Photo by Danielle MacInnes 

Of late, Casey has been posting some excellent material on the high BS factor of law firm marketing. This plus an event I participated in on Friday in NY spurred me on to write a post. However, don’t expect this post to be anywhere near as long as Casey’s. That man is the Dostoevsky of blog post writing.

Certainly you have read Casey’s multi-part series on BS. If not, I highly recommend it. In Part 3 he utilizes questions on change to demonstrate how willing lawyers are to fill in blank spaces even when substantive change is not occurring. This tied my mind back to the event I presented at in NY.
In NY most of the other panelists at the event addressed the need to change and that disruption was here. When it (finally) was my turn to weigh in, I was thoroughly worked up about about how no one actually touched on the heart of change in the legal profession.
Of course the usual topics around change came up: AI, LPM, process improvement, innovation, etc.  But what had not come up was a core change that all of those topics presuppose. Any real change will require lawyers to change the way they practice law.
Let that one sink in for a minute.
Oh … we’ll just start utilizing legal project management at our firm! Right. 
I remember one of my first lawyer conversations around LPM – a few years and firms back. A big-ticket litigator was blathering on about why the firm would have to embrace LPM to remain competitive. I turned the question on him and asked him what he would do when a project manager questioned his overuse of resources on a particular task. His reply: I would tell them to get the hell out of my office. (He actually did not use the word “hell,” but that was as much as I thought I could get away with here). That interaction stuck with me over the years.
Another example is when a firm decides it needs to standardize certain documents for select matters. What follows this decision is one to appoint a committee of lawyers to develop the content for this effort. The ‘drafting by committee’ goes as well as you might suspect.
These examples highlight that the real need for change exists at the lawyer level. And resistance to change is very high there. 
I joked at the NY presentation that I have a two-step process to address this challenge: 1) Education, and 2) Fear. First lawyers need to understand what makes their work profitable. Then when they realize it isn’t, they finally have a real motivation to change. But even then, the needed change must be presented at a practical level or nothing will change. 
So my two cents on driving change in the legal profession: Start with the lawyers, then worry about the flavor of change that makes the most sense.

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 signaling—writing 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 scarcity—the 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.

A look at Amazon’s voice-activated reporting capabilities by @Lihsa

Today I listened to a webex on how to set up Amazon’s Alexa with key analytics applications to deliver voice-activated reporting.

Alexa, can you hear me now? Invoking Amazon's Alexa Skill Interface for custom reports by Lihsa

Now it was super nerdy and I don’t even pretend to understand all of the programming involved that will let you ask Alexa, “How many Huey, Dewey and Louie Law Firm budgets were created today?” Or “Alexa, how many people are looking at my Huey, Dewey and Louie Law Firm  web site right now?”

It is something to do with designing a custom Alexa Skill Interface with custom “wake words”, “invocation words” and “intent processing.” Way over my head. But I like the idea of an invocation word—sounds magical doesn’t it?

[Side bar: one thing to know about invocation words as that they should be your brand’s name. So think about that: law firm names are notoriously long. Can you imagine saying over and over again, “How many Hewey, Dewy and Louie Law Firm blah, blah, blah … ?”]

All of this sounds great. But then envision yourself, a la Philip Seymour Hoffman in Mission Impossible III, being held at gunpoint, and told to read a nonsensical paragraph so that your doppelganger can replicate your vocal chords.

That is the flaw with voice-activated reporting (much like the flaws with iPhone’s facial recognition technology). Yes, I present an extreme hypothetical. Really, who wants to see a law firm’s web site analytics. Major snooze fest.

But it does raise a serious security consideration when contemplating this nascent technology.  What’s to stop someone from walking into anyone’s voice-activated office and asking, “Alexa, what is my colleague’s salary? Alexa, please send me the highly confidential, private report on Client X. Alexa, will I get a Christmas bonus this year?”

These are the things that inquiring minds want to know. And should Alexa be all that ready to be that helpful?

