Law Firm BS - Tier 3

The essence of strategy is choosing what not to do. It is not practicable to be all things to all clients. Last post, I expressed admiration for law firms that exhibit discipline and restraint.

I frequently test the limits of law firm self-control by presenting them with the ultimate temptation: BLANK SPACE

I write and review law-firm RFI/RFPs for corporate clients. When I put out RFIs, I am the only person who will read the entirety of every submission. I summarize/grade the responses for my clients, who hire me for my judgment and permit me to exercise it.

I’m the person who reads everything. I therefore appreciate responses with a high signal-to-noise ratio (admittedly, a little rich coming from a blowhard who Generalissimo Lambert regularly punishes for excessive post length). I seek information, not bullshit.

To avoid bullshit, I give firms an out. My practice is to make many questions optional. I write things like:
The questions that follow are optional. We are genuinely interested in the responses. But no firm excels at everything. Answer whichever questions, if any, make the firm truly stand out. If it is not engaging, you won’t like writing it and we won’t like reading it.
No firm is expected to answer all the optional questions. Answer them selectively. Answer only where your response is compelling and will differentiate your firm from your peers. 
For some reason, firms don't trust me. Few skip questions even when they clearly have nothing worth writing. Allergic to blank space, firms have responded "This question doesn't really apply to us because...reasons" rather than endure an empty page. Maybe they don't read instructions. Maybe they assume that anything they write is good by definition (because they are writing it). Or maybe they think it's a trap.

I'm not that clever. I see no merit in firms answering every question. It can hurt them if they do. Since I grade responses, feeble answers drag down their GPA (yes, I calculate a GPA).

Firms inundate me with bullshit. I've ingested so much that I created a bullshit classification system. In this post, I'll discuss Tier 3 law firm bullshit.

Tier 3: Don't understand. Don't care. Don't read. 

When it comes to the RFI section on legal service delivery, the kinds of questions I ask are a matter of public record.

I, for example, ask about process and project management:
Process/Project Management: Do you have a systematic method for delivering legal services? Have you standardized your approach to waste elimination, continuous improvement, and project management? Please provide real-world applications of design thinking, process mapping, checklists, decision trees, Lean, Agile, Six Sigma, etc. There are many ways to bring creativity and rigor to legal service delivery. Which have you pursued and what are the tangible, tractable benefits for a client like [organization]?
As a reminder that I, too, operate in an echo chamber, I once had a law firm partner call me and unabashedly state, "I don't really understand the question. I'm not familiar with most of the terms—decisions trees, process mapping, Lean, Agile, Six Sigma. It's all Chinese to me. Should I still answer it." No! No, you should not still answer it. Though you might consider firing up the Google.

Generally, I try to avoid being that prescriptive. Even when firms are fluent in the argot of my echo chamber, there is no obvious reason to prefer (i) a firm that claims to apply design thinking and Agile project management to (ii) a firm that claims to use checklists, decision trees, and after-action assessments. I dig deeper. The first firm may have a small team in a remote corner of the organization applying design thinking and project management to a discrete problem that has no relationship to my client (still a positive, just not of immediate, material importance). Whereas the competing firm may require that every legal professional working on my client's matters use checklists, contribute to decision trees, and participate in after-action assessments. I'm looking for the most impact, as well as a penchant for sustainably scaling innovation. I am less concerned about the firm keeping up with the latest fashions.

