January was a busy month on my LinkedIn. Birthday and a work anniversary. The automatic notifications prompted some splendid exchanges with old friends. And I received a few questions worth answering more publicly.
Where you been?
Working. Took the new job at the beginning of 2019. It was exciting at the time. Even more exciting now. But I wanted to do something before I said something. When you spill ink decrying the lack of substance underpinning many discussions of innovation in legal service delivery, you set yourself up to be indicted on charges of hypocrisy (a misdemeanor). I’ve mostly kept my head down and gone about the business of demonstrable progress (to be continued).
When will you write/speak again?
So much to say. But I’ll start with a shibboleth that continues to burrow deeper into my brain despite the fact I’ve been repeating it for years.
Obvious ≠ Simple ≠ Easy
Everything is obvious—once you know the answer (great book, btw). But what is obvious is not always simple. And what is simple is not necessarily easy. Since it’s resolution season, I’ll use the ubiquitous ‘diet and exercise’ as my real-world example with guest appearances by old acquaintances like innovation, AFAs, and artificial intelligence to bring it home to our space.
It’s obvious but not that obvious. While a huge swath of the population acknowledges they should eat healthier and exercise more regularly, most of the thinking beyond that gets hazy despite no shortage of generally recognized motivations. Look better. Feel better. Live longer. These are admirable but amorphous goals that remain mostly aspirational save some short, intermittent efforts to ‘do something’. Relative to the popularity of the topics, the actual incidence of sustained, effective commitment to improved diet and exercise are vanishingly small (far different from nonexistent—in raw numbers, there are many success stories). People have other present, pressing priorities.
Innovation in legal services is similarly admirable and amorphous. It is an aspirational abstraction to which few raise objection. We witness innumerable, repeat vows to innovate (and countless examples of real innovation). But relative to the supposed attention to innovation, the felt impact consistently disappoints. Legal professionals have other present, pressing priorities.
Other present, pressing priorities should not be dismissed. Family, emotional health, work, etc. are legitimate consumers of personal energy and attention. Actually delivering legal services to the people and businesses who need them today rightfully has pride of place among legal professionals. The fundamental attribution error and blame-based narratives are unhelpful in telling the story of clinging to current behavioral patterns.
But it’s not merely being busy. It is also the fact that when you decide to pursue change, the question of how to change gets complicated, in short order.
It’s not so simple. At a high level, ‘eat healthy’ is quite simple—and beyond vague. Imagine tackling the question for the first time and finding, as has been observed by others, that for every diet there is an equal and opposite diet.
Exercise selection is equally taxing (running, lifting, yoga, etc.). Consider the variations (sprinting, 5Ks, marathons; cross fit, powerlifting, Olympic lifting; Ashtanga, Anusara, Bikram) and infinite, often conflicting, advice on training protocols from people locked in internecine squabbles incomprehensible to outsiders. So many people purport to have the answer. Yet the number of answers to sift through is practically infinite.
Then there is the inconvenient facts that weight loss is not the same as fat loss and being lean is not the same as being healthy. People not surviving marathons. The extreme misery of fitness competitors. Yogis hurting themselves. If you are the type of person who wants to do things well, let alone perfectly, you will quickly suffer from information overload. A swift return to the couch is not without its appeal.
Again, plenty of people have successfully improved, and are improving, various aspects of their lives through better diet and exercise habits with a focus on progress rather perfection. The point here is that when the simple notion that ‘something’ should be done gives way to actually deciding what that something is, complexity often intrudes. Complexity can be discouraging for the well-intentioned novice with other pressing, present priorities.
Worse, the conflation of obvious and simple, tends to drive people towards magic bullet (or magic pill) thinking.
Alternative fee arrangements (AFAs) are an example of a pricing innovation from our space. It is obvious enough to lament the drawbacks of the billable hour—or even declare it dead. But when accurate analysis of the shortcomings of hourly billing gives way to devising a suitable alternative, complexity rears its heads.