Don’t get me wrong, I like the idea of acting like a smooth talker (even though I’m frequently at a loss for words) and Alexa giving me instant answers. But I think we are too far from the necessary security to see this technology actively used in the legal workspace. Yet.
Since leaving the law firm back in June, I find myself in a really unique position to be able to provide CI consulting services and advice to law firms, law students and legal departments of all shapes and sizes. It is really amazing to me how legal CI has morphed and changed over the years, and now much more dependent law firms and legal departments have become on this scientifically artistic mash up of strategy and information.  As we move toward 2018, with Bitcoin, AI and Emerging Legal Tech in the spotlight, I encourage anyone who is thinking about law firm libraries, marketing, client service or operations to consider attending the CI Foundations course put on by AALL.  In a world that is rapidly changing, sometimes, it is the skills and abilities we already have in our firms that can benefit the most from a renewed purpose and injection of competitive advantage.
Here are the details on the course as promoted by AALL….
Competitive Intelligence competence has now moved to the list of “need to have” expertise. Legal information professionals and law librarians are uniquely equipped to help their firms maintain a competitive edge. AALL is stepping up to the call to prepare librarians with a new course designed to bridge the skill gap and move librarians into strategic service delivery.  Learn to establish and maintain a strategic competitive intelligence (CI) function in a law firm–from development to implementation–at AALL’s inaugural CI course. Those looking to make an impact and expand library services and professionals interested in being key contributors in a changing and complex legal market need to attend. 3 Geeks very own Zena Applebaum will be facilitating the course. More information can be found below and on AALL’s website. The program is open and the deadline is October 18.
CI Foundations
  • Friday, October 27 / 9:00 a.m. (CDT)
  • Sidley Austin LLP / Chicago
  • Members $450 / Nonmembers $675
  • Register today
  • Limited to 40 participants
Topics
  • Competitive Intelligence Concepts and Methodology
  • Establishing and Organizing a Competitive Intelligence Function
  • Leveraging Information for Action
  • Competitive Intelligence Analysis Process and Frameworks   
  • The Law Firm Difference: How is Competitive Intelligence Different for Law Firms?  
  • Implementing a Competitive Analysis Intelligence Program 
  • Integrating Competitive Intelligence into Strategic Practice and Firm Goals 

A snappy review of Amazon’s Fire 7 by @Lihsa

Come on baby, light my Fire: reading, listening and playing on my Amazon tablet
Amazon Fire 7 screenshot
of the cozy mystery,
The Case of the Fallen Hero

Admittedly, I am late to the game on buying an Amazon Fire. I’ve been cheating, downloading the free Kindle app onto all of my devices, even reading on my browser rather than buying yet another device. I couldn’t justify owning a laptop, a phone, a tablet and a reading device.

Amazon Prime Day

But then Amazon had its eponymous 2017 Prime Day last July (oddly, it fell on an even day).

For, not only am I a film buff, I am also an avid reader—you kind of have to be if you are going to play on social media because, well, that’s all it is: reading. Plus, I have to read a book once a day because it is the only way I can fall asleep.

Which leads me to why I ended up buying a Fire on Amazon Prime Day for the very low price of $30. My tablet was too big and my phone was too small for reading in bed. In true Goldilocks form, the Kindle Fire was just right.

Amazon Fire apps and features

And I’ve been super-happy with it. It fits easily into my hand. I like to give one final peek at my email and social media accounts, play one (yes, only one!) word game, then lull myself to sleep by reading some horrible cozy mystery—the book can’t be too good or it will keep me up at night. Thank goodness for free @BookBub downloads or I would be robbing the proverbial Peter to pay Jeff Bezos.

Fire and Alexa

The Fire also syncs up with Amazon’s Alexa and I love talking to her in the morning, telling her “good morning” to await her always chipper response. But I really love the news app, Alexa Flash Briefing. I’ve customized it to listen to apps and/or podcasts. My line-up is The Skimm, the Houston Chronicle—both the general and local sections,  Jimmy Kimmel Live Monologue, KPRC-2 Houston News, NPR, a Bible verse and the best part: The Daily from the New York Times.

