Vinylefex
Vinylefex

Friday mornings reminded him of clearing the gutters after a major windstorm. It was hard work with few psychic benefits. Judge A.M. Smith (A.M. To his friends, Atticus Marshall to his mother) was a U.S. federal appellate court judge. He sat on the U.S. Court of Appeals for the 15th Circuit. At the moment, he was in a conference room huddling with a law clerk and a coding clerk. They slogged through the cases decided that week. Even a triple macchiato soy vanilla (two shots) grande lacked the punch to carry him through the session. He reminded himself that he had life tenure. In a gig world with jobs lasting six weeks on average, that was a good thing.

It wasn’t the discussion of cases that bothered him. It was the back and forth to get them into publishable form. He could say whatever he wanted in his written opinion. But only one thing mattered: the coded opinion.

Law Becomes Code

Congress had passed the Interoperable Opinion Codability and Usability Structure law in 2025. Progressives and conservatives hailed IOCUS as the greatest innovation in the judicial system since trial by jury. U.S. Chief Technology Officer, 21-year old Mark Sergey Gates (known to his friends as MSG) championed the law. MSG had PhDs from MIT and CalTech. In his free time, he dual-coded. He had two monitors positioned side-by-side each running of its own laptop. He would code one program using the left monitor and a second using the right monitor. He said it was like playing two chess games at the same time. “IOCUS,” he said, “would finally make law transparent.”

IOCUS grew out of immense public frustration with the federal judicial system. Each year, the courts fell further behind on deciding cases. The written opinions judges produced were undecipherable, even to most lawyers. Concern kept rising that law had moved from the government to corporations. Corporations established their own laws and legal systems in website terms and conditions. No one challenged those laws and systems, because the court system was too costly, slow, and ineffective to help them. For many, the rule of law was the rule of corporation. IOCUS was the fix.

Under IOCUS, human judges decided cases. But, IOCUS stepped in and mandated that judges write all decisions in text and in computer executable code. Opposition to the bill among judges was a hair shy of unanimous.

IOCUS authorized the hiring of one coder for each federal judge. The limitation was intentional—Congress wanted to keep the focus on simple coding. Adding coders would encourage complexity.

Congress had listened to the judiciary. The phase-in period stretched over five years. Judges had to produce coded opinions in diversity jurisdiction cases with simpler, state court issues first. Other legal issues trickled in over time, with constitutional law cases at the end. Courts were to code cases with many issues according to the “last needing coding” rule. A judge would code a case with contract and constitutional issues as if the entire case depended on constitutional law. Lawyers joked that judges would find constitutional law issues in every case. IOCUS left the remaining details of implementing the law to others.

The Federal Center for Judicial Innovation (FCJI) filled in some details. The rest had evolved over the 10 years since IOCUS became law.

Judge Smith’s chambers handled case decisions the same way as other federal judges. Smith and his law clerk would read the briefs, listen to oral argument, meet with the other panel judges, and do the other things a typical appellate court judge always had done. The three judges on the panel would make their decisions. The senior panel judge in the majority would assign the task of writing the decision.

Judges could write whatever they wanted to say. They could publish one written opinion or any combination of opinions expressing their views. But, it was the job of the senior judge in the majority to produce the code opinion. The code opinion was the only thing that mattered. If a written opinion conflicted with the code opinion, the code opinion prevailed.

A New Way of Writing

A code opinion was the majority opinion, annotated so a computer could read it. That was part of IOCUS’ beauty. The law created incentives for judges to write clear, simple opinions. Coding clerks would tag unnecessary verbiage as dicta. They would push back on ambiguous tests until they got something the computer could execute. Long, windy diatribes became short, concise statements of the law.

The coding process was simple. The coding clerk used a program to review and take a first pass at tagging the opinion. The clerk would review the first-pass coding and adjust the tags as needed. The FCJI had standardized the tags. The sticking point for the court was choosing what was necessary for a holding and what was supplementary, but unnecessary, material. Judge Smith battled that devil as part of the Friday morning sessions.

The court published the final written and coded opinions in a public repository using blockchain technology. Using a blockchain ensured that no one could alter the court’s official opinions. The blockchain was a distributed ledger. Within minutes of publication, everyone who subscribed to the chain had access to both versions of the opinion. Tampering with an opinion required changing the opinion block on all versions of the ledger at the same time, something that had never happened.

Any complex system may have errors. A coding clerk could make a mistake. To deal with this problem, the FCJI required that courts publish decisions to repositories on LawGitHub. Any person could log on and suggest a change to a published decision. The system had filters to handle spam. The coding clerks for a court (say, all coding clerks for the U.S. Court of Appeals for the Sixth Circuit) met under the supervision of the Chief Judge of the Court to consider suggestions aimed at that court’s decisions.

The coding clerks separated the suggestions into three buckets. First, they weeded out suggestions to change the decision. Second, they gathered “typo” suggestions. Third, they gathered the ambiguous suggestions. If someone wanted to change a three-part test to a four-part test, the suggestion died at the clerks. But, if someone caught a “fro” that should have been “for” or a Smith v. Johnson that should have been Smith v. John, clerks would pass it to the fix pile. Finally, the clerks had a pile of questions. Should “a, b, and c” be “a, b, or c”? Was the third sentence in the fourth paragraph missing “not”?

The clerks would work out which changes to make, and the court’s Chief Judge would accept or reject them. If accepted, the changes were sent as updates to the master opinion blockchain. The update process ensured that everyone knew if a court had modified its original opinion. Transparency.

Innovation Begets Innovation

Several innovations followed IOCUS. Instead of using arcane references to cases, statutes, and other legal sources, the legal industry adopted the “Digital Legal Identifier” system. The DLI system was similar to the “Digital Object Identifier” system used by scholars. Every case, statute, regulation, code, and other legal source had a unique Digital Legal Identifier or DLI assigned to it. The DLI became the permanent identifier for that legal source. DLIs could identify parts of a source, such as a sentence, paragraph, or section. Citing became easy. Instead of Smith v. Jones, 123 F.3d 456 (6th Cir. Apr. 3, 2023) lawyers used Smith v. Jones, dli: 06:04032023:xxxxxxxxx. The dli became a hyperlink by adding “https://“ before the number. The DLI system eliminated time spent on getting citations in the correct “form,” among other things.

Coded opinions meant cases could be incorporated into other documents. Drafters could include specific cases as governing authority for documents or portions of documents. They could show how a section of the document satisfied each part of a test.

Scholars had a field day analyzing opinions. Before IOCUS, tracking issues across courts was tedious. Language was inconsistent, tests ambiguous, and the law a muddled mess. After IOCUS, a simple tool could pull all relevant law across all cases and compare what each court had written. Outliers became obvious. Sloppy decision-making declined.

Rather than developing private legal systems, corporations turned back to public systems. The ambiguity of public legal systems, delays, and politicized aspects of the process caused many corporations to use mediation or arbitration. Law had become hidden behind computer firewalls and claims of “proprietary” or “trade secret.” As IOCUS led law to become transparent, courts moved faster, and politics declined, it was easier for corporations to use public law.

Finally, routine cases dropped out of the legal system. With clear decisions and executable code for law, parties saw significant risk, high cost, and few benefits in taking simple cases to court. Predictive analytics software used the coded cases as input and the facts of a new case. For a small fee, a party could get a “high confidence” level prediction of the outcome of their case in the court system. Settlement was a better option.

Back to the Present

The story you read is fiction, but is it fantasy? All the pieces necessary to make the story a reality exist. For example, scholars have a tagging system for text and have used it for decades. Scientists use the Digital Object Identifier system for research papers. Software to read and compare annotated text is available for free, as is the software to do the tagging. Blockchain technology and software to write blockchain applications is in use. Coders and many others use GitHub as a central repository.

I left out many details needed to make the story a reality. Change is one. Judicial opinions fail to meet the codability test. Many decisions look like gray goo rather than crisp, executable code. Moving the judiciary to precise writing will take some work. Note, that the system I describe does not require a court to create a hard rule where ambiguity rules. It does require the court to make the ambiguity clear.

Technology in law can mean solving problems, rather than expensive ways to replace labor with machines. They software to do what I describe in the story is free—I have all of it on my laptop. Knitting the software into an integrated system takes some effort, but I have working pieces of the system I describe. People have built the wall between using existing technology to help others and using technology as a barrier. People can bash down that wall. I’m having fun handing out sledgehammers to the next generation of lawyers.

OverHypeWe know Benjamin Franklin for his many sayings. Some he created, most he borrowed and improved. One we all know. Two things are certain in life: death and taxes. Everyone has a take on the third, so I will add my voice to the fun: artificial intelligence in law is over-hyped. If the hyping AI is the most popular thing in legal industry writing , explaining how AI in law is over-hyped is the second most popular.

Collect all the AI in law articles, combine them into one big summary, and this is what you get. AI can do everything lawyers can do, but better. The future is on the horizon and the horizon is close. Retire folks. AI will do the research, write the brief, file the brief, read the brief, and decide the case. All in less time than it takes to say “unplug the darn thing.”

Law has company in suffering through hype. In fact, hyping tech has become such an art form that it has achieved consultant model status. Gartner (according to Gartner) is “the world’s leading information technology research and advisory company.” They put a name and a diagram on hype. They call it the “Gartner Hype Cycle” and it looks like this:

Gartner Consulting
Gartner Consulting

Plotting technology X on the Hype Cycle can be fun. Lawyers have avoided the Hype Cycle, because lawyers have avoided technology. But, we have joined the fray. AI is our achilles heel.

