Photo of 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.

The United States military is the most formidable fighting force in the history of warfare, and the rightful birthplace of SNAFU, FUBAR, BOHICA, etc. Jordan’s Bulls were teams for the ages, and a hostile work environmentBreaking Bad is a crowning artistic achievement, and a show whose writers regularly painted themselves into ridiculous narrative cornersEvery institution, no matter how venerable, looks like a goat rodeo from the inside.

As we pass the year’s mid-point, I’ve had the good fortune to conduct more site visits at law firms and law departments. And, as always, I’ve attended an obscene number of conferences [at one right now]. I’ve seen quite a bit and heard even more. Overall, I’m optimistic. An admittedly skewed sample of major industry players are moving in directions I applaud (confirmation bias is only a few degrees away from social proof). But the inescapable conclusion from gaining visibility into so many organizations is that everyone—and I mean everyone, me included—has plenty of room for improvement. Those who refuse to concede their imperfections, even in private, are doing the industry a disservice. Continue Reading The Legal Department Goat Rodeo

Nothing You Can Say Can Cause Me To Retain You remains among the most important blog posts for understanding the corporate legal market. Mark Hermann, self-styled curmudgeon and then Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, expertly expounds on why he is loath to add new law firms: he already has really good lawyers.

Hermann calculates a 95% probability that new lawyers would be worse than his curated incumbents. I’ll pile on. Even if we are comfortable that new lawyers would be as good as, and possibly better than, our existing lawyers, there is still a strong argument for sticking with known quantities. It is not merely that we know our incumbents. They know us. The ramp-up costs for onboarding new counsel are more than administrative (framework agreements, fee negotiations, data security audits, e-billing setup), they are substantive. Current counsel know our people, personalities, peccadilloes, preferences, procedures, and policies. New, even when it is better, comes at a cost.

Continue Reading Nothing You Can Say On Diversity

A Watched Pot

I invented a new tech product for the corporate legal market. I have no qualms labeling it “the ultimate disruptive game changer.” I hope you are sitting down for this.The Magic Money Machine™ is a proprietary IoT cryptocurrency platform that leverages blockchain technology and deep-learning algorithms to reduce friction in the legal supply chain. Inside and outside counsel need only to both plug in the MMM (sadly, my branding team tells me that M&M, 3M, and M3 all seem to be taken). That’s it. No learning curve. No changed behavior. No implementation dip. No risk. Also I am giving it away free. I charge only for shipping and handling (order now and get a second one at no additional charge).

If both sides have the MMM plugged in, the corporate client’s costs will be reduced by 25%, and the law firm’s profits will increase by 25%. A win-win from mutually beneficial collaboration, a truly beautiful thing.

So here’s the question: how long will it take MMM to reach market saturation?

Continue Reading My legal tech invention: the Magic Money Machine

First, an unqualified endorsement:

Ken Adams’s A Manual of Style for Contract Drafting, Fourth Edition is essential for every professional involved in the contracting process from negotiation and drafting to interpretation and litigation. MSCD has no peer in explaining what contracts do and how they should be constructed. The breadth, depth, and clarity are astounding. As is the usability. This is a well-organized reference containing pinpoint guidance on clause types, word usage, and formatting.

If we truly believe that we should do the best we can until we know better, then do better, we have a professional obligation to grapple with, and then make use of, the expert guidance MSCD provides. When light is offered, complacency is no excuse to continue in the dark. MSCD shines a bright light on how to best solve for complexities of contracting in pursuit of business objectives.

Anyone interested in contracts should also read Ken’s blog.

Had to get that out of the way because it is deserved and standard book reviews are not my MO.

“An unqualified endorsement” in both the sense that it is without reservation and that the person making it (me) lacks the appropriate qualifications. Reading Ken triggers my almost debilitating impostor syndrome. I’ve battled the affliction since I commenced my legal career with the observation: Clients are paying how much per hour for me? To do this? Really? Something is very wrong here.

Continue Reading How much of lawyering is being a copy-and-paste monkey?

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

                — Richard Feynman

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


                — Captain Oliver Queenan

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 inertiaStatus 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.

My friend John Grant made a mistake.

Many moons ago he was consulting on process improvement for a large law department. He surveyed in-house counsel on their biggest complaints about outside counsel. The response was that outside counsel:

  • Don’t understand my business
  • Can’t tell me how long anything will take
  • Overwork a problem/introduce complexity
  • Don’t give me output in a format I can use 

Familiar enough. And so far so good. John’s misstep is that he put the same question to internal clients of the law department. The response was that in-house counsel:

  • Don’t understand my business
  • Can’t tell me how long anything will take
  • Overwork a problem/introduce complexity
  • Don’t give me output in a format I can use 

This result was not well received by the law department.