If only distinguishing the firms in the foregoing paragraph was a common problem. It is not. Instead, I typically encounter variants of:
We are deeply committed to integrating project management principles into everything we do. Everything! We are project managing the hell out of this RFI response right now.
Our commitment is evident in the impressive length of this response. It is a manifestation of our client-centric approach to putting clients first through innovative innovations as part of a blue ocean strategy driven by thought showers of blue sky thinking that combine quick wins with a long-term strategy to boil the ocean. We've started a "Clients Clients Clients 3.0" initiative and have formed a committee that includes such luminaries as [people only known within the firm]. Proactive not reactive, we push the envelope in thinking outside the box about synergistic best practices to reinvent the wheel in squaring the circle on our client's mission-critical legal challenges. 
We want to demonstrate to you that we are super serious about all the things that you are asking about in this RFI. They are, literally, the most important things in the world as far as we are concerned. So important that we're going to keep typing words—a bountiful bouquet of buzzwords—until our answer is long enough for you to 'feel' in your eyeballs how much we care .
We do care. We care so very much about the client that we will pretend to be fully invested in whatever is occupying them this week. And then we'll do it again as soon as something else catches their fancy. What are we playing acting about today? Diversity? AI? Budgets? Outside counsel guideline compliance? Data security? Oh, yeah, process improvement and  project management. Is that fad back already?
Our lawyers are expert in managing legal matters. Our approach to process improvement, therefore, is to hire great lawyers and let them do what they do. With us, you get superior project management because you get superior legal talent. Lawyers can do anything. Lawyers have a considerable general intelligence and a strong work ethic. These attributes can overcome any deficit in non-legal training. It is known.
Naturally, we're not really doing anything different because we're busy with real work. We dabble. And if we've sent a single paralegal to a half-day course on legal project management, we will try to make it seem like we invented LPM. But our operating assumption is that, ultimately, the client will work with our lawyers because our lawyers are really smart and experienced. Or the client will send the business elsewhere because the client has drinking buddies at one of our lesser competitors. Either way, these words have no impact. 
So here is our bullshit answer to your bullshit question. We know we're supposed to pretend to care about this MBA bispeak hokum. So we will. But, of course, we don't actually care. And we don't believe you do either. We'll repackage the things we've been doing since time immemorial. We'll wordsmith. We'll overhype minor deviations from the status quo. We have an endless supply of words.
That, however, is probably long enough. Consider this box checked.
Unfortunately, the odds still favor blather. Many clients are in the early stages of maturation. They have an emerging sense they are supposed to care about these things. Some ask the questions. Few read the answers. And only a small percentage incorporate answer quality into their decision-making calculus, let alone go deeper. As long as firms play along, decisions will mostly be made the same way they always have. Playing along means virtue signalingwriting something long enough to be evidence of effort (which is why blank space is anathema to law firms).

But betting on bullshit, while still relatively safe, becomes less so with every passing day. The gentlemen's agreement about how all this is supposed to work keeps fraying. That we now ask bullshit-inducing questions is evidence that change, while uneven, is here.

We can have a world where both of the following are true: (a) incumbency, relationships, and brand remain the primary factors in retention decisions for the foreseeable future and (b) pricing/service delivery have a major impact on the financial health of many market participants. Credence goods subject to a nascent strategic-selection framework.

I don't expect the old ways to suddenly collapse. But the inherent fragility of the law firm model (different than saying all law firms are fragile) means that marginal movements can have a cascading impact. That this occurs in slow motion does not mean it isn't happening (it is).

I constantly return to Mike Roster's observation in Remaking Law Firms that for 85% of a company's legal spend “there are typically 10, 20, or more law firms and practice groups who can handle the work superbly, not just okay, but superbly.” Add to that the growing ranks of in-house counsel, the attendant challenge to the leverage model, the encroachment of the Big 4, the rise of alternative legal service providers, and the penchant of systematization/disaggregation/process/technology to move certain work types down the value chain. We have the ingredients for fierce competition.

Lawyers tend to get upset when I opine that many of us are good but few are special. For decades, good was more than sufficient. That time is fading. 

As I've observed elsewhere, economics is the study of scarcitythe choices we make under resource constraints. Something can be essential without being scarce. Oxygen is essential. But there are only a few places (Beijing) where oxygen is sufficiently scarce to give rise to a market.

Lawyers are scarce like cars are scarce. At the narrow pinnacle (Ted Olson, Bugatti), there is true scarcity and limited price sensitivity. There is also a price floor below which it is currently challenging to find anything serviceable (A2J, lemons). But between these extremes is a competitive market of relative abundance where any corporate client with a reasonable budget can select from many viable alternatives.

Competent (to the task-at-hand) lawyers are often essential. But competent lawyers are rarely scarce. What is scare are systems for legal service delivery. What is scarce is scaled innovation in leveraging legal expertise through process and technology. What is scarce are legal service providers committed to continuous improvement (the interested do things when convenient, the committed do them even when they are hard).

So when I ask law firms about innovation, I genuinely care about the answer:
Innovation: How does the firm define innovation? How does the firm identify innovation? How does the firm reward innovation? How does the firm measure innovation? How does the firm scale innovation? How does the firm share innovation with clients? Supporting examples of recent internal innovations at the firm would be appreciated.
I am saddened when I get responses like (I swear, these are real, if anonymized and stripped of flowery language):
We recently revamped our website so it is easier for clients to find our lawyers.
Our lawyers meet on a regular basis. They discuss their cases. They learn from each other. That is how the firm spreads innovation.
Remember that these questions are optional. The firms are not obliged to answer. They answer anyway. This is what they deem compelling. A firm website. Lawyer meetings. This is how they define, identify, reward, measure, and scale innovation. Given that these firms are under consideration for corporate legal work, this, apparently, is sufficient (for now).

