A law firm recently did something I like.

This occurs more frequently than might be expected from the guy who calls bullshit (see Parts 1234 of my bullshit series). I’m the first to admit, however, it isn’t bullshit all the way down. Efforts to reduce bullshit are only useful if the bullshit is obscuring or obstructing real progress.

Per an article in LegalWeek (h/t Ron Friedmann), Clifford Chance saved £15m as part of a continuous improvement initiative that combines “black belt coaches” and legal project managers. The coaches assist in the design phase of deals to keep costs down while maintaining quality. The LPMs are the interface between the lawyers and low-cost providers.

I support every part of this. From recognizing the valuable contribution of expert allied professionals to integrating alternative providers into the delivery of multi-sourced legal services, I have nothing negative to say.

Instead, I will take this unalloyed good and distort it for my own purposes. Witness how easily I transform beauty to bullshit.

RFI Question: Tell us about your approach to process improvement 

RFI Answer: The firm has continuous improvement initiative that combines “black belt coaches” and legal project managers. The coaches assist in the design phase of deals to keep costs down while maintaining quality. The project managers are the interface between the lawyers and the low-cost providers with which the firm partners.

I use this example because I have never reviewed an RFI response from Clifford Chance. Ever. The only takeaway from this blog post vis-a-vis Clifford Chance is that the firm achieved something praiseworthy and is building on their success. They earned their headline. And I would not expect the firm to respond to an RFI as above.

But what if a similar firm did? How can the truth be bullshit? There is no reason to doubt the veracity of the statement, which is responsive to the question.

Again, truth is incidental to bullshit. The bullshit imperative is persuasion. Bullshit is unconcerned with accuracy except insofar as selective accuracy enhances persuasiveness. The problem with the above is not untruth but the failure to situate the truth in context.

The context of mega firms like Clifford Chance is £1.54 billion in annual revenue from 2,500 lawyers. £15m in savings is less than 1% of revenue. With only 14 coaches/LPMs involved in the program, the ratio of lawyers to support is 179-to-1 (for comparison, the ratio of lawyers to marketing personnel is likely closer to 11-to-1). Given the relative size, it is unsurprising that the program is voluntary. Lawyers have to request assistance.

A genuine exchange—the kind of candor I would expect from a brand-differentiated firm like Clifford Chance—would be closer to:

RFI Question: Tell us about your approach to process improvement 

RFI Answer: The firm has been building a continuous improvement program that combines “black belt coaches” and legal project managers. The coaches assist in the design phase of deals to keep costs down while maintaining quality. The project managers are the interface between the lawyers and the low-cost providers with which the firm partners.

We’ve attached a slide deck that delves into specifics of how the program functions and provides real-world examples of measurable savings for clients. 

The initiative is effective (our # projects saved clients £15M last year) but limited (14 allied professionals). At present, the lawyer working your matter must request support. The level of support provided will then be contingent on geography, availability, and appropriateness to matter type.

We are in the process of expanding the program (we plan to add # new allied professionals this year). To the extent justified by the revenue from the relationship, we’d be happy to discuss ways to grow the program in a direction that meets your specific needs.

As advertising copy, that’s not great. But, for me, we are supposed to be well beyond advertising at the RFI stage.

The “for me” is doing some heavy lifting in that last sentence. Most firms operate in perpetual marketing mode and are committed to submitting pure sunshine. And, if we are being honest, many clients would rather receive saccharine statements that suggest their law firms require minimal supervision.

Next post will be all about client bullshit. But take a moment to reflect on the implications of “happy to discuss.” Talking with firms is work. It demands time and attention from people who are already busy. And, in all likelihood, talking would be insufficient. Talking would need to be followed by some sort of doing to bear fruit—structured dialogue, sustained attention, measurement, feedback, accountability….maybe even regular site visits.

Here, however, I want to bring it back to me. What do I do when I receive something like the first answer above and strongly suspect that bullshit is a primary ingredient? The answer may surprise.

I, of course, aim to inoculate answers from bullshit. A composite of some general RFI instructions:

The questions that follow are deliberately broad and open ended. Your answers should not be.

We prefer metrics. Be concrete and specific. Vague reference to your commitment, vision, or efforts in a specific area is not helpful unless accompanied by identifiable changes in behavior and measurable improvements in service delivery.

For example, you may deploy document automation. Citing document automation may be appropriate in one or more response. But such a discussion should be informed by statistics on usage and update frequency with concrete examples of where document automation has been (or will be) utilized on work product for [organization].

Or you may have a project management program. Describe it in the particular and support the description with numbers. How many project managers do you have relative to your overall headcount? Under what circumstances are project managers assigned to client matters or portfolios? What role do project managers play in legal service delivery? What quantifiable dividends does the program provide for clients like  [organization]?

While a program may be worthwhile for the firm in general, that in and of itself does not make the program useful to [organization] in the particular. If you mention an program, supply the evidence necessary to establish the benefits to [organization].