They Hype Cycle is a rearview mirror metric. It is tough to measure a technology’s place on the Cycle, but looking back you can see the peaks and troughs. It feels like we are near the top of the first incline approaching Peak of Inflated Expectations. If so, a few years should plunge us into the Trough of Disillusionment. Tighten your seat belt, please.

Since we know the cycle it seems natural to ask a simple question: can we skip all the craziness and go to the Plateau of Productivity. That is the question Eddie Copeland asked in his essay, “Busting the hype cycle: 5 questions to ask about any new technology.” In turn, my friend Peter Carayiannis asked whether Copeland’s essay ideas might apply to AI in law. I promised Peter a nuanced maybe a bit surprising answer. Let’s start with Copeland’s thoughts.

The Copeland Five Asks

Copeland identifies at least two downsides to hyped technology in the context of government initiatives. First, the government wastes taxpayer time and money as it pursues initiatives that have little or no hope of succeeding. At the same time, it sidelines initiatives that could help. Second, the disappoint that comes from realizing the hype means the anti-technologists dig in and changes becomes harder.

Copeland offers five questions we should ask if hype tempts us:

“1. What are we actually trying to do?

2. Are we over-engineering the solution?

3. Is it significantly better than what it replaces?

4. Is there a connection with those who will pay for and those who will benefit from the technology?

5. What skills and processes need to be in place for the technology to work (and are we willing to adopt them[)?]”

But that wasn’t Peter’s question. The simple answer to his question is “yes,” answering Copeland’s questions would help many firms. The interesting question is whether hype does us any good. Copeland answer the question with a “no,” but I’m going to give a quasi counter-argument.

Over-Hype Can Help

My first argument for hype in the legal industry is “the burning platform” view. Managing partners at law firms say they understand their firms need to change, and change bigly. The last report I saw put the number at 96%. But, equity partners at those firms oppose change, with 67% saying they want things to stay they way they are. The problem: in many firms the platform is peaceful.

We know the metaphor. Nothing happens until the platform starts burning. With fire comes a flurry of activity. The danger for large law firms sounds like the frog in the pot of water metaphor (and yes, I know this metaphor is wrong). The story is that if you put a frog in a pot of boiling water it will jump out. But if you put it in cold water and raise the heat it will stay until its unfortunate death. In real life, that isn’t what happens but it gives us a vivid mental image. We could compare large law firms to the frog in the story. At most firms, things are peaceful. Partners seem content to wait.

For some, waiting means seeing if they can make it to retirement without investing in serious change. For others, retirement is in the distance but the pressures of today exceed future risks. They risk being the boiled frog. They seem content to take the chance.

Hype may help. Hype creates a sense of urgency. It makes it sound as if the lawyers face rapid change. In the case of AI and law, the hype suggests that if law firms wait, the future will be dark and stormy. That hype is the burning platform triggering some firms to do something. In fact, this is what we have seen.

For two years, we have read reports of some firms sliding into AI activities. They have licensed software or started using AI-enabled services. Great fanfare, blowing of trumpets, and “huzzahs” have accompanied their moves. These firms get it! The grand transition to AI has begun. So, even with all the downsides, hype may cause some movement. In the legal industry, movement is tough to achieve, so hype may have some value.

My second argument is that hype my spur some change below the AI level. As firms look at the products and services available, they may realize that they should stay in a pre-AI state. But, some things below the AI level — some of the questions Copeland suggests — may be worth asking. Looking at an all-electric car and you may decide you should stay in a pre-electric car state. So you move to a hybrid, however, because it will help.

As Copeland’s first question implies, ask what you are trying to do and you may find better solutions than hyped tech. AI may sound like a cool way to do something. Process improvement coupled with automation may get you to a solved problem faster and at lower cost. Process improvement and simple tools may bring higher rewards than AI can bring in a narrow area of expertise. Getting scared by AI may cause you to ask the questions you should have asked.

My third argument is tech awareness. Most lawyers are to tech savvy as Neanderthal Man is to Elon Musk. AI hype may cause some lawyers to realize that tech ignorance lacks the cachet it once had among the client elite. If an outpouring of social media venom can humble the CEO of a major company within hours. If new tech products can obsolete businesses within a decade. And, if some of the most respected scientists of our time think tech has the power to transform and extinguish our society. Perhaps it is time to check out this tech thing.

Bad Things Can Lead To Good Things

General counsel face a strange battle within corporations. The way to avoid some of the most significant legal costs a corporation may face is to engage in preventive law. To succeed with preventive law, one must appreciate the risks of failure. Corporate leaders who have avoided the costs and pain of major, existence-threatening lawsuits, may lack respect for failure. They underestimate the risk. That inhibits them from supporting spending on preventive law. Many general counsel have wished in their heads for a devastating lawsuit. Nothing like a burning platform to get the message across.

The legal industry faces a similar challenge. We may see climate change re-shaping the world. We may hear all the experts telling us that unless we act, we will lose the opportunity to act in the future. Lawyers have resisted. It was easier to throw labor at a problem than to move to tech. My vegetable garden does fine and in fact does a bit better as temperatures warm in my zone. I can let fixing the climate (or legal industry) be some other person’s problem.

Hype has many downsides, but it has some upsides. Getting those lawyers who firmly believe tech is a fad engaged in the future could be a big upside. If over-hype means a few lawyers get scared into asking the right questions, I can live with the over-hype.

Two years ago, I published an essay titled “The Qualities of Tomorrow’s Top Lawyers.” It has logged the most visits of the SeytLines posts. On this anniversary, I wanted to consider whether anything has changed and publish a freshened version of the essay. I hope you will share your comments. Do these qualities ring true two years later?

I have edited and updated the text of the original essay, but I have done so with a light touch. The essential points and my comments have remained the same. Note that familiarity with technology and artificial intelligence is absent from the mix. The omission is intentional. The article on which this essay is based made, I believe, a significant if unstated assumption. To qualify as “top” in the future, knowledge of technology will fall in a category similar to where knowledge of reading and writing falls today. You must have certain essential skills to be in the game. To get to the top of the game requires going far beyond those skills. As you read this essay, assume a baseline of technological competency. As you read along, keep asking this question, “Do we train practicing lawyers and law students to have the qualities they need to succeed?”

The Qualities of Tomorrow’s Top Lawyers

When I graduated from law school, we knew what it would take to be a “top” lawyer. First, you had to  know the law. You needed the legal-knowledge wherewithal to stand out in a competitive profession.

Second, you needed drive. To be at the top, you had to put in the hours. I remember reading about former Supreme Court Justice William O. Douglas. He worked as a junior lawyer at Cravath, Henderson & de Gersdorff (now Cravath, Swaine & Moore). For those who think that the work-life balance issue in law firms is a modern one, read about life in Cravath back in the 1920s.[1]:

The sixteen-hour workdays at Cravath were well known; [Bruce] Bromley was then putting in over three hundred hours a month of time billable to the firm’s clients. [William O.] Douglas was undaunted. While he was a Cravath associate, he even accepted a part-time job as lecturer in law at Columbia [Law School]. He taught one class each in Bankruptcy, Damages and Partnership, although he had studied only one, Partnership, while he was a law student. Douglas prepared and taught his Columbia classes at 8:00 a.m., then rushed to Cravath for a full day and night of duty, sometimes not returning to his wife—the Douglases now lived in Pelham, New York—before four in the morning. It was an inhuman work schedule by other people’s standards, but not by Douglas’s. At least, not at first. Eventually the pace and substance of the work seriously impaired his health.

Third, you needed sufficient personality to bring in work. It was the rare lawyer who, because of brilliance and area of practice, could get work without having at least passable conversations with clients.

With those three qualities, you could climb the rungs to the top. There were, of course, things that would make the climb go faster or smoother, but it was impossible to get there without those three.

Times Have Changed

Having those three qualities alone won’t get you near the top in the next decade. Knowing the law is essential. But, other qualities are replacing the capacity for hard work. That doesn’t mean lawyers can slack off in the next decade. It means that knowing how to use various resources available to the modern lawyer will influence your career more than putting in 16-hour days. Indeed, as millennials take over the work force 16-hour days spent on drudgework will become a badge of dishonor.

The third quality, what we called “personality,” is critical. During the next decade, the skills that make up personality will drive the lawyer’s work and her interaction with clients.

Top Qualities

In an article published in the World Economic Forum’s Agenda, Andreas von der Heydt, Head of Kindle Content for Amazon Germany, set out what he views as the seven top qualities for tomorrow’s leaders. It is fair to assume that top lawyers, at least those who want to be leaders, will want to share these qualities.

I have set out von der Heydt’s seven qualities and how I think they relate to the future practice of law. In them, you will see pieces of the three qualities I described.

1. Inspire

“Tomorrow’s top leaders truly think bold and big. They challenge themselves and their teams to live their dreams. They trust in their skills and capabilities, search for the big picture, and enjoy looking beyond it. They think, feel, behave, and act positively. They surround themselves with like-minded believers, positive shapers, and creative makers.”

