Following on up on my great experience this past week in Austin, TX at the Annual Legal Marketing Association Conference, I thought I would share my thoughts from a few weeks ago when I had a conversation with someone who is thinking of
getting into legal marketing.  She’s had
a vibrant career in other industries and thought legal marketing seemed appealing
as a former lawyer and consultant. We chatted for a while and she asked me if the lawyers
respected me. I said yes, I believe that at my firm the lawyers do honestly
respect the marketing and business development folk. Then she asked me if I was
treated like a second class citizen as a result of being a non-lawyer or a
non-practising lawyer. Before I could answer, she asked if I was treated the
same, better or worse than associates.  I
paused to think and then replied – think of legal marketers as you would your
gardener.  You want them to show up
consistently, do a good job, cut the lawn, trim the hedges, maybe plant a new
flower or two and when the summer rolls around, help you with a vegetable
garden.  Their job is to alleviate your
burden of work, particularly if you know nothing about gardening and you
entrust to them the curb appeal of your house and entrance way or the calm
composure of your backyard. You are happy to pay them a nice wage, market value or above
for the work they do.  You want your gardener to be happy so he or she keeps coming back
consistently and you don’t have to retrain a new gardener on what colour mulch
you prefer or which flowers make you sneeze. But you also don’t want them to
complain to you about their career satisfaction or growth in the industry.
Those topics make you tune out mostly because if you wanted to talk about the
trials and tribulations of gardening you likely would have been a
gardener.   

Associates on the other hand, are like your teenage children,
they can be difficult and/or demanding, they require training and attention but being a teen is a right of passage
and you want to see them through the challenging stage of life. You are
invested, you’ve introduced them to you friends (clients), you’ve nurtured and
educated them.   When they complain about
career prospects or job satisfaction, you listen intently.  You’ve been in their shoes and agree or
disagree you know they hold the keys to the future (of your firm and your
profession).   One is not better that the other – you treat your gardener and your teenagers differently. 

My analogy was further upheld at a Toronto LMA luncheon entitled
“Saving Lawyers’ Time and Winning New Business”, where it was
established that  the role of the
marketer/business development person is to make the lives of the partner easier
so he/she can focus on their strengths.

And so, that is why I am gardener, I have been entrusted with
keep the lawn green, the fruits and vegetables growing and the flowers blooming.  And as the warm spring sun pours through my office window, I can tell you it is not a bad gig
at all. 
Next week, I will share some more of my thoughts around legal marketing and my post LMA annual conference take-aways.

 

As Robert Ambrogi has been reporting, Avvo launched a new legal forms offering to compete with LegalZoom. Mr. Contract himself, Ken Adams, reviewed an Avvo form and concluded that Avvo was another of the “hack vendors” that was “foisting crap” and “dreck” on consumers. Avvo responded to Adams’s “silliness” in a way that suggests to me that we are witnessing two different debates. Both warrant exploration.

Legal Forms are a Bad Idea

 Avvo wants to debate the merits of consumer-facing legal forms. The basic outline of this debate is fairly well settled:

 Should lawyers create legal forms? Yes. Anytime that a lawyer repurposes old product–which happens all the time–they are making the case for some form of document assembly or automation. If you have a good indemnification clause it is stupid to draft a new one from scratch.

Should consumers use legal forms? Sometimes. Form contracts are everywhere (home purchases, car lease, software licenses), and we do fine without legal counsel. When the need is straightforward, most people are sufficiently adept at filling out basic forms. Even if they aren’t, lawyers are cost prohibitive.

Isn’t there a danger? Sure. Not every situation is straightforward. The untrained person is more likely than the trained person to make a costly mistake.

This is where the debate normally heats up. The question becomes where to draw the line. At what point is the provider of the form handing the consumer something too likely to lead to self-inflicted harm. The standard criticism is that the kinds of forms Avvo is providing (prenup, codicil, quitclaim, etc.) are not suitable for consumers to use without guidance from a lawyer. Avvo was ready for that debate.

First, they point out that their target audience is people who are already seeking to use forms rather than hire a lawyer. Second, they explain that the purpose of their free forms is to “upsell” consumers– i.e., convince the consumers to pay for assistance from a lawyer through Avvo Legal Services.

At worst, Avvo is providing a free service to someone who was not going to pay for a lawyer under any circumstances. The implicit suggestion seems to be that their free service is better than what the consumer would have otherwise done or, at least, just as good as the forms that the consumer would have paid some small amount for at LegalZoom.

Avvo not only concedes the standard critique–most people would be better off if they consulted an attorney–Avvo’s business model is based on convincing consumers of that premise. Avvo’s CEO Mark Britton referred to DIY as a “virus” and is adamant that you cannot compare mere forms to the bespoke work product of a trained lawyer:

“This is just silliness. The point that is being missed here, is that you have over 50 percent of people who have money and are potential clients but who are not using lawyers. You have this explosion of DIY that is like a virus. The question is how do you get in front of those people who want to do it themselves. Even though they say they want to do it themselves, they don’t really mean that. You cannot compare a bespoke product from a lawyer that will cost you thousands of dollars to a product that is an entry-level product designed for people who are doing everything they can to avoid a lawyer. Let’s get them that product and then start the conversation from there.”

The primary questions in the debate in which Avvo is engaged:

1. Whether consumers are better off consulting a lawyer than using forms

2. Whether the provision of free forms is more likely to convince consumers to use lawyers

3. Whether consumers who are not going to pay for a lawyer under any circumstances are better off with access to free forms

Avvo answers in the affirmative to all three.

Forms are Fine, Lawyers are Bad

 Ken Adams is having an entirely different debate. He is stating that Avvo’s forms are “crap” on their own merits. That is, Adams is comparing Avvo’s form to a good form. He is not comparing Avvo’s form to the bespoke work product of a good lawyer.

