Me Being Wrong (More BS)

By Casey Flaherty on January 8, 2018

“The first principle is that you must not fool yourself—and you are the easiest person to fool.”

“We deal in deception here. What we do not deal with is self-deception.”

Change is happening. It is good.

I am not really one for New Year’s resolutions. But I do make a point to be reflective on my birthday, which, being a week later, amounts to almost the same thing. This year, in particular, I find myself inspired by Mark Cohen’s meditation on the “failure” of Clearspire. Mark is an eternal must-read. But never more so.

Mark highlights the distance between the way things are and the way things ought to be with a powerful narrative about confusing the two. I’ve made the same mistake. Like Mark, I have been seduced by the seemingly loud, prominent voices calling for immediate change. The resonance to me of this passage is hard to overstate:

The Founders believed that by creating what the marketplace said it wanted—and then some—it would be a huge success. Intrigued as the marketplace was with the vision, the Founders soon learned that “if you build it, they will not necessarily come.” There is a big difference between expressing admiration for a model and becoming a paying client. Clearspire’s Founders had not anticipated the size of that delta.

The Sirens’ call of confirmation bias is a constant source of danger in my world. I’m not immune to bullshit, especially my own. In trying to maintain perspective, I vacillate between rank cynicism and unbridled optimism. The optimism almost always wins. I need no convincing that the legal ecosystem is evolving. I’ve bet my legal career that being an agent of change will keep me gainfully employed.

So far, I’ve been right. But not nearly as right as I predicted. And certainly not right in the way I predicted.

Change is happening. It is slow, uneven, and intermittent.

My most obvious error has been predicting the pace of change. While there is sufficient demand for change to keep me and a cadre of fellow travelers occupied [though I did just complete a project that went live January 1 and have one client slot currently open], the overall pace of change keeps being far slower than I imagine even when I update my priors to incorporate the observation that the pace of change is far slower than I imagine.

This should not surprise me.

Massive passive resistance. Agency dilemmas. Institutional inertia. Status quo bias. Loss aversion. Endowment effects. Lack of urgency. KAP gaps. The Chasm. System justification. Institutional isomorphism. Reams of academic literature explain the Planckian notion that progress does not occur when its opponents see the light but only when they lose their power to oppose—that is, funeral by funeral. I’ve not only read my Rogers, I’ve read Bill Henderson’s masterful series applying the Rogers Diffusion Curve to innovation, or lack thereof, in the legal ecosystem.

This should not surprise me. Yet it does.

Keeping with current fashion, I blame the news. Legal industry news (different than legal news) is not fake. But where mainstream news is dominated by negativity bias, legal industry news has a pronounced novelty bias. I exacerbate this novelty bias by spending a fair amount of time in the New Normal echo chamber.

We talk about what’s new, different, and interesting rather than what’s established, stable, and enduring. This coverage, while accurate in the particular, can be misleading in the aggregate, especially because of a proclivity to focus on well-articulated intentions (what we’re trying/hoping to do) rather than messy outcomes (what we’ve done). Emphasis on promising outliers suggests a pace, breadth, and depth of change that belies our creeping incrementalism.

I also blame myself. I can be too easily taken by the simple logic of immediate change. This makes sense to me. So this makes sense to everyone. Thus, this will happen. Soon.

If I had been a lawyer in 1989, I probably would have convinced myself that, in the not-too-distant future, in-house counsel would be ascendant, alternative fees would displace the billable hour, and large law firms would transform into multi-disciplinary law companies.

Because change has occurred (and will continue), by 2018, I would have been quite right on insourcing, somewhat right on alternative fees, and witnessing the the nascent rise of the multi-disciplinary law company. Which is another way of saying I would still be mostly wrong almost 30 years later. Yet less wrong than I would have been in 1999, when, a decade into my prediction of major structural changes, I would have been really, really, spectacularly wrong and, most likely, insolvent.

But pace is not the only area where I’ve been wrong. I’ve also been wrong about the types of changes that would appeal to market participants in the near term.

Change is happening. But I’m not good at this game.

Since I left my in-house gig, I’ve been able to feed my family in spite of myself. My sources of income are different than expected. In many respects, my clients have exceeded my expectations. In almost all respects, I misjudged the market.

On the consulting front, I’ve been humbled to be involved in massive, impactful projects like creating a legal operations department for a Global 20 company and overseeing convergence initiatives involving hundreds of law firms. I didn’t expect that clients would trust me with so much so soon. And I’m grateful for what they’ve permitted me to help them accomplish.