The Lawyer Theory of Value

Law departments face a principal-agent problem that I covered in a piece with the subtle title What’s The Matter With Inside Counsel.

There are few discernible differences between the modal in-house lawyer and the modal law-firm lawyer. They are the same people. Ultimately, they value the same thing: lawyering

The lawyer theory of value states that the key to value is having smart lawyers. Lawyer time is the primary resource and the primary unit of measure even in law departments that have no compensable time sheets.

The lawyer theory of value tends towards the transactional and discrete. Resources (lawyer time) allocated to sequential, individual legal tasks: this question, this contract, this motion. Systems thinking and relative reductions in demand for legal labor (prevention, Lean, #DoLessLaw) are ancillary concerns to be addressed when convenient or absolutely necessary (that is to say rarely).

Given their lawyer-on-task orientation, ask most lawyers what they need to be more effective, and the first answer is more time in their own day. The second answer is more time from other skilled lawyers they already work with. The third answer is more budget to hire additional skilled lawyers. Maybe somewhere in there is a paralegal who is “just as smart, if not smarter, than most lawyers” (because lawyer is the measuring stick). That’s how it all gets done. Smart people working hard.

Dedication to their craft does not make lawyers bad at their jobs:

Most lawyers don’t pay a penalty for their acute focus. When they do, it is usually not obvious, especially to them. They can still make valuable contributions to client success and be well regarded in their profession. Lack of broader interest in the process, technology, and business of law (T-shaped) rarely makes them bad lawyers. It just limits their effectiveness when more lawyering is not the optimal solution to a particular problem.

Sometimes, they may actually volunteer “technology” as a catch-all and panacea. But peel that onion just a layer or two, and you soon realize they want magic. They expect a black box that produces superior outputs from the same inputs. And the urgency driver for finding magic is to free up time to do more lawyering. Once you start impinging on that time and their comfort zone—process redesign, training, change management—you trigger the defense mechanisms of professional issue spotters.

The threat of an implementation dip does not eradicate the faith in tech-centric improvement. But the “we” in we should be using technology more no longer includes “me” but rather transforms into more a generalized “we” encompassing other people in the department and outside counsel. Innovation continues. But without buy-in and participation from key stakeholders, much of it ends up being only skin deep. Meanwhile, the perception that innovation is happening elsewhere feeds the accountability-reducing innovation illusion.

There is, however, an important distinction between being (a) an enemy of progress and (b) a barrier to innovation. I encounter very few lawyers who actively oppose innovation. I find lawyers who support it in theory and simply don’t have time for it in their personal practice. They don’t have time for it because they are extremely busy with mission-critical work.

This has become a go-to cartoon in my echo chamber because it is funny in a way that resonates with outsiders and prospective change agents interested in more systemic innovation:

But from the perspective of the modal member of an in-house team, reality feels much more like:

This time pressure buttresses inherent status quo bias. When you view yourself as operating in a delicate equilibrium, you have a much lower risk tolerance. Different is risky. Different demands time and attention, both of which are in short supply.

Importantly, the lawyer theory of value is not without merit. It is incorporated into my personal worldview. I am convinced that legal guidance is only growing in importance to business outcomes. But assumptions, especially when implicit, can have a constraining effect when they go unexamined.

The constraints of the lawyer theory of value have trapped us into a local optimum for an extended period. The only conceivable solution to the interlocking challenges of scale and complexity was to throw bodies at them.

Faced with the legal cost disease and the more-for-less conundrum, in-house departments have been on a two-decade hiring binge. In the United States, there are now more lawyers working in-house than in the AmLaw 200. How much of the supposed disruption in corporate legal services is attributable to the simple redistribution of labor?

My take: there is a continuum. In-house growth was necessary and good for a variety of reasons, including specialization and the attendant sophistication. But too much is too much. We’re pursuing a path of diminishing returns. The continued overhiring is justified by an oversimplified ‘savings’ calculation. When you move lawyers in-house, you get them at a discount and on a fixed fee. But the math ignores the overhead costs (management, infrastructure, flexibility) of operating an in-house function at scale.

Finding a different avenue to hire the same lawyers to do the same work the same way is implicitly premised on the lawyer theory of value—we are replacing extremely expensive external labor with moderately less expensive internal labor while embedding a chorus of high-status, autonomy-seeking stakeholders who stand ready to proclaim “but we’ve always done it this way.” When it avoids the fundamental demand driver—the relationship between legal labor and business outcomes—insourcing is not a sustainable approach to bending the legal cost curve.