Adams, however, is famously less than impressed with bespoke work product from putatively good lawyers. In a previous post, he subjected a LegalZoom contract to the same kind of scrutiny and came to a similar conclusion: “commoditized mediocrity.” He then added this gem:

It’s clear why business customers might want to try LegalZoom. Lawyers cost more than LegalZoom. Choosing a lawyer can be a crapshoot. And there’s a fair chance that an NDA produced by a lawyer you retain wouldn’t be any better than LegalZoom’s.

Let that soak in for a second. Adams is absolutely saying that the forms from Avvo and LegalZoom are mediocre. But he is also saying that a fair number of lawyers are just as mediocre, if not worse. Where I made the banal observation that it was stupid to start from scratch if you already have a good indemnification clause, Adams would likely counter that the indemnification clause you have probably isn’t all that good and that most lawyers are incapable knowing the difference, let alone writing a good clause on their own. As he writes in the Avvo post, “the quality failure of the consumer market is just part of the quality failure of contract drafting as a whole.”

Consider an analogous post where Adams takes the same critical eye to a two-page, simplified cloud contract for which IBM was getting accolades. Adams labels the contract the work of “dilettantes” and then lays out a case that most lawyers should leave contracts to the professionals (i.e., being a lawyer does not make one a contract professional):

What conclusion do I suggest you draw from my markup? That contract language is specialized—it’s best left to specialists. Knowing your company’s transactions doesn’t make you a specialist. And many years of being steeped in traditional contract language doesn’t make you a specialist. You become a specialist only by making a concerted and disciplined attempt to familiarize yourself with the building blocks of contract language, the good and the not-so-good.

If you’re not a specialist, you’re a dilettante. Those responsible for IBM’s new cloud services contract are presumably knowledgeable, enthusiastic, and hard-working, but when it comes to contract language, the shortcomings in the new contract suggest that they’re dilettantes. That’s to be expected. In fact, the contracts ecosystem would work better if contract language were left in the hands of a limited number of “legal knowledge engineers” (to use Susskind’s clunky but apt phrase) working closely with those who have a broader understanding of the business and legal issues.

Adams made similar comments in a post labeling the Google-Motorola merger agreement “a mediocre piece of drafting. It’s bloated and hard to read, and that takes a toll at every stage—drafting, reviewing, negotiating, and monitoring compliance. And there might be lurking in the verbiage some bit of confusion that metastasizes into a dispute down the road.”

With respect to the high-prestige drafters of the Google-Motorola merger agreement, Adams anticipates the obvious question:

Mediocre? How can that be! After all, Google is represented by the prominent law firm Cleary Gottlieb—presumably they did the bulk of the drafting. Well, the Google–Motorola merger agreement is mediocre because all big-time M&A drafting—or at least all that I’ve seen—is mediocre.

That should come as no surprise, seeing as the language of mainstream drafting generally is dysfunctional. That’s due to a mix of factors. The root cause is that because any transaction will closely resemble previous transactions, drafting has become largely an exercise in regurgitation, with most contract language being given a pass. Also, law firms aren’t suited to the task of retooling and maintaining template contracts. (For more on these factors, see my article The New Associate and the Future of Contract Drafting; go here for a PDF copy.)

But in addition, most of the M&A luminaries I’ve approached have made it clear that they’re wedded to old habits and conventional wisdom. Perhaps what makes M&A drafting particularly resistant to change is that clients are less inclined to meddle when it comes to “bet the farm” work such as the Google–Motorola deal.

The way to fix M&A drafting would be to turn it into a commodity process. Google, if you want your M&A contracts to be free of shortcomings of the sort manifest in the Google–Motorola merger agreement, I suggest that you enlist some like-minded companies and form a consortium to create a rigorous set of document-assembly M&A templates. You could fund it with spare change retrieved from your couch. Judicious use of the carrot and the stick would get leading law firms to participate. The work could be done quickly and efficiently. The basic idea should be familiar to you—after all, this month Google Ventures invested in Rocket Lawyer, which aims to commoditize, in a much more rudimentary way, some basic consumer and small-business documents.

[In a subsequent post, Adams reviews an actual contract from Rocket Lawyer. The title of the post, “Rocket Lawyer? Contract Automation FAIL“] 

Adams is not opposed to forms. Adams is about the staunchest supporter of forms you can find. He just believes that most lawyers lack the training to author first-rate forms. He is not saying Avvo, LegalZoom, and Rocket Lawyer forms are mediocre because they are forms. He is saying they are mediocre because they are mediocre. He reaches similar conclusions about the bespoke work product of lawyers hired by IBM and Google.

As Compared to What

Avvo’s position touches upon the IKEAization of law. Much of IKEA’s furniture is disappointingly serviceable. It works for the intended purpose. But it is made of cheap, fragile particle board. It has a high propensity to break and is notoriously painful to put together.

Yet many of us shop at IKEA anyway because it is substantially less expensive than traditional furniture. Should consumers be permitted to make the same tradeoff when it comes to legal services? Slightly worse but radically cheaper.

It’s an important question for every legal consumer, including in-house counsel who are not only under pressure to consider less expensive alternatives to traditional law firms but who should always keep in mind the lessons of Do Less Law. Budgets are finite, and resources should be put to their highest and best use. Tradeoffs are unavoidable.

But the question of slightly worse at substantially lower cost is of particular significance for consumers who cannot otherwise afford legal services. The access-to-justice gap is not going to close because we talk about it endlessly. Starting to close the access-to-justice gap will require actually making the structural changes that would provide more access to justice. This includes the tradeoffs necessary to make legal services more affordable.

