusory superiority. Ignorance begets confidence due to meta-ignorance--ignorance of our own ignorance. Because we don't know what we don't know, we labor under delusions of adequacy. We then erect those delusions of adequacy (or grandeur) as the standard against which we measure potential departures from the status quo. Legal forms are just part of a much broader discussion of what kind of work requires a human lawyer admitted to the bar in a particular state. Think of UPL regulations, humans as the "gold standard" in document review, the kind of work amenable to outsourcing, etc.

I write quite a bit about using process and technology to complement legal expertise. I spill most of my digital ink defending the complements--process and technology--and trying to explain how they augment or leverage the expertise. Maybe I need to spend a little more energy questioning the implicit assumption that the expertise is all that expert.


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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right business outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. The SDR is premised on rigorous collaboration and the fact that law departments and law firms are not playing a zero sum game--i.e., there is more than enough slack in the legal market for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. One obstacle is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him on Twitter (@DCaseyF).

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