With training, I’ve been genuinely surprised by the number of law departments and law firms that have taken it upon themselves to do the necessary work of getting serious about improving proficiency in core office technology. And I’ve been especially heartened by the number of law schools that have been willing to add training in practical technology skills to their curriculum, in addition to the forward-thinking state bars we are working with to develop competence-based CLE content.

I saw none of that coming.

When I left my in-house gig, I had a very specific reputation: the Word guy.

I was the guy who had gotten too literal in bringing supply-chain management practices to legal. My approach was site visits in support of structured dialogue, continuous improvement, and deep supplier relationships. Yet the pursuit of win-win collaborations to change legal service delivery did not garner the headlines. The headlines were all about me kicking the crap out of law firms for being terrible when I audited on them on using Word properly (which isn’t exactly how it happened).

We’d love to be able to do that. While I was still in-house, a few people called me an idiot to my face. In almost all cases, I offered to buy them a cocktail and provide a broader perspective (y’all know I love writing and speaking the words) than was afforded by their headline skimming. In all instances where we had the discussion, we parted on good terms having identified considerable common ground.

But more than a few people had the opposite reaction. They thought what I was doing was fantastic. At least, that is what they told me. They explained that they would be keenly interested in doing the same thing.

Until, of course, I offered to send them my audit materials. When they realized that conducting a service delivery review requires sustained attention, they were out. They would explain they didn’t have time for all that and, really, they were mostly interested in the technology competence piece that got the publicity. They just wished they had quick access to tech competence scores from their law firms.

I believed them. I automated my legal technology assessment convinced that large corporate law departments would ask their law firms for scores.

That’s not a priority right now. I was wrong. It happened. But it happened far less than I predicted. When it actually came time to pull the trigger, law departments who had told me requesting scores was a no-brainer decided more reflection was necessary.

Often times, the ultimate revelation was that the person I was engaging did not have the authority. They may have thought it was a good idea. But it was one good idea among many, and they were not well positioned to fight the internal battle. They had more urgent and expedient places to spend their political capital.

ASIDE: this speaks to one of the extant dangers of attempts to co-opt the vital legal operations movement—a challenge that CLOC and ACC Legal Ops are working hard to address. Personnel with fancy titles at fancy companies don’t necessarily have the attendant authority to fulfill their purported mandate for change. Functionally, they are administrators, not executives, with the power only to maintain current systems, not construct new ones. In this way, many corporate law departments consider themselves ‘doing legal ops’ when all they are really doing is creating one more position designed to cement the status quo (law firms have not secured monopolies on the caste system or innovation illusion).

But the discussion was rarely explicit about the internal politics of change. Rather, I was routed to someone else to make my pitch. They would react with tempered positivity but eventually explain that their firms’ core tech proficiency was not their top priority. They were quite interested in seeing their firms’ scores if their firms were “proactive” but, they explained, when it came to actually making demands of their firms, they were more interested in project management or metrics or knowledge management or…..too bad I didn’t have scores for that.

I believed them. I believed them, in part, because I agreed. Basic tech proficiency is not the biggest problem in legal service delivery. It is a problem well worth addressing. And it is low-hanging fruit—that is, among the simplest problems to solve. But I could not fault anyone for having alternative priorities.

I believed them, in part, because they were saying exactly what I wanted to hear. For me, tech competence was one piece of a more comprehensive program to improve legal service delivery. I wanted so bad for there to be a significant market for people who could address the entire legal value chain by operating at the mesh point between law departments, law firms, and law companies. Because that was precisely what I wanted to do.

I did not leave my day job when the LTA launched. I left when conversations around the LTA convinced me I could sustain myself doing service delivery reviews.

Not that. Not here. Not yet. I was wrong, again. I have been hired to conduct service delivery reviews, but they represent a small percentage of my income. If I had not also been wrong, in a good way, about the other consulting opportunities available to me, the Flaherty Family would be in a bad way.

Discussions about service delivery reviews go much the same way as the dialogue surrounding requests for LTA scores. There is general agreement that problems exist and should be remedied. But, ultimately, there is no appetite to address them in any meaningful way.

The conversation is rarely explicit. Still, my takeaway is that I am among an exceedingly small group (as a percentage) of people who genuinely take the relational view of the legal value chain. In my world, law departments are channel captains and urgency drivers. They must play an active role in integrating processes with their external suppliers in order to create “seamless, cost effective, higher quality workflows.”

