Pat Lamb, who I mentioned in my last post, recently wrote a piece that while excellent was not exactly groundbreaking. Or so I thought. Pat’s premise was that everyone makes mistakes. Everyone includes lawyers. Mistakes happen. Mistakes are bad. We should therefore learn from mistakes to avoid repeating mistakes. Towards this end, Pat explained the usefulness of After Action Assessments and root-cause analysis. Great stuff. But, for me, it was akin to a health expert recommending that couch potatoes exercise, consume less junk food, and eat vegetables. Perfectly sound, uncontroversial, well-worn advice that is too often ignored and should therefore be repeated as often as possible.

As usual, I was so very wrong. The ABA Journal comments section exploded with adverse wisdom like:

CHRISTIE WAGNER said:
Yes, dear Patrick J. Lamb. Let us embrace our mistakes, such as missing statutes of limitations and whatnot. Don’t our mistakes just empower us? Gag. How about doing all you can NOT to make a mistake and then doing all you can to rectify it and if you can’t do all you can to make amends? Hmm?

associate said:
Mistakes are simply unacceptable.  That’s the reality of our profession, especially since the law schools and ABA have flooded it with excess attorneys.

These perspectives struck me as so silly that I added satirical support to their keen ‘insight’:

Casey Flaherty said:
Mr. Lamb:

Christie and associate make some compeling points, which is unsurprising given that they are menbers of our hollowed profession. Look, I know that you reference Einstein, Drucker, the Navy Seals, Kimye, Drake, and Meek Mill. What do they all have in common other the fact that they make mistakes? None of them are lawyers.

As Justice Mustang wrote for the Untied States Supreme Court in in the semenal 2010 case of Clouseau v. Malapprop, “whatever a lawyer is doing is, ipso facto, correct because a lawyer doing it. Lawyers are, by definition, incrapable of error.” As you know, the Court held that having a J.D. (which stands for Jactanter Dealbator, or “the one who is (always) right”) was an absolute defense to a claim of malpractice. In her concurrent, Justice Abercrombie even traced the origins of the lawyer infallibility doctrine from The Federalist Papers to the Papal bull Unam Sanctam. The impact of Clouseau on the insurance industry was the primary cause of the Great Recession. And 43 of the 46 state bar associations subsequently suspended their grievance process because no one could maintain a good faith claim that a lawyer had been wrong in thought or deed.

Not only do I think that we should continue to deny that lawyers make miss takes (thereby guaranteeing that mistakes will never happen), I believe that we should also deny that any lawyer has ever written an article suggesting that might lawyer mistake make (guaranteeing that your article was never written). How’s that for an After Action Plan?

My mockery did absolutely nothing to stem the tide of abuse directed toward Pat. Pat, of course, does not need my help. Along with Jeff Carr, he is building an entire business around the idea that identifying and addressing the root causes of mistakes is key to not repeating them. But the incident left me sad for my profession.

The pursuit of perfection begins with admission of imperfection. How do we get better at what we do when reflecting on mistakes is a thought crime? when it is a sin to admit that what we do can be improved? when formalizing a mistake-reduction process is the height of unprofessionalism?

Michael Jordan believes Michael Jordan is the best basketball player of all time, just ask Michael Jordan (see his Hall of Fame induction speech). Yet, Michael Jordan is, arguably, right. Michael Jordan may have been the best basketball player in history, in part, because he understood that being the best required being fanatical about eradicating his weaknesses (which, of course, he had to admit in order to address). Jordan even made a commercial entitled Failure.

You can be the best at what you do without being perfect. You can stand in high regard in your profession (and your own mind) without pretending you are infallible. Indeed, framed properly, your ruthless pursuit of better can be a signal of your stature, not a threat to it.

As Seth Godin says, “Yo Yo Ma isn’t perfect… he’s just better than everyone else.” Like Jordan, Ma is also, arguably, the best at what he does. He has pretty much always been great. He was a child prodigy. He chose the cello at the age of four. By seven, he was playing for American presidents. Yet, Ma still practices 2,000 hours per year–a solid year of lawyer performance. Yo-Yo Ma is Yo-Yo Ma precisely because he is the kind of person that will practice 2,000 hours per year even after he is established as the best in the world.

In the book, Talent is Overrated: What Really Separates World-Class Performance from Everybody Else, Geoff Colvin explains that the best of the best take a different approach to self-analysis and error (h/t Farnam Street):

Excellent performers judge themselves differently from the way other people do. They’re more specific, just as they are when they set goals and strategies. Average performers are content to tell themselves that they did great or poorly or okay. The best performers judge themselves against a standard that’s relevant for what they’re trying to achieve. Sometimes they compare their performance with their own personal best; sometimes they compare with the performance of competitors they’re facing or expect to face; sometimes they compare with the best known performance by anyone in the field….

….If you were pushing yourself appropriately and have evaluated yourself rigorously, then you will have identified errors that you made. A critical part of self-evaluation is deciding what caused those errors. Average performers believe their errors were caused by factors outside their control: My opponent got lucky; the task was too hard; I just don’t have the natural ability for this. Top performers, by contrast, believe they are responsible for their errors. 

The kind of people who proclaim that mistakes are unacceptable even when they recognize mistakes are unavoidable do not really believe they are perfect. Rather, they believe that people like them are not supposed to admit imperfection. This remains one of the biggest impediments to change in our industry. As I try to convince law firms and law departments to engage in structured dialogue, I constantly run into people on both sides of the relationship who are threatened by the idea of an open discussion about doing better. If I concede that we might do better then I am confessing that I’ve been wrong. We have to get beyond the idea that improvement is an indictment of the past. Our job is not to be perfect. Our job is to do the best we can until we can do better, and then do better.