The Daily from New York Times runs for 15 minutes, five days a week. Hosted by Michael Barbaro (@mikiebarb), he interviews reporters and often reveals the back story on the biggest story of the day. Giving an insightful analysis of the top story du jour, you are treated to reporter insights you might not get from TV, the paper or radio.

Fire and light

So all of this sounds fantastic. But my library friend, Saskia (@sioslo), and I were discussing the pros and cons of using Fire as a Kindle reader and she had one final question: how easy is it to read outside? Does the glare get in the way?

So I ran a very scientific test to determine the Kindle’s legibility in daylight. I stood next to my office window and looked at my Fire. It was an easy read, both in the white background and the black background (the black background is my preferred mode since I read mostly at night). There is a glare but then I recommend wearing a big floppy hat to shade it, which you should be wearing anyways to protect yourself from UV rays.

So there you have it. My review and usage report on my Amazon Fire.

I just finished renewing a vendor contract over the past couple of weeks and the experience left a bitter taste in my mouth. Sudden changes in how the product is structured caused our existing “all-in” contract to suddenly become an “almost all-in” contract. It wasn’t so much that I was surprised at how it went as it was disappointment that this game is still played by vendors. Before I go into what happened, let me pull out a pop-culture reference to set the stage.

In Season 5 of the television show, Modern Family, part of the family goes to Las Vegas, and the father (Jay) pulls some strings to get the “Excelsior” package from the hotel. This is supposed to be the ultimate level of luxury and very exclusive. However, Jay later learns that there is actually another level created by the hotel called the “Excelsior Plus” package, and although he’d been told he was getting the best package, the hotel actually created something even more exclusive, and Jay learns that there are benefits that he cannot use.

Well… that about sums up my renewal. Three years ago, we rolled the dice and bought the “Excelsior” version of a very expensive product. There were modules that would come later that would be included in our subscription. No longer would we get to an important piece of information only to find out that it was outside of our contract. It was like being on the top floor of a luxury hotel and knowing that we were probably spending more than we really needed to, but we had the comfort that at least if we needed something, it would be available. Oh, the confidence that comes with luxury.

Then came time to renew.

Yes, we knew that there would be a jump in price, but we could negotiate that and come to an agreement that both sides could at least stomach. At least we would still have the “Excelsior” package and the feeling of comfort that comes with knowing that you wouldn’t get a call from a Partner in the firm asking why she was not allowed to get into this exclusive part of the product. Granted, she may never even know that part is available… but who wants to take that gamble?

Then I read the offer.

My “Excelsior” package was  now a second-level subscription. No longer would “Excelsior” mean “all-in” it now meant “almost all-in.” New modules were being launched those would be outside the “Excelsior” package, and would now be a part of the new “Excelsior Plus” package. My gold user id and password card suddenly looked a little worn on the edges and I realized that it was just gold plated. We thought we were top clients, valued for taking the chance to go “all in” when the product was still an up and comer. Instead, we realized we were played by a group of executives who sat in a room and cleverly came up with an idea to screw over the top customers and create a new way of squeezing more out of us.

Then I realized that I am not a top-tier client. I am not an early adopter who will be rewarded for believing in a product when others wouldn’t. I am just a customer, and the vendor sees us as numbers in a renewal spreadsheet. Like I said earlier, I’m not surprised, I’m just disappointed.

We made the decision to stay at “Excelsior” and risk that call from a Partner one day asking why she couldn’t get into that exclusive part of the products. Time will tell if we long for the luxury of an all inclusive product and the comfort that comes with the “Excelsior Plus” package. For now, gold-plated will have to do.

One more thing.

Back to the Modern Family reference. It turned out that “Excelsior Plus” was actually not the top-tiered package. That was actually the “Excelsior Ultra” package. So, when I go to renew the next time around, I’m sure there will be an “Ultra” level renewal offer available, and that feeling of disappointment will return.