What I see and hear from many lawyers today strikes me as the opposite of this quality. Rather than think bold and big, they think small and mundane. They don’t challenge anyone to live their dreams, they challenge everyone to stay far inside the guardrails. It is as if everyone must walk on the centerline. Lawyers must pay attention to details, but they must also think of the big picture, clients’ goals and clients’ needs. Lawyers must align themselves with their clients’ interests, and then perform those functions lawyers do best, such as help clients manage risk. If the breadth of our vision is restricted to billing another six minutes or catching another misplaced comma, we will have defined ourselves as not worthy of leadership.

2. Lead & Execute

“Tomorrow’s top leaders avoid what quite often causes today’s experienced and successful business leaders to arrive at utterly wrong conclusions, since the latter lack comprehension of how to live by two of today’s most relevant business and leadership principles. First, they are not VUCA [volatility, uncertainty, complexity, ambiguity] leaders. Second, they have not been able to grasp the concept of DyBoPe [dynamic, bold, people-focused] leadership. These are two crucial concepts for future leaders.”

Let’s start with the obvious: I’ll bet not 1 out of 100 lawyers know what VUCA or DyBoPe stand for. That lawyers, and here I’m focusing on lawyers who represent corporate clients, don’t keep up with the latest thinking in the business world reflects their focus on themselves rather than their clients. How can you be a leader if you don’t know what concerns those you want to lead? Put in the vernacular of lawyers, how can you be a trusted adviser when you know little about those you want to advise? The legal industry itself is filled with VUCA. Lawyers prefer unchanging, reticent, and document-focused leadership (UnReDo, for those who like acronyms). I am not suggesting lawyers become podium-pounding screamers, but I am suggesting they need to change their leadership style if they want to remain relevant to those they want to lead. (And, I’m certainly not endorsing the latest fad acronyms. But, if your clients know them, so should you.)

4. Explore

“Tomorrow’s top leaders have a strong passion to learn, to question, to dive deep, and to be misunderstood. Relentlessly.”

“Don’t challenge the status quo.” Many lawyers live by this mantra. Stable is good, because stable things raise less risk. Stable leads to knowing what tomorrow will bring. But, when clients are using new business models each year, changing technology to keep up, going global, and moving fast to avoid obsolescence, stable is the end. Lawyers must be inquisitive. Lawyers must know their clients better than clients know themselves. They must question and dive deep learning where those clients will be in the future, what concerns them, and what the lawyers can do to solve problems clients haven’t imagined. One thing that turned me off as a general counsel was law firm lawyers tuning out because we were discussing my company’s business and industry. It happened all the time (and no, it wasn’t because I was less than entertaining). Those lawyers got short-listed for “no more assignments.” Lawyers must want to understand all aspects of their clients to make the A Team.

5. Grow

“Tomorrow’s top leaders believe that you will [be] what you want and that there are no limits to personal growth. They are what I call ‘Realistic Optimists,’ i.e. being both optimistic and realistic. As such, they combine the two into one behavioral style that creates a unique sense of open-mindedness, attention, and focus. This high level of awareness and focus allows them to see things many of us do not notice while we’re too busy with problems and ourselves.”

Characterizing lawyers today, I would say they have an obsessive fascination with their professional problems and themselves. Or, as I hear it expressed, “what’s in it for me?” This inward focus, among many other things, is unattractive when viewed from the client perspective. As professional skeptics, lawyers exclude optimism from their vocabularies.

Look at the qualities “open-mindedness, attention, and focus.” Clients want leaders who say we can get there. Realism helps us articulate to clients how and what it will take to get there. As one of my colleagues was fond of saying, “be a warrior for the business.” Corporate clients are sophisticated and know that not every path is permissible or will lead to success. They want lawyers who don’t dwell on the impermissible, but focus on what can be done and how to achieve it. Those lawyers are the leaders clients want to follow.

6. Develop!

“Tomorrow’s top leaders enjoy developing and coaching others. They invest a lot of energy and time in building and maintaining personal relationships founded on trust. Trust is a core belief and value of these leaders which they work hard to earn and keep, e.g. by walking their talk, by communicating frequently and openly, by taking a stand (even if it’s not a popular one), by empowering others, and by following high ethical standards.”

Trust. It is something missing in the relationship today between in-house and outside counsel. Clients trust in-house lawyers because they feel their interests are aligned. In-house lawyers work hard to earn and keep that trust. They earn the trust of their business colleagues by coaching them rather than lecturing them. When lawyers work with business clients who have not had much exposure to lawyers, or when they are working in areas unfamiliar to clients, coaching goes a long way. Business clients don’t want to do the wrong thing. If a lawyer helps by coaching his clients past obstacles so they succeed, clients want to work with that lawyer more often. This is sometimes a hard, but valuable, lesson for lawyers to learn when they move from outside counsel to in-house counsel.

Clients want to work for companies and with individuals who have high ethical standards. Even so, some business people want to go past the edge. If money is on the line, competition gets intense. Pushing back against senior executives who wanted me to bless conduct that wasn’t ethical gave me difficult moments in my career. However, I found that others in the organization trusted my judgment when I spoke “truth to power.”

7. Improve & Innovate

“Tomorrow’s top leaders are data-driven, process-focused, and permanently in a disruptive mindset. First and foremost, they are paranoid about the fact that speed matters more than ever in a quickly changing world. … Secondly, they apply new business metrics. … Thirdly, they know that in hyper-competitive times, competition is not just on brand and technological innovation, but also—and foremost—on the business model.”

I love the opening line—top leaders are “data-driven, process focused.” It has become a cliché to talk about data and process. But it is true that both are mandatory for the next decade. Lawyers don’t seem to recognize that their clients have been on the process improvement and productivity road for a long time. Process has become embedded in companies to the point where it is just assumed. By being so indifferent to process improvement, lawyers are opening the door wide for other vendors to come in and snatch work away. In-house lawyers take note: you are not immune. Just like knowledge workers in other departments have been replaced by computers, you too can suffer that fate.

Lawyers’ ignorance of data also creates a weakness. It is hard to be seen as arguing from a position of strength when your position depends on “because I said so” or “in my experience.” Data drives decisions for clients and vendors who provide that data will become the authoritative voices on which clients rely.

8. Care

“Tomorrow’s top leaders want to support others, to give, to make an impact, and to do good. They care about the well-being of their employees and about broader environmental and social topics. They are aware of the fact that you have to give before you receive. They have integrated values like gratitude and appreciation into their lives and linked them with positive and people-focused thinking and acting to achieve a fulfilled life.”

Finally, we find a quality lawyers have claimed over the years. Because many of us have viewed ourselves as part of a profession, we have tried to act like professionals. We think about our communities, about the broader issues of the day, and perhaps do pro bono work. While it typically isn’t the personality type of lawyers to integrate “gratitude and appreciation” into their lives, the sense that there is something beyond the immediate business outcome still exists in some nooks and crannies of the legal industry. Assuming education and early training in the law doesn’t squeeze it out of them, up-and-coming lawyers also may share these qualities.

Not all lawyers will want to be top lawyers. And, of course, we aren’t really sure what that means anyway. For most lawyers, being a good lawyer and helping others solve their problems will suffice. We need those lawyers and, given the appalling statistics about access to civil justice in the United States, we need them now more than ever. But, as we look at what training to be a lawyer should involve now and over the next decade, understanding what our clients and communities will want to find in leaders is a worthwhile exercise. Unless times change, many lawyers will become our leaders of tomorrow.

[1]  James F. Simon, Independent Journey: The Life of William O. Douglas, Harper & Row, 1980, pp.79-82.

CollaborationEver consider Elon Musk’s goal of having people travel to Mars in ten years? No? Let’s dig in to the topic for a few moments. I was a child who heard President Kennedy’s challenge to land a human on the moon. We did it and it was a big deal. My family named our new purebred Irish Setter O’Grady’s Rusty Moon because he joined our family on the day of the moon landing. Musk’s challenge, as was President Kennedy’s challenge, is audacious and exciting.

To meet his goal, Musk needs money and a collaborative team. You may think I am redundant by including “collaborative.” If so, think back on teams you joined. Were they all collaborative? My guess is no, many were teams on paper and groups of individuals in real life. I was on many of those teams in the corporate world. The CEO would announce a team and charge it with a goal. We would assemble and find that each team member focused on his or her department’s goals instead of the CEO’s goal. That is, his or her compensation targets. Team members were reluctant to devote time to something that lacked a direct connection between action and reward. Turning those teams into performing units was a challenge.

By “collaborative team” I mean a team that will pull on all the oars to move the boat. This is a team aligned behind the goal. Each member will do his or her part to get from start to finish. These are fun teams.

Lawyers are goal oriented, so we exceed expectations as members of teams that have specific goals. We can handle “close the deal,” “win the case,” and “finance the new venture.” We spend a long education career focused on goals—tests, grades, entrance exams, bar exams. Professional goals, like those I named, and career goals, like “make partner,” are part of the gig.

Our success level drops on the collaboration part. We want innovation, we (okay, some of “we”) want change, and we want clients to love us. But, we find it difficult to share with others. This is collaboration.

We can go back to Musk and going to Mars. To accomplish this goal, Musk needs a collaborative team. Your first thought went to building the rocket—he needs a big, powerful, reusable rocket. That sounds like what he does with SpaceX, build reusable rockets for space travel. He needs lots of engineers. Engineers working with engineers is like lawyers working with lawyers. We need broader collaboration.

The engineering team gets the crew to Mars. Remember, it is a 260 day journey. The crew will stay on Mars for three to four months. As we all know, planets travel on elliptical orbits. The nine month journey got the crew to Mars as Mars arrived at the point in its orbit closest to Earth. The crew will want the same advantage coming home. The crew will spend three to four months on Mars doing things as they wait for the right moment to get back to Earth in the shortest period. All in, the crew’s trip will last 22 to 23 months.