The result is that we have law departments that suffer from the same pathologies as the law firms to which they were supposed to be the cost-effective alternative. When it comes to true alternatives to lawyer time, most law departments still need to overcome the stifling persistence of not here, not yet.


Outliers and Outsized Expectations 

Most. Not all. Before you @ me with #NotAllLawyers and #NotAllDepts campaigns listing prominent counterexamples that confound my narrative, ask yourself, “Is my counterexample prominent because they are an outlier?” If the answer is in the negative, then I welcome the spirited debate about how the landscape has evolved quicker than I realized (which would be great). If the answer is in the affirmative, we are in agreement. There are prominent, praiseworthy counterexamples.

But there is also a genre of writing predicated on these outliers that tends to imply that law departments have it all figured out, unlike scleoritic law firms. Admittedly, I’ve fallen into this trap myself. You pair opinion data (clients are not happy) with empirical trends (stagnation) and cite to prominent outliers (exampleexampleexample). Then extrapolate.

Extrapolation is fine for futurism. But where I and others have steered wrong is when the predictive gets muddled with the descriptive. We create the impression that, instead of harbingers of the future, the outliers are representative of broader trends that are already ‘disrupting’ the status quo. Which they are. But not nearly to the degree or at the rate we may seem to suggest.

There is nothing new except what has been forgotten

There have been prominent outliers for a very long time (hereherehere). Yet like the decades of deaths of the billable hour, systemic change has not quite followed individual experimentation (and the attendant industry expressions of support/interest/intent) at the anticipated pace. I say this from a place of optimism. Not only do I think we can do better, I believe we are doing better. I have bet my career that this time is different—that the combination of trailblazers and structural forces are coalescing to put change on an accelerated trajectory.

I may be wrong (I don’t think I am). I have certainly put too much stock in outliers before.

First, I’ve taken in-house counsel at their word. I’ve relied on stated rather than revealed preference. The delta between public pronouncements and actual practice is not all virtue signaling. Rather, absent context, we have no way to gauge relative importance and intensity of preference. The desire to change may be genuine. But that in and of itself does not make change a priority.

As a result, I’ve assumed change efforts are more appealing and durable than they have proven so far. I expected more law departments to be fast followers. Instead, we’ve repeatedly witnessed innovations by prominent law departments remain outliers. Meanwhile, among the outliers, there is churn rather than accretion. Once the awards are won and the principal champion of change moves on, the jungle swiftly retakes civilization. The progressive GC/CLO gets replaced by a more traditionally minded lieutenant or outsider. Years of change efforts get reverted to the status quo ante at an astonishing clip.

Second, I’ve imagined change efforts that are deeper and more transformative than they turn out to be. I’ve taken the highlight reel and mentally filled in the gaps to be equally spectacular. I have yet to encounter in-house vaporware. But the more details I uncover about about some prominent in-house program, process, or tech, the more it usually disappoints.

This is inevitable. For the sake of effective communication, we all (me included) describe our successes in ways that appear more coherent, consistent, and comprehensive than they are. Even when we caveat like crazy, audiences (me included) take away a smooth, pretty picture that doesn’t do justice to messy reality [by the same token, I think we tend to underappreciate the Herculean efforts of true change agents].

Third, I’ve observed success in one area and mentally grafted it onto others. I’ve unconsciously assumed that the department that wins awards for contract management is similarly savvy at overseeing litigation. I’ve assumed the department that leads on diversity is also progressive on using alternative legal service providers. I’ve assumed the department that has cut external spend demonstrates the same kind of internal discipline.

Yet, in many respects, this assumption has it backwards. In-house departments are resource constrained. With finite resources, the essence of strategy is choosing what not to do. It stands to reason that law departments that excel in a few areas are mostly maintaining the status quo in others. They can’t do it all at once (nor can I when I am in their shoes).

Fourth, and relatedly, I’ve treated in-house departments as monoliths. Because the legal ops head and one AGC have stood up something cutting-edge, I’ve implicitly assumed that the remainder of the department shares their innovative fervor.

But politics is the art of the possible. More often than not, I find that the politics of change even in forward-leaning departments substantially circumscribe the prevalence of innovative behavior. While innovation may be embraced and effected by a few, the many view it with suspicion and annoyance. To them, legal ops is still not ‘real lawyering‘.

What most in-house stakeholders want is more budget, more headcount, and to be left alone. Give me more lawyers and let me do legal work. This comes from a genuine dedication to delivering value. Most law department personnel take pride in applying their prodigious talents to the client’s mission-critical legal problems and, through acumen and hard work, providing high-quality work product on tight deadlines. To them, this is real value. And they deliver it.