But better means different. And different requires experimentation. Unfortunately, this runs counter to the lawyer psychological profile, as explained in this stellar post on Adam Smith, Esq.

It’s a truth universally acknowledged that Law Land resists change like the plague. And, yes, this is pretty widely attributed to the phenom known as the “lawyer personality,” characterized by an almost pathological aversion to risk. But let’s unpack this a bit to better understand why lawyers, in particular are so risk averse.

Lawyer-psychologist Dr. Larry Richard, the leading expert on the psychology of lawyer behavior has quantitatively established that a preponderance of lawyers share (among others) two personality traits that in combination scotch the very notion of experimentation. The first is “Resilience.”  Somewhat surprisingly, lawyers score really low on “Resilience,” essentially the ability to recover quickly after a setback. On this trait, Lawyers score only 30%, which would be enough on its own to seriously dampen any appetite for experimentation.

But wait – there’s more. What won’t surprise anyone is that lawyers score really high on “Skepticism.”  Dr. Richard’s work reveals that lawyers score 93% on this attribute (only 5% of the population is as skeptical). Lawyers can (and do!) poke holes in anything.  So, any proposed change will be scrutinized and picked over to such a degree as to discourage all but the most stout-hearted.

These two characteristics, lack of resilience coupled with a high degree of skepticism are a double whammy to the notion of experimentation. Failure is perceived anything but “noble” in Law Land.

In short, we have the wrong mindset. We are inclined to hide deficiencies instead of overcoming them. That’s the easy way out. The problem with the easy way is that eventually it makes everything so damn hard.

  

++++++++++++++++++++++++++++++++++++
Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal 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. 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, rigorous collaboration on 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 Twitter (@DCaseyF).  
 

This is the third talk from the the ILTA Session – Legal Technology Innovation – Bolstering and Destroying the Legal Profession. This is from Michael Mills, Co-Founder and Chief Strategy Officer at Neota Logic.

Clearing Department, woman sorting cheques and using adding machine - 1960s

I decided to come at the technology question from the human side, to speculate about what humans are still good for in a technology-saturated world of legal services.

I concede. I am obsolete. The robots are winning.

Fastcase is a better legal researcher than I am—despite a University of Chicago law degree, a federal court clerkship, and a hand in hundreds of briefs and memos.

Recommind Axcelerate is a better document reviewer than I am—despite tutelage by demi-gods of the American bar, and years of experience, some of it in unheated warehouses and abandoned salt mines.

And of course Google is a better driver than I am.

Nonetheless, for a while, I have work to do.

Kira is not a better contract analyzer than I am—my pattern-recognizing brain is more precise, more adaptable, and faster than Kira’s algorithms. And the algorithms need training, so I can have a job as an algo trainer—like a dog trainer, but without a whistle or a biscuit.

But … Kira’s algorithms are getting better and its computers are getting faster. My brain is not, alas.

So, one day . . . poof! ZMP for me—that’s Zero Marginal Product, the economists’ term for adding no value at all.

As Harvard professor Bill Bossert said many years ago—“If you’re afraid that you might be replaced by a computer, then you probably can be—and should be.”

Or, as I say to law firm partners who worry that Neota Logic expert systems will cannibalize their billable hour work—“If your business model is to do work that my software can do … you’d better get a new one.”

So what’s left for me? For us? We went to law school, we’re nice people, we’re pretty smart.

Fortunately, there are some things for us humans to do:

Geoff Colvin of Fortune Magazine just published a book with a great title “Humans are Underrated.” (In some contexts, one might argue that he has that backward.)
He writes that the right question is this:

“What are the activities that we humans, driven by our deepest nature or by the realities of daily life, will simply insist be performed by other humans, regardless of what computers can do?”

He then says that the foundation of all the other abilities that make people valuable as technology advances is … empathy.

Yes, empathy.

Discerning what some other person is thinking and feeling, and responding in some appropriate way.

We have evolved to do that—collaboration was essential for survival, in hunter-gatherer and then in agricultural economies.

As Colvin puts the point:

“We want to work with other people in solving problems, tell stories to people and hear stories from them, create new ideas with people. We want to follow human leaders. We want to negotiate important agreements with people, hearing every lilt or lament in their voices, noting when they cross their arms, looking into their eyes.”

We, both individually and as members of groups and organizations, keep changing goals, purposes, understandings, directions, conceptions of the problem, interests—software simply can’t keep up.

People can, groups can.

One might say, then, that what humans will continue to do, so as not to drown in the rolling wave of technology, is what we do best in groups:

  1. Idea-generation, problem-solving, strategy
  2. Persuasion, argument, storytelling
  3. Collaboration

So … if groups are essential to our economic survival in a world eaten by software, to use Marc Andreessen’s phrase, how do we know an effective group when we stumble into one?
Cambridge University psychologist Simon Baron-Cohen developed in 1997 a simple test, the RME—Reading the Mind in the Eyes. Participants are asked to choose a word that best describes people’s thoughts or feelings based only on photos of their eyes.

Group members’ average score on RME has proven to be an excellent predictor of group effectiveness.

More recent research supports a much simpler test—no advance testing required. Just count the number of women in the group. More women, more effective. Period.
Another reason for diversity in STEM disciplines!

MIT professor Alex Pentland invented the sociometric badge, a little tag that hangs around your neck and tracks how you work with others—the amount of face-to-face interaction, conversational time, prosodic style, physical proximity to other people, and physical activity levels.

