I’ve written multiple posts in praise of allied professionals, specialists, and experts who are increasingly vital to the delivery of competent legal services. But just as lawyers are not alone in the legal supply chain, lawyers are not alone in bearing responsibility for its deficits. As we head into ILTACON, I want to restore some balance to The Force by pointing out that we are all (author included) predisposed to myopia and stay-off-my-lawn syndrome.
Three extreme anecdotes:
- A CIO I know feels like he serves in the clandestine services: our failures are known, our successes are not. He is so fed up with criticism from his lawyers that he reflexively dismisses any complaint as rooted in a toxic mix of technophobia, change aversion, and ignorance. He has developed a bad habit of publicly complaining that his lawyers are endangering sensitive client information by copying it to their unencrypted personal devices. Yet, if you relax the man with a few libations, he will admit that the frontline lawyers have a point. For years, he has been unable to get the budget he needs to upgrade the firm to a mobile but secure digital work environment. Lawyers who need to take work home or on the road often have to choose between security and actually getting the work done. Unsurprisingly, they choose the work. But the CIO does not totally understand why. Since security is part of his mandate, it trumps all else in his mind.
- A lawyer I know was handling a sizable matter involving a high volume of PDFs. Among other things, she needed to be able to redact information and compare two versions of the same document. She determined that her best option was to upgrade to her PDF software to the Pro version. But when she approached the office manager, she was told that such an upgrade was impractical because the partners in her practice group had no use for the additional features. The firm had a policy that partners are the first to get upgraded hardware or software. Information technology was treated as a perk rather than a tool--as if the soldier should never be armed with a higher caliber weapon than the general or the professional video editor must limit herself to the hardware and software the company CEO needs to send email.
- A knowledge manager I know was disheartened that her new KM system was being ignored by the lawyers. She understood why they were not yet using it for research. First, it had to be populated with tagged documents. But she could not fathom why the lawyers were not taking the time to tag documents and populate the system. After all, the system was purchased for their benefit. And, if used properly, the system would make their lives easier. She did not recognize the incentives that ran counter to her program. She did not comprehend the tradeoffs between billable and nonbillable time. She did not see the free-rider problem of expecting a lawyer to take the time to update a searchable database with information that the particular lawyer would never need the database to find. Instead of trying to overcome some fairly common (though still challenging) collective action problems, she spent her time wondering how lawyers could be so smart in some areas and so very dumb in others.
Specialization is one of the hallmarks of sophistication. Specialization drives economies of scale. But specialization can also lead to diseconomies of scale as work becomes siloed and communications overhead explodes. It is not easy to collaborate for real. Lawyers do themselves and their clients a disservice if they fail to recognize the value that can be provided by allied professionals in technology, project management, pricing, marketing, knowledge management, research, professional development (including training), etc. But allied professionals do themselves and their clients a disservice by not understanding what the lawyers actually do and why.
There are lawyers who recognize the potential contribution from allied professionals. And there are allied professionals who genuinely comprehend the lawyers’ perspective. But, in general, there is a failure to communicate that both sides are responsible for remedying. All of us are susceptible to making the fundamental attribution error:
We disagree because we explain our own conclusions via detailed context (e.g., arguments, analysis, and evidence), and others' conclusions via coarse stable traits (e.g., demographics, interests, biases [, job title, credentials]). While we know abstractly that we also have stable relevant traits, and they have detailed context, we simply assume we have taken that into account, when we have in fact done no such thing. (Overcoming Bias)Just as I recommend structured dialogue between law firms and their clients that includes nontraditional stakeholders, I am also in favor of internal dialogue between lawyers and allied professionals. Given how law firms and departments are typically structured, the responsibility is ultimately on the lawyers to be willing to work differently. There are already too many mandates for allied professionals to change everything while making sure that the lawyers don’t have to change anything. But, when the opportunity presents itself, allied professionals need to be able to comprehend the lawyers’ perspective, understand the tradeoffs the lawyers face, communicate with the lawyers in terms the lawyers understand, and offer viable solutions that minimize the disruption to client work. Neither side should assume that the other is petty, parochial, or obtuse. And both sides need to work at not appearing petty, parochial, or obtuse.
I plead guilty to every crime outlined above. Even recognizing my own shortcomings, I can’t say that I’ve found a great message. But I am evolving. As someone who genuinely wants legal professionals to work differently, I was seduced by stark statements like, “if you dislike change, you’re going to dislike irrelevance even more.” I was attracted to the self-certain rectitude and the sense of inevitability. And, in the long run, I do believe that the only thing that we can say for certain about the future is that it will be different. But the long run can be a quite long. In the mean time, there are minds to be change and real gains to make. I have therefore concerned myself with being able to articulate positive cases for near-term change like deepening relationships, return on investment, profit, and quality of life. The core message remains the same. But finding a framing that resonates with my intended audience has improved its salability.
Some people are idiots. But not many. Mostly, we are hard-working, well-meaning people who all bear some responsibility for our failures to communicate.
Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal 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 facilitates deeper supplier relationships by facilitating structured dialogue between law firms and clients. Given the current market realities, there is plenty of room 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, rigorous collaboration on 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. The problem is that traditional technology training methods are terrible. Competence-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.