Time to Pay Up

Everything I just wrote about law departments could have also been written about most law firms. The symmetry that comes from the shared lawyer theory of value is foundational to the relationship dynamic.

While they share assumptions, the modal in-house lawyer and the modal law-firm lawyer do have one crucial difference: positional authority. Like the Supreme Court, inside counsel are not final because they are infallible, they are treated as infallible because they are final.

What do you get when in-house counsel who make retention decisions think they want different, but, at the end of the day, really want a vaguely ‘better’ version of the same? You get law firm marketing bullshit.

Three months ago, I laid down a marker:

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.

If you reward bullshit, you get more bullshit

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 [a series of] bullshit post [posts] about how the legal market is not a morality play.

This post is my down payment.

While I have touched on clients’ contribution to the perpetuating the bullshit cycle in every single post in this arc, I have not given clients my undivided attention at extraordinary length. I wouldn’t want them to feel neglected. More to come.

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.







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.

“Every time you call something a ‘robot lawyer’, God turns a chihuahua into a muffin.”

– Ed Walters at the 2017 COLPM Futures Conference

As CEO of Fastcase, Ed Walters is a true leader in the application of AI to the legal market. He created the AI Sandbox. He speaks all over the world in addition to teaching at Georgetown and
Cornell.

But Ed is a horrible hype man. Simply terrible. He suffers, inter alia, three glaring deficiencies:

  • Ed knows of what he speaks 
  • Ed is accountable to the market for delivering functional products 
  • Ed is constitutionally incapable of bullshit 

What a wretched combination. It is a wonder we permit this man to ascend the dais. Instead of cheerleading for robot magic, he offers a balanced assessment of what various forms of AI are good for while identifying immediate, practical applications of AI to law, and the limits thereof. It’s all so painfully responsible. And boring!

Well, not quite boring. Ed is hilarious. One bit that always gets a laugh is when Ed explains classification errors (and their implications) by reference to the difficulty in distinguishing a chihuahua from a muffin:

If you take delight in such silliness (and I do), there are similar memes, like labradoodle or fried chicken, dalmatian or ice cream, and corgi or bread. Ed, however, deploys humor to make salient points about the challenges of subtle differences and the potential dangers of adversarial examples. Ed is also the best presenter I’ve encountered in explaining the errors in extrapolating from microworlds. I’ll leave the AI to Ed.

I want to talk about puppies or bagel. Or, more pointedly, the distance between having similarities and being the same. Accurate identification should be a neutral act. Correctly categorizing an item as a bagel rather than a puppy is not to disparage bagels or puppies. You can adore both without confusing one for the other.

Which brings me to Tier 2 law firm bullshit (parts 1, 2, 3). In my taxonomy, Tier 2 law firm bullshit consists of statements that present as positive but ultimately prove non-responsive to the question posed. On the surface, the responses resemble attempts to answer but closer inspection reveals only superficial similarities to contextually useful information. I ask for a puppy. They send me a bagel.

I selected two examples—ROSS and LTC4—precisely because I am predisposed to react positively to their inclusion in an RFI response. The bullshit is not in the initiatives themselves but the way law firms use them in answers. An exemplar question:

Technology: How does the firm integrate technology into the delivery of legal services to clients like [organization]? How has technology measurably improved performance? Which recent technology investment have made the biggest, measurable impact?

How does the firm ensure that its lawyers and staff are taking full advantage of the basic technology tools at their disposal (e.g., competence-based learning curricula and micro-certifications)?

Impact. Measurable impact. Measurable impact specific to the client. Good in general is not the same as useful in the particular. I therefore include introductory instructions like:

While an initiative may be truly innovative, that in and of itself does not mean it is valuable to [organization]. An automated private placement document generation system iterated near perfection is worthwhile accomplishment but of little practical use to [organization] if you only support us on employment litigation.

ROSS

It was intellectually interesting that Watson won Jeopardy! It was welcome news when ROSS Intelligence was founded to bring the power of Watson to the legal market. As a legal tech junkie, I can applaud. But with my outside counsel management hat on, I’m not permitted to care until lawyers use ROSS to benefit my clients.

Multiple times, I have received excruciatingly long (so long you’d think I’d written them) responses to questions like the above. They start quickly with “We have licensed ROSS” and then slog on for paragraphs about Watson, Jeopardy!, IBM, cognitive computing, and the coming revolution in legal service delivery.

Let’s unpack some layers of bullshit.