After sociometrically measuring many groups with his little badges, Professor Pentland found that groups do their best work when the participants:

  1. Generate many ideas in short contributions to conversations. No one natters on.
  2. Constantly alternate between talking and listening, encouraging, and reacting.
  3. Take turns.

It does sound a bit like the prescription for a good kindergarten, but it works. These 3 factors are as important to group effectiveness as all others together—individual intelligence, technical skill, personalities, and so on.

Interestingly, and here we technophiles should take note, this research suggests that online, technology-mediated collaboration is far less effective than we think.

Apple agrees—their new headquarters is gigantic, in order to bring people together, physically, to do the empathy thing, to do the human thing.

Google agrees—they engineered the cafeteria (it’s a metrics-driven company) – optimum wait time in line 3–4 minutes, table spacing to encourage bumping, long tables to encourage sitting with people you don’t know.

So, even at Google, there is room for us humans.

But … and here I think we come to the rough reality of the legal services industry (and others too, which raise profound long-term questions about the civic compact)—technology is pushing the performance bar for humans ever higher, chopping off the bottom tail of the bell curve, shrinking the space in which “just OK” is OK, in which being “pretty good” is good enough. It isn’t any more.

UPDATE: Woo Hoo!!  Thanks to the amazing readers of 3 Geeks, we are now leading the voting in this award category.  Voting’s not over and iPhone JD could still pull ahead and Catalyst E-Discovery Search Blog is less than a length behind and could overtake us both.  But I don’t care anymore.  It’s enough to know that we overcame a 93-13 deficit by going on an 82-2 run in the last 24 hours. No Vogon poetry from me next week even if we end up losing.  You guys and gals are the best.  (ed – But if you haven’t voted already, go vote anyway.)

I’m not a terribly competitive person. (ed – Phlewffthpts! [spit take])  I don’t spend time worrying about whether 3 Geeks and a Law Blog is the best Legal Technology Blog out there. (ed – No, you just write blog posts about it.) I mean, look at the theme on this page!  It’s quite literally, the default orange that Google assumes is so hideous that no one will dare leave it in place for longer than a day. It’s a sign of our scappy outsider status. (ed – It’s a sign that we’re too damn lazy to change it.) We have offers to place ads on this blog all the time, but we always turn them down.  (ed – Not so often anymore, that orange really turns people off.)  We’ll never sell out to the man! (ed – If ‘the man’ is reading this, please give me a call.) And we will never ever ever, under any circumstances, care about petty little childish things like awards. (ed – You know, like 2 Fastcase 50 winners and an ABA Journal Blog Hall of Fame.)

But this cannot stand!

If you go to the link above (http://t.co/KeZ8Iunf8F) you’ll see that 3 Geeks has been nominated as the 2015 Best Legal Technology Blog in a contest sponsored by The Expert Institute.  As of this writing, we’ve got 13 votes.  13 whole votes!  And one of them is mine. (ed – If they had let Ryan vote multiple times like he tried, 3 Geeks would be winning by a lot.) 


Now, to be clear, we don’t need to win this award. Jeff Richardson over at iPhone JD has got this one in the bag with 93 votes.  And more power to him, it’s a great blog. (ed – He sells ads on his blog.)  I don’t know him, but he seems like a great guy. (ed – He certainly doesn’t seem to have a problem selling out to the man.) And his blog is beautiful.  (ed – By which he means, no orange.) No, I don’t need to win, I just don’t want to lose by a factor of 7 to the guy whose blog is focused almost exclusively on Apple products in the practice of law. (ed – Ryan’s just jealous that he didn’t think of it first.)

Absolutely every day of the year, 3 Geeks gives you good informative content, about all facets of the industry, with a bit of humor and a lot of heart. (ed – Multiple times a month we give you some crap that may have some very slight value to a few of you.) And in return we ask nothing, but a friendly hello when you run into one us at a conference. (ed – And maybe a beer.)


But today, I am asking this one favor.  Please, go vote for 3 Geeks in The Expert Institute contest for Best Technology Blog 2015. (http://t.co/KeZ8Iunf8F)

I just want to get half as many votes as the iPhone JD blog guy. (ed – Please go get him half as many votes as Jeff Richardson. If he doesn’t come in at least 3rd, Ryan is going to sulk around for weeks, writing moody adolescent poetry about server virtualization.  I can’t take that again.)

O’ my virtuoso,

my lovely server,

my sweet and sanguine cloud-based

friend…

This is the second talk from the the ILTA Session – Legal Technology Innovation – Bolstering and Destroying the Legal Profession. This is from Joshua Lenon, Lawyer in Residence at Clio.

Technology is No Threat to Lawyers

A while back, NPR’s Planet Money show issued a nifty interactive tool indicating whether or not certain employees would be replaced by technology in the future.  If you looked up lawyers, you’d see the following result:

(Image from NPR.org)

The calculations that determined this statistic included such issues as:

• Do you need to come up with clever solutions?
• Are you required to personally help others?
• Does your job require negotiation?
• Does your job require you to squeeze into small spaces?

It turns out that lawyers rank high in each of these categories in favor of not being replaced by robots.

This result was pretty shocking, as most online discussion list the chances of a robot replaces lawyers as somewhere between “I, Robot” and “The Terminator.” Both movies have robots taking over, but one follows the Steve Jobs’ school of design.

Research the matter further, I delved into the U.S. Bureau of Labor Statistic’s (BLS) historical data on employment for providers of legal services.  Did the history of technology development result in a decrease in jobs for lawyers?

