Law Departments and the Foundation of Law Firm Marketing Bullshit

My friend John Grant made a mistake.

Many moons ago he was consulting on process improvement for a large law department. He surveyed in-house counsel on their biggest complaints about outside counsel. The response was that outside counsel:
  • Don't understand my business
  • Can't tell me how long anything will take
  • Overwork a problem/introduce complexity
  • Don't give me output in a format I can use 
Familiar enough. And so far so good. John's misstep is that he put the same question to internal clients of the law department. The response was that in-house counsel:
  • Don't understand my business
  • Can't tell me how long anything will take
  • Overwork a problem/introduce complexity
  • Don't give me output in a format I can use 
This result was not well received by the law department.

The Lawyer Theory of Value

Law departments face a principal-agent problem that I covered in a piece with the subtle title What's The Matter With Inside Counsel.

There are few discernible differences between the modal in-house lawyer and the modal law-firm lawyer. They are the same people. Ultimately, they value the same thing: lawyering

The lawyer theory of value states that the key to value is having smart lawyers. Lawyer time is the primary resource and the primary unit of measure even in law departments that have no compensable time sheets.

The lawyer theory of value tends towards the transactional and discrete. Resources (lawyer time) allocated to sequential, individual legal tasks: this question, this contract, this motion. Systems thinking and relative reductions in demand for legal labor (prevention, Lean, #DoLessLaw) are ancillary concerns to be addressed when convenient or absolutely necessary (that is to say rarely).

Given their lawyer-on-task orientation, ask most lawyers what they need to be more effective, and the first answer is more time in their own day. The second answer is more time from other skilled lawyers they already work with. The third answer is more budget to hire additional skilled lawyers. Maybe somewhere in there is a paralegal who is "just as smart, if not smarter, than most lawyers" (because lawyer is the measuring stick). That's how it all gets done. Smart people working hard.

Dedication to their craft does not make lawyers bad at their jobs:
Most lawyers don't pay a penalty for their acute focus. When they do, it is usually not obvious, especially to them. They can still make valuable contributions to client success and be well regarded in their profession. Lack of broader interest in the process, technology, and business of law (T-shaped) rarely makes them bad lawyers. It just limits their effectiveness when more lawyering is not the optimal solution to a particular problem.
Sometimes, they may actually volunteer "technology" as a catch-all and panacea. But peel that onion just a layer or two, and you soon realize they want magic. They expect a black box that produces superior outputs from the same inputs. And the urgency driver for finding magic is to free up time to do more lawyering. Once you start impinging on that time and their comfort zone—process redesign, training, change management—you trigger the defense mechanisms of professional issue spotters.

The threat of an implementation dip does not eradicate the faith in tech-centric improvement. But the "we" in we should be using technology more no longer includes "me" but rather transforms into more a generalized "we" encompassing other people in the department and outside counsel. Innovation continues. But without buy-in and participation from key stakeholders, much of it ends up being only skin deep. Meanwhile, the perception that innovation is happening elsewhere feeds the accountability-reducing innovation illusion.

There is, however, an important distinction between being (a) an enemy of progress and (b) a barrier to innovation. I encounter very few lawyers who actively oppose innovation. I find lawyers who support it in theory and simply don't have time for it in their personal practice. They don't have time for it because they are extremely busy with mission-critical work.

This has become a go-to cartoon in my echo chamber because it is funny in a way that resonates with outsiders and prospective change agents interested in more systemic innovation:

But from the perspective of the modal member of an in-house team, reality feels much more like:

This time pressure buttresses inherent status quo bias. When you view yourself as operating in a delicate equilibrium, you have a much lower risk tolerance. Different is risky. Different demands time and attention, both of which are in short supply.

Importantly, the lawyer theory of value is not without merit. It is incorporated into my personal worldview. I am convinced that legal guidance is only growing in importance to business outcomes. But assumptions, especially when implicit, can have a constraining effect when they go unexamined.