But the whole IKEAization discussion rests on an implicit comparison. We know, for example, that the Avvo and LegalZoom forms are cheaper than consulting a lawyer. We can do that math. But do we really know whether the end product is worse than what the consumer would have gotten from the lawyer they would have hired (if they could have hired one)? The instinctive answers seems to be that, yes, we know the expensive human lawyer will outperform the inexpensive (or free) form. Adams, however, calls into question our knee-jerk reaction. And even if the forms are worse, the issue of how much worse is significant in a world of tradeoffs. Dangerous and suboptimal are different conclusions with different implications.

I would be interested to hear how crowds of lawyers react to Adams if/when he tells them that most of them are bad at contract drafting. According to Bryan Garner, they “bristle” when tells them that, “on the whole, our profession can’t punctuate.”  Garner, the authority on legal writing, does more than remark on poor comma usage [so guilty!], he tells rooms full of lawyers that we are bad at writing in general:

For many years in lectures, I’ve likened practicing lawyers, when it comes to writing, to 23-handicap golfers who believe that they’re equal to the touring professionals. For those not golfers, this would mean that pretty poor golfers—those who habitually shoot in the mid-90s but benefit from the big handicap—somehow fool themselves into believing that they really are shooting in the mid-60s, and that they’re about as good as it gets. I’ve been trying, in other words, to say that lawyers on the whole don’t write well and have no clue that they don’t write well.

In the quoted article, Garner discusses Dunning-Kruger, or illusory superiority. Ignorance begets confidence due to meta-ignorance–ignorance of our own ignorance. Because we don’t know what we don’t know, we labor under delusions of adequacy. We then erect those delusions of adequacy (or grandeur) as the standard against which we measure potential departures from the status quo. Legal forms are just part of a much broader discussion of what kind of work requires a human lawyer admitted to the bar in a particular state. Think of UPL regulations, humans as the “gold standard” in document review, the kind of work amenable to outsourcing, etc.

I write quite a bit about using process and technology to complement legal expertise. I spill most of my digital ink defending the complements–process and technology–and trying to explain how they augment or leverage the expertise. Maybe I need to spend a little more energy questioning the implicit assumption that the expertise is all that expert.

++++++++++++++++++++++++++++
Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right business outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. The SDR is premised on rigorous collaboration and the fact that law departments and law firms are not playing a zero sum game–i.e., there is more than enough slack in the legal market for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. One obstacle is that traditional technology training methods are terrible. Competence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him on Twitter (@DCaseyF).

Of all the adaptations law firms need to make to be successful, the biggest challenge going forward will be making changes to their partner compensation systems. Ben Weinberger of Prosperoware tackles the subject head-on in today’s guest post.

The earliest known written legal code, Ur-Nammu’s Code, has been attributed to have originated in 2050 B.C., though its authorship is still up for grabs (some attributing that to his son, Shugli).  Shortly after that, law firms were formed on a partner-based business model whereupon compensation was based largely upon hours originated and hours worked on behalf of the firm.

And so it went for a while.  This compensation model brought with it an obvious behavior incentive for lawyers or partners to bill as many hours as possible.  As the market slowly shifted, so did the clients’ sentiments regarding this particular form of incentivizing.

In remediation, firms first recognized that they had to look more carefully at billable hours and compensate their timekeepers on realization rather than billable rates.  This first foray into restructuring the compensation model ensured, at the least, the firm was actually compensated prior to the lawyer or partner.  As firms grew in size and complexity and management structures became more complex, however, compensation models evolved to incorporate numerous other metrics that brought with it a combination of some science–and some art.  Still, partners responsible for bringing in large books of business were always compensated for that volume, just as partners who brought in billable hours were compensated for billable hours.

The clients’ sentiments, however, have not been satisfied.

The shift in market–as driven by those shifts in sentiments–is accelerating. In fact, a legal talent/future business strategies report just released by Deloitte boldly forecasts a radical tipping point for the legal industry by 2020, a short four years–or less than one five year strategy plan–from now, stating:

“The transformation of the profession is likely to be profound…Indeed, by around 2020, we expect a tipping point for individual firms which will impact the competitive landscape [and the role of talent in law firms]. Businesses must prepare effectively now so they are not left behind by the end of the decade.”

Smart firms have started recognizing and evolving the way they do business to accommodate this change in market condition.  Specifically, they are starting to compute profitability of matters, using business intelligence, and empowering their professionals to understand cost of production and more modern performance metrics such as actual margin on matters.  The firms are providing their professionals with the appropriate tools to enable them to select appropriate resources and more accurately budget matters to ensure sustainable profitability for the firm.

Unfortunately, one issue remains at many firms that hinders their ability to modernize their business:  legacy compensation models.  In the firms which are getting ahead of the game and trying to evolve their culture to a more profit oriented focus, without also adjusting their compensation model, they’re battling themselves as they retain inefficient incentive structures to drive the right behavior.

If specific billable hour targets are still tied to partners’ compensation, they have less incentive to distribute billable work to the most cost-effective resource.

When I was at a firm a few years ago, the finance director and I went through an exercise to compute the relative profitability of each grade of our lawyers in the firm–newly qualified associates, senior associates, junior partners, etc.–all the way through to the senior partner level.  By correctly assessing a number of criteria that evaluated the true cost structure, we were able to calculate the cost of each billable hour per each different grade of lawyer.  Once identified, we shared the results with our firm partners:  and as it so happened, our most profitable hours were being worked by our senior associates. In various ensuing discussions I’ve had with colleagues and peers at other firms, it would seem that this result is a fairly standard occurrence.

As part of the exercise, we computed and readily shared with the firm’s partners during a retreat the true profitability metrics for each hour worked by our equity and senior equity partners. For senior equity, this equated to approximately negative USD $130/hour. This was not an easy statistic to share with the senior partners (it’s tricky to tell your collective ‘bosses’ that, to borrow a phrase from one of my favorite films, Mr. Mom, “you’re doing it wrong”); however, we took the exercise further and explained that their time was, in fact, best spent managing clients (client care), focusing on business development, and ensuring that work was appropriately distributed across the firm. Recast across these work functions, they more readily accepted and comprehended the validity of the financial results we were sharing.