When plotted from 1997 to the latest data in 2014, both paralegal and lawyers showed substantial growth in employment over that period.  Lawyer employment grew 42% and paralegal employment great 111%! This represents an expansion of 320,000 jobs.  Even if you only look back to 2006, the last great year of legal hiring by Big Law, you still see 10% growth in lawyer jobs since then.

Why is this growth during this time period important? It’s because it happened during one of the great expansions in human productivity in the workplace.  The Bureau of Labor provides the following chart that shows the years 2000-2007 to be the second highest increase in productivity in the work place every recorded.

While the BLS did not publish productivity gains specifically for the legal service industry, other industries tracked alongside legal in the professional services category, like bookkeeping and accountants, saw productivity improvement from 2.1 to 5.0 percentage change.  That’s huge, with the only greater period being the post-WWII boom that industrialized most of North America.

If lawyers and paralegals can still grow their employment levels during huge rises in productivity, that means that technology is not replacing these employees, but instead is supplementing them.

How do we know that technology is supplementing lawyers, rather than replacing them?  Because the same BLS tracking data shows that other employees in the legal sector are being replaced.

Legal secretary employment has fallen from 277,000 jobs in 1997 to 212,000 in 2014. This is a 23% change, and not for the better. Legal Support Workers, Other is currently growing, but only after losing 30,000 jobs from their high in 2005.

Technology is not replacing lawyers, but is replacing the employees that support lawyers. This is akin to the change in the Industrial Revolution when plow horses were replaced with tractors. Farmers continued to exist, just now with tractors doing a lot of the hard labor for them. Lawyers continue to exist, but they are not using the tools of the past.

This change is creating large changes in the way law firms hire as well. In ALM’s  2015 report, “Law Firm Support Staff: How Many are Enough?”, 62% of law firms surveyed have decreased legal support staff levels.  At the same time, 47% of firms increased their spending on staff. One conclusion is that these firms are hiring more highly trained and specialist staff.

Much like the industrial revolution decreased jobs for farriers and increased jobs for tractor engine repair specialists, law firms are now looking for support specialists in legal technology. Law firms are ditching employees that no longer fit into the new economy operating around law firms.

That’s why I think lawyers will work with robots, but will not be replaced by them.

Two weeks ago I spoke on a panel at ILTA in a session entitled, Legal Technology Innovation – Bolstering AND Destroying the Legal Profession.  Interestingly, the original title was Bolstering and Destroying Legal Work, which didn’t seem nearly as wimpy when we submitted it, as it did after the revised title was published.  We kept the new title.

The panel was a reunion of the Do Robot Lawyers Dream of Billable Seconds? panel I spoke with last year that included Joshua Lenon from Clio, Noah Waisberg from Kira Systems, Stuart Barr from HighQ, and Michael Mills from Neota Logic.

Rather than post the recording of the session as I did last year, I’ve asked my fellow panelists to submit their short talks in blog post format.  I’ve received a few of them and they will be published in turn over the next few weeks.

Today, I’ll start with a synopsis of my own talk:

The Napsterization of Legal Services.

The record labels used to sell plastic discs with data on them.

Today they sell nearly that same data over the internet, without the plastic discs.

On it’s face that seems like a relatively straight-forward, if not easy transition to make.  It’s the kind of transition from one media type to another that you would expect a mature business or industry to be able to navigate with minimal disruption.  But as we know, that transition was anything but straight-forward.  In fact it wreaked havoc on the recording industry for more than a decade and they are just now beginning to get back on track.

Why was this such a difficult transition?

I suspect there are many reasons that the record labels found it difficult to move from plastic discs to no plastic discs, but I think one primary reason is that in the late 90s, they were in the business of selling plastic in pretty packaging, more than they were in the business of selling the content on that plastic.  They could charge premium prices for discs and packaging and they had to to cover the manufacturing and distribution costs of discs and packaging. They were certainly aware of the internet, and probably knew that digital distribution was the future, but they had no urgency to change a model that was still largely working.

And then Napster exploded on the scene. 

Napster wasn’t a rival record label, or an upstart looking to upend the industry, in fact it wasn’t even a company originally.  Napster was a kid in his dorm room using technology that was widely available at the time to do something that kids had been doing for decades: sharing their favorite music with their friends. In my day we used cassette tapes.  Napster was the ultimate mix tape, and in a very short time, that mix tape was available all over the world.

This highlighted a clear discrepancy between what the record labels were selling (discs and packaging) and what their customers actually wanted and cared about (the music). Whenever such a discrepancy exists, technology will step into that gap.

What this has to do with legal services?

I think law firms, in particular, are in much the same position today that the record labels were in the late 90s.  We even have our own version of the ‘discs and packaging’ problem.

We sell our lawyers time – and that is true whether we’re talking about billable hours or fixed fees. We sell the time it takes our lawyers to manually perform various tasks, and produce outcomes for our clients.  When what the client actually cares about is the outcome, not the hours.

Historically, this discrepancy wasn’t a problem because the best way to deliver those outcomes was to have our lawyers manually perform the work and then bill for their time.  But today that is not necessarily true.  With machine learning algorithms, reasoning tools, and automation software, we can begin to replicate the work that our lawyers have always done manually with technology.  We can deliver a better, faster, AND cheaper solution to our clients.

Our lawyers are still compensated, and our firms are still structured, around ‘selling plastic discs and packaging’ (lawyers hours).  And yet the technology to give our clients the outcomes they want, with minimal manual labor is becoming widespread.  We are ripe for our own version of Napster.

We have an ever-shrinking window of opportunity from today until the Legal Services Napster Event takes place, when we can begin to manage the transition from one media type to another.  If we actively and intelligently manage that change, then it will be a bumpy ride, but we’ll come through it.  The alternative is to do nothing, keep selling our discs and packaging, and hope that nothing ever changes.

