First, the obligatory nod to On Bullshit. For the academically inclined, there is subversive fun in being able to deploy “bullshit” as a term of art. The custom is “bullshit” does not constitute profanity if you dutifully cite Harry Frankfurt. To summarize Frankfurt:
The liar aims to deceive. The bullshitter aims to persuade. The liar intentionally distorts the truth. Truth is incidental to the bullshitter, who may occasionally stumble on the truth by accident.
Because my consulting includes convergence initiatives and preferred provider programs, I am top-tier consumer of law firm marketing bullshit. I am a bullshit connoisseur. I am not here simply to complain and lambast. I am also here to defend (sort of).
This meditation on law firm marketing bullshit was prompted by a fantastic new project from Michigan State Law. Dan Linna and crew have done a service for the ecosystem with their Legal Services Innovation Index (great coverage here from Bill Henderson). Dan is too humble with caveats about minimum viable product, Phase 1, Version 1.0…..This is an unalloyed good.
But the caveats are understandable. Immediately following the announcement, a favorite follow among the Twitterati had a good-natured exchange with Dan about the “Law Firms Focusing Marketing Efforts On ‘Innovation’ Offerings Index.” The Law Firm Index is predicated on keyword searches of law firm websites. Harkening back to the salad days of SEO, it is easy to envisage the Index initiating a game of perpetual bullshit buzzword bingo. I already had a law firm friend comment that the Index would inform his firm’s website refresh.
Yet—and I know I’m rocking some worlds here—just because it is on the internet, doesn’t mean it is true. Statements on a law firm website are not necessarily representative of the law firm’s regular operations. Law firms are fecund sources of bullshit.
The volume and velocity of bullshit are especially high when large law firms position themselves as innovative. Two examples:
- Any notoriety I may have started with my unorthodox practice of conducting site visits at law firms, especially my findings that legal professionals are terrible at using core technology. But these service delivery reviews are much broader than basic tech—process, staffing, knowledge management, project management, automation, analytics, etc.
When I conduct site visits, I am often armed with RFI responses. I always read the firm website. I also use the Google. I therefore walk into the firm with a sense of how the firm tries to present itself to the world, especially regarding process, technology, and innovation.
- But I don’t ask about innovation at first. Instead, I have associates and paralegals walk me through how they actually perform the work for which they are billing my client. Only at the end of the exercise, if they haven’t touched on it (and they rarely touch on it), will I ask them how the firm’s widely publicized, award-winning initiatives around X affects their work for our mutual client and why it was not evident in the workflow they just demonstrated.
- As with so much else in my life, I elicit blank stares. Sometimes, they’ve read the same articles I have. But that’s about it. To the extent X is more than just talk, it exists elsewhere in the bowels of their large enterprise. There is no felt impact. And there is no expectation of future impact. As far as the labor is concerned, the firm hyping X is performance art, and I am a sucker for even asking about it.
- In a similar vein, a GC I know was reading about all manner of innovative initiatives from the law firms he employs (AI Robot Magic!!!!!!). So he called them. He asked the firms to present to him on these initiatives with a specific emphasis on how the initiatives enhanced the work the firms did for him. The firms demurred. They admitted it was mostly PR and there were not yet any concrete benefits worth discussing. They seem surprised he asked. But the firms were less shocked than his fellow GCs, who could not imagine what would possess him to waste his time on such an exercise.
As I’ve said many times, it is not that innovation does not happen in law. Innovation is everywhere. Our problem is sustainably scaling innovation.
Large ‘innovative’ law firms are not pure PR constructs. But most insiders I talk to suggest it would be generous to put the ratio at 15% innovation to 85% PR. The PR machine often collects genuine innovative efforts occurring in disparate corners of the firm and spins them into a seemingly coherent narrative that suggests systemic adoption. PR then perpetuates the narrative for years after the subject innovations have failed to spread beyond the early adopters. If you hire the actual team that won the awards, you have a fair expectation of getting what is advertised. If you hire some other team in a large firm, awards have minimal informational value.
In the abstract, I don’t mind a little bullshit. There is potential for a virtuous cycle where clients seek firms based on purported innovation and thereby incentivize scaling innovation. But that only happens if clients demand to experience (and measure) the fruits of innovation—i.e., unless you ask. Selecting a firm merely because they have a reputation for innovation only reinforces the viability of a high sizzle-to-steak ratio.
In the particular, I often find bullshit useful. When I am reviewing RFI responses, I know I am consuming a fair amount of bullshit. But it is informative bullshit and, ultimately, bullshit I can work with.