The next logical step was for our firm to take a much closer look and carefully evaluate its compensation formula for partners.  We took a more holistic view of what types of behaviors we were seeking to drive and what we wanted to incentivize partners to do, and what clients wanted to incentivize partners to do—these three things are not mutually exclusive and, in fact, should be aligned.

In recognizing that the firm was in a competitive market and that a significant source of its revenue was being generated through alternative fees and fixed fee work, there was very quick recognition and acceptance of the need to ensure that work was being completed in the most efficient and economically viable manner.  We found that by providing our lawyers greater insight into firm resourcing, costs, and historical budgeting, and that by enabling our lawyers to see in real time how their engagements were progressing, they were better able to ensure that work was being completed efficiently, effectively, and appropriately.

To do so is at the core of a firm’s future success, according to Deloitte:

“Firms will want to continue to demonstrate that they can offer clients the best products, price and service. We believe that the most successful law firms will be those that are agile enough to flex resources in order to meet client needs at an efficient price.”

Firms today that are looking at ensuring sustainable business models need to look not only at how they are allocating work and pricing that work, but they also have to consider how they are incentivizing their professionals to complete that work. If their compensation models have not evolved in such a manner as to help encourage the most appropriate distribution of work, they are going to find it far more difficult to implement real positive change in both the behaviors and the long term profitability—ie longevity–of the firm. 2020 is less than four years away.

Where will your firm be then?

Ben Weinberger is the Vice President of Solutions for Prosperoware. Ben is an industry thought leader and a licensed attorney with more than 20 years of experience in the strategic development, transformation, and direction of operations and technology in a variety of public and private organizations.  He can be reached at ben.weinberger@prosperoware.com.

Is Legal CI Sales Enablement


I’ve posted here before about CI as the new Client Intelligence and I still believe that. Clients more than ever – still – want to work with lawyers and law firms who understand their business, and that comes from, among other things, CI. But in giving a presentation recently to some new and interested parties at the firm it occurred to me that CI in law firms is turning out to be sale enablement or engagement. CI in law firms builds a pipeline, creates leads and informs winning RFP responses. At least the way I have being doing it…which made me think about all the conversations and discussions that have happened on this blog and elsewhere in the legal management world about sales people in law firms.  Are they a necessity? Maybe.  Can firms do well without them? Sure, though always better to have them. But what about CI people? 
I have seen a marked increase in CI people at firms – at all levels – from analyst to specialist, manager to director over the course of my dozen plus years of doing CI in law firms. Not only has the number of roles increased, but so too have the depth of those roles, the publications, continuing education opportunities, technology platforms and consultants in the space.  There has been a quiet building of the practice behind the scenes, not at the forefront as has been the case with pricing people or sales people.  These roles are seen as truly disruptive and borrowed from other disciplines. But CI people have kind of just evolved out of BD, KM, Library and other roles to fill a growing need in law firms.  That also means that CI people are often the bridges between these departments as well. 

I have been trying to articulate why it might be that CI professionals in firms are an accepted and growing domain. All I can come reasonably come up with, is that culture eats strategy for breakfast or whatever Peter Drucker really said.  If lawyers not administrators or law firm management types are talking to clients, then lawyers are de facto sales people and CI people, not actual sales people, become sales enablement folk – tasked with helping lawyers make one kind of sale or another. Most CI people in law firms started in Marketing, Business Development, the Library or research services and somewhere along the way learned about CI. Some people started doing CI and were then trained in the discipline, as was my path. Others, were thrust into the CI role and have been learning by doing along the way.  Regardless, many of CI people in law firms that I know, have been at their firms for a while, or at the very least, the people who created and established the CI function have been at the firms for a while. Generally speaking, the longer someone or some role exists at a firm, the more deeply entrenched in the firm culture and the firm DNA a person or role becomes. It follows then, that an evolved CI person or a newly hired one by an evolved other kind of manager, understands a firm’s unique selling points or differentiators. Good CI people understand their firm’s culture and how to find new clients, fill a pipeline or help grow existing client accounts in a way that is culturally relevant to the sales –non-sales-people, aka the lawyers.  Strategy such as that which would be brought to be bare by external consultants, or sales people may not jive as well with firm cultures.  Strategic plans on paper may be the ultimate in best practices but only when executed with institutional knowledge, cultural sensitivity and know-how, are these plans destined for success. Law firms are cultural places, you only have to look at the AmLaw 100 or 200 to see that. What other industry boasts a top 200 of its kind?  The accounting firms have managed to get it down to the Big 4, even the biggest sports franchises in the world with all of expansion teams don’t start the season with a top 200. The big differentiator for firms is often culture and culture can only be defined and sold on the grounds of intimate understanding. CI people, steeped in a firm’s culture can connect the internal and external dots to create a sales pipeline in a way that others may not be able to because of the inherit objectivity and collaborative nature of CI in law firms. 

The experience of CI professionals gives them a unique perspective on the attorneys client base, including insights into their training and thought processes.  This allows them to provide analysis that works to the strengths of the attorneys as problem solvers rather sales professionals.  In turn, this allows the attorneys to sell their services in a targeted manner by addressing client needs and how they are best suited to solving them rather than with a general sales pitch.  I think this approach allows firms to capitalize on what differentiates them from others in acquiring new business.  And may also speak to the large number of successful firms.  Law firms are not a fungible commodity and CI enables them to emphasize this.

It is only too bad sales doesn’t start with a C or I would have a new set of CI initials to expound.  Is CI legal sales enablement?  
 