And thanks to the record labels, we have a good idea of how that will turn out.

Batman should spend more time and money securing Gotham’s prisons. As my soon-to-be five year old gets increasingly enthralled by super heroes (and Legos and Star Wars), I find myself watching many animated series where the chain of events commonly commences with a super villain’s prison break. Gotham’s lax security protocols are the source of considerable mischief. It would seem to me that some portion of the billions Batman spends on crime-fighting contraptions and the trillions the city spends rebuilding after every villainous rampage would be better directed towards keeping evil geniuses behind bars. But that, of course, would make for uninteresting TV and would mean far less of Batman being Batman.
(xkcd)
This tangent was inspired by the announcement that one of my legal super heroes, Jeff Carr, is heading to ValoremNext. In the legal nerd version of the Justice League or The Avengers, he will be joining forces with fellow superhuman crusader, Pat Lamb. As described in their press release, ValoremNext is “a platform designed to diminish the need for legal services by preventing problems before they occur.” Jeff is quoted, “as businesses expand their geographic base, the demands on law departments to do more with less becomes acute, and the savings available from doing the same things better are not sustainable. The only sustainable savings can come from a program that prevents the demand for legal services in the first place.”

Two more analogies.

Firefighting is a heroic activity. But fire codes and fire prevention engineers have done far more to preserve life and property. In most urban environments, firefighters now spend very little of their time actually fighting fires. Likewise, few people recognize that plumbing is more important to public health than doctors. Neither of these facts, while true, has eliminated the need for firefighters or doctors, nor do they diminish the nobility of those vocations. But systemic prevention initiatives are critical for allocating finite response resources to their highest and best use.

A profile I wrote several months back on VMware is a superb example of combining process and technology to #DoLessLaw. VMware’s legal operations team lead by Aine Lyons worked in conjunction with legal department stakeholders and their LPO provider to redesign the contracting workflow. Post redesign, the number of deals escalated to the legal department declined by 74 percent. The annual savings was in the millions. Quality also improved. And, importantly, finite lawyer time was directed towards higher-value activities.

It is worth focusing on the fact that VMware initiative relied on the legal ops team. As I’ve mentioned in previous posts and will detail more in the future, I see the rise of nontraditional stakeholders as key to increasing our sophistication as the suppliers and consumers of legal services. It’s not that traditional lawyers are intellectually incapable of leading these projects. They are, however, very busy lawyering. Lyons herself is a trained lawyer who now primarily focuses her efforts on systemic issues rather than individual matters.

Capacity constraints should be understood and respected. Empowering specialists to focus on areas within their domain expertise is an excellent first step towards success. But that presupposes such specialists exist. I was therefore excited to learn that Jeff Carr is taking his expertise in preventative law beyond the confines of a single in-house department. The legal market will be a richer, more interesting (and hilarious) place.

++++++++++++++++++++++++++++++++++++
Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal 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. 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, rigorous collaboration on 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 Twitter (@DCaseyF).  

“No offense, but….”

I can’t help but perk up when a sentence starts that way.

“No offense, but how did a mid-level lawyer at mid-tier company get so much pub for saying something that everyone already knows?”

I’m paraphrasing. But someone recently asked me that question. I couldn’t be offended. I have often wondered the same thing. I’m best known for saying that lawyers aren’t all that proficient with the technology they already have and it would be good if they got better. That’s not exactly Nobel worthy. Yet, I received all sorts of awards and publicity. It is kind of bizarre. And I have a few different theories.

First, it is not true that everyone knows the same things to the same degree. The most ignorant are the most likely to labor under delusions of adequacy. This problem of meta-ignorance—we don’t know what we don’t know—affects the way that legal professionals evaluate themselves. They really have no idea how much effort they are wasting because of bad process and technology utilization. This obliviousness also affects their perception of their colleagues, especially the ones that know slightly more than them. I’ll return to the myth of the digital native in a subsequent post.

Second, it was not so much the saying as the doing. I might have been saying that which everyone already knew, but I was the first in-house counsel (as far as I know) to be so public in my efforts to systematically seek to do something about it. Everyone may complain about inefficient behavior in vague terms, but actually defining, measuring, and improving upon inefficient behavior is rare.

Third, everyone knowing something does not make it common knowledge. Common knowledge has a key element beyond everyone knowing something: everyone has to know that everyone else knows it. To quote Wikipedia:

Common knowledge is a special kind of knowledge for a group of agents. There is common knowledge of p in a group of agents G when all the agents in G know p, they all know that they know p, they all know that they all know that they know p, and so on ad infinitum.

As a recent, excellent piece on the special properties of common knowledge observed:

The moral is that the mere act of saying something publicly can change the world—even if everything you said was already obvious to every last one of your listeners. For it’s possible that, until your announcement, not everyone knew that everyone knew the thing, or knew everyone knew everyone knew it, etc., and that could have prevented them from acting.

I have to remind myself of this in my darker moments. Being on the speaking circuit, you see the same people, in the same places, delivering the same messages year after year. It can be easy to succumb to cynicism. It’s all kabuki theater. After all, one of the best ways to maintain the status quo is to talk about change constantly while doing nothing. Then again:

Don’t Stop Believin’. The great Dan Katz and I speak at many of the same conferences. We’re not quite at the point of Einstein’s chauffer (who, in the apocryphal story has heard Einstein’s speech so many times that Einstein lets him give it), but I have heard his insights often enough that I am in danger of starting to think they are my own. Commenting on the repetitive nature of these speaking engagements, Dan likes to compare the experience to being in the epic band Journey, which is always expected to play its greatest hits. Get up there and sing the song everyone came to hear! But, like Dan, I realize that repetition is one of the four levers of persuasive certainty and can give the illusion of truth even when an argument is weak, which his is not.