There are many different fee arrangements, each with their own mix of tradeoffs. The competing options lend themselves not only to different types of matters but to different preference profiles. The lawyer who wanted a simple alternative to the billable hour instead discovers a decided lack of simplicity. Nor is the associated effort without downside risk—poorly calibrated fee arrangements can go very wrong. It is no wonder that so many revert to the default. Hourly billing is immediately familiar and accessible to anyone under pressure to get moving on the matter itself.
Selecting the right AFA entails hard thinking, hard choices, and, often, hard conversations. Not impossible. These occur every day. Successful AFAs are common enough. But there are comprehensible reasons their penetration comes nowhere close to the revolution that has been consistently predicted for the last four decades.
Moreover, even the successful implementation of AFAs is not a panacea so often imagined. Change the incentives, change the world. The interplay of incentives governing legal service delivery is far more intricate than simply switching fee structures. Many complementary conversations and attendant behavioral changes remain necessary. There are no magic bullets.
It’s not that easy. Determining an optimal diet and exercise plan may not be simple, but there are still many small, simple choices that have a positive impact on health outcomes. For example, in almost every instance: don’t eat the donut.
If you are trying to eat healthier, it is obvious you shouldn’t eat the donut. It is also quite simple. Just don’t eat the donut. But it isn’t easy. Donuts are delicious.
It isn’t easy Monday morning when the donut is fresh. It’s even less so Monday afternoon when a crazy day and a lunch salad have left you peckish. It isn’t easy on Tuesday when, instead of the donut, cookies presents themselves. Or Wednesday introduces a co-worker’s birthday cake. Or Thursday brings your colleagues’ invitation to happy hour. Or Friday screams out for comfort food after a long week. Or Saturday…
Adherence is often a far greater obstacle than diet selection. Our environment of caloric abundance conspires against our best intentions. Through millennia of scarcity, we evolved to eat what is in front of us. Now, delicious, calorie-dense food is constantly in front of us—most of it expertly engineered to light up our dopamine receptors like a Vegas slot machine.
Our work environment is similarly calibrated. We are trained to do the work in front of us. And there is always work in front of us.
Take the perspective of a busy legal professional and start to stack all the seemingly simple tasks we pile on top of one another. Capture your time. Upload documents to X repository using Y naming convention. File your matter-specific emails here. Contribute to this KM initiative. Attend, and pay rapt attention in, these trainings. Read and process these organizational updates. Keep up with trends in your practice area(s). Serve on this committee….oh, and, constantly innovate while simultaneously adopting and adapting to the innovations introduced by others!
In isolation, all simple and doable. In aggregate, overwhelming while also being subordinate to the work itself.
Which is not to say we can never expect people to modify their behavior or build new habits. Rather it is to observe that sustainable change is far less straightforward than merely recognizing benefits will follow therefrom. Sustainable change at the organizational level is an order of magnitude more challenging. Sustainable behavioral change often requires a new mindset grounded in a shift in identity. It requires new skillsets in navigating complex environments and coping with constant change. It requires new systems that eliminate waste masquerading as necessity. It requires tradeoffs, prioritization, and discipline. It is feasible. It is achievable. But not obvious. Not simple. Not easy. There are no magic bullets.
An exercise in empathy. Would-be change agents can quickly become frustrated and fall back into self-righteousness. There is a natural tendency to focus on how right we are—and, correspondingly, how wrong everyone else is for not listening to us. But anyone familiar with my writing knows I am keen to reflect on how wrong I’ve been. In particular, I try to interrogate the gaps in my mental models that lead to inaccurate predictions about the pace, scale, scope, and shape of change in the legal market.
Self-reflection engendered my affinity for Obvious ≠ Simple ≠ Easy. My operating assumption is that anything obvious, simple, and easy is already in effect. Thus, if I look at a particular problem and think to myself the solution is all of those (happens frequently on a gut level), I am the one in error (so critical to not believe everything you think). I then use the lens of O≠S≠E to work through the problem and identify the errors in my thinking—not to dismiss my initial thought, but to refine it in order to make it workable.