First, “we have licensed product X” borders on being a content-free statement. The quantity of software firms license and then do not deploy or deploy in a limited fashion—e.g., to the one lawyer who requested it—is astounding. The fact of a license, absent additional information, has almost no probative value.

This is particularly true when the subject area is sexy and law firms have recognized that the best publicity comes at the beginning of initiative when potential is limitless. If I had dominion over one of those growing law firm marketing budgets, I would be tempted to earmark funds to invest in AI (or blockchain or whatever is currently hot) for the purpose of press without any intention of following through (which requires real resources and reckoning with reality).

Second, at the various times I encountered these responses, ROSS had only released their bankruptcy product. This is fine, for ROSS. Bankruptcy is a legitimate area of legal practice and a solid silo for ROSS to attack first. But I’ve never done an RFI for a bankruptcy panel firm or matter.

Translated into something English adjacent, my Tier 2 exchanges with law firms are akin to:

Q: Talk to me about how you are using technology to improve toxic tort defense.

A: We’ve purchased but not deployed software to improve bankruptcy research.

I’m bullish on Andrew Arruda and crew. I’m excited for their expansion into other areas (labor & employment is up next). I was giddy at the news of their Series A and Andrew’s TED Talk and their A2J partnership with Northwestern and their partnership with Evolve the Law and…..I, for one, welcome our new Canadian overlords.

Law firms should talk to ROSS. Law firms should test ROSS. Law firms should license and deploy ROSS where its offerings enhance their practice. Law firms should do everything they can to integrate useful tools like ROSS into the delivery of legal services. But, in the context of an RFI, don’t talk to me about ROSS, or anything else, unless you can connect it to a concrete benefit for the client.

LTC4

By contrast, LTC4 may well offer immediate, concrete benefits. But a third party is in no position to evaluate those benefits.

For background, LTC4 is the Legal Technology Core Competencies Certification Coalition. “LTC4 is a non-profit organization, that has established legal technology core competencies and certification that all law firms can use to measure ongoing efficiency improvements.”

As evinced by the Technology question above (as well as a big chunk of my personal history and professional evangelism), I am deeply invested in technology training and certification. Getting better with the tools already at our disposal is among the lowest hanging fruit in improving legal service delivery. I was ecstatic when I learned a coalition of law firms was promulgating core competency standards.

But the LTC4 standards are proprietary and private. Their standards are only accessible to members. This, again, is absolutely fine, for LTC4 and its members. I’m sure the members thought long and hard about how to structure their organization and protect their IP. Tradeoffs were made.

Yet the deliberate opacity does not matter for the most common LTC4-related response I receive. The firms simply tell me “we are LTC4 members.” Like we licensed product X, this statement is virtually meaningless. In short, the firm has access to learning plans.

But I already know that. Everyone has access to learning plans. Whether from Ivy Grey, Deborah Sandoval, Richard Heinich, et al., there is a bevy of free, quality resources in the what-lawyers-should-know-about-X-technology genre on top of a wealth of already great books, classes, trainers, and tech.

Our primary technology training challenge is not determining what legal professionals should be trained on. Nor is it making training available—the internet has ready answers for almost every core technology conundrum. Our primary technology training challenge is getting people into training and ensuring that they learn. Access to training plans by itself has essentially no informational value in indicating that this challenge is being met.

That’s where certifications come in. On this front, LTC4 might still solve the problem. Our legal professionals are LTC4 certified is definitely something. But it is not quite enough. The transparency trouble remains. A third party is in no position to evaluate what certification means. Certified in which subject area? What did the legal professionals do to demonstrate competence and earn certification?

From some personal exposure and given who is involved, I have confidence that LTC4’s offerings are solid. And I can’t wait to see how they continue to evolve and enhance the legal ecosystem. But that fact does not make their standards any less private. I would hope that firms could find a way to provide more information about their LTC4 certification without violating the terms of membership.

In RFI responses, however, firms have a bad habit of creating shorthand and then treating it as a shortcut.

Firms seem to really enjoy naming programs. Apparently, the act of naming renders the seriousness of the program self-evident. The Geek Firm, for example, might have GeekLPM©®™, GeekKM©®™, and Geek360©®™—the firm’s project management, knowledge management, and customer relationship management programs, respectively. And, like LTC4, these programs have the potential to be excellent. That is, the programs themselves are not necessarily bullshit. What is bullshit is the way the shorthand is substituted for meaningful description. As in:

GeekLPM©®™ is the firm’s proprietary legal project management system. Synthesising Lean, Six Sigma, Design Thinking, TQM, TOC, BPR, KFC, QE2, and B2B, we’ve optimized project management to be fit for purpose and deployed it throughout the firm.