Further, ours is the speaker’s perspective. The speakers and their messages have limited turnover. But the audience usually consists of first timers. For example, while it may be something they’ve spoken on for years, I left ILTACON finally ready to tackle Agile because of chat with John Grant, as well as thinking deep thoughts about what the Baby Boomers have done to the practice of law because of talk by Joshua Lenon. It would have been a shame for me if either of them had declined to spread their message just because they had shared it before.

Collective conversations like ILTACON and 3 Geeks have many positive effects. The focus is education—creating awareness of new information. But the pursuit of real education—the audience internalizing the message—often compels us to repeat and reinforce information that is already out there. And translating real education into action often turns on that information becoming common knowledge. This first one can make us feel noble. The second can make us feel redundant. The last one can make us feel silly. Re-stating the obvious does not seem like it has much merit. Again:

The moral is that the mere act of saying something publicly can change the world—even if everything you said was already obvious to every last one of your listeners. For it’s possible that, until your announcement, not everyone knew that everyone knew the thing, or knew everyone knew everyone knew it, etc., and that could have prevented them from acting.

In a similar vein, the amazing Seth Godin has some valuable advice for those of us (essentially, all of us) who let embarrassment result in self-censorship:

Embarrassed

It’s a tool or a curse, and it comes down to the sentence, “I’d be embarrassed to do that.”

If you’re using it to mean, “I would feel the emotion of embarrassment,” you’re recognizing one of the most powerful forces of our culture, a basic human emotion, the fear of which allows groups to control outliers, and those in power to shame those that aren’t.

The stress that comes from merely anticipating the feeling of embarrassment is enough to cause many people to hold back, to sit quietly, to go along.

And this anticipation rarely leads to much of anything positive.

On the other hand, if you’re saying, “doing that will cause other people to be embarrassed for me, it will change the way they treat me in the future,” then indeed, your cultural awareness is paying off. There’s a reason we don’t wear a clown suit to a funeral–and it’s not precisely because of how it would make us feel to do that. It’s because insensitive, unaware, selfish acts change our ability to work with people in the future.

Most of the time, then, “I would be embarrassed to do that,” doesn’t mean you would actually be embarrassed, it means you would feel embarrassed.

In most settings, the embarrassment people fear isn’t in the actions of others. It’s in our internal narrative. Culture has amplified the lizard brain, and used it to, in too many cases, create a lifetime of negative thinking and self-censorship.

So, yes, by all means, don’t make us feel humiliated for you, don’t push us to avert our eyes. But when you feel the unmistakable feeling of possible embarrassment, get straight about what your amygdala is telling you.

-Seth Godin

 ++++++++++++++++++++++++++++++++++++
Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal 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. 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, rigorous collaboration on 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 Twitter (@DCaseyF).

  
I yielded to an unproductive urge.
(xkcd)

It is not so much that I think ATL’s Keith Lee is wrong in The Difference and Inch Makes as I think that he succumbs to strange compulsion towards #SlatePitch pseudo-contrarianism. 
Lee beats the crap out of an ILTACON straw man. He warns readers against the “[b]reathless enthusiasm and over-the-top bombast about how legal tech companies are going to re-shape the practice of law.” Lee’s ILTACON is a place where there “is lots of talk about algorithm this or automatic that” premised on the illusion that technology “is the panacea that cures all ills.” ILTACON, it seems, is the hotbed for discussion of how robots will replace lawyers.

That’s odd. I just got back from ILTACON (it was fantastic). So did Lee’s ATL colleague Jeff Bennion. Bennion and I definitely attended the same conference. Rather than replace lawyers, Bennion accurately (in my opinion) conveys the conference’s focus in his headline: Solutions That Are Being Discussed At ILTACON To Make Law Firms Better.

“Make better” is a drastically different theme than “replace.” Instead of a “panacea”, Bennion and I attended a conference where there was much discussion about the “communication problems,” “accountability problems,” “costly mistakes,” and “security” issues associated with properly integrating technology into the practice of law. It’s almost as if technology implementation is challenging and demands user training. 

Pragmatism, competence, and a systematic approach to problem solving were far more prevalent than “[b]reathless enthusiasm and over-the-top bombast.” I almost get the sense that Lee did not attend the conference about which he formed such a strong opinion that he felt compelled to share on one of the most important sources of information in the legal industry. Then again, speaking from a place of ignorance is a better look for him than actually having attended and coming away with such an asinine impression.

Maybe we just went to different sessions (there was something like 400+). I have little doubt someone somewhere was being bombastic. Or, maybe, Lee was in attendance but spent all of his time on the exhibit floor. That’s kind of like watching TV only for the commercials and complaining that the programming is crap. The exhibit floor is great fun. But everyone recognizes it for the advertising it is. The point of the floor is not to close sales but to generate awareness, which it does extremely well. Awareness is followed by discussions, demos, proofs of concepts, and contract negotiations that get past happy talk in very short order.