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

Tim Peterson (@petersontee) of MarketingLand.com did a great job of analyzing a moving target in sizing up “How Facebook’s, Instagram’s and Snapchat’s audience size estimates compare.”

Now, I realize that many believe that Facebook, Instagram and Snapchat have little or no value to law firms. I beg to differ. Think of social media as being just another method to deliver marketing and promotion, public relations and brand management—just like TV, radio or publications.

Think of it this way: in the evening, when people are relaxing and multiscreening at home, they are skimming through Facebook, Instagram and Snapchat. While checking out @beyonce, @therock or @lin_manuel_, inspiring, artful or humorous law firm content injected into these networks can bring positive attention, higher engagement and broader brand awareness.

Peterson’s charts show that Facebook and Instagram, which is owned by Facebook, dominate in the seven largest countries by media spend.

Are Facebook, Instagram and Snapchat relevant to law firm marketing?
Chart created by Tim Peterson of MarketingLand.com: *Facebook and Instagram audience estimates are based on average usage over the past 30 days and span web and app users. Snapchat audience estimates are based on usage over the past 28 days and only count users exposed to Snap Ads within Stories, Shows and Discover.

In the US alone, that is an estimated 200M Facebook users, 100M Instagram users and over 75M Snapchat users. And if they are anything like me, they are skipping between all of these channels throughout the evening.

By the numbers, Instagram stories—different from Instagram posts—are reaching far more people than Snapchat (this is interesting because many deemed Instagram stories to be a rip-off of Snapchat’s format). Furthermore, Instragram is more popular than Snapchat in all countries except France.

And possibly the most interesting chart to law firm marketers is Peterson’s stats on those aged 35+. In their mid-career, these people were the first generation to have used Facebook all of their adult life—it is now a habit for them. Facebook was founded in 2004. This means that 35-year olds are the first generation to have used Facebook all of their adult life—it is a part of their everyday life. That means that the majority of folks below the age of 35 are more than likely have a Facebook account, and probably have an Instagram account. These numbers likely include your in-house counsel.

Looking at the chart, these mid-career adults, are using Facebook more than Instagram or Snapchat in every major country. According to the data, based upon recent usage, nearly 150 million adults are looking at content on either their Facebook or Instagram accounts.

Perhaps it is time to reassess you opinion of Facebook and Instagram.

Are Facebook, Instagram and Snapchat relevant to law firm marketing?
Chart created by Tim Peterson of MarketingLand.com: *Facebook and Instagram audience estimates are based on average usage over the past 30 days and span web and app users. Snapchat audience estimates are based on usage over the past 28 days and only count users exposed to Snap Ads within Stories, Shows and Discover.

I’ve been a member of Facebook since, I don’t know, maybe 2009? I have always been cautious about Facebook. It was never my favorite social media tool. But, as they say, keep your friends close but your enemies closer.

I’m fairly adept at Facebook but I was slow to get on board and very selective about friendships, turning off political posts and avoiding sharing anything too personal. I tend to post a lot of cat, book, movie and, well, my slightly touchy church stuff. Yes, I go to church. Sometimes. (Fr. Adam, I’ll see you in Confession).

But I have to say, when Hurricane Harvey it, I was glued to Facebook.

Some background: it is just me and my cats. When the flooding started, I was an island. I couldn’t get out and no one could get in. Although I was high and dry–literally–my nerves were like very tiny, un-rubbery rubber bands. For 5 days, I was alone. Cabin fever was turned into cabin flu.

Another thing you need to know is I don’t do cable. I do have a TV but it is only used to stream Roku. So no live coverage. And from what I heard, that may have been a blessing–what little I saw afterwards was non-stop coverage that was PTSD-inducing.

So the only way I could find out was going on was to follow the Mayor, the Harris County Flood Control District, the Harris County Homeland Security, the Harris County Sheriff’s Office on Facebook and Jeff Lindner on Twitter.