This may be true. This may be great. Or it might be marketing claptrap devoid of underlying substance. The burden of proof is on the firm. And statements like the above fail to satisfy the burden.

Where Tier 3 bullshit is obvious nonsense, Tier 2 bullshit may obfuscate something real.

As always, this is not about law firms = bad, clients = good. Rather, the poor quality of RFI responses is symptomatic of the situation. Neither clients nor law firms have much experience or comfort with data-driven dialogue. And law firms have recognized that, for the time being, bullshit offers the path of least resistance because it is often more effective than transparency. Transparency means conceding you are a work in progress—anathema to a profession of atelophobes allergic to admissions of imperfection.

Law firms should invest in improvement even if said improvement is not accessible and appealing to every client. License and deploy ROSS because it improves your bankruptcy practice. If you also want to weave ROSS into a broader story about the firm’s willingness to experiment with cutting-edge technology, go right ahead. Just don’t make it too much more than it is.

Law firms should market. And marketing should respect attention spans (even if I don’t). Hire experts in branding and copywriting. Use GeekLPM©®™ or whatever as shorthand on your websites, on your flyers, and in your brochures. Soundbites and happy talk have their place.

But brandspeak and chit chat should give way to real conversation at some point. My issue isn’t that law firms bullshit. We all bullshit. My issue is that law firms have grown so reliant on bullshit that many can’t switch modes even when the context demands a different kind of communication. Bullshit becomes standard operating procedure.

Next post, I will talk about the crème de la crème of law firm marketing bullshit. Tier 1 is bullshit so smooth even I can’t be sure it’s bullshit.

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.

The essence of strategy is choosing what not to do. It is not practicable to be all things to all clients. Last post, I expressed admiration for law firms that exhibit discipline and restraint.

I frequently test the limits of law firm self-control by presenting them with the ultimate temptation: BLANK SPACE

I write and review law-firm RFI/RFPs for corporate clients. When I put out RFIs, I am the only person who will read the entirety of every submission. I summarize/grade the responses for my clients, who hire me for my judgment and permit me to exercise it.

I’m the person who reads everything. I therefore appreciate responses with a high signal-to-noise ratio (admittedly, a little rich coming from a blowhard who Generalissimo Lambert regularly punishes for excessive post length). I seek information, not bullshit.

To avoid bullshit, I give firms an out. My practice is to make many questions optional. I write things like:

The questions that follow are optional. We are genuinely interested in the responses. But no firm excels at everything. Answer whichever questions, if any, make the firm truly stand out. If it is not engaging, you won’t like writing it and we won’t like reading it.

And:

No firm is expected to answer all the optional questions. Answer them selectively. Answer only where your response is compelling and will differentiate your firm from your peers. 

For some reason, firms don’t trust me. Few skip questions even when they clearly have nothing worth writing. Allergic to blank space, firms have responded “This question doesn’t really apply to us because…reasons” rather than endure an empty page. Maybe they don’t read instructions. Maybe they assume that anything they write is good by definition (because they are writing it). Or maybe they think it’s a trap.

I’m not that clever. I see no merit in firms answering every question. It can hurt them if they do. Since I grade responses, feeble answers drag down their GPA (yes, I calculate a GPA).

Firms inundate me with bullshit. I’ve ingested so much that I created a bullshit classification system. In this post, I’ll discuss Tier 3 law firm bullshit.

Tier 3: Don’t understand. Don’t care. Don’t read. 

When it comes to the RFI section on legal service delivery, the kinds of questions I ask are a matter of public record.

I, for example, ask about process and project management:

Process/Project Management: Do you have a systematic method for delivering legal services? Have you standardized your approach to waste elimination, continuous improvement, and project management? Please provide real-world applications of design thinking, process mapping, checklists, decision trees, Lean, Agile, Six Sigma, etc. There are many ways to bring creativity and rigor to legal service delivery. Which have you pursued and what are the tangible, tractable benefits for a client like [organization]?

As a reminder that I, too, operate in an echo chamber, I once had a law firm partner call me and unabashedly state, “I don’t really understand the question. I’m not familiar with most of the terms—decisions trees, process mapping, Lean, Agile, Six Sigma. It’s all Chinese to me. Should I still answer it?” No! No, you should not still answer it. Though you might consider firing up the Google.