The constraints of the lawyer theory of value have trapped us into a local optimum for an extended period. The only conceivable solution to the interlocking challenges of scale and complexity was to throw bodies at them.

Faced with the legal cost disease and the more-for-less conundrum, in-house departments have been on a two-decade hiring binge. In the United States, there are now more lawyers working in-house than in the AmLaw 200. How much of the supposed disruption in corporate legal services is attributable to the simple redistribution of labor?

My take: there is a continuum. In-house growth was necessary and good for a variety of reasons, including specialization and the attendant sophistication. But too much is too much. We're pursuing a path of diminishing returns. The continued overhiring is justified by an oversimplified 'savings' calculation. When you move lawyers in-house, you get them at a discount and on a fixed fee. But the math ignores the overhead costs (management, infrastructure, flexibility) of operating an in-house function at scale.

Finding a different avenue to hire the same lawyers to do the same work the same way is implicitly premised on the lawyer theory of value—we are replacing extremely expensive external labor with moderately less expensive internal labor while embedding a chorus of high-status, autonomy-seeking stakeholders who stand ready to proclaim "but we've always done it this way." When it avoids the fundamental demand driver—the relationship between legal labor and business outcomes—insourcing is not a sustainable approach to bending the legal cost curve.

The result is that we have law departments that suffer from the same pathologies as the law firms to which they were supposed to be the cost-effective alternative. When it comes to true alternatives to lawyer time, most law departments still need to overcome the stifling persistence of not here, not yet.

Outliers and Outsized Expectations 

Most. Not all. Before you @ me with #NotAllLawyers and #NotAllDepts campaigns listing prominent counterexamples that confound my narrative, ask yourself, "Is my counterexample prominent because they are an outlier?" If the answer is in the negative, then I welcome the spirited debate about how the landscape has evolved quicker than I realized (which would be great). If the answer is in the affirmative, we are in agreement. There are prominent, praiseworthy counterexamples.

But there is also a genre of writing predicated on these outliers that tends to imply that law departments have it all figured out, unlike scleoritic law firms. Admittedly, I've fallen into this trap myself. You pair opinion data (clients are not happy) with empirical trends (stagnation) and cite to prominent outliers (exampleexampleexample). Then extrapolate.

Extrapolation is fine for futurism. But where I and others have steered wrong is when the predictive gets muddled with the descriptive. We create the impression that, instead of harbingers of the future, the outliers are representative of broader trends that are already 'disrupting' the status quo. Which they are. But not nearly to the degree or at the rate we may seem to suggest.
There is nothing new except what has been forgotten
There have been prominent outliers for a very long time (hereherehere). Yet like the decades of deaths of the billable hour, systemic change has not quite followed individual experimentation (and the attendant industry expressions of support/interest/intent) at the anticipated pace. I say this from a place of optimism. Not only do I think we can do better, I believe we are doing better. I have bet my career that this time is different—that the combination of trailblazers and structural forces are coalescing to put change on an accelerated trajectory.

I may be wrong (I don't think I am). I have certainly put too much stock in outliers before.

First, I've taken in-house counsel at their word. I've relied on stated rather than revealed preference. The delta between public pronouncements and actual practice is not all virtue signaling. Rather, absent context, we have no way to gauge relative importance and intensity of preference. The desire to change may be genuine. But that in and of itself does not make change a priority.

As a result, I've assumed change efforts are more appealing and durable than they have proven so far. I expected more law departments to be fast followers. Instead, we've repeatedly witnessed innovations by prominent law departments remain outliers. Meanwhile, among the outliers, there is churn rather than accretion. Once the awards are won and the principal champion of change moves on, the jungle swiftly retakes civilization. The progressive GC/CLO gets replaced by a more traditionally minded lieutenant or outsider. Years of change efforts get reverted to the status quo ante at an astonishing clip.