A supposed antidote to natural stupidity. I’ll conclude with artificial intelligence as a final example.
At a certain level of abstraction, the proposition that AI should be applied to the delivery of legal services is obvious enough. AI automates knowledge work. Law is knowledge work. Therefore AI should have an impact on law.
Fair enough. But also fairly facile. To identify actual actionable overlaps, you need to know a decent amount about both law and AI. Most people focused on the day-to-day delivery of legal services do not possess such knowledge—nor should we expect them to. Thus, anyone who has observed (as I surely did once or twice in my wayward youth) that the application of AI to legal work is obvious is making a uselessly broad statement, has no idea what they are talking about, or is omitting a key qualifier: “obvious to people like me.”
Moreover, the constant refrain that the introduction of AI to legal service delivery is obvious has the effect of making it seem simple to the uninitiated. You just buy some AI, turn it on, and reap the rewards of the resulting magic. But anyone who has actually been involved procuring an AI solution can attest to the rigor required to identify a tool fit to purpose given the diversity and variety of options (see here). Simple it is not.
But even if you identify the right tool, it won’t be easy. You need clean data. You need to test and train. You need workflows and quality controls. You need to design, build, and iterate a well-structured process that maximizes the upside and minimizes the risks of the particular tool selected and ensure it is calibrated to context of the specific job to be done. Ultimately, you want to make this feel effortless and intuitive to various stakeholders. But the effort required to make work seem effortless can be extraordinary. It is not easy.
It’s been done. It’s been done well. Repeatedly. We have decades of successes. We have many more successes in front of us. But those successes have been, and will be, hard earned. What can be said of AI, can also be said of AFAs, knowledge management, workflow automation, contract lifecycle management, and all the other ‘basics’ of modern law practice. Even project management—which I may need to address soonish given how much territory in my brain that topic now occupies.
The hard thing about hard things. We do hard things well all the time. We, however, have a natural inclination to then present them as more accessible than they are. Wanting innovation to spread is an act of generosity. Indeed, many innovations exist because some well-meaning soul was initially convinced it was obvious, simple, and easy, then learned it was none of those but persisted anyway.
My aim is not to discourage all happy talk. I do, however, think we need to become better storytellers. We are drawn to tell innovation stories along the lines of this is great, quick, and easy as a way to make the journey attractive to potential fellow travelers. The countervailing impulse to share our struggles, however, tends too far towards this is inhumanely difficult (and therefore praiseworthy) to a degree that runs counter to our collective interest in promoting better behaviors. The sweet spot of this is hard but doable and worthwhile does not always land but is effective when it does.
We (well, me) need to get better at constructive realism not only in the stories we tell but in how we react to the stories others tell themselves. I have been guilty of offering unqualified encouragement to someone who wrongly thought the path before them was obvious, simple, easy. I liked their destination and did not want to be a buzzkill. I have likewise been guilty of accurately pointing out the flaws in lovely plans for the same reason—I wanted to help them avoid pitfalls. But I’ve introduced real talk in a way that dampened the innovation impulse rather than redirected it.
Not all failures are failures of imagination. Not all failures are failures of willpower. We fail for many reasons. Fit. Timing. Design. Planning. Execution. Change management….We succeed for the same reasons. That’s the hard thing about hard things. There are few easy answers. Nor many obvious or simple ones. But there are answers. Obvious ≠ Simple ≠ Easy. Yet:
Complicated ≠ Hard ≠ Impossible
While we may have had a tough time pronouncing things correctly, this week’s guests said all the right things when it comes to being a leader within their organizations. Laura Toledo, Communications and Marketing Manager at Nilan Johnson Lewis PA in Minneapolis, and Kevin Iredell, Chief Marketing Officer at Lowenstein Sandler LLP in New York, discuss their year-long experience in the SmithBucklin Leadership Institute. Both are leaders within the Legal Marketing Association, which sponsored their attendance at the institute. While people in leadership positions may feel that they need to have all the answers, Toledo says that she learned it is okay to be patient and learn more about the situation before just going with her gut reaction. Iredell stressed that the key to being a great leader is making sure that you’ve given those who report to you all the tools and support they need in order to succeed. The Institute brings together leaders from different industries and helped both of our guests understand that the legal industry does not have a monopoly on stressful situations and the need for solid leadership. Take a listen, and learn more from their LMA article, “Leadership That Pays it forward.”