Sidebar: If you don’t know who Jeff Lindner is, follow him. The guy is now a demi-god here in Houston and is, to my knowledge, the first hero-meteorologist. This guy was so good, the public started a GoFundMe page to buy him a vacation after Harvey was over. And as the true Houstonian that he is, he donated all of it. He was calm, knowledgeable and seemed to never sleep. His hurricane and flood reporting probably saved thousands of lives.

Anyway, back to Facebook. Just by following these accounts, I watched every single press conference given by all of this government agencies on Facebook. Comparing notes with my family, who were glued to the TV, I was better informed and had more accurate knowledge, thanks to Facebook Live Streaming. I also had a front row seat to how our local government was functioning. Thanks to Harvey, I am on a first-name basis with all of my government officials–well I know them. They don’t know me. Here’s a great article on how to start using Facebook Live, if you aren’t familiar with it.

Mayor Sylvester Turner is a maestro at media. Whoever his PR team is, they did a stellar job. The entire team, from the Mayor on down, was on point. Upbeat with a can-do attitude, these folks set the tone and it came across loud and clear.

And the funny thing was, it trickled down. I saw it play out on Facebook. If you have never watched a live feed on Facebook, this is a curious forum. You can do a couple of things on a live stream. First, you can watch the video. You can also live comment on the video. Finally, people can “react” with emojis on a video. Below is a screen shot from a Lincoln Center jazz show I’m watching now.

Jazz at Lincoln Center, live at 7:00 pm Central on November 13, 2017

This is what was interesting: during Harvey press conferences, haters and trolls were regularly schooled by other commentators and, ultimately, silenced. It was fascinating to see swarms of hearts and thumbs-ups overwhelming those few angry faces. Commentators were just not having any of that, at all. I saw #HoustonStrong come alive and move into action.

The other great thing about Facebook during Harvey was that there was actually a safety check-in site. Facebook has had this capability for a while, using it first in the Nepal  earthquake in April 2015. You can not only mark yourself as safe, but if you hadn’t heard from someone, you could ping them and ask them to respond that they were safe. You could also offer or find help.

Facebook’s Hurricane Harvey Safety Check Site

And Facebook Messenger was indispensable. The first person to check on me was actually in the Arctic Circle. My Facebook friend was staying with her sister at a Canadian science lab and messaged me the Friday before to see if I was OK. I was in touch with hundreds of people over the course of Harvey, speaking to family, friends, long-lost friends and new acquaintances who just wanted to make sure I was OK. The group chat allowed me to stay in touch with my immediate family all through out–every morning we had roll call to make sure we were all safe. I had a video chat with my cousin in Los Angeles to let him know I was alright.

I won’t even talk about all of the groups and pages that were born during this period, dispensing advice, information, supplies and directions to the entire population of Houston. Many of these groups are still active, giving volunteer aid and support to Rockport, Baytown, Beaumont, Port Arthur and all of the other tiny towns surrounding Houston.

During that week-long period, Facebook became a lifeline for me and millions of people.

And just like any other tool, it cuts both ways.

First, the obligatory nod to On Bullshit. For the academically inclined, there is subversive fun in being able to deploy “bullshit” as a term of art. The custom is “bullshit” does not constitute profanity if you dutifully cite Harry Frankfurt. To summarize Frankfurt:

The liar aims to deceive. The bullshitter aims to persuade. The liar intentionally distorts the truth. Truth is incidental to the bullshitter, who may occasionally stumble on the truth by accident.

Because my consulting includes convergence initiatives and preferred provider programs, I am top-tier consumer of law firm marketing bullshit. I am a bullshit connoisseur. I am not here simply to complain and lambast. I am also here to defend (sort of).

This meditation on law firm marketing bullshit was prompted by a fantastic new project from Michigan State Law. Dan Linna and crew have done a service for the ecosystem with their Legal Services Innovation Index (great coverage here from Bill Henderson). Dan is too humble with caveats about minimum viable product, Phase 1, Version 1.0…..This is an unalloyed good.