Second, I've imagined change efforts that are deeper and more transformative than they turn out to be. I've taken the highlight reel and mentally filled in the gaps to be equally spectacular. I have yet to encounter in-house vaporware. But the more details I uncover about about some prominent in-house program, process, or tech, the more it usually disappoints.

This is inevitable. For the sake of effective communication, we all (me included) describe our successes in ways that appear more coherent, consistent, and comprehensive than they are. Even when we caveat like crazy, audiences (me included) take away a smooth, pretty picture that doesn't do justice to messy reality [by the same token, I think we tend to underappreciate the Herculean efforts of true change agents].

Third, I've observed success in one area and mentally grafted it onto others. I've unconsciously assumed that the department that wins awards for contract management is similarly savvy at overseeing litigation. I've assumed the department that leads on diversity is also progressive on using alternative legal service providers. I've assumed the department that has cut external spend demonstrates the same kind of internal discipline.

Yet, in many respects, this assumption has it backwards. In-house departments are resource constrained. With finite resources, the essence of strategy is choosing what not to do. It stands to reason that law departments that excel in a few areas are mostly maintaining the status quo in others. They can't do it all at once (nor can I when I am in their shoes).

Fourth, and relatedly, I've treated in-house departments as monoliths. Because the legal ops head and one AGC have stood up something cutting-edge, I've implicitly assumed that the remainder of the department shares their innovative fervor.

But politics is the art of the possible. More often than not, I find that the politics of change even in forward-leaning departments substantially circumscribe the prevalence of innovative behavior. While innovation may be embraced and effected by a few, the many view it with suspicion and annoyance. To them, legal ops is still not 'real lawyering'.

What most in-house stakeholders want is more budget, more headcount, and to be left alone. Give me more lawyers and let me do legal work. This comes from a true dedication to delivering value. Most law department personnel take pride in applying their prodigious talents to the client's mission-critical legal problems and, through acumen and hard work, providing high-quality work product on tight deadlines. To them, this true value. And they deliver it.

Time to Pay Up

Everything I just wrote about law departments could have also been written about most law firms. The symmetry that comes from the shared lawyer theory of value is the foundational to the relationship dynamic.

While they share assumptions, the modal in-house lawyer and the modal law-firm lawyer do have one crucial difference: positional authority. Like the Supreme Court, inside counsel are not final because they are infallible, they are treated as infallible because they are final.

What do you get when in-house counsel who make retention decisions think they want different, but, at the end of the day, really want a vaguely 'better' version of the same? You get law firm marketing bullshit.

Three months ago, I laid down a marker:
Bullshit begets bullshit.
There was an overwhelming response to my last post on law firm marketing bullshit. So here I am writing an entire series. That’s how it works.
If you reward bullshit, you get more bullshit
Which also happens to be my rejoinder to my sole (known) critic. While most commentary was positive, a friend chided me for ultimately making clients responsible for the surfeit of bullshit.
Bullshit is bad and, ipso facto, law firms should not traffic in bullshit whether or not bullshit is effective was my friend's line of reasoning. Fair enough. But that's hope, not a plan. I will respond to my friend at length (argument by attrition) in another [a series of] bullshit post [posts] about how the legal market is not a morality play.
This post is my down payment.

While I have touched on clients' contribution to the perpetuating the bullshit cycle in every single post in this arc (12345), I have not given clients my undivided attention at extraordinary length. I wouldn't want them to feel neglected. More to come.

D. Casey Flaherty is a legal operations consultant and the founder of Procertas. He serves on the advisory board of Nextlaw Labs. He is the author of Unless You Ask: A Guide for Law Departments to Get More from External Relationships, written and published in partnership with the ACC Legal Operations Section, and the Service Delivery Review Primer, written for the Buying Legal Council. Find more of his writing here. Connect with Casey on Twitter and LinkedIn. Or email casey@procertas.com

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Why analyze your analytics?

So, it was snowing in Houston today. My sister texted a photo full of snow at 6:30 am--a neighborhood once covered in Harvey now covered in snowflakes.