I probably don’t need to tell you that these instructions are mostly ignored. I receive general descriptions almost always devoid of informative numerical content.

Answer quality is so consistently poor I’ve had to temper my grading. Scores are based on relative, rather than absolute, merit. Even without grading on a formal curve, the average grade is already a C. If I were to judge firm responses against my Platonic ideals, that average would likely drop to a D. My instincts are unreasonable. My practices are pragmatic—giving quarter because these types of in-depth service delivery discussions remain relatively rare.

I award high marks for excellent answers even where I strongly suspect the grade is not justified by the underlying reality. I, for example, have given several A’s on the topic of knowledge management even though I know first hand KM is an area where theory and practice often diverge:

Knowledge Management. How do you systematically reuse work product to lower costs and improve quality (e.g., brief banks, clause banks, wiki-like research repositories)? How do you identify and tap discrete internal expertise (e.g., locate and incorporate personnel experienced with a particular statute, judge, regulation, or regulator)?

Explain your processes and protocols for creating, tracking, and leveraging institutional knowledge. How do you identify knowledge capital, organize it for use, and minimize its loss from personnel turnover? How do your efforts in this regard measurably benefit clients like [organization]?

One response, in particular, stands out. The response itself was solid but not spectacular. The firm highlighted a process for tracking variations in a particular type of document and, where appropriate, updating an automated playbook to guide future document generation. Pretty standard. But the document type was directly relevant to the work for which the firm was being considered. And the firm’s answer was superior to their competitors.

What makes the answer memorable is a meeting on the day I graded the response. I had lunch with an in-house attorney who, coincidentally, was a firm alumna. Without mention of the pending RFP, the conversation flowed to a place where she described a knowledge management program she’d initiated at the firm—i.e., the program from the response. Unprompted, she lamented how underutilized the program was while she was at the firm. She was further saddened by reports that the program had fallen into complete disrepair since her departure.

I had strong testimonial evidence that the firm’s RFI response was bullshit. I left the firm’s grade the same.

I noted the conversation in my evaluation. But I did not change the grade because, ultimately, I was grading the answer, not the reality. This hurts my soul.

It was a dilemma. I still doubt my decision. I proceeded with what I considered the least bad option under the circumstances. I kept the playing field level.

I presumed every firm was pedaling varying degrees of bullshit. That my priors had been inadvertently confirmed about one firm strengthened my conviction with respect to the others. Was it equitable to punish the one firm because I knew rather than suspected? I decided it wasn’t.

I am wide open to criticism on this point. I rewarded bullshit that I knew was bullshit because it happened to be good bullshit.

While I am a bullshit connoisseur, I am not the Sherlock Holmes of bullshit. I’m not always able to penetrate its mysteries even when I have strong, empirically grounded suspicion I am being played—i.e., unless I am empowered to go beyond the four corners of the document [cough, site visits, cough].

Yet the quality of the bullshit itself remains valuable. Which brings this series full circle. In the first post, I mounted a partial defense of law firm marketing bullshit:

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.

Tier 3 bullshit is transparent nonsense. Tier 2 bullshit is superficially attractive but does not withstand scrutiny or reflection. Tier 1 bullshit suggests genuine understanding. But the gap between knowledge and action remains. Tier 1 bullshit should be read as an indication of latent capacity rather than a representation of current practice.

The anonymous firm from above had created the program they included in their RFI response. And, if utilized, the program would benefit the client. The pieces were in place. Yet it remained incumbent on the client to activate the change in behavior and then pay sustained attention. This is not a message most clients want to hear.

I adore but frustrate my in-house friends. I refuse to let them off the hook. They are channel captains, not retail purchasers. The distinction demands an uncomfortable level of engagement—moving sophisticated clients from the simple binary of loyalty or exit to the real challenges of constructively using voice.

More on that next 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 casey@procertas.com.

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Photo of Casey Flaherty Casey Flaherty

Casey has many opinions. And even more words. He is a former Biglaw associate and corporate counsel who moved into legal operations consulting for law departments and law firms. He nerds out on systems thinking, strategic sourcing, process re-engineering, KPIs, and the practical application of technology to the legal dimensions of business problems. His sweet spot is the mesh point between law departments and law firms where he promotes structured dialogue to foster deep supplier relationships (you can read about that here and here). Casey’s utilizes supply-chain management techniques like site visits to weave continuous improvement into the fabric of the law department/firm relationship. It was sites visits that prompted his ‘revelation’ that legal professionals generally make poor use of the core technology tools of their trade (Word, PDF, Excel). This low-hanging fruit for improving productivity and satisfaction engendered Casey’s passion project, the Legal Tech Assessment, a competence-based learning platform used by law schools, law firms, law departments, government, non-profits, and state bars (i.e., for CLE). You can demo his LTA here.