This trip requires a powerful rocket. The crew needs plans for food, medical emergencies, clothing, housing, social issues, communication, and travel on Mars. Musk has help to figure all of this out. He has a collaborative team composed of experts from many disciplines (I’m guessing he skipped lawyers). They must collaborate or they will fail and failure means people may die.

Teams Serve Clients’ Interests

Practicing law is serious, but most of the time a lawyer’s failure means something other than a client’s death. It can, however, mean the client suffers some serious consequences. Collaboration would help lawyers do better at tackling client problems. Client’s have problems with legal dimensions. The best solution may involve a small law component and big dollops of other things. Without a collaborative team, delivering that must-part solution is difficult.

Innovation suffers if everyone on the team wears the same “I am a ________” badge. Collaborative teams built with people from many disciplines perform better. Entrepreneurs know this and have focused their time and sponsor’s money building collaborative tools. The network is the thing.

Facebook is a collaborative tool. So is Snapchat, Slack, and even Word is  a collaborative tool (it offers “real-time co-authoring to see everyone’s changes as they happen”). I have seen products at various stages of development that try to break the “toss it over the wall” barrier. Lawyer drafts document, tosses it over the wall to opposing counsel. Opposing counsel edits document, tosses it over the wall back to the first lawyer. These products allow both lawyers to be in the document at the same time working through changes.

Outside the legal industry, collaboration takes the form of sharing research, writing, and knowledge. The scholars and practitioners use sharing to advance the domain. New tools have come out to make the collaboration process easier and interesting.

I am not endorsing any of these tools. All sit outside the legal industry. All  encourage collaboration outside a single domain. Scholars in natural science prefer some, scholars in social sciences favor others. Some will give you ideas to help collaborate and advance the legal industry. The tools are free (some have premium features). Think of what these tools could be if lawyers became part of the broader knowledge universe, rather than isolating their knowledge.

Authorea (https://www.authorea.com/)

Authorea is a collaborate writing and publishing tool. But, it goes further than static text. You can combine many types of information into one Authorea document. Text is the basic starting point. To that, you can add interactive figures, data that readers can modify on the fly, and equations. You can use dynamically modified charts. You can use simple writing languages (Markdown) or go to sophisticated typesetting languages (LaTeX). You can improve the document so readers engage with what is on the screen.

Lawyers think they produce text. But, lawyers need to tell stories using all forms of media. An article discussing self-represented litigants becomes interesting with graphs. Interest increases as the reader applies filters to the graphs giving dynamic control over the content. Including video in an article discussing body cameras makes a lasting impression.

Authorea is in Beta as the developers bring on features. It and other software in this category offer a “one-click” submission feature. It partners with journals. Authors can submit their article, formatted for a specific journal, without spending time re-formatting for each submission. Authorea authors can export their articles in various formats (including Word), and preprint articles on Authorea’s site (complete with DOI, a tool I discuss in a few paragraphs).

Overleaf (https://www.overleaf.com/)

Overleaf is another collaborative authoring tool. It uses LaTeX, a typesetting language I mentioned in the Authorea discussion. A mathematician developed LaTeX. He included formulas in his articles, But, available software lacked a way to type formulas. LaTeX has expanded so that today it is a full-fledged typesetting software. But, it has been something of a geek’s paradise. To use LaTeX, you had to love two things: 1) playing with code, and 2) bumps in the road (known as glitches).

Overleaf (and Authorea, and others) bring LaTeX to everyone. They make it easier to use LaTeX without having to know LaTeX. Create a paper on Overleaf with your co-author using a template, and you have a publication ready document. You can include graphs, images, video, and formulas. It includes version and change tracking (as does Authorea). You can use it to create presentations, brochures, and other documents.

ORCID (https://orcid.org/)

Ken Grady is a popular name. One Ken Grady does research in biology. One Ken Grady is a chief information officer and one is a teacher. I have seen links on Google to others, though at least a few seem to have had experiences with law enforcement on the other side of the bar. How is a poor software package going to tell us apart? Enter ORCID.

“ORCID provides a persistent digital identifier that distinguishes you from every other researcher and, through integration in key research workflows such as manuscript and grant submission, supports automated linkages between you and your professional activities ensuring that your work is recognized.” It is like a universal bar license number system. ORCID gives a computer a way to distinguish me from other Ken Gradys.

ORCID is a transparency tool. If each litigator used an ORCID, we could run a search to find all the cases involving that litigator. We could review briefs filed to measure quality. We could track what each lawyer wrote through articles, blog posts, briefs, and so on. For many lawyers, the thought of accountability could be scary. For others, it would be an advantage. For clients, it would mean transparency.

DOI (https://www.doi.org/)

DOI stands for “digital object identifier.” It is the ORCID for digital material—a unique identifier for digital matter. The International DOI Foundation is the governance and management body for the DOI® System. The DOI System meets the ISO standard 26324:2012 (Digital object identifier system). What does all this mean?

Lawyers use an outdated system for referring to materials built on hard copy publications. Instead, lawyers could use a persistent, standardized, and open identifier system. This system works in the electronic world. Citing to a case as “XXX F.3d XXX” tells us something if we use books published by West Publishing Company, part of Thomson Reuters. Today, most law libraries and law firms have disposed of the books. They use online tools, such as Westlaw, LexisNexis, or Fastcase. We cite books no one has, instead of DOIs that take us to the case. Law reviews stick to hard publication cites for the journals rather than using DOIs. Switching to DOIs would encourage broader readership and remove another obscure citation format.

SSRN (https://www.ssrn.com/en/)

The Social Science Research Network advertises that it provides “725,614 research papers from 334,913 researchers across 30 disciplines.” It includes economics, law, humanities, accounting, and cognitive science. You can find papers from authors seeking feedback. You can find papers accepted for publication. You can find conference papers and research papers the authors will not submit for publishing. This is an information dissemination network.

SSRN has had some controversy in recent times. Elsevier, owner of the scientific paper publishing site Mendeley, acquired SSRN in 2016.  That changed SSRN from a non-profit entity into a part of a for-profit publisher. Many have expressed concerned that SSRN’s open source content may change to pay-for-access content. SSRN has changed, but it remains open source.

One of the claimed benefits of the move is the association with Mendeley. The argument is that the connection between the areas covered by SSRN will become integrated with the areas covered by Mendeley. We will see what happens, but it is a sign that greater collaboration among disciplines fits with the mood of the times.

SocArXiv (https://socopen.org/)

SocArXiv is new, having started in July 2016. The founders announced it following Elsevier’s acquisition of SSRN. It is open source and focuses on social sciences. For many, it stepped into the space SSRN had occupied as the founders (and others) feared Elsevier’s impact on open source publishing.

SocArXiv focuses on preprints. It uses the preprint definition from the Open Research Glossary, “a manuscript draft that has not yet been subject to formal peer review, distributed to received early feedback on research from peers.” The legal industry has avoided peer review. To lawyers, preprints include “papers that have been accepted for publication in a scholarly journal, but not yet been ‘printed’ (on paper or electronically).”

Embrace Collaborative Teams

Lawyers live in a world of confidentiality and privilege. That makes it easy for us to confuse sharing with professional responsibility. They write papers, articles, and blog posts every day. They file briefs in open court. They do public presentations.

Lawyers need to share with other lawyers, with clients, and with those outside the legal industry. Lawyers should collaborate on what they do, to get the benefit of many ideas. They need to create and leverage teams, to get something greater than what each can create alone. Lawyers must move past the gladiatorial battle cry of “my ideas will crush yours” to “how can our clients benefit from what we do.”

Conclusion

This is an essay on these details of publishing papers, presentations, and other materials. I avoided telling you how reading it would satisfy the “will this help me in the next 30 minutes.” If I frustrated you, I am sorry. Lawyers must work on their need for immediate gratification.

If you are outside the mix of developments in your area that interest your clients, you have lost relevance. Simple computer automation can take a big load off your back. Use the time to understand what your clients need and find value. That value lies in the world of material published every day, and to which you contribute, that is hard for all of us to access.

In my class on Entrepreneurial Lawyering, we discuss the idea of an “unfair advantage.” This is an advantage your competitors will find difficult to match. Ubers app is a good example. Taxi drivers may have a local app, but will find it hard to have one app you can use worldwide to hail and pay for a taxi. Being a lawyer educated in the developing ideas relevant to your client in your domain would—strangely—give you an unfair advantage. To succeed in that world you need to collaborate.

DNARemember those crime shows on television? You know the ones I mean. The bad guys committed the crime, the police investigated the crime, the forensics lab solved tricky scientific problems, and the DAs  prosecuted the crime, and the jury delivered a verdict. Everything was tied a neat bow. In one hour, injustice and justice combined.

Scientists got smarter and tests more sophisticated. DNA testing became commonplace. At first it took months to get the results, then day, hours, and now I am sure there is a show where they swipe the suspect’s hair on their iPhone and get the results before the police can raise the yellow crime scene tape.

DNA testing is the rage. Genealogy companies offer it as a service, you can get tested for health problems, and at least one company offers DNA testing as an employee benefit. I love the genealogy company commercials where the actor says he is part this, part that, and part the other thing. Confirmation that we all have a lot of everybody else in us.