 

 

 

As some of you know, I have spent the last three years studying and working as an actor and I’ve been amazed at how much of what I’ve learned in acting makes my KM work better. So, as a break from the usual KM and legal tech discussions, I thought I would share four of the top acting rules and show how they apply to each and every project you do.

Acting Rule #1: Be in the Moment
Another way of saying this is “don’t anticipate.” In acting, you typically get the full script for your project once you get cast, so you know the end of the story before you start shooting any of the scenes. But alas, as you shoot each scene, you need to act like you don’t know the end of the story. In other words, in that moment that you’re shooting that scene, you need to be in that moment, and not anticipate what’s going to happen later. After all, if you were a person actually living through that moment, you would not know what’s going to happen, and as an actor you need to portray that real person.
Project Application: When speaking with users or other project team members, don’t anticipate what those users or other team members are going to say. Take a breath and be in that moment, not back at your office responding to that new email that just arrived in your inbox. This will not only help you strengthen your relationships, it will also make sure that you don’t miss or dismiss something new or different that your ‘scene partner’ is sharing with you.
Acting Rule #2: Listen
You’ve probably all too often seen actors who don’t look like they are authentically reacting to their scene partner but rather are just waiting to say their own next line. 
Project Application: In addition to staying in the moment of whatever conversation you’re having, genuinely listen to the other person, don’t just wait until it’s your turn to announce your idea. Whether it’s a vendor, team member, user, or superior, listen to what they say. This applies not just to the words they’re saying, but also — and perhaps more importantly — to what they really mean. Sometimes people choose words that soften or mitigate what they really mean (or, perhaps, the opposite). Listen closely, and you can probably tell what they really want you to know. Being an excellent listener will allow you to respond in a way that truly addresses your colleague’s needs and concerns, and will help make you a trustworthy and respected project partner.
Acting Rule #3: Put All Your Attention on the <wait for it….> OTHER Person, Never on Yourself
Diva, anyone? That doesn’t apply just to the acting world. Many people are focused on their own agendas, or on how some action or inaction will make them look. Don’t be that person. 
Project Application: If you’re building a project or providing a service, put all your attention on your client, internal or external. Make sure you are addressing their ask and their need, and that will make the project the best it can be, and you the star (but that shouldn’t be why you do it).
Acting Rule #4: Read the Other Person’s Emotions
We don’t talk a lot about emotions in the legal world. But in acting, emotions are the core of our work. Acting is an emotional art; the way you use and flex your physical muscles for a bodybuilding competition, so you use and flex your emotional muscles for acting. I spent my first six months of acting training focused solely on emotional exercises that connected me deeply to my own emotions and honed my ability to read other people’s emotions. The result: within a few seconds of meeting someone, I can tell if they’re distracted, stressed, proud, confident, insecure, sad, angry, joyful, content, worried, threatened, anxious, compassionate, playful, open, generous, or a myriad of other things.
Project Application: Believe it or not, understanding where your colleagues are coming from, especially in a conflict, will vastly improve your interactions with them. Are they being a bully because they’re actually insecure? Or because they’re being bullied or pressured by someone else? Are they not contributing because they feel frustrated? Or because they feel overwhelmed or unheard? Are they being stubborn because they desperately need a win? Or because their job is on the line? If you can see what’s going on underneath the words, you can address the real conflict (delicately, or even without the other person knowing) and probably get what you both want. For example, if they’re worried about their job but you know that your solution is better, you might not say “I know you’re worried about your job,” but you might say “here’s why I think we should try this solution, and let’s put your name front and center on this project because of all the work you’ve done.”
Be in the moment, listen, focus on the other person, and read your colleague’s emotions. Four rules that I hope help make your projects and your relationships the best they can be.


I know I write my fair share of crap that is of minimal value to anyone, but that’s why we invite Casey Flaherty to post his epic legal tone poems on 3 Geeks.  His insight and valuable contributions balance my own questionable efforts.  After today, the ABAs Law Technology Today is in desperate need of a Casey Flaherty-type ringer.

As much as I hate to call anyone out for writing nonsense – pot/kettle – this turd of a puff piece got my hackles way up.

Four Ways Law Firms Are Using Technology For Exposure and Efficiency 

Helpfully subtitled: A shortlist of ways to leverage technology in your favor.

I know, I know. You’re saying, “Ryan, why would you bother to click on that link? We know that you know all about click bait titles. What pearls of wisdom were you expecting on the other side?”

I don’t know! Call it a moment of weakness at the end of a long day.  For the second and a half it took the page to load, I thought maybe one of the ‘four ways’ would be novel or new.  Something thrilling that I had never imagined. Something to spark my imagination and lead to my next great legal technology insight.

I’ll save you the brain cells.  The ‘four ways’ that law firms are using tech for exposure and efficiency, are:

  1. Becoming a Resource on Social Networks
  2. Blogging About Important Topics 
  3. Launching Law Firm Apps
  4. Digitizing Documents and Using Online Libraries

When I finished reading, I was sad.  5 minutes later, I was angry.  As any blogger can tell you, the stage that comes after anger is Blog Post.

This rant is not about the author, his credentials, his ideas, or his writing.  Mad props and hats off to anyone who can make a living writing anything at all. And I know this was a paid post because I dropped the text into word and confirmed that if you include the title, the post comes to exactly 750 words. That’s not coincidental.  No, the author is a new hero of mine. My scorn is reserved for the ABA and the editors of Law Technology Today.

If this is what the ABA thinks constitutes a modern use of tech for ‘exposure and efficiency’, they should probably rename the site Law Technology 2003.