With respect to the exhibitors, Lee offers this hot take: “My prediction? 90% of the companies at ILTAcon this year won’t be around three years from now.” This silliness is further evidence that Lee has no understanding of what ILTACON is or who attends. Most exhibitors are mature companies that have been around for years. Anything is possible, but it would take some sort of economic cataclysm to cause 9 of these 10 to close shop in the next 3 years:

  • Thomson Reuters (1799) 
  • LexisNexis (1818)
  • HP (1905)
  • Ricoh (1936)
  • Canon U.S.A. (1955)
  • Microsoft (1976)
  • Aderant (1978)
  • Nuance (1994)
  • Intapp (2000)
  • kCura (2001)
No company is bullet proof. But even the newest kid on the block—kCura, which makes the ediscovery program Relativity—has been around for 14 years, has grown 1600% since 2008, and just raised a $125M round in February.

Maybe Lee was trying to suggest that 90% of the startup companies at ILTACON won’t be around 3 years from now. Even this is suspect. Very few true startups can afford a presence at ILTACON. Or, maybe, Lee was just using ILTACON as a metonym for the universe of legal tech startups and saying that 90% of legal tech startups will fail. If so, this is not so much a bold prediction as a banal recitation of the often-repeated statistic that 90% of all startups fail.

My guess is that Lee didn’t go to ILTACON, knows little about ILTACON, and was really just using his misconceptions about ILTACON to take a swing at the “spin” and “hype” about the promise of legal technology. There is nothing wrong with pushing back against techno-utopianism. My introductory column as the technology columnist for the ACC Docket is a warning against magical thinking.

But, even giving Lee the benefit of the doubt about his true target, his piece remains about as successful as his home repair (Lee starts the piece with an anecdote about a failed door replacement). The only legal technology that Lee actually mentions is LegalZoom, which does not exhibit at ILTACON. He seems to be suggesting that clients always need to go to a lawyer and should never use LegalZoom.  

Almost every time a client walks into a lawyer’s office, there is going to be some crinkle in the situation. For example, a client says, they just need a will, they don’t have much, it’s not complicated. They’ll assure the lawyer it’s a standard situation. They almost used LegalZoom, but decided they wanted to check with a lawyer, “just in case.” Tech cheerleaders would say, “Yes! Automate this! Low level work! Perfect for tech!”

But the more the lawyer talks with the client, the more will come out. The client starts to talk about the farm they live on. Inherited from generation-to-generation. They’ll talk about abutting lands and a private road from another farm. A power line easement that is set to renew in 15 years. Their children from three separate marriages and a girlfriend they just left their wife for. Before they know it, the lawyer is knee-deep in a Whiteacre/Blackacre hornbook problem.

This is self-serving bullocks. As a lawyer, it would be nice to believe that Lee is right. But the commoditization of certain types of legal work has been a trend for decades and, on net, has been a major boon to clients. Most wills are in fact routine. Sometimes, using a form turns out badly. Just as, sometimes, people follow their GPS into a lake. Or just as, sometimes, trained lawyers make mistakes. Overall, clients are getting quality services at radically lower cost. This includes many clients who are not able to afford a lawyer.

Again, maybe, Lee himself is engaging in a bit of bombast. Maybe he is simply warning against overreliance on technology-based, commoditized solutions like LegalZoom. Sure, it works in some cases, but not all cases. Sometimes, you need a trained lawyer. I could then again agree with him while again observing that he is attacking a position that no existing, credible person holds.

There is no group of people more adamant about the fact that LegalZoom forms are not appropriate for every legal situation than the people who run LegalZoom. For five years, LegalZoom has been building out a nationwide network of attorneys to service clients who need assistance filling out LegalZoom forms or for whom the forms are ill suited. LegalZoom has built a complementary business around their recognition of the fact that unguided use of their forms is not always in a client’s best interest. Lee cites a “DUI stop” and a “immigration problem” as exemplar situations where “anomalies arise” without any understanding that in those circumstances, instead of providing forms, LegalZoom offers consultation with licensed attorneys—you know, the very thing that Lee is advocating.

Lee makes some reasonable points about tools just being tools and still depending on the user. But those points are couched as a bizarre attack on entities and opinions that seem to be figments of his imagination. If Lee wants to attend CodeX in order to have Dan Katz hand him his rear end about “algorithm this or automatic that,” I welcome the entertainment. But he does the legal industry a disservice when he attacks ILTACON on a platform so widely read by lawyers. Our profession would improve if more lawyers attended ILTACON rather than viscerally dismissed it because of their fear that technology will make them obsolete. ILTACON is about improvement, not replacement.

ADDENDUM: I am not sure if it heresy to use my perch here at 3 Geeks to declare my affinity for another blog, but I adore Above the Law (especially Mark Herrmann, everyone should read Mark Herrmann, always). I’ve checked the site almost daily for over a decade. Moreover, I know that it is silly to ascribe to the site the opinions of just one of its many authors (its not like Lee is Lat or Elie). I certainly hope that no one imputes my sophomoric ramblings here to heroes like Greg and Toby. And the ill-conceived article that prompted this post was one small part of ATL’s otherwise stellar ILTACON coverage. But I have such a high regard for both ATL and ILTACON, I couldn’t help my strong negative reaction when someone used the former to take shots at a straw-man version of the latter. 

As a funny (to me) aside, I even made ATL part of my Legal Technology Assessment. The site is referenced in the primary Word test document and is at the center of a task that combines training on hyperlinks with a warning about cheating (ATL’s role as a watchdog is often underrated):

++++++++++++++++++++++++++++++++++++
Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal 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. 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, rigorous collaboration on 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 Twitter (@DCaseyF).
Image [cc] highways england

This is one of those posts where I start writing down my thoughts, not really sure where I’m going to end. However, that never stopped me before, so why let it stop me now?