Generally, I try to avoid being that prescriptive. Even when firms are fluent in the argot of my echo chamber, there is no obvious reason to prefer (i) a firm that claims to apply design thinking and Agile project management to (ii) a firm that claims to use checklists, decision trees, and after-action assessments. I dig deeper. The first firm may have a small team in a remote corner of the organization applying design thinking and project management to a discrete problem that has no relationship to my client (still a positive, just not of immediate, material importance). Whereas the competing firm may require that every legal professional working on my client’s matters use checklists, contribute to decision trees, and participate in after-action assessments. I’m looking for the most impact, as well as a penchant for sustainably scaling innovation. I am less concerned about the firm keeping up with the latest fashions.

If only distinguishing the firms in the foregoing paragraph was a common problem. It is not. Instead, I typically encounter variants of:

We are deeply committed to integrating project management principles into everything we do. Everything! We are project managing the hell out of this RFI response right now.

Our commitment is evident in the impressive length of this response. It is a manifestation of our client-centric approach to putting clients first through innovative innovations as part of a blue ocean strategy driven by thought showers of blue sky thinking that combine quick wins with a long-term strategy to boil the ocean. We’ve started a “Clients Clients Clients 3.0” initiative and have formed a committee that includes such luminaries as [people only known within the firm]. Proactive not reactive, we push the envelope in thinking outside the box about synergistic best practices to reinvent the wheel in squaring the circle on our client’s mission-critical legal challenges. 

We want to demonstrate to you that we are super serious about all the things that you are asking about in this RFI. They are, literally, the most important things in the world as far as we are concerned. So important that we’re going to keep typing words—a bountiful bouquet of buzzwords—until our answer is long enough for you to ‘feel’ in your eyeballs how much we care .

We do care. We care so very much about the client that we will pretend to be fully invested in whatever is occupying them this week. And then we’ll do it again as soon as something else catches their fancy. What are we playing acting about today? Diversity? AI? Budgets? Outside counsel guideline compliance? Data security? Oh, yeah, process improvement and project management. Is that fad back already?

Our lawyers are expert in managing legal matters. Our approach to process improvement, therefore, is to hire great lawyers and let them do what they do. With us, you get superior project management because you get superior legal talent. Lawyers can do anything. Lawyers have a considerable general intelligence and a strong work ethic. These attributes can overcome any deficit in non-legal training. It is known.

Naturally, we’re not really doing anything different because we’re busy with real work. We dabble. And if we’ve sent a single paralegal to a half-day course on legal project management, we will try to make it seem like we invented LPM. But our operating assumption is that, ultimately, the client will work with our lawyers because our lawyers are really smart and experienced. Or the client will send the business elsewhere because the client has drinking buddies at one of our lesser competitors. Either way, these words have no impact. 

So here is our bullshit answer to your bullshit question. We know we’re supposed to feign fealty to this MBA bispeak hokum. So we will. But, of course, we don’t actually care. And we don’t believe you do either. We’ll repackage the things we’ve been doing since time immemorial. We’ll wordsmith. We’ll overhype minor deviations from the status quo. We have an endless supply of words.

That, however, is probably long enough. Consider this box checked.

Unfortunately, the odds still favor blather. Many clients are in the early stages of maturation. They have an emerging sense they are supposed to care about these things. Some ask the questions. Few read the answers. And only a small percentage incorporate answer quality into their decision-making calculus, let alone go deeper. As long as firms play along, decisions will mostly be made the same way they always have. Playing along means virtue signalingwriting something long enough to be evidence of effort (which is why blank space is anathema to law firms).

But betting on bullshit, while still relatively safe, becomes less so with every passing day. The gentlemen’s agreement about how all this is supposed to work keeps fraying. That we now ask bullshit-inducing questions is evidence that change, while uneven, is here.

We can have a world where both of the following are true: (a) incumbency, relationships, and brand remain the primary factors in retention decisions for the foreseeable future and (b) pricing/service delivery have a major impact on the financial health of many market participants. Credence goods subject to a nascent strategic-selection framework.

I don’t expect the old ways to suddenly collapse. But the inherent fragility of the law firm model (different than saying all law firms are fragile) means that marginal movements can have a cascading impact. That this occurs in slow motion does not mean it isn’t happening (it is).

I constantly return to Mike Roster’s observation in Remaking Law Firms that for 85% of a company’s legal spend “there are typically 10, 20, or more law firms and practice groups who can handle the work superbly, not just okay, but superbly.” Add to that the growing ranks of in-house counsel, the attendant challenge to the leverage model, the encroachment of the Big 4, the rise of alternative legal service providers, and the penchant of systematization/disaggregation/process/technology to move certain work types down the value chain. We have the ingredients for fierce competition.

Lawyers tend to get upset when I opine that many of us are good but few are special. For decades, good was more than sufficient. That time is fading. 