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Greg points to a recent TED talk article from Tomas Chamorro-Premuzic called “Why do so many incompetent men become leaders? And what can we do about it?” The article and video are about as harsh as the title implies. While Chamorrow-Premuzic takes liberties at the expense of men, pointing out that the traits of bad leaders skew toward men, the traits of a good leader do not have a gender bias. We have a tendency to value confidence over competence, narcissism over humility, and the belief that leaders can do anything rather than know their limitations. This inspiration dovetails nicely with our guests today. Continue Reading The Geek In Review Ep. 64 – The Leadership Journey with Laura Toledo and Kevin Iredell
Last Friday evening I attended Winter Jazz Fest, an annual New York City tradition that sees hundreds of performers playing a dozen or more venues over a few nights each January. I made it to 5 concerts at 5 separate venues in the Village before finally hailing a cab and heading back to Brooklyn at 1AM on Saturday morning. All of the acts I saw were memorable. Some of them were amazing performers. Some played incredible music. I would likely go out of my way to see one or two of them perform again, and dare I say it, I may even (gasp) BUY an album or two. However, by far, the most remarkable act I saw that night was The Legal Innovation Project.
Of course, that was not actually their name, but T-LIP, as I have come to call them, played a brand of technical speed jazz reminiscent of a frenetic Spyro Gyra on Quaaludes. It’s not my favorite style of music and I don’t know that I would have enjoyed simply listening to their session, but watching the interaction between the musicians on stage was Epic Theater beyond anything Brecht ever achieved and would have justified the cost of the festival ticket on its own.
The drummer and the bassist were mostly heads-down, steadily plowing forward, seemingly unconcerned with (or possibly unaware of) anyone else on the stage. The pianist intermittently slapped at keys, his eyes darting back and forth over sheet music laid flat across the open Steinway. Two soloists, unfortunately out front and facing the audience, stared intently at music stands in front of them. They would occasionally half-turn and give each other furtive glances of confusion. Every once in a while, one would raise an instrument and blow a few tentative notes that appeared to have no relation to the chords or beat being laid down by the rhythm section. Continue Reading The Hep Sounds of The Legal Innovation Project
With the new decade comes a new tagline for The Geek in Review introduction. Let us know what you think of the change.
Ellyssa Valenti Kroski is the Director of Information Technology/Director of Marketing at New York Law Institute and is the editor of the new book, Law Librarianship in the Age of AI. Whenever there is a monumental shift in technology and processes, there will be winners and there will be those who are left behind. The authors of this compilation give the readers a path to better understanding what Artificial Intelligence is, and what it isn’t. Ranging from the basic understanding of AI concepts to listing specific tools occupying the AI space within the legal industry, to the benefits, risks, and ethical issues surrounding the tools, this book covers a lot of ground. It’s definitely worth checking out.
In addition to the book, Ellyssa discusses her other books and projects, including makerspaces and using escape room activities for professional development and end-user training. She will be running an escape room event at the Ark Group’s 14th annual Law Firm Library, Research & Information Services in New York, NY, March 12-13, 2020. The escape room is called Escape the Library: The Search for Alexander Hamilton and the Missing Librarian: A Time Travel Adventure. Apparently, Alexander Hamilton did not die from his duel with Aaron Burr but is actually a time-traveler. Whether true or not, it sounds like a lot of fun. Attendees can get a 20% discount on the conference by entering the code “ESCAPE” when registering.