We have the same DNA mixing going on in the legal industry right now. Four hot methodologies share common ancestors: lean thinking, agile (scrum) project management, design thinking, and lean startup. If we look closely, we can see the family resemblance.

Think Lean

Lean thinking sits closest to the roots of this family tree. Bits and pieces of what we call lean thinking started coming together in the 1850s, though of course nothing is new. We can find antecedents to many lean ideas if we look at how people solved nagging problems. But, most people point to the 1970s as the period when many ideas that became known as the Toyota Production System jelled. In 1996, Womack, Jones, and Roos published Lean Thinking. For most, this book was the tipping point. Lean thinking started growing in the United States. It now sits in all industries and as the most popular form of process improvement.

Manage the Project

Project management comes in two basic flavors: heavyweight and lightweight. Heavyweight is the traditional, waterfall approach to project management. Most people touch waterfall project management at some point in their careers. It requires significant planning, proceeds methodically from stage to stage, and works best if the situation calls for tight and sequential process control. Want to build a 100-story skyscraper? Waterfall project management will do the job. Lawyers have found waterfall project management a bit restrictive and not well-suited to a rapidly changing environment.

Lightweight is “agile” project management and includes several of flexible approaches. Scrum is the legal industry’s favorite. Scrum requires small amounts of planning, adapts quickly to changing circumstances, and focuses on doing only what is needed when it is needed. Lightweight project management was born in the software industry and has replaced heavyweight for many projects.

Think Design

Design thinking is gaining traction in the legal industry. It also has an interesting lineage. The version we see most often dates back to the 1960s (though it also has roots dating farther back). Brothers Tom and David Kelley developed it as part of their IDEO design business. As the wheel diagram shows, it has grown as the theories behind design have moved from user participation to users being an integral part of the design process. Design thinkers take a fresh approach to creating solutions, focus on the customer, and use rapid ideation and prototyping to avoid the slow and wasteful linear process to design.

DT Circle
From “A Brief History of Design Thinking: How Design Thinking Came to ‘Be’ ’” by Dr.Stefanie Di Russo. https://ithinkidesign.wordpress.com/2012/06/08/a-brief-history-of-design-thinking-how-design-thinking-came-to-be/

Startup Lean

Eric Ries brought us The Lean Startup and the idea that new ventures should adopt principles that helped old manufacturers. Most lawyers forget that their practices are startups. Client demands evolve, law changes, competition introduces new ideas. A lawyer, regardless of where she practices, should think as an entrepreneur thinks. Avoid waste, prototype and pivot quickly, focus on what your client needs not what you want to deliver, build only what is needed, and stay nimble.

Sharing the DNA

All four methodologies focus on delivering what the customer needs when the customer needs it. This focus ties into a broader theme in business right now, typified by the one-to-one marketing philosophy. Rather than trying to sell a product or service that compromises in many ways to meet the needs of the average consumer, businesses try to sell products and services tailored to the desires of each consumer. The closer the product fits the customer’s needs, the less waste involved.

The following chart, which comes from a paper Roland M. Mueller and Katja Thoring prepared for the 2010 Leading Innovation Through Design Conference, briefly touches on some of the similarities and differences of design thinking and lean startups. Their paper, titled “Design Thinking vs. Lean Startup: A Comparison of Two User Driven Innovation Strategies,” gives you a flavor of how two of the four methodologies bear a family resemblance.

Screen Shot 2017-03-18 at 8.04.09 AM
From “Design Thinking vs. Lean Startup: A Comparison of Two User Driven Innovation Strategies,” by Roland M. Mueller and Katja Thoring .

I can buy shoes and apparel that I’ve customized with colors and features. I can use websites to build my car or my furniture, selecting the specific accessories I want. Retailers are famous for marketing one-to-one, sometimes using a bit too much information to guess what the customer needs (the retailer offering discounts on baby items to the teen who hadn’t told her parents she was pregnant).

The four methodologies share a focus on speedy development and revision. In the past, businesses focused on planning. They built business models, planned for contingencies, and worked through as many angles as possible before they made a move. In the present, they try, change, try, change, and repeat. They get something out there, test it, and change direction as fast as they learn from customers. The lean-based methodologies I have named make that rapid approach possible.

We Know What We Don’t Know

The practice of law—the methods and techniques of delivering legal services—has received almost no attention from scholars. Why bother spending time on something everyone does the same way and no one will change? For decades, this omission distorted our understanding of law. How law is delivered impacts the substance of law as much as what law is delivered. Take a simple example. Contracts of adhesion. We sign them every day—every time we click through something that says “by clicking here you acknowledge our terms and conditions.” That method of legal services delivery impacts your rights (embedded somewhere in those terms and conditions) more than the theories of bespoke negotiated contracts.

The odd legal industry culture has received some attention, especially in recent years, as its idiosyncrasies have impeded progress in solving society’s problems (e.g., poor access to civil justice, quality issues, affordability issues). At this time, that culture—resistance to change, failure to adopt technology, lack of affordable legal services—has stirred resentment and anger among citizens. If someone cannot protect their legal rights and loses their job or their house, someone else is to blame. Lawyers play a part in those dramas. Ineffective legal services delivery has more importance than the substance of the law involved.

Four “Leans” and the Law

For the past five years, as interest in project management, process improvement, design thinking, and lean startups, has accelerated, we have seen a kaleidoscope of implementations. Few have a good grasp of how to combine these methodologies into a coherent program for delivering legal services, or choose which ones to emphasize and which to de-emphasize. Think of four musicians each learning a different instrument. One challenge is to learn the instrument, but the second challenge is to learn how to play as a band. We have inexperienced musicians who skip band practice.

This confusion has negative affects on law firms, law departments, and clients. Rather than providing coherent ways to deliver affordable legal services, based on concepts such as efficiency and increasing quality, they are seen as an extra burden to practicing law. Law firms and law departments have not learned how to make these methodologies work together. They have lacked the assistance of scholars to light the path. Some consultants have helped, but most focus on only one or two of the disciplines. A few of us work on researching, synthesizing, and explaining these disciplines combine in law, but it is—admittedly—a slow process.

This leaves the industry with a gap. Many lawyers acknowledge the need for change, but find it difficult to do so without significant help. Other lawyers need convincing. They want proof that if they change, they will succeed. Most stay on the fence. Clients, however, are not on the fence. They want change.

Getting the Band Together

How can we proceed? In the context of the four methodologies I have discussed, I will make some suggestions:

1. Collaborate and Share. Break down the historical barriers between the practicing bar and academia. Scholars need access to practicing lawyers, data, and clients. With this access, they can apply many tools and techniques to identify challenges and point to solutions. Scholars have strong interest in this work, and law firms, law departments, and clients benefit.

2. Focus and Share. A big challenge in evolving legal services is deciding where to focus your energy. Every month someone has a new thing to draw your attention. Metrics. Technology. Process. Project. Doing the basics of a law practice seems to take a full day. Add these new things to the old add-ons (e.g., marketing) and focus drifts. Nevertheless, you must focus. Go T-shaped. Understand your domain in depth, but become familiar with the other areas. If you spread what you need to know among many, the burden on each of you drops.

3. Bend and Share. Inflexibility. Lawyers do what they do because that is what their mentors did, and their mentors, and so on. Decades of doing the same thing worked well for most lawyers, until the late 1980s. The two-humped camel of the legal industry emerged. Large law firm lawyers to the right, everyone else to the left, and a valley between them. As real competition emerges in the legal industry, lawyers must learn to flex, to bend, to adapt. Sharing knowledge and techniques among themselves and with others will be key to coming through this transition and succeeding on the other side.

The Stakes Are Higher Than Large Corporation Legal Fees

Although the legal industry has existed for centuries, it is an immature industry. The business model that brought many lawyers fortunes was fixed a century past. Now, it has a stranglehold on us inhibiting change. The four lean methodologies I described are opening new business models, but we have a long journey ahead. We need to progress faster if we want to keep the profession from slipping deep into irrelevance. That is a worthy reason for change. The compelling reason lies outside the industry. A healthy, functioning, and responsive “legal infrastructure” (as Gillian Hadfield has named it) is essential to our society. Letting that legal infrastructure decay, the way our general infrastructure has decayed, brings a massive threat to all of us.

Profit-CenterFour years ago, a person parking in the company parking lot dinged the door on my new  truck. He or she opened their car door too wide. At the time, I thought, “wow, I could file a lawsuit for damages and become the new profit center for my family.” Okay. I thought something else (which I will refrain from saying as this is a family blog). But, had I thought the “family profit center” idea it would have reflected a popular idea circulating in the legal industry. Consultants and some general counsel advocated turning law departments into profit centers. I thought this nonsense had died. But, I saw a new white paper on the topic so I guess we need to work harder to kill this bad idea.

Alchemy and the Law Department Profit Center

The white paper, whose author I will refrain from identifying, focused on some tired oldies with the profit center pitch. We can run through them.

1. Pursuing wrongdoers. Someone harms the company. The law department pursues the perpetrator. The recovery effort works. The company wins damages or secures a settlement payment. The recovery exceeds the law department’s costs. The net amount is profit to the company. The law department is a profit center.

Um, no. Ignore the risk (claims against your company), the disruption (document gathering, depositions), and the general distraction. The idea suggests: let the harm happen, wait as long as you can to let damages build, then recover. That strategy would optimize the company’s and law department’s profits. Abusing the legal system is different than running a business. Recoveries compensate for harm (no harm, no recovery, no profit). Sometimes they remind the wrongdoer that harming others does not pay. Better strategy: identify risks and prevent them lowering the company’s overall cost.