As I’ve observed elsewhere, economics is the study of scarcitythe choices we make under resource constraints. Something can be essential without being scarce. Oxygen is essential. But there are only a few places (Beijing) where oxygen is sufficiently scarce to give rise to a market.

Lawyers are scarce like cars are scarce. At the narrow pinnacle (Ted Olson, Bugatti), there is true scarcity and limited price sensitivity. There is also a price floor below which it is currently challenging to find anything serviceable (A2J, lemons). But between these extremes is a competitive market of relative abundance where any corporate client with a reasonable budget can select from many viable alternatives.

Competent (to the task-at-hand) lawyers are often essential. But competent lawyers are rarely scarce. What is scare are systems for legal service delivery. What is scarce is scaled innovation in leveraging legal expertise through process and technology. What is scarce are legal service providers committed to continuous improvement (the interested do things when convenient, the committed do them even when they are hard).

So when I ask law firms about innovation, I genuinely care about the answer:

Innovation: How does the firm define innovation? How does the firm identify innovation? How does the firm reward innovation? How does the firm measure innovation? How does the firm scale innovation? How does the firm share innovation with clients? Supporting examples of recent internal innovations at the firm would be appreciated.

I am saddened when I get responses like (I swear, these are real, if anonymized and stripped of flowery language):

We recently revamped our website so it is easier for clients to find our lawyers.

Or:

Our lawyers meet on a regular basis. They discuss their cases. They learn from each other. That is how the firm spreads innovation.

Remember that these questions are optional. The firms are not obliged to answer. They answer anyway. This is what they deem compelling. A firm website. Lawyer meetings. This is how they define, identify, reward, measure, and scale innovation. Given that these firms are under consideration for corporate legal work, this, apparently, is sufficient (for now).

The most generous explanation is that they think me lazy or stupid (or both). Maybe I don’t read the answers. Or maybe I’m so mentally deficient that as long as their answers include words like “commitment”, “client-centric”, and “innovation”, I won’t notice the lack of substance. I sure hope they dismiss me as an inattentive simpleton. Consider the alternative. What if they actually believe this drivel. What if we are so susceptible to the illusion of innovation that we are ready to call whatever we do innovative no matter how banal.

There’s some of that. A few firms definitely believe their own bullshit. But, in Tier 3, I suspect it is mostly a product of the irresistible urge to get something, anything, down on paper. I find solace in the idea that they are not taking the exercise seriously.

A good example of “I don’t have time for this” comes from questions around budgets:

Budgeting: Does the firm create budgets for all matters? Does the firm track performance against matter budgets it does create? What is the process/data/analysis for creating the budgets? How does the firm perform against its initial budgets? How does the firm provide transparency for clients like [organization] into budget creation and performance against budget? Budget templates would be appreciated.

Despite a general instruction for metrics, concrete and specific numbers, in support of answers, I’ve received many (completely voluntary) inane responses along the lines of:

We often come in under budget. When we go over budget, we have a frank discussion with our clients about why. We can’t share any budgets with you because we take client confidentiality really seriously.

The response is useless. But the inanity ascends to the sublime with the attempt to wield privilege as a shield against discovery of the inconvenient fact that they don’t have a budget template or, if they do, it is so embarrassing that spewing transparent nonsense is the attractive option. They have to know their answer is crap. But they answer anyway gambling that empty words are worth more than blank space.

The clearest proof of this say-whateverism comes from inquiring about firms’ data strategy. I use “data strategy” because it is Dan Katz’s term (that’s it; argumentum ad verecundiam). But, recognizing that not everyone is a Dan disciple, I try to provide some context.

Data Strategy: What data do you track? How do you analyze that data? How do you put that analysis to use in service of clients like [organization]? What are your data-centric predictive capabilities? How do you characterize and price risk? [Note: this question is not about cyber security nor e-discovery, two valid but separate topics of inquiry]

The note at the end wasn’t in the original version of the question. I iterate. I appended the note after three variants of the question engendered too many inapposite responses (I’m a slow learner). The firms see “data” and stop reading. They copy/paste answers from previous RFI questions that also included the word “data” and move onto the next question.

I go back and forth on which is the dominant driver of Tier 3 law firm bullshit. Don’t Read is a subgenre of Don’t Care. And Don’t Care is a far more generous explanation than Don’t Understand. I’d prefer to assume that law firms categorize RFI responses as waste of time and treat them accordingly. If some of these responses are the genuine product of considered thought, our problems run far deeper than I have let myself believe.

The purveyors of Tier 2 law firm bullshit, the subject of our next post, read, care, and understand. Their answers are better. But their answers still aren’t good.

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.

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.

If you reward bullshit, you get more bullshit

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 casey@procertas.com