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.
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 bullshit post about how the legal market is not a morality play.
Right now, however, I’ve got to give the people what they want. And what the people want, apparently, are bullshit anecdotes.
I regularly mainline large quantities of pure legal marketing bullshit akin to:
The term “proficient” is ambiguous. Ambiguity is an invitation to bullshit. And lawyers are masters at uncovering ambiguity in everything.
Take, for example, the seemingly simple question of whether a law firm practices a kind of law in a specific location, say: Does the firm practice pet law in Austin?
Half my readership will consider that a straightforward Yes/No question. The other half will recognize it as a bundle of ambiguity. Because it is ‘ambiguous’, the percentage of firms that would respond Yes to that question is astounding. It makes no difference that their lawyers (a) are not located in Austin and (b) didn’t know pet law is actually a thing (yeah, it is).
Their rationale: We’re truly talented lawyers who have handled a wide variety of cases. Pet law can’t be that hard/different. Austin has an airport. We have relationships that can get us in pro hac vice and serve as local counsel if litigation is involved. We could absolutely do a fabulous job on a pet law matter in Austin. Really, we’re so excellent that it would be a disservice to the client to let them go with another firm.
Importantly, that reasoning is not entirely faulty. I have witnessed many lawyers step into unfamiliar areas of law or new locations and perform more than competently.
Indeed, there are additional layers of ambiguity because clients regularly prefer to pay incumbents to stretch/travel rather than incur the time and attention costs of on-boarding and ramping up a new firm. This issue is particularly tricky in convergence initiatives where the objective is to consolidate the number of firms, which frequently involves trade-offs where fewer firms are covering larger territories or broader remits. At the outset of the convergence, the client itself might not even have a set view on its approach—i.e., general, specialty, local, state, region, national, and/or global panel(s)—so the expectations are genuinely ambiguous.
Then again, come on! This is my point about bullshit gone too far. It is one thing to stretch a little; another to do what my great friend Dera Nevin refers to as “door law.”
In some future post, I’ll discuss how to frame better question and elicit more concrete answers than the Y/N formulation of the pet-law-in-Austin query—how many X matters in Y location within Z period. Numbers reduce ambiguity. I’ve seen many law firms (including BigLaw) withdraw from consideration when asked to quantify their purported experience.
Yet I understand the allure of this strain of bullshit more than I care to admit. Because you know who holds the Bullshit Championship Belt? Not law firms. Not clients. Vendors/Consultants [I’m both] dominate the Bullshit Division.
As a vendor, it is tempting to respond to every inquiry about an absent product feature with: What a brilliant question! That feature is on our roadmap and should be in the next release coming in the near future. Sometimes it’s true. But, often, it is either bullshit or a bad habit that results in a bullshit product (feature creep). Still, it is so hard to tell a potential client that the ‘missing’ feature on which their purchase appears to turn (also, frequently, pure bullshit) is ill suited to your offering. In the moment, bullshit seems like the path of least resistance.
As a consultant, I constantly suppress my natural reaction—“Yes! Absolutely! No problem! 100%!”—to a client asking me if I can do something, anything, for them. I can do many things. But, just between us, I am not omnipotent. I hate to disappoint. I feel the pain of admitting I might not know everything about everything. There is a piece of me that wholly believes the partial truth that hard work and fluid intelligence can overcome deficits in acumen and experience. And I have mouths to feed. Bullshit is a natural, self-serving ego-defense mechanism.
At this point, I have enough self-regard and self-doubt to say No more often than I say Yes. But I will forever struggle to identify the less-than-bright line between a healthy stretch and perilous overreach.
Which is why I respect law firms so much when they demonstrate discipline and restraint.
Because they occupy such rarefied air, firms like Wachtell and Cravath don’t get nearly as many plaudits as they should for staying in their (admittedly lucrative) lanes. Would-be competitors crave the benefits of brand differentiation and are quick to adopt the trappings of elite status (see associate salaries) but, again and again, won’t make the hard choices.
At the same time, many firms won’t admit, even to themselves, what they are. Brand-differentiated firms that command top rates for price-insensitive work are in an enviable position. Enviable, not universally replicable. There is some room at the top. Some firms operate there. But only so many. The pyramid is inverted.
There is money to be made, other ways and elsewhere. There are a variety of viable business models. But it is not feasible to successfully pursue them all simultaneously. It is self-delusional bullshit to believe you can be all things to all clients.
The smack I was just talking about firms that drop out of the running for work when asked to quantify their relevant experience. I give a corresponding amount of credit to firms that abstain when the work available does not fit their brand direction or business model.
I encourage my clients to be as transparent as possible with firms as to what tranches of work the firm is being considered for, as well as the attendant historical matter composition/volume. Every now and then, firms will come back and politely decline. Good on them. It is hard to say no. It is especially hard when you’re already in a revenue-producing relationship.
The most heated exchanges I’ve had in recent months have been with some respected peers over the contentious end to the relationship between Quinn Emanuel and Uber. Some see it as the height of law firm hubris and complacency. Faced with fixed fees, Quinn (supposedly) didn’t have the flexibility to adapt its service delivery model to make the work (sufficiently) profitable. Others see it as a public example of clients’ unreasonable expectations. Clients (supposedly) demand top-tier service at bottom-tier prices. A Four Seasons experience for Motel 6 rates.
I have the benefit of no knowledge of the Uber/Quinn situation beyond what’s been reported and therefore feel uncompelled to take sides. Why does it have to be someone’s fault? Why can’t it just be a bad fit? What’s wrong with ending a relationship when it doesn’t turn out as expected? There are no kids. They didn’t buy a condo or get a dog. Both were seeing other people.
While I am the proponent of structured dialogue between law departments and their firms, I don’t believe all differences can, or even should, be reconciled. Finding the right long-term fit would be so much easier if we stop bullshitting ourselves and each other.
Speaking of bullshit (which, temporarily, is my shtick). I promised anecdotes, plural. That was bullshit. I got in one before achieving a word count that will cause Commandant McClead to scream at me for verbosity, again. I’ll include more anecdotes in the next bullshit post.
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 email@example.com