But the caveats are understandable. Immediately following the announcement, a favorite follow among the Twitterati had a good-natured exchange with Dan about the “Law Firms Focusing Marketing Efforts On ‘Innovation’ Offerings Index.” The Law Firm Index is predicated on keyword searches of law firm websites. Harkening back to the salad days of SEO, it is easy to envisage the Index initiating a game of perpetual bullshit buzzword bingo. I already had a law firm friend comment that the Index would inform his firm’s website refresh.

Yet—and I know I’m rocking some worlds here—just because it is on the internet, doesn’t mean it is true. Statements on a law firm website are not necessarily representative of the law firm’s regular operations. Law firms are fecund sources of bullshit.

The volume and velocity of bullshit are especially high when large law firms position themselves as innovative. Two examples:

  • Any notoriety I may have started with my unorthodox practice of conducting site visits at law firms, especially my findings that legal professionals are terrible at using core technology. But these service delivery reviews are much broader than basic tech—process, staffing, knowledge management, project management, automation, analytics, etc.

    When I conduct site visits, I am often armed with RFI responses. I always read the firm website. I also use the Google. I therefore walk into the firm with a sense of how the firm tries to present itself to the world, especially regarding process, technology, and innovation.

      But I don’t ask about innovation at first. Instead, I have associates and paralegals walk me through how they actually perform the work for which they are billing my client. Only at the end of the exercise, if they haven’t touched on it (and they rarely touch on it), will I ask them how the firm’s widely publicized, award-winning initiatives around X affects their work for our mutual client and why it was not evident in the workflow they just demonstrated.
      As with so much else in my life, I elicit blank stares. Sometimes, they’ve read the same articles I have. But that’s about it. To the extent X is more than just talk, it exists elsewhere in the bowels of their large enterprise. There is no felt impact. And there is no expectation of future impact. As far as the labor is concerned, the firm hyping X is performance art, and I am a sucker for even asking about it.
    • In a similar vein, a GC I know was reading about all manner of innovative initiatives from the law firms he employs (AI Robot Magic!!!!!!). So he called them. He asked the firms to present to him on these initiatives with a specific emphasis on how the initiatives enhanced the work the firms did for him. The firms demurred. They admitted it was mostly PR and there were not yet any concrete benefits worth discussing. They seem surprised he asked. But the firms were less shocked than his fellow GCs, who could not imagine what would possess him to waste his time on such an exercise.

    As I’ve said many times, it is not that innovation does not happen in law. Innovation is everywhere. Our problem is sustainably scaling innovation.

    Large ‘innovative’ law firms are not pure PR constructs. But most insiders I talk to suggest it would be generous to put the ratio at 15% innovation to 85% PR. The PR machine often collects genuine innovative efforts occurring in disparate corners of the firm and spins them into a seemingly coherent narrative that suggests systemic adoption. PR then perpetuates the narrative for years after the subject innovations have failed to spread beyond the early adopters. If you hire the actual team that won the awards, you have a fair expectation of getting what is advertised. If you hire some other team in a large firm, awards have minimal informational value.

    In the abstract, I don’t mind a little bullshit. There is potential for a virtuous cycle where clients seek firms based on purported innovation and thereby incentivize scaling innovation. But that only happens if clients demand to experience (and measure) the fruits of innovation—i.e., unless you ask. Selecting a firm merely because they have a reputation for innovation only reinforces the viability of a high sizzle-to-steak ratio.

    In the particular, I often find bullshit useful. When I am reviewing RFI responses, I know I am consuming a fair amount of bullshit. But it is informative bullshit and, ultimately, bullshit I can work with.

    There is substantial variation in the quality of the bullshit. Many firms clearly have no idea what they are bullshitting about. They unintentionally present as parodies on par with O’Magawd Mikoreer Izova. Other firms say all the right things. Their bullshit is on point.