The most generous explanation is that they think me lazy or stupid (or both). Maybe I don't read the answers. Or maybe I'm so mentally deficient that as long as their answers include words like "commitment", "client-centric", and "innovation", I won't notice the lack of substance. I sure hope they dismiss me as an inattentive simpleton. Consider the alternative. What if they actually believe this drivel. What if we are so susceptible to the illusion of innovation that we are ready to call whatever we do innovative no matter how banal.

There's some of that. A few firms definitely believe their own bullshit. But, in Tier 3, I suspect it is mostly a product of the irresistible urge to get something, anything, down on paper. I find solace in the idea that they are not taking the exercise seriously.

A good example of "I don't have time for this" comes from questions around budgets:
Budgeting: Does the firm create budgets for all matters? Does the firm track performance against matter budgets it does create? What is the process/data/analysis for creating the budgets? How does the firm perform against its initial budgets? How does the firm provide transparency for clients like [organization] into budget creation and performance against budget? Budget templates would be appreciated.
Despite a general instruction for metrics, concrete and specific numbers, in support of answers, I've received many (completely voluntary) inane responses along the lines of:
We often come in under budget. When we go over budget, we have a frank discussion with our clients about why. We can't share any budgets with you because we take client confidentiality really seriously.
The response is useless. But the inanity ascends to the sublime with the attempt to wield privilege as a shield against discovery of the inconvenient fact that they don't have a budget template or, if they do, it is so embarrassing that spewing transparent nonsense is the attractive option. They have to know their answer is crap. But they answer anyway gambling that empty words are worth more than blank space.

The clearest proof of this say-whateverism comes from inquiring about firms' data strategy. I use "data strategy" because it is Dan Katz's term (that's it; argumentum ad verecundiam). But, recognizing that not everyone is a Dan disciple, I try to provide some context.
Data Strategy: What data do you track? How do you analyze that data? How do you put that analysis to use in service of clients like [organization]? What are your data-centric predictive capabilities? How do you characterize and price risk? [Note: this question is not about cyber security nor e-discovery, two valid but separate topics of inquiry]
The note at the end wasn't in the original version of the question. I iterate. I appended the note after three variants of the question engendered too many inapposite responses (I'm a slow learner). The firms see "data" and stop reading. They copy/paste answers from previous RFI questions that also included the word "data" and move onto the next question.

I go back and forth on which is the dominant driver of Tier 3 law firm bullshit. Don't Read is a subgenre of Don't Care. And Don't Care is a far more generous explanation than Don't Understand. I'd prefer to assume that law firms categorize RFI responses as waste of time and treat them accordingly. If some of these responses are the genuine product of considered thought, our problems run far deeper than I have let myself believe.

The purveyors of Tier 2 law firm bullshit, the subject of our next post, read, care, and understand. They just don't have good answers.

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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Milena Higgins said...

This was my favorite of the BS series so far! Very well done. I do wonder why is it that so many partners at law firms are not paying attention to what is happening in their industry. Is it just head-in-the-sand syndrome? The example of the partner stating that things like lean, agile, six sigma, decision trees, etc., are all Chinese to them really has me scratching my head this morning.

Kathy Heafey said...

Great post! At BanyanRFP, we take a slightly different tack (based on a similar understanding of the issue at hand) and coach our clients to ask as FEW qualitative questions as possible in their RFIs/RFPs. Only the questions that are truly material to the decision to hiring the firm are the ones that should remain. Fewer questions is a good solve for both clients (who want to read the answers) and law firms, alike.

Jeffrey Carr said...

Wel done, as always and as expected. Quality arises from meeting expectations repeatedly and Casey's column delivers! I know this will not surprise Casey at all, but our approach to an RFI/RFP is doctrinally similar but different in execution.

There are three and only three parts, and they are short. Part one is a list of yes/no questions probing tools and disciplines required to work for us in the way we work. Part 2 is a spreadsheet of pricing by types and categories of matters. And part three is a blank sheet where we invite respondents to describe what makes them different. Part three is our blank space. We tell the respondents to answer on that one page and to not include links or attachments. Those incapable of answering simple questions yes or no, or disregarding our instructions are tossed in the waste bin as they have already demonstrated inability to meet the customer's requirements. Those that can and do answer all three parts and provide answers that both meet our requirements ("yes" where "yes" is required, price that's within a range of acceptability) and interesting (the "different" narrative) proceed to the "wow not woo" meeting where we explore the rigor of approach and depth of the difference.

Due to brevity and approach, we call this a non RFI/RFP.

If you'd like to know more - contact me. jeff.carr@univar.com


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