Just finished my analytics reports. Not sure how many of you use Google Analytics. It has changed a lot since I first started using it back in the good old days. Analytics is the favorite aspects of my job, probably because I like using Excel and running calculations.

Analytics are an important part of of monitoring a site to ensure that you are still on target and achieving your goals. Benchmarking--before and after shots prior to a launch--will help you better tell your success stories.

Google Analytics

I use GA to track web site and blog traffic, looking at visitors, sessions and pageviews over time. I'm able to tell what countries are viewing the site, what language they speak and even their age.

For social media, I usually prefer to go straight to the source. There are several tools that are available to help with this, like HootSuite, but I really do prefer digging through the data.

Why analytics?

Twitter analytics

Twitter Analytics, I think, does the best job of providing user analytics. Facebook comes in next, with LinkedIn next.

If you aren't aware, Twitter provides every user with analytics on their account's performance.

To access,  click on your Twitter profile pic and select analytics.

Twitter analytics top mentions

The Twitter Analytics landing page for your analytics page will display a monthly summary, in reverse chronological order, of your top tweet, follower, mention and media tweet. It also shows the total number of tweets, profile visits, followers, impressions and mentions for the month.

Twitter activity analytics

Behind sub pages include a full analysis of tweets, your account's audience, events, conversion tracking and, soon, video analytics.

You can export all the metrics from your Twitter analytics, which provides a full list of all your tweets, the number of impressions, engagements and the engagement rate. You can download your Twitter data for a day, month, or a specific data range.

Twitter audience analytics

Your audience analytics will give you an idea of who is reading your tweets. I'm pleased to see that I am followed by whom I intended to be  followed: techie nerds, both male and female.

Analytics reports are like checking your pulse. You want to make sure your sites are still up and running.

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How to subscribe to YouTube videos to earn CLE self-study, watch news and learn new skills

Watching YouTube with purpose by Lihsa

How many of you out there regularly watch YouTube videos? Mostly people randomly watch videos. But it is possible to follow YouTube in much the same way you follow a podcast.

I've been a YouTube subscriber for about 7 years and really active for the last 4 – 5 years.

It is a great way to learn the learn new skills, follow a hobby or even catch up with cable TV shows. Many times, I'll go straight to the government agency to watch speeches that I might have missed on TV.

How to subscribe to YouTube videos for CLE self-study, watch news and learn new skills

Not to mention that if you really get into YouTube, you can opt into YouTube Red for $9.99 a month and have an ad-free experience.

YouTube perks and channels

Another perk is that any movies that you bought through GooglePlay for Android will be accessible through your YouTube account.

I am currently subscribed to around 50 channels like the New York TimesVanity Fair, BookTVMayor Sylvester TurnerFood WishesTexas State BarHarris County Law LibraryThe Financial Diet, Last Week Tonight, ExcelIsFun and car mechanic Chris Fix. I also have a lot of guilty pleasures that I won't divulge here (did anyone say make-up or home decor?).

UPDATE: Since posting this blog, @NYT notified me of a new Museum of Modern Art docu-series, At The Museum. At this time, it is only available for streaming on YouTube.

How to subscribe to a YouTube channel

Let me show you how to subscribe to a channel. You want to subscribe to at least 20 because not everyone consistently produces content and there can be large gaps between videos.

To subscribe, search for the channel in the YouTube search box, then hit the red "Subscribe" button either to the right of the channel search result or underneath the channel's masthead. There is also a similar button within every video.

How to subscribe to YouTube videos to earn CLE self-study, watch news and learn new skills

Now, when you log into YouTube, you can access your subscriptions and watch the latest videos by moving into the left navigation and select "Subscription." Plus, the latest videos will display in the center pane.

How to subscribe to YouTube videos to earn CLE self-study, watch news and learn new skills

How to get notified of new YouTube videos

If you want to be notified more quickly when your subscribed channel posts its latest videos, you can opt to get "notified." Within a selected video, click on the bell icon to the right of the "Subscribe" button  on the YouTube video. The bell icon also appears next to the subscribe button in a YouTube channel search result.