There is substantial variation in the quality of the bullshit. Many firms clearly have no idea what they are bullshitting about. They unintentionally present as parodies on par with O’Magawd Mikoreer Izova. Other firms say all the right things. Their bullshit is on point.
Saying all the right things is never enough. But it’s a start. It’s an indicator that someone at the firm gets it. It’s a signal that if a client is committed to weaving continuous improvement into the fabric of a deep supplier relationship, they would, at the very least, be able to enter into a constructive dialogue with the firm.
And, while weak, the words are also a form of commitment. Even if it is mostly bullshit, a firm that tells a client they ❤ AFAs or project managers has more pressure to deliver if that client asks for AFAs or project managers. Although RFI responses are written in the present tense, I often read them as markers as to what the firm might do with sustained client engagement.
The quality of bullshit is one filter among many. It doesn’t help identify the right firms so much as assist with eliminating the wrong firms. It is a step in strategic selection. Though not decisive. Bullshit should never be the final word.
I can imagine a near future where law departments narrow firms based on expertise (the threshold consideration) and then use Legal Services Innovation Index 3.0 to inform (i) which remaining firms to talk to and (ii) what to talk to those firms about. While I would welcome additional forms of measurement, this would still be an improvement on the status quo. But only if it leads to engagement on innovation and service delivery. Not if the words on the webpage are treated as dispositive.
The tide is turning. Slowly. Law departments are keenly aware of law firm inconsistency. Many law departments are therefore increasing focus on process- and technology-enabled legal service delivery. Some are making great strides. But most still struggle to articulate what they want. Innovation, value, efficiency, cost-effectiveness….by themselves, these are vague demands. Ambiguity is an invitation to bullshit. We need to get concrete. Measure. Ask. Inspect. Discuss. Act. Repeat. Or something like that. Whatever it takes to flip the ratio. 85% real innovation to 15% PR should be our aspirational goal.
Again, I expect a little bullshit here and there. I am a regular purveyor, though still too circumspect to ascend to true bullshit artistry. Without the ballast of bullshit, my writing would be an endless parade of caveats, conditionals, and qualifications (and my posts are already too long). Modest overconfidence can enhance readability. Modest overstatement can raise the bar. But the legal market exceeds the bounds of reason. Our bullshit is a barrier to innovation.
Bullshit has become so endemic that everyone from the associates to the GCs in my examples couldn’t understand why anyone would deign to question it. There is such a quantum of bullshit that we are breeding cynics who presume everything is bullshit. It ain’t all bullshit. There is real innovation. But the prevalence of bullshit causes the marketplace of ideas to malfunction. Real innovation ends up buried under piles of bullshit.
Yet it’s not accurate that ‘everybody knows’ it’s all bullshit. Many have started to believe their own bullshit. We’ve cultivated the illusion of innovation where constant chatter about innovation in and of itself has convinced partners that their firms are innovative (I’d submit the same is true of law departments, but I don’t have the study to back that up). Our bullshit has gone too far when we can no longer recognize it as bullshit.
The full bullshit arc:
- On Law Firm Marketing Bullshit
- More Law Firm Marketing Bullshit (Door Law Edition)
- Law Firm Marketing Bullshit—Tier 3
- Law Firm Marketing Bullshit—Tier 2
- Law Firm Marketing Bullshit—Tier 1
- Law Departments and the Foundations of Law Firm Marketing Bullshit
- Me Being Wrong (More BS)
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 firstname.lastname@example.org.
*An excerpt from Frankfurt’s classic essay “On Bullshit” follows. The full essay is here. The subsequent book (a great read) is here.
This is the crux of the distinction between him and the liar. Both he and the liar represent themselves falsely as endeavoring to communicate the truth. The success of each depends upon deceiving us about that. But the fact about himself that the liar hides is that he is attempting to lead us away from a correct apprehension of reality; we are not to know that he wants us to believe something he supposes to be false. The fact about himself that the bullshitter hides, on the other hand, is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor co conceal it. This does not mean that his speech is anarchically impulsive, but that the motive guiding and controlling it is unconcerned with how the things about which he speaks truly are.
It is impossible for someone to lie unless he thinks he knows the truth. Producing bullshit requires no such conviction. A person who lies is thereby responding to the truth, and he is to that extent respectful of it. When an honest man speaks, he says only what he believes to be true; and for the liar, it is correspondingly indispensable that he considers his statements to be false. For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.