2. Improving efficiency. This is a strange notion. The idea is simple: reduce the company’s waste, which lowers cost, which increases profit. Whoever reduces waste becomes, ta da, a profit center.

Um, no. Strange as this may seem, doing your job does not convert you from a cost center to a profit center. Everyone in a company, even the lawyers, should work to reduce costs. One could construct a fiduciary argument that lawyers and other employees owe shareholders a duty to reduce costs. Profits increase as you lower costs. But, a lower cost law department remains a cost center. Better strategy: incorporate waste reduction as part of your organization’s ethos and focus on productivity.

3. Helping procurement do better. This idea builds off the waste reduction idea. Lawyers work with the procurement group. Lawyers can help procurement improve at what it does. As procurement does better, costs drop, profits increase and, ta da again, the law department becomes a profit center.

Um, no. This is a wacky notion. Lawyers doing their jobs turns the law department into a profit center? Part of the job of an in-house lawyer is to help other departments do their jobs, even procurement (unclear why they were singled out). Yes, procurement helps the company with major purchases, but every department buys things so the law department should help all departments improve their operations. Better strategy: look for ways to reduce friction through legal process improvement.

4. Turning IP into gold. This is an oldie, but a favorite. Every company has IP. Others must want your IP. Maintain an active licensing program run by the law department and the law department—you guessed it, ta da—turns into a profit center.

Um, no. Other departments took risks, invested in people, equipment, and materials leading to inventions. If what those departments created has value through licensing, they should benefit (minus the costs of the licensing program). The law department does not become a profit center by recovering those investments. And, what does it do as the pipeline runs dry? Better strategy: partner with all departments on ways to maximize asset efficiency.

Maybe those were bad ideas. Could a law department become a profit center? Sure. If the law department invests in people, equipment, or materials that lead to ideas it can license, it can become a profit center. Imagine a law department that develops a contract management program. It licenses the program to other companies. One could question whether that is the role of the law department and whether those investments should go to other departments. But, those are policy questions. The law department made the investment and if it recovers value in excess of the investment, the law department earned the profit.

Aim to be a Competitive Advantage

Where should a law department focus its time? A law department should focus on becoming a competitive advantage for its parent corporation. IT departments, human resources departments, finance departments, and other service departments should do the same thing.

What does being a “competitive advantage” mean? Start with basic law department functions. A law department should aim to reduce its spending per lawsuit dropping below competitive law departments. They should keep risk at an equivalent level or lower it. If company A’s cost per slip-and-fall lawsuit is $50,000 and it is $40,000 for company B, company A’s lawsuit costs put the company at a competitive disadvantage. It should bring its cost below $40,000. The cost includes expenses, settlements, and disruption costs (e.g., time of employees taken away from work). A law department wants the cost of its functions at or below the industry average. Even better, they should aim for the bottom quartile of the industry (on a risk-neutral evaluation). Getting to that competitive advantage by increasing risk is unacceptable.

With costs under control, the law department can focus on real drivers of competitive advantage. Doing things the same way and just as good (or bad) as everyone else does not provide a competitive advantage. If the industry average time to sign a new distributor agreement is 90 days, streamline processes so that your company can get them signed in 60 days. The 30 day saving translates into revenue, a competitive advantage. Do the terms and conditions of your contracts create greater friction than terms and conditions in competitor contracts? Simplify the terms and reduce friction. Make it easier to buy from your company.

Law departments that form relational structures with their legal services providers have advantages over departments pursuing transactional relationships. A transactional relationship is the structure we see today. Hire a firm for a matter and move on. Use RFPs to excess, bargain for the lowest price, and forego enduring relationships. Law firms have no incentive to invest in innovation for the client. The law firm will not spend resources finding ways to increase the client’s competitive advantage.

Relational structure clients look for enduring relationships. In a relational structure, the client and the law firm re-work processes to cross organizational borders. By integrating processes across borders, the client and firm achieve greater process improvement than either can achieve on its own. They work as one rather than as distinct entities. Both have incentives to invest in the future of the other. The law firm looks for ways to give the in-house law department that competitive advantage. The advantage could come from new ways of doing things, new things to do, and even new business opportunities for the company (such as new financial products).

The client benefits from innovation and the law department demonstrates greater value. The law department may drive new business, but at a minimum it reduces its drag on the existing business. No one tries to turn the law department into something other than a cost center. But, the law department focuses on becoming a competitive advantage.

Be Comfortable in Your Skin

The “law center as profit center” idea came out of law departments looking for ways to show they add value. They made a mistake; they thought value equalled profit. Get comfortable living in the “cost center” skin. But be wise. Spend money to avoid lawsuits rather than prosecute or defend lawsuits. Preventing lawsuits reduces cost and friction.

I have argued for the competitive advantage view without discussing certain challenges of becoming a profit center. But, I should mention them. First, profit centers approach challenges from a different viewpoint than risk management centers. Corporations need checks and balances. As a law department moves from risk management to profit, the incentives change. Is it in the best interest of the shareholders for law to make that move? Who watches the henhouse?

Second, as a profit center, the law department moves from service provider to competitor within the organization. It must demonstrate an equal or higher return on investment in the law department than other departments. As a service department, it should consider return on investment, but not as part of that competition. The ROI question is whether it uses the resources given it efficiently. Focusing on reducing antitrust risk may have a higher ROI than focusing on reducing contract risk. That information helps as the law department considers ways to spend its resources.

Law departments can and should demonstrate value to their parent corporations. Many metrics will do that. Showing the law department’s competitive advantage is consistent with risk management, cost management, and adding value. Leave the profit center concept to your clients.

TrashIn my neighborhood, it happens on Wednesdays and Thursdays. It is a muffled sound in winter. But, in spring and summer with windows open, you can hear the heavy duty diesel engines as the trucks patrol the streets. Wednesday and Thursday are  trash collection days.

Each day, my wife and I take our constitutional in our neighborhood. This is in part a holdover from walking our family dog. He died last year, but we stayed with the walk. Because we have circled our neighborhood one or two times a day for 10 years, we know the patterns. We can predict, with amazing accuracy, what will happen and at what time.

Trash days are easy to predict. The main variables are trash hauler, number of buckets, and recyclables or no recyclables. Several trash haulers work our neighborhood (the subject of many pricing discussions on the neighborhood social media site). We have identified the factors that tell us which hauler works which houses. Certain houses use two large buckets, but the majority use one. And, depending on the hauler, the pattern for collecting recyclables varies (e.g., one time a week or every other week). We rock at predicting our neighborhood’s trash patterns.

What I mean, of course, is that we are good at predicting trash. The training has been valuable—we are healthier for the walks. But, the actual information we generate has no utility. Who cares what the trash hauling pattern is for our neighborhood? No one, even the trash haulers, wants the information.

Welcome to predictive analytics in the legal industry. We have many companies pushing their data analytics skills, with some focusing on predictive analytics. One popular area is predicting legal spending. The analytics may focus on entire law department budgets or on individual matters. For many, the idea is to train the learner (computer speak for teach the software) to look for spending patterns by looking at invoices. The problem is that spending data in the legal industry is garbage. And, as we all know, garbage in, garbage out. So, studying past spending patterns to predict future spending patterns is similar to knowing the waste hauling patterns in my neighborhood.

Examining the Garbage

Legal spending data is garbage. That is a strong assertion so you may ask what I have to support it. Start by breaking the billable hour process into components. It begins with each timekeeper recording what he or she does in the timekeeping system. We know there is variability in the system. Timekeepers enter time at their leisure. Some do it contemporaneously, but most do it in batches. For example, some enter time at night, some in the morning for the prior day, and some at the end of the week. The greater the gap between the time worked and the entry, the greater the inaccuracy of the time entry.

Even if the timekeeper enters time at the end of the work (say, every hour), timekeepers vary on how they code time. Some enter basic text descriptions. A basic text description has insufficient information to do a granular analysis of the work. “Draft letter” gives me nothing to analyze or improve a process. Those who use the UTBMS (Uniform Task-Based Management System) codes force their time into boxes and the descriptions match the boxes. As with any taxonomy, the gross level of data keeping does nothing beyond time buckets. Surprise! Most time in litigation goes to discovery.

All this is to say that timekeeping varies and each timekeeping entry is unique. But that is the tip of the timekeeping iceberg. The real problem lies in the processes captured by the timekeeping. As my example shows, processes vary from timekeeper to timekeeper.

Consider this simple example. Two lawyers share an office. Both receive the same assignment: review this contract. The processes the two lawyers follow, the time each takes, what changes each recommends, will vary. Play the role of the client and decide which revised contract you use. Translate that work into timekeeping, and you have a mess.

Apply analytics to that mess. You will produce statistics. The mean time to review a contract, the median, the standard deviation. You can produce nice metrics. The greater the number of data points (the number of contracts reviewed), the greater the accuracy your metrics. But, those metrics measure chaos. Some lawyers spend lots of time on irrelevant aspects of the contracts. Some focus on key parts. Some use inefficient processes (lots of waste built in). Some use efficient processes. The list of variables grows and grows. The metrics accurately measure nothing. We can calculate the mean time for a person in the United States to commute to work. But, that tells us nothing given all the variables underlying that metric and the lack of standardization in the processes.