Here’s my Four REAL Ways firms are using tech for exposure and efficiency:

  1. They are no longer spamming their clients on social networks and instead are building useful and useable tools that clients actually want/need and will pay for
  2. They automate absolutely everything they can so that some of their lawyers can focus on the cool stuff they imagined they’d be doing when they graduated from law school, and others can build the cool stuff that automates the boring stuff.
  3. They stop being so damn proprietary about every little tech idea they have. They’re proud and loud and shout their genius from the rooftops. 
  4. They digitize their documents and use online libraries
Well, I guess that last one would have been the same.  
I stand corrected.

“Richard Susskind writes the same book every five years. He just updates the examples.“

The above would be offensive if it were not a joke frequently delivered in the first person by Susskind himself. What makes the self-deprecation so humorous is that, in part, it is true. Richard Susskind has been delivering a fairly consistent message for decades. And he keeps finding more and more examples of the market making manifest his predictions about how technology will change the way legal services are delivered. Isn’t that what being right looks like?

Prophesy can be a fairly ephemeral business. In 1996, Susskind was labeled “dangerous” and “possibly insane” because he was daft enough to posit that email would become the dominant form by which lawyers and clients would communicate. Within a decade, a lawyer was being laughed out of court after claiming “excusable neglect” for not checking his email regularly. These days, we write articles about lawyer overreliance on email. Apostasy became orthodoxy became barrier to innovation.

From email to the unbundling of legal services to the use of expert systems, Susskind has an excellent track record of outlandish predictions turning into common sense. I strongly recommend all his books, including his latest, The Future of the Professions. I tend to only disagree with Susskind’s forecasts as a joke. Or, at least, so I thought until I read an interview with me where I went a bit further:

Flaherty – unlike, for example, Richard Susskind – is not pessimistic about the future for lawyers, quite the opposite. He believes that technology will not drive lawyers out of their role of trusted adviser. ‘I think that technology can elevate lawyers’ work to a higher level. I also think that younger lawyers will be relieved of the simple, brain-dead work. If you look at it this way, technology is a necessary precondition for allowing lawyers to be lawyers.’

There is much in the above that reflects what I think. But the interview–translated from Dutch–is not exactly the epitome of nuance.

First, I am somewhat neutral about the future for lawyers even if it is a future filled with lawyers. A lawyer-heavy world is not necessarily a good thing. I long ago stole from Susskind the idea that the law does not exist to keep lawyers in lucrative employment. And I am one of those lost souls who believes that our world has sacrificed too much talent to the unproductive sprawl of finance, tax and legal. I consider all those industries to be of substantial importance, but they are all susceptible to self-perpetuating arms races reliant on rent seeking and regulatory arbitrage. Whether this makes me a blinkered libertarian or unthinking socialist depends on your point of view.

Second, as I wrote here, I have no idea what is going to happen decades hence. I am not qualified to referee this point of contention between Susskind and others. I can’t imagine a world much different from the status quo. I also can’t imagine a scenario where the accelerating returns to technology do not fundamentally transform every aspect of work, including the work done by lawyers. And I can’t imagine a world without work. Nor can I imagine what higher-value work it is that humans, including lawyers, will find to do if the automation paradox continues to hold and machine augmentation leads to a higher demand for human labor. Which is to say that I do not possess a fecund imagination. Humanity is fortunate that reality is not constrained by the limits of my imagination or intellect. Just because I have a hard time imagining something does not mean it won’t/can’t happen.

While I don’t really have an opinion, or a rooting interest, on the net employment effects for legal professionals, I do think the nature of work will change. And, as expressed in the interview, I suspect it will change for better. That does not necessarily mean it will get better for everybody. As Tyler Cowen writes in Average is Over:

This imbalance in technological growth will have some surprising implications. For instance, workers more and more will come to be classified into two categories. The key questions will be: Are you good at working with intelligent machines or not? Are your skills a complement to the skills of the computer, or is the computer doing better without you? Worst of all, are you competing against the computer?

Third, while I find it intellectually fascinating, I don’t derive much in the way of practical guidance from reaching firm conclusions about how the world will look a few decades from now. The Susskinds (Richard wrote the book with his son Daniel) predict the end of (most) lawyers, but not anytime soon:

Our expectation is that, over time— by which we mean decades, rather than overnight— there will be technological unemployment in the professions. In other words, there will not be sufficient growth in the types of professional task in which people, not machines, have the advantage to keep most professionals in full employment….

We cannot emphasize strongly enough that we are not predicting that the professions will disappear over the next few years. We are looking decades ahead in this chapter, and anticipating an incremental transformation and not an overnight revolution.

In the short and medium term, the Susskinds envision that we will be operating in a streamlined version of the present:

There are two possible futures for the professions. The first is reassuringly familiar. It is a more efficient version of what we already have today. On this model, professionals continue working much as they have done since the middle of the nineteenth century, but they heavily standardize and systematize their routine activities. They streamline their old ways of working. The second future is a very different proposition. It involves a transformation in the way that the expertise of professionals is made available in society. The introduction of a wide range of increasingly capable systems will, in various ways, displace much of the work of traditional professionals. In the short and medium terms, these two futures will be realized in parallel. In the long run, the second future will dominate, we will find new and better ways to share expertise in society, and our professions will steadily be dismantled. That is the conclusion to which this book leads.

From my reading, the long run is the point of disagreement. The counterprogramming tends to concur with Susskinds on the near-term implications of advancement in technology. Indeed, in Can Robots Be Lawyers?, Professors Remus and Levy expressly limit their analysis to the next decade–a decade in which they, too, expect far-reaching effects from technological innovation:

Our focus is recent developments in legal automation, but we take as a given that earlier innovations dramatically impacted legal practice. Word processing revolutionized document drafting. The Internet permitted rapid document transmission and video conferencing; accelerated the breakdown of law firms’ information monopoly on rates, services, and clients; and increased clients’ ability to spread legal work among multiple law firms. Email increased the speed and ease of communication both among lawyers and between lawyers and clients, and expanded the number of associates a single partner could supervise and so has facilitated the growth of large law firms. These innovations changed law practice in fundamental ways. The next wave of technologies, our focus in this paper, promises similarly far-reaching effects.