When I was at a Westlaw lunch today discussing the AALL conference in Philadelphia, I had a germ of an idea that started burrowing its way into my brain. We were discussing things like Project Management, KM, lateral hires, and new client/matter opening processes. That’s when it hit me that it seems like there is some role for the library and knowledge services groups to play in delivering some value added information into the opening process. Then I just kept thinking, “but what is that?”

When a new client is brought into the firm, there are certain administrative functions that kick in, primarily in the Conflicts group, and Records. Specifically, these groups investigate any potential issues that may cause the firm not to be able to represent the client due to some previous work, or other problems that legally or ethically prevent the firm from handling the work. Obviously, that’s Conflicts. The other is more of a logistical process of creating a working folder system, assigned to a specific client number, and matter number, for the attorneys to manage the communications and electronic work flow of the client’s specific legal matter. Typically, this is through a Records process assisted by the IT department.

There are other administrative functions that kick in as well. Accounting uses the client/matter number to create a billing process that assigns billing rates, and possibly a matter management process for those firms that use project management on the matter level. Marketing may ask for updates to the client relationship management tool, and if there are deals or significant news worthy issues, help draft a press release announcing the firm is handling the legal matter.

But what processes automatically kick in when a new client, or a new matter is opened within the library? I’ve been pondering that for a few hours now, and really haven’t come up with anything specific that we do. Now, that doesn’t necessarily mean that we are doing anything wrong, but I’m wondering if we’re missing an opportunity by not having something kick in, at a minimum when a new client is brought into the firm.

So let me bounce a few ideas off of you on what we could do through automated processes that bring value to the attorneys representing the new client:

  • Prior legal history
  • A report that shows what legal matters the client had, what jurisdictions, judges, law firm representation. 
  • Most likely this could be easily created using resources like Monitor Suite, atVantage, CourtLink, Bloomberg, etc.
  • Company Report
    • Overview of the company, key players, any existing client/firm relationships, and key competitors
    • These can be compiled through the firm’s CRM, and external products like Capital IQ, Hoovers, etc.
  • Current Awareness Reports
    • News reports or industry trade information
    • Lexis news, or news aggregators like Manzama, InfoNgen, Ozmosys, or legal industry news providers like Law360.
  • Prior Deals (M&A, IP, Real Estate)
    • A report that shows prior M&A or other deals.
    • Deal Monitor, MergerMarket, CapIQ, Lex Machina
    I’ll stop there, but you get the idea. What is it that we could bring, automatically, or at least with very little human input, that would push information out to the attorney representing a new client? Is there value in producing this information in a proactive manner, rather than waiting to be asked by the Partner representing the client? Can it be pushed into a client portal, or into the client folders in iManage, or some other place where the attorneys can see it?
    I heard the saying lately that “it’s better to give the attorney something to edit, than to ask them to create something.” Applying this concept to what we could do whenever a new client is brought in, then it would be better to present the attorneys with the information, and let them decide what is valuable or not valuable to them after seeing it. Listen to what the attorneys have to say about the information, and adapt to their needs. 
    There’s definitely an opportunity for each time we have a new client. Let’s be proactive. Push something out and give the attorneys something to edit.
    This article I wrote on Bank of America’s diversity program brings together so many themes discussed in previous posts.

    Target: The Bank has a commitment to diversity. I share this commitment. But for purposes of this post, it could be any general, abstract goal.

    Measure: The Bank actually measures diversity internally and externally. The Bank is not alone in this. But I have been shocked at how many law departments that make public commitments to diversity take the next logical step of measuring it. Instead, they setup committees, join task forces, sponsor events, etc. These are all commendable except they have proven insufficient by themselves to actually move the diversity statistics. 

    [Can you imagine the sea change if every large, corporate client meaningfully measured dollars out the door to diverse timekeepers in terms of billed services and originations? Add to that some differentiation by level (e.g., paralegal, partner) and spend with MWBE firms. Wow]

    Baseline/Benchmark: Meaningful measurement normally needs baselines and target values. This is where we are at. This is where we want to be. The target values may, in many instances, need to be arbitrary. But that does not mean they have to be random. It helps to have a reference class of peers to measure against each other. Even if your goal is to raise the baseline, you get a sense of practical parameters.

    Discuss: It is amazing what results can be achieved when a law department asks its law firms to make verifiable progress against an empirically-established baseline. This structured dialogue begins with the one-way measurement, but it does not end there.

    Key to this self-evaluation is a question that recognizes the dual responsibility of the law firm and the client: “What could Bank of America do better to enhance your Firm’s diversity performance/metrics for the coming year?”

    Align: As the Bank of America profile demonstrates, the discussion can go beyond the numbers to the challenges faced and the other ways in which the law firm is striving to serve the commonly held goal. The discussions are key for reinforcing the goal, as well as deepening the law department/firm relationship by creating dialogue, a sense of shared purpose, and alignment in perspectives on the problem being addressed.

    Improve: None of the foregoing matters unless it actually results in improvement. But it does. What we choose to measure is a form of incentive in its own right. And client goodwill is of key importance in a highly competitive environment that is so dependent on relationships.

    Understanding they are falling behind their peer firms has a substantial motivational impact on legal overachievers. ‘Law firms are competitive by nature. So any constructive comment on areas for improvement is usually enough to motivate change within the firm,’ remarks Quarmby.

    Reward: Firms that perform well should be rewarded. In addition to high marks on their performance reviews and the attendant goodwill, Bank of America actually hosts an awards dinner for its top performing firms. The winner even gets their award directly from the Bank’s GC.

    Repeat: There is no finish line. There is a sustained commitment to continuous improvement.

    ++++++++++++++++++++++++++++++++++++

    Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal 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. 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, rigorous collaboration on 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 Twitter (@DCaseyF).