Channel listing in a search result:

Video display:
How to subscribe to YouTube videos to earn CLE self-study, watch news and learn new skills

This will then push a notification via YouTube or, if you opt in, via email. To set this, go to "Settings" > "Notifications" and then scroll down to "Channel subscriptions" and select "Occasionally notify me ... ." You can then choose to either get a push notification or an email notification.

How to subscribe to YouTube videos to earn CLE self-study, watch news and learn new skills

YouTube subscriptions and auto-play

The biggest drawback I have with YouTube subscriptions is that YouTube subscriptions don't autoplay one right after the other. I have to actively go in and select the next video.

The only way I can get my subscriptions to auto-run is if I am watching a savvy YouTuber who has playlisted his/her videos. But even this is quite right--what happens is that if I am watching a Food Wishes post roast video, the next auto-play video will be another Food Wish's beef recipe from his beef recipes playlist.

However, I'm confident that YouTube will soon fix this glitch.

Let me know if you are as avid as YouTuber as I am and if you have any favorite channels that you enjoy watching.

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One More Time: Law Firm Libraries Are Not About the Space

Photo by Annie Spratt on Unsplash
In 1995, a law firm was approached by one of its major clients to open an office in the city where the client's headquarters was located. The law firm really didn't want to expand into a new region of the country, where it had no other significant clients, so it politely refused the clients request. The client, however, was very persistent, and continued to press the law firm to open a new office in order for their joint legal teams to work closer to one another. The client would not back down, but then neither did the law firm. In a last-ditch effort to entice the law firm over, the client offered to donate its entire law library collection to the law firm; thousands of linear feet, worth hundreds of thousands of dollars of reporters, treatises, and specialty collections were offered in order to convince the law firm to open a new office. The law firm was stunned by the offer and immediately agreed to open the office. Twenty-Two years later, the law office thrives… and the law library collection that sealed the deal? It barely exists today.

True story.

On the surface, this sounds like a sad story for law libraries in law firms. Once the centerpiece of a law firm, the law library now inhabits a small fraction of the space it once did. Does this mean that the law firm no longer has a library? If all you think about is the space a law library takes up, then yes. If, however, you think of the library as the information and knowledge needed to effectively practice law, then the law library is as important now as it has ever been… perhaps more important than it has ever been.

I talked with a reporter a few weeks ago about another firm that actually re-purposed their old library space and sublet that space to a start-up company. The reporter found it to be telling that the traditional book law library was literally losing ground to a modern start-up company. What the reporter didn't realize is that the law library actually became its own little start-up and had already reinvented itself. The traditional law library was about space, size, beauty, and being a showpiece. The modern law library is about function, ease of use, portability, and just-in-time availability. This isn't a paradigm shift that suddenly appeared in 2017. This has been a gradual shift that has occurred over the past twenty-five years or more.

Law firm libraries occupy less space than ever, yet contain more information than ever. Saying that a law firm library has lost its importance because it has a smaller physical footprint is like saying that today's laptop or tablet is less important because it doesn't take up as much desktop space as an IBM Selectric typewriter. It's actually quite a silly notion once you really think about it.

The modern law librarian has taken advantage of the paradigm shift and has reinvented themselves away from maintaining and updating a physical collection toward developing and training the members of the firm to understand which tool is the most valuable at the appropriate time. Very few firms lack for resources. The problem is that we have so many resources that we become overwhelmed by them. The law librarian's skill at helping others find the right resource for the task is more important than ever. Moving the idea of the law library away from the physical and focusing on the actual information available has opened up opportunities for innovated law librarians.

So when you think back on the "good ol' days" of the law firm library being the centerpiece of the office, don't be sad for the law librarian that it has faded away. Be grateful that the law librarian is now offering you more information than ever before, and will gladly help you understand how to use it effectively.

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