We anchor our discussion in the current and foreseeable trajectory of these technologies in the present and near-term future (roughly the next decade). The resulting analysis is admittedly linear, risking that we underestimate the impact of radical future innovation.

Even if I were convinced of lawyerless future, I am not sure what the consequences of that conviction would be for me. Because of the aforementioned lack of imagination, I am hard pressed to conceive of a future of any indeterminate length that would affect my near-term thinking (an imminent apocalypse would change some priorities).

I, for example, would wager that we are headed for a future dominated primarily by driverless transportation. But there is a strong argument that I am wrong given the well-documented challenges of fully autonomous vehicles. Either way, I still need to drive and service my existing car, worry about road conditions, and remain concerned with whether my fellow drivers are paying attention. That will be the case until it isn’t (if ever). My belief about the future–while I like to read and think about it–does not have much effect on my immediate present.


Similarly, if I were to be persuaded by Robert Gordon that progress has stagnated, I would advocate that the legal profession take advantage of the already available advances in process and technology to improve the delivery of legal services. If I were persuaded by Remus and Levy that technological advances are going to have far-reaching but not existential effects on the legal profession, I would advocate that the legal profession take advantage of the available advances in process and technology to improve the delivery of legal services. If I were persuaded by the Susskinds that the far-reaching impacts of technological advances over the next decade presage a future of dwindling lawyer employment, I would advocate that the legal profession take advantage of the available advances in process and technology to improve the delivery of legal services.

What came through in the interview was a bit of exasperation. My exasperation was not with the Susskinds or anybody else writing thoughtfully about, or working towards, introducing capable machines into the legal ecosystem. My exasperation was with the fact that I so often feel compelled to talk about robots replacing lawyers despite the fact that I don’t even pretend to have any expertise on the topic. Moreover, I know that, in general, this discussion leads to an unproductive place, which is why so many of us caveat discussions of law and technology by assuaging fears that Skynet is on the verge of eradicating lawyers.

Too many people, a majority of whom are lawyers, treat the robots-replacing-lawyers question as if it is a binary condition. Either it will happen or it won’t. Nothing else merits consideration. For them, there is no use in discussing the intervening decades where technology incrementally changes the way we work as we automate tasks rather than jobs.

On one level, this leads to a kind of existential dread and attendant hysteria where all people want is to be assured that their jobs are safe. If they don’t get that assurance, they devote their mental energy to coming up with all the ways that humans are super special and can never be displaced. They latch onto clever turns of phrase like a commenter to my recent article, “a machine might know that a tomato is a fruit but a human would know not to put it in a fruit salad.” You then freak them out with things like Chef Watson and plummet down the rabbit hole until you end up in “Can a submarine swim?” territory. But if they do get the assurance, they stop listening because the big question has been answered.


On another level, AI triumphalism–what someone much smarter than me calls “AI madness“–also stifles serious discussion. People buy into the hype. They start believing in magic and Easy Buttons. They just expect everything to work immediately and seamlessly. Intuitive interfaces (of which we have very few) stop being sufficient. They want machines that intuit the user’s objectives. I want those machines, too. But they aren’t quite here yet. For now, we still need to do the hard work of systems integration, security, training, workflow mapping, process design, and all the other things that people do not feel the need to discuss when they believe that technology will automagically solve every problem.

I’m all for measured discussions of the state of play of AI in law. I’m not dismissive of technological advancements. I concede that it is of genuine academic interest how those advancements will affect the profession a few decades from now. Truly, academics have a responsibility to think about the changing world for which they are preparing their students. But the rest of us have a responsibility to do better now. That means taking advantage of the imperfect technological advances that are already available to improve the way legal services are delivered. My hope is that we can do that while also enjoying and contemplating the provocative ideas that emanate from the Susskinds and their fellow travelers.

++++++++++++++++++++++++++++
Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right business outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. The SDR is premised on rigorous collaboration and the fact that law departments and law firms are not playing a zero sum game–i.e., there is more than enough slack in the legal market for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. One obstacle is that traditional technology training methods are terrible. Competence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him on Twitter (@DCaseyF).

I recently participated in the LMA/ Bloomberg Law Survey (you can participate here before March 7th) on trends in legal marketing, business development, pricing, competitive intelligence and knowledge management.  I know, quite the range of topics. MarkGediman and I blogged a fair bit last year about the Bloomberg Law survey results, and I don’t doubt that the same will happen this year too.  In fact, I am already blogging about it.  The survey questions lead the participant through a series of questions with ranges on how much has changed within marketing and BD departments in the last three years.  Items like competitive intelligence, knowledge management, pricing and process improvement are lumped into the same survey as more traditional marketing efforts such as content marketing (rebranded client updates if you will), and public relations.  Are all of those things being delivered by Marketing and Business Development Departments?  Does that make sense?  Perhaps we should make kitchen sinks while we are at, or be both the umpires and the hotdog vendors…For many years, I have suggested that a key to a firm’s competitive advantage is better collaboration amongst its administrative teams, from BD to Marketing, KM to CI and Accounting, all of whom seem to play a role in this year’s Bloomberg Law Survey. Perhaps the silos are breaking themselves down as market forces are creating the imperative to share while the technology keeps getting better, making it easier to share and work towards a common goal of increased efficiency and smarter client service. 

The survey also attempts to determine changes in headcount and budgets for Marketing and Business Development Departments over the past 24 and coming 24 months, as individual line items and as part of the firm collective headcounts and budgets. Very interesting. I would like to think and will post eventually about the CI’s role (and others) in shifting from a cost centre to lead generator and sales pipeline for firms.  I am hopeful that the survey results will reflect this position as well.  The results will be shared at this year’s annual LMA conference April 11-13th 2026, in Austin TX.