Predicting Waste Has No Value

A counter-argument says that the data we have may be garbage, but it is the data we can collect. It is better than nothing and running predictive analytics on the data does give us information. That information is that our current, waste-ridden, chaotic process for doing contract review takes, on average, a certain amount of time. We know the mean, the median, and the standard deviation. If the process to review contracts stays the same, those statistics will help us predict the cost of future contract reviews, as wasteful as it may be.

That argument has merit. But, if that is all we do—predict waste—we look like the colorful wheel that spins as you wait for the computer to process your command. We need to move past predicting waste and gain control of the processes. With that control, we can go beyond predicting waste, we can reduce the cost of matters by eliminating waste. We can save money rather than predict waste.

A common client complaint is that they have metrics, but fail to get the improvement they expected from using the metrics. This is the “half equation” story. It is the ability my wife and I have to predict trash collection in our neighborhood. That ability has nothing to do with the volume of trash generated each week, the important half of the equation. To help reduce trash collection costs in the neighborhood we need to reduce the volume of trash generated. By doing that, we could reduce the frequency of trash collection and that should reduce the cost of trash collection.

Clients want to do the same thing. They want to work with their legal services providers to reduce the trash. As a team, they want to capture the process for reviewing the contract, improve the process, standardize the process, and drive out waste. The client undoubtedly contributes to the waste in the process. Having it on the team will help reduce the waste it generates. The law firm starts with the product the client handed it. If the law firm spends time removing waste from the contract, the client should look for the causes of the waste. The client can eliminate waste so the law firm avoids having to remove it, reducing review time.

The client can work with the law firm to focus reviews. If the law firm does a great job reviewing the indemnification clause, but the client is okay with the clause, the law firm has inserted waste. The client can guide the law firm on the scope of the review. Working as a team, the client and law firm can integrate the process for contract review across the walls of the client and law firm. They can standardize the process and coordinate timekeeping entries to the process. The timekeeping entries will provide useful, behavioral data.

The Real Value of Predictive Analytics

I have focused on predictive analytics using timekeeping records. This is, of course, the sideshow. The main act is predictive analytics focused on behavioral data that we can use to reduce risk and avoid expensive mitigation strategies. In other words, find what behaviors to change to avoid the lawsuits rather than focusing on how to reduce spending per lawsuit.

Sixteen years ago, I became general counsel of a company of a spin off company. I started with a law department of one. I discovered that I had a docket of 100 lawsuits involving personal injuries alleged to have happened in or near our retail stores. That was the current docket, but plaintiffs kept re-filling the docket. I would settle one lawsuit and another lawsuit would come at us. Each lawsuit cost the company $50,000 to $75,000. We were on a treadmill.

I had been a retail lawyer for several years before I became general counsel and I had no ready explanation for the size of the docket, the staying power of the docket, and the total cost of the lawsuits. I smelled opportunity and charged. In under one year, we worked the docket and brought it to 10 cases. It stayed in that range. The cost per lawsuit dropped to $5,000 to $15,000. I wanted to keep improving, but it was a great start.

We changed the metrics by focusing on behaviors. What triggered the lawsuits? What drove the costs (legal fees and expenses plus settlement costs) higher? As we dug in and learned the facts, we saw the patterns that led us to change behaviors. Putting a wire stand with copies of the recent store flyer outside a store was a good one. The wind would blow, the flyers would scatter on the sidewalk, and slip-and-fall claims would increase. Solution: put the rack inside the store.

Small changes can have big impacts. Tracking and analyzing the right data shows the way. Crunching timekeeping data would have helped me reduce the cost of those 100 lawsuits, but eliminating 90 lawsuits and ensuring they stayed off the docket was the ultimate cost saving approach.

Lean relies on eliminating waste. Analyzing waste to manage waste strikes me as a diversion. Going to the root cause of the waste seems a better way to spend our time and money. Let’s take out the trash rather than focus on predicting how much it will cost.

EfficiencyYou decided to go to law school because you wanted to become a lawyer. You studied the law, passed the bar, and practice law. You have friends who provide legal services using their unique skills, which include project management, data analytics, and eDiscovery. But every day someone nags you to improve. “Improve” means something other than being a better legal services provider. But what exactly does it mean?

One way to find the true meaning of improve is to ask your clients. If your clients work for a corporation, you will hear “become more productive” or “increase your efficiency.” Both sound good. For decades we have heard how corporations are increasing productivity and efficiency. But, as a trained skeptic, you want greater clarity. What do you mean, you ask your clients, by “productivity” and “efficiency”?

They point to the dashboard glowing on their computer screen and say, “if this number goes up” I am more productive or “if that line goes down” my efficiency dropped. You smile and nod, still wondering what they mean. Let’s satisfy your curiosity.

New Ideas for a New Century

The turn of the 20th century brought with it the Efficiency Movement. The Industrialization Age had been going full tilt for decades. Starting in England, we moved from people to machine plus people. The next step was to increase the machine speed, and encourage people to keep pace. Experts such as William Shewhurt studied what people did in factories and developed ways to improve.

After WWII, Toyota Motor Company re-started its automobile production and developed the Toyota Production System (TPS). In the 1990s, TPS came to the US in the form of lean thinking. It was joined by Six Sigma, Business Process Management, and a list of other improvement methods with names just as catchy.

Corporations throughout the world grabbed the improvement concept and thrust it onto the shop floor and into the corporate offices. Law firms took the productivity path. They pushed for more output from the same team (choosing output per person versus output per hour as the measure). Corporations became more efficient and law firms became more productive, leading to the current clash. Clients want more efficient law firms and law firms see clients as threatening their productivity.

The Productivity and Efficiency Equation

Data alone lacks meaning. We must put it in some context to attach meaning to the data. If I tell you that during my career as a litigator, I won 10 cases that data tells you nothing. How many cases did I try? How long was I a litigator? Were the cases small? Big? What does “won” mean? Data without context takes us nowhere.

One way to give data context is to create a ratio. If I told you I won 10% of the cases I tried as a litigator, you have some context. You want more information, but you know that I lost nine cases for each case in which I was victorious.

Productivity and efficiency are names for a ratio. The ratio, the same in both cases, is outputs divided by inputs. We can write the equation this way:

Productivity or Efficiency = Outputs ÷ Inputs

When you look at the equation, you think that “productivity” and “efficiency” are synonyms. Many people use them as synonyms (my Roget’s Thesaurus does not treat them as synonyms). We hear them used casually. We think of ourselves being more productive or efficient after many years practicing law. But what do they really mean?

With a ratio, you have two levers you can pull to affect the result of the equation. First, you could hold inputs constant and increase outputs. For example, assume you work eight billable hours each day (yes, I hate billable hours, but I will start with something you know). On Monday, I do one hour work for each of eight clients. I have filled my eight billable hour objective.

On Tuesday, the firm’s Managing Partner walks into my office and plunks a tool on my desk. She tells me the tool can help me do my job. “Ms. Lexbot,” the cute name I give the tool, helps me do in 30 minutes what took me 60 minutes. On Wednesday, I do 30 minutes work for each of 16 clients. I billed my eight hours, but my output doubled with the help of Ms. Lexbot. I am more productive.

My friend sits in the office next to me. He also works eight billable hours each day. On Monday, he too did one hour work for each of eight clients, filling his eight billable hours. But on Tuesday, the Managing Partner asked Mr. Lexbot to work with him on the processes he uses to do work. Mr. Lexbot found waste and helped him redo processes. Now, he can do in 30 minutes what took him 60 minutes the day before. On Wednesday, he does 30 minutes of work for each of eight clients. He bills four hours. He has become more efficient.

Telling the story these two ways highlights the difference between productivity and efficiency. It lies in the objective, rather than the formula. Over decades as corporations have used improvement methodologies, they focused on efficiency. The goal was to drive waste out of the system. A more efficient company was a less wasteful company. Reducing waste was good, for society and for the bottom line. But that concept clouds some issues.

Reaching Limits

Removing waste is good, but waste reduction hits limits. Business people know this and have coined a phrase for it: “You can’t cost cut your way to success.”

Waste reduction confronts three constraints: (1) people, (2) technology, and (3) creativity. If a process depends on people, waste reduction reaches limits as it bumps against what people can do. I can handwrite documents legibly at a certain speed. Beyond that speed, my physical abilities create a limit. Process improvement aimed at my handwriting can do only so much.

Technology has limits. Though computers can do amazing things, they have limits. Ask Siri to compare equal protection to due process and you will see a limit. Process improvement will not take me past that limit.

Finally, creativity hits limits. These limits are practical, not physical, but real. People working alone or brainstorming reach limits. Time, education, training, and other enhancements may take them past the limits, but for some period creativity will slow or even stop.

Corporations today are starting to test the limits. They keep looking for and finding efficiency gains, but the rate has slowed. And, as they know, efficiency gains are not the path to success.

An alternative is to look at productivity gains. Take the resources you have today (the inputs) and grow the output using those resources. You can grow your way to success.

Client Efficiency and Firm Productivity

The legal industry is struggling with productivity and efficiency. Clients understand and legal services providers are starting to realize that the legal industry needs to improve efficiency. Clients resist paying for 60 minutes of time when the same output could be achieved in 30 minutes.

Legal services providers, and here I will focus on law firms, worry. Efficiency sounds like reducing eight hours of work to four hours, which cuts revenue in half under the billable hour model. Efficiency to a law firm means something different than efficiency means to the client. But if we talk about productivity to the law firm, we see eyes brighten. Managing Partners would love to get higher outputs from the same inputs. To the client, that sounds like billing for waste.