By contrast, the people I pitch mostly implicitly subscribe to the lawyer theory of value, which Bill Henderson summarized far better than me: “Because in-house and law firm lawyers are the same people, they have the same go-to move — stand back and let me lawyer….The lawyer theory of value — solving legal problems one at a time with smart lawyers — is an unstated and unexamined preference of lawyers, not a viable long-term solution for the clients they serve.”

I’ve had the same conversation many times. In a variety of ways, in-house departments explain that, with respect to outside counsel, (a) the most important thing is to hire smart lawyers and (b) they already do this exceedingly well. When pressed, they mostly extol the amazing job they’ve done securing discounts. When asked specifically about service delivery—leveraging expertise through process and technology—they mostly abdicate responsibility, falling back on “our firms should do that anyway” regardless of what “that” happens to be.

I’ve had the same conversation so many times that the guidebook I wrote for the ACC has a FAQ responding to the common variants of the above, including:

Shouldn’t we be focused on finding great lawyers?
Should we really have to ask our firms to do things they should already be doing?
Aren’t we too busy to run someone else’s business for them?
Wouldn’t much of this be addressed by a transition to AFAs?
Shouldn’t we use our leverage to ask our firms for deeper discounts on billable rates?

Writing and releasing the guidebook only reinforced, for me, the delta between stated and revealed preference—what we say vs what we do. My biggest fear was that no one would read what I wrote. In competition with that fear, was the horror that everyone would read and hate it. What I should have feared is that people would read it, agree, and then return to doing exactly what they’d always done.I’ve received all sorts of positive feedback. I’ve had law departments send the guidebook to their law firms. I had law firms send it to their law departments. Not trying to sell anything beyond ideas I was sharing for free, it seemed like I was making real progress in conditioning the market.

Except, of course, when I dig below the surface. People volunteer how much they agree with and appreciate what I’ve written. So I ask them how it has changed their organization’s behavior. They mostly respond with a blink/blank stare combination that tells me I have breached social decorum.

They politely explain that they are an outlier within their organization. They only have so much unilateral authority. They have to deal with the less enlightened. Also resource constraints. And finite time. And other priorities. And delicate equilibria….

Change is happening. But how much, really?

I’m pretty easy to dismiss. So was Clearspire.

Mark and I operate outside the window of discourse. Maybe we were both just wrong. Maybe we were both too early (a specific type of wrongness). While ideas once thought extreme are constantly becoming part of the mainstream, most ideas thought extreme remain so. Jeff Carr has a phrase I always butcher about the subsequent course of events being the only thing that separates the visionary from the madman.

But this was an, admittedly, self-indulgent entry in my bullshit arc (1, 2, 3, 4, 5, 6). In a post to come, I’ll tell essentially the same story about alternative fees and diversity, two ‘priorities’ that went mainstream decades ago, boast all-star rosters of prominent outliers, and have yet to move the needle anywhere near anticipated.

What we say is not what we do. Isn’t the notion that we confuse bullshit for action the most generous explanation?

Change is happening. It is good.

My answers are at odds with the market. Yet I persist in believing I am right despite a track record of being wrong. And not just right in the abstract. I trust that reality will continue to conform to my expectations, even if it is slower than I would prefer. I am increasingly convinced that I’ve made a good bet. I may be wrong about the timing and even the particulars, but I have fewer doubts than ever about the direction (see escalation of commitment).

I am choosing anecdotes over data. I, too, extrapolate from outliers, especially since I’ve been fortunate to be one. I’ve been wrong repeatedly and yet, on net, everything has worked out better than I anticipated.

I’ve been afforded the opportunity to do too many cool things. I’ve encountered too many inspiring fellow travelers. I’ve had a front-row seat to too many important trends—legal operations, law companies, strategic sourcing, data science, even robot magic. And, frankly, I am simply not ready to turn in my optimist card and resign myself to the eternal reign of a status quo I consider unacceptable (and which I have convinced myself is therefore unsustainable).

Even the bullshit bolsters my sense of purpose. Many people went to law school because they like to argue. Yet there is little argument about where we are headed. There is plenty of resistance in the particular—not that, not here, not yet. But the resistors dissemble precisely because there seems to be a general acceptance that things will never go back to the way they were. That the New Normal will become simply normal. When, not if, is the question.

Which is an extremely long way of saying, please don’t read me as a cynic. I don’t merely believe we can do better, I believe we are doing better. My reflections on failure and the maddeningly slow pace of change are attempts at tempering my own optimism. The more we see the world for what it is, the more we are capable of steering it toward what it should be.

The full bullshit arc:

______________________________________

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.