Stay tuned, I expect there will be much more here to blog about soon! 
Image [cc] Josh Bancroft

This morning, the American Library Association came out against the FBI’s attempt to order Apple to unlock an iPhone connected to the San Bernardino shooters, who murdered 14 people and injured another 22 back in December 2015. ALA’s Managing Director of the Office of Government Relations issued the following statement:

The only thing that could make last December’s attack in San Bernardino more horrible would be its use to profoundly erode the Constitution’s protection of our fundamental freedoms. Man­dated ‘back doors’ into encrypted systems cannot successfully be labelled ‘Bad Guys Keep Out.’  The only way to protect our data and, ultimately, our freedom is to fight any attempt by the courts and Congress to hack the Constitution.  ALA stands with Apple.

I also stand with Apple on this issue, and encourage my peer Law Librarians and Legal Information and Technical professionals to do the same. Librarians have always stood up for the rights of citizens against government intrusion. Long before there was a public uproar, or Edward Snowden, Librarians were pointing out and fighting the privacy breaches of the PATRIOT Act. It is time to stand up again and support the Constitution over the individual situation, regardless of the horror and tragedy surrounding the reason we wish to bend the rules.

Apple’s CEO, Tim Cook, issued a response this week rejected the United States government’s request where he underlined the dangerous precedent this order would create:

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

It appears that the primary reason that the FBI is asking Apple to break the encryption and open the phone is one of convenience and cost. The government has not exhausted less intrusive methods of opening the shooter’s phone. Yes, it may cost more money and time to unlock the phone without Apple’s help, but it will cost far less in what this dangerous precedent creates if the Government successfully orders Apple to unlock that phone.

I stand with Apple.

I recently gave a ‘client case study’ presentation at the HighQ Client Forum in NYC (recapped here). On the day, I opened my talk thusly:

I am of the opinion that I could tell you absolutely everything I have done at the firm for the last three years in excruciating detail, with charts, graphs, and full step by step explanations and you could take that back to your firm and it would be of almost no value to you. Except in so far as it may provide you with a bit of inspiration to try something similar, or a map to avoid some of the pitfalls that I have encountered.

That was the set up of my opening joke to explain why I was speaking in extremely generic terms about my ‘case study’ and also to justify why all of my screenshot examples looked like this.

In short, my firm did not share my generous opinion on sharing.

That is certainly their prerogative and they are by no means alone.  I find that most law firms feel similarly about their various technology projects. Most people who work in law firms are to some degree fearful of speaking publicly in detail about any projects they are working on. Not because they think they are somehow giving away the farm, but because they don’t want to raise the ire of the managing partner or the marketing director.

One low level techno-peon, whose firm belongs to a knowledge sharing consortium of non-competing regional firms, told me that she was told to forward any information she receives from the group to the managing partner, but that she was never to share anything with the other firms.   I’m willing to bet that most staff in the consortium have received similar instructions from their firm’s management.  In the upper echelons of law firm management, it seems to generally be believed that the use of specific technologies, in a particular way, to solve a problem or build a product, constitutes a ‘competitive advantage’ of some kind.

It does not.

We are all using the same tools to build the same kinds of products and services for the same potential clients.

If I tell you that I am using tools A, B, and C to develop a solution that does X, Y, and Z. Even if I show you detailed screenshots of my final product, or give you a demo of its various features, you cannot recreate what I’ve done.  Even if I gave you the completed product itself, along will full rights to use it as you saw fit, you couldn’t get anyone at your firm to sign off on it.  Trust me, it’s hard enough to get two lawyers at the SAME firm to agree on simple introductory wording for a product let alone actual legal interpretations; lawyers from different firms agreeing on anything is nearly unthinkable.

The competitive advantage, the ‘secret sauce’ if you will, has absolutely nothing to do with the technology or how I/we/you put it together.  The advantage is in the knowledge and intelligence that your firm’s lawyers bring to the product/service/solution and that will be different at every firm. Even if the outward appearance and general construction of the eventual product is identical. (Which it can’t possibly be.)

In addition, it is highly unlikely that your technologists or consultants have discovered a unique combination of tools and resources that no one at any other firm has ever thought of.  The one exception would be if your in-house development team built something entirely from scratch, but then I would argue that any immediate advantage you may gain is more than offset by the long term headache of software maintenance and support, and you’re actually digging an innovation hole.

Now, to be clear, I am not advocating for a mass uprising of technologists to start spilling their firms’ secrets. Nor am I suggesting that I would ever share details of what my former firm was working on against their wishes. Nor will I ever share details of anything that I work on for any company in the future without explicit permission to do so. However, I truly believe that in most cases a strict devotion to the ‘competitive advantage’ myth actually does a big disservice to the secretive firm itself. They struggle to learn through trial and error what could simply be learned by talking to others who have gone before. Although, if you don’t share, no one else is going to share with you.  Those good old kindergarten values at play.

It strikes me that this bizarre behavior is like construction contractors jealously guarding their secret use of wheelbarrows, nail guns, and wooden framing.  Those things constitute baseline technologies for building a house.  However, the fact that a crew uses those technologies has almost no bearing on the eventual quality of the house.  It’s the work of the specialized craftspeople that ultimately determines the value of the end product.

The same is true for law firms. Firms should have faith in the skill of their craftspeople (lawyers) and encourage their construction foremen (technologists) to talk to others in the industry about construction (legal technology innovation) best practices.

Otherwise, what is the message we, as an industry, are sending to our clients?

“We’d rather spend our time and money reinventing the wheelbarrow than using technology to solve your legal problems.”

I hereby relinquish any claim to copyright on that phrase. If any firm wants to adopt that as their marketing slogan, be my guest.