    Saying all the right things is never enough. But it’s a start. It’s an indicator that someone at the firm gets it. It’s a signal that if a client is committed to weaving continuous improvement into the fabric of a deep supplier relationship, they would, at the very least, be able to enter into a constructive dialogue with the firm.

    And, while weak, the words are also a form of commitment. Even if it is mostly bullshit, a firm that tells a client they ❤ AFAs or project managers has more pressure to deliver if that client asks for AFAs or project managers. Although RFI responses are written in the present tense, I often read them as markers as to what the firm might do with sustained client engagement.

    The quality of bullshit is one filter among many. It doesn’t help identify the right firms so much as assist with eliminating the wrong firms. It is a step in strategic selection. Though not decisive. Bullshit should never be the final word.

    I can imagine a near future where law departments narrow firms based on expertise (the threshold consideration) and then use Legal Services Innovation Index 3.0 to inform (i) which remaining firms to talk to and (ii) what to talk to those firms about. While I would welcome additional forms of measurement, this would still be an improvement on the status quo. But only if it leads to engagement on innovation and service delivery. Not if the words on the webpage are treated as dispositive.

    Which, as always, brings us back to the reality that law is a buyers market. Any problems that arise are for the buyers to fix. And we have a puffery problem that needs fixing.

    The tide is turning. Slowly. Law departments are keenly aware of law firm inconsistency. Many law departments are therefore increasing focus on process- and technology-enabled legal service delivery. Some are making great strides. But most still struggle to articulate what they want. Innovation, value, efficiency, cost-effectiveness….by themselves, these are vague demands. Ambiguity is an invitation to bullshit. We need to get concrete. Measure. Ask. Inspect. Discuss. Act. Repeat. Or something like that. Whatever it takes to flip the ratio. 85% real innovation to 15% PR should be our aspirational goal.

    Again, I expect a little bullshit here and there. I am a regular purveyor, though still too circumspect to ascend to true bullshit artistry. Without the ballast of bullshit, my writing would be an endless parade of caveats, conditionals, and qualifications (and my posts are already too long). Modest overconfidence can enhance readability. Modest overstatement can raise the bar. But the legal market exceeds the bounds of reason. Our bullshit is a barrier to innovation.

    Bullshit has become so endemic that everyone from the associates to the GCs in my examples couldn’t understand why anyone would deign to question it. There is such a quantum of bullshit that we are breeding cynics who presume everything is bullshit. It ain’t all bullshit. There is real innovation. But the prevalence of bullshit causes the marketplace of ideas to malfunction. Real innovation ends up buried under piles of bullshit.

    Yet it’s not accurate that ‘everybody knows’ it’s all bullshit. Many have started to believe their own bullshit. We’ve cultivated the illusion of innovation where constant chatter about innovation in and of itself has convinced partners that their firms are innovative (I’d submit the same is true of law departments, but I don’t have the study to back that up). Our bullshit has gone too far when we can no longer recognize it as bullshit.

    The full bullshit arc:

    ______________________________________
    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.


    *An excerpt from Frankfurt’s classic essay “On Bullshit” follows. The full essay is here. The subsequent book (a great read) is here.

    This is the crux of the distinction between him and the liar. Both he and the liar represent themselves falsely as endeavoring to communicate the truth. The success of each depends upon deceiving us about that. But the fact about himself that the liar hides is that he is attempting to lead us away from a correct apprehension of reality; we are not to know that he wants us to believe something he supposes to be false. The fact about himself that the bullshitter hides, on the other hand, is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor co conceal it. This does not mean that his speech is anarchically impulsive, but that the motive guiding and controlling it is unconcerned with how the things about which he speaks truly are.

    It is impossible for someone to lie unless he thinks he knows the truth. Producing bullshit requires no such conviction. A person who lies is thereby responding to the truth, and he is to that extent respectful of it. When an honest man speaks, he says only what he believes to be true; and for the liar, it is correspondingly indispensable that he considers his statements to be false. For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.