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We’ve covered how BigLaw is adopting the Mansfield Rule to increase diversity within the ranks and is basing that rule upon the National Football League’s Rooney Rule. Hopefully, BigLaw does better than the NFL has. When the Rooney Rule was adopted in 2003, there were three black NFL head coaches. At one point, that improved to eight. However, habits persist and after nearly seventeen years in, the NFL coaching ranks are back to exactly where we started. Three. If BigLaw is to do better, it must be vigilant, and firms not complying should be called out.
Marlene’s inspiration discusses what happens when your career so encompasses your life, that you can’t separate yourself from your job. In a recent Harvard Business Review article, author Janna Koretz discusses the effects of what psychologists call “enmeshment” where professionals are so intertwined with their career identity, that they lose their self-identity. She describes ways to understand if your identity has become enmeshed with your career, and methods to break free of that enmeshment. The example she uses is a partner at a large firm, and we all probably know that this type of career/personal identity enmeshment is very prominent within the legal industry.
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Please take the time to rate and review us on Apple Podcast. Contact us anytime by tweeting us at @gebauerm or @glambert. Or, you can call The Geek in Review hotline at 713-487-7270 and leave us a message. You can email us at firstname.lastname@example.org. As always, the great music you hear on the podcast is from Jerry David DeCicca.
A recent mini-epiphany got me thinking again about legal innovation. This epiphany came during a review of some survey results on the culture of large law firms. And like many epiphanies, it came from just one small comment, which served as the straw.
The survey was of law firm business professionals on their roles and challenges within big firms. Most of the responses talked about how they are primed and ready to drive change. The one small comment, paraphrased, noted that lawyers, especially partners, will not tolerate failure or imperfection.
This is nothing new for law firm professionals. However, in this context, the message for me was that innovation will be punished unless it happens without any failures or hiccups. This is of course anti-innovation. Innovation is a process of experimentation, working through mistakes to find solutions that meet needs.
So yet again, I am bearish on innovation in the legal profession. The people with the skills and desire to help law firms change have a serious incentive to sit and wait to be asked for some assistance. Raising your hand can lead to bad consequences. So why do it?
I apparently am a slow learner because I continue to not only raise my hand but move forward with change initiatives. There are a number of like-minded people out there. That being said, the real problem is that this strong disincentive to change is built deep into the culture of firms. Lawyers (rightly so when it comes to client output) are very focused on eliminating risk (a.k.a. failures). But they then carry this culture deep into the business side of their firms, many times crippling the very efforts they will need to sustain their businesses.
And I started off the year so optimistic about 2020.
Oh well – I made it to January 6th.
While we try to put out a Geek In Review podcast episode weekly, we average about 40 episodes a year, so the math tells us that we skip a week every month. Still, not too shabby if we say so ourselves.
We have a number of interviews and ideas lined up for 2020, but we wanted to take a quick look back one last time at 2019 and point out a list of episodes that were popular with our audience. If you haven’t had a chance to listen to them yet, give it a try and let us know what you think.
Before we start the list, we wanted to thank all of our guests who have taken the time to talk with us and put up with the joys of building a garage band style podcast… and all the technical difficulties that entails. We’d also want to thank Jerry David DeCicca and Eve Searls for the music that you hear on the podcast.
Let’s jump into the ten most popular episodes:
Number One: The Pros and Cons of Working Remotely
We have twelve stories from legal professionals and what they see as the benefits and detriments of working from non-traditional spaces.
Number Two: Data Science Superhero
Jennifer Roberts discusses her work as a Data Scientist in the legal field. She thinks that law firms are just scratching the surface when it comes to the value of data. Continue Reading Top Ten Geek In Review Podcast Episodes for 2019
The cost of legal education is simply too high, and cannot be maintained.
Technology has to be leveraged within the educational curriculum to help future practicing attorneys to do more work, charge less, and make more money in the end.
Regulations have to be focused on the outputs of legal education, and be given teeth so that students are more likely to succeed.