The common ground is the area where both parties understand we are looking at one equation, but have two strategic objectives. The client wants increased efficiency and the law firm wants increased productivity. The client will trade something to get something. If the law firm increases efficiency, the client will accept a lower invoice but share some of the cost savings with the law firm.

The law firm wants increased productivity, and will trade something to get something. It will reduce the price it charges for the service as it increases efficiency, but retain some of the cost savings for itself. It will use the saved time to increase the output per input without increasing the total hours worked.

This solution will not work under every market condition. If the total market for corporate legal services was shrinking, increasing productivity would not help firms. But we know otherwise. The demand for legal services increases each day. Corporations struggle with the overload. Pricing, productivity, and efficiency stand between corporations and getting the work done.

Finding the Win-Win

The legal industry lags decades behind corporate clients in efficiency. We must keep pushing forward with our operations improvement efforts. But, clients need law firms. Despite the rush to hire in-house, clients understand that law firms bring them many benefits. Clients want the benefits without paying for the waste that comes with them.

Corporations are starting to turn their attention to productivity as they see diminishing gains from efficiency. The limits make it harder for corporations to get the same return on investment in improvement that they got 10 or 20 years past. As corporations look for productivity, they will encounter increased regulatory and compliance challenges. That, in fact, is what we hear from CEOs and general counsels. Legal services providers should listen to the call for help. Becoming more efficient will help the services providers and they can grow productivity by helping their clients. Productivity and efficiency may not be synonymous, but in this case they could spell win-win.

SiloI spent my formative years in Illinois and part of my college years and working years in Iowa. I have seen my share of silos. But the silos lawyers construct top anything scattered among the cornfields. If we had a silo competition, lawyers would take the top prizes every year. The closest I found was a silo competition focusing on how to re-purpose old silos. Since lawyers keep using their silos, it won’t help us.

Finding ways lawyers enforce the silo mentality is easy. We can start with the basics: lawyers and non-lawyers. You are either in the silo or outside the silo, no middle ground. We cling to the belief that law is a monopoly, with rights to practice law granted by each of the states. That makes a lot of silos. You can join several silos, but it is a complicated process involving years of training on the secret handshakes.

We have some silos that touch our lives for a brief period—three years, to be exact—the law schools. Apart from the residual ego-boosting, social status pumping, or job-getting benefit of a law school’s name, three years pass and we fugetaboutem.

The silo list goes on. Law firms build walls between themselves and clients (strange, but true). Clients stay separate from law firms, consulting firms, law schools, and everyone else. Technology vendors are each to their own. You feel me?

In my talks, presentations, and interviews I suggest we breach the silos. Forget that other professions have done so. Forget the it would benefit all of us. Forget that it makes sense, could reduce costs, would increase efficiency and would improve quality. Let’s get to the heart of the matter: it would result in a lot of rip roarin’ parties! But I digress.

Removing the silos is a logical step in moving from our pre-20th century agrarian view of the world to a post-Industrial Age profession. Understanding how silly the silo structure is depends at times on the little things. For that idea, we can look to digital object identifiers.

Building Networks

Publishers throughout the academic world and many other deep scholarly environments, such as movie studios, use digital object identifiers (DOI). How many you ask? Over 5,000 entities have assigned over 133 million DOIs, which connect to media viewed over 5 billion times each year. So, a lot.

What is a DOI? It is an “actionable, interoperable, persistent link” to media. In other words, it is a unique identifier that a digital item calls its own. Wondering whether you should read Nudge by Richard H. Thaler and Cass R. Sunstein (you should)? Perhaps you would want to read a book review by Thomas C. Leonard. He says, “Though costumed in the guise of pop economics, complete with a cute logo—Nudge is, in fact, a manifesto for the new paternalism.” The DOI for Leonard’s book review is: 10.1007/s10602-008-9056-2. That DOI uniquely dentifies Leonard’s book review.

We have had DOIs since 2000. The DOI system is a standardized system—Digital Object Identifier System (2012), ISO 26324. It is international. The DOI Handbook and other information necessary to participate in the DOI system is online and open access.

You can use DOIs in many ways. In citations, a DOI points to a unique item—no confusion. If you posted the item on a publishing site that uses DOIs, you have a persistent link to the item. Since computers can capture DOIs, they can show the relationships among published items. Think of the many ways a legal citation can appear and consider the difficulty in training a computer to know all of those formats. DOIs have one format. Computers can scan all published materials and show the inter-relationships.

DOIs are “extensible by design to any sector.” If we assigned a DOI to each reported decision from the courts, we could show linkages among cases without trouble. Yeah, but look at that thing—the DOI is long. No problem! Use the shortDOI and that unique identifier for Leonard’s book review becomes 10/cp6mx8 (or, http://doi.org/cprmx8 if you prefer the link). What would happen if case citations changed to DOIs? We could make citations easy and accurate: Smith v. Jones, shortDOI (date).

We could go further. Each brief, motion, order, and other paper filed as part of a lawsuit could have a DOI. Instead of developing complex algorithms to link documents in PACER or try to discern from titles or other materials what relates to what, include the DOIs.

The Legal DOI Blockade

I have encountered DOIs as I increase my publishing. That led me to the legal world’s ignorance of DOIs. In 2010, Benjamin J. Keele published, “What If Law Journal Citations Included Digital Object Identifiers? A Snapshot of Major Law Journals.” If you want to read the article, use the DOI: http://dx.doi.org/10.2139/ssrn.1577074. As Keele notes, “DOI has become the standard digital identifier for scholarly publishing, with most hard science and many social science and humanities publishers using DOIs for their articles.” Keele did a study. He checked 1,041 articles and found that 37.8% had DOIs. Articles published in law journals: “most major law journal articles did not have DOIs assigned to them.”

Becoming part of the DOI community is easy. Despite the ease, lawyers and legal publications persist in the silo mentality on knowledge. If we dropped that mentality for publishing, these are a few ways we could benefit:

  • Access to Justice. If we published legal materials including cases, statutes, articles, etc. using DOIs, those who need the materials would have easier access to them. We want people to access the law, explanatory materials, forms they need to file, and anything else that eases the path to interacting with the legal system.
  • Since each DOI points to a unique thing, we avoid confusion. The citation system lawyers use attempts to get us to the correct, unique thing by throwing information at the reader in the hope that enough information will lead us to the correct material. A short DOI string does the same thing.
  • Lawyers and all others who work with legal materials can avoid learning, spending time deciphering, and navigating complex citation systems. One DOI finishes the task. Imagine the reduction in time spent learning and using the Bluebook.
  • Want to go to the third concurring opinion in that recent Supreme Court case? No problem. We can assign a DOI to the entire case and a separate DOI to each opinion. In fact, we can go further. We can assign a DOI to each paragraph, quote, or other segment. The Dodd-Frank Wall Street Reform and Consumer Protection Act covered 2,300 pages. Citing to specific sections means tracking through the byzantine sections, subsections, sub subsections, etc. Instead, we could assign granular DOIs. A DOI becomes an active URL by appending it to “http://dx.doi.org” and pasting it into a web browser. No confusion. The DOI takes you to the most current, official version of the statute.
  • Lawyers want to sit at the table and talk strategy. We want to share our thoughts and show leadership through them. But if we build silo walls , we become irrelevant. Make it easy to find, share, and discuss what we think and we become part of the community.

The Ideas Marketplace

Gillian Hadfield, in her book Rules for a Flat World explains the absence of markets in the legal infrastructure. The legal infrastructure, a term she coined, is everything “law,” including the institutions. The market absence, she argues, holds back law from effectively handling society’s increasing demands for guidance and regulation. With a few exceptions, I agree with what Professor Hadfield says.

DOIs facilitate participation in the marketplace of ideas. By making our ideas easy to find and easy to incorporate with ideas from other disciplines, we join and participate in that marketplace. Economists should have easy access to what lawyers publish, but so should technologists, sociologists, biologists, and ethicists. Are we all cool with technologists creating the algorithms for AI independent of (and perhaps lacking knowledge of) existing law? When the autonomous vehicle has to choose who to kill, is it a technical and ethical question devoid of legal implications?

Many thought we crossed this bridge in the 1920s. Columbia’s and Yale’s law schools looked beyond law to the social sciences. At first, the current and prospective faculty (including future Supreme Court Justice William O. Douglas) engaged in bitter battles. But, the schools found a happy medium. They refrained from becoming the social science research focused institutions some favored, but social science became part of legal study and education.

Since that time, the trend to crossover from law to social science or the reverse accelerated (with peaks and valleys). Today, seeing law professors with PhDs has become common. Some law schools, including my alma mater Northwestern’s Pritzker School of Law, have developed new reputations as hubs for this silo-breaking, multi-disciplinary approach. But, apart from these tidbits, lawyers and law resemble those siloed cornfields I got to know in Illinois and Iowa. Want to know what lawyers think? Join us or stay out of our silo.

Building Bridges

We can rail against the institutions or start fixing the problem. We can start with those pesky DOIs. Each time you write an article, ask the publisher if it assigns DOIs to the articles it publishes, assuming the article will appear online. If the publisher says no, push the publisher to start using them. The process to participate in assigning DOIs is beyond simple, so any excuses ring hollow. If you get a DOI for an article, use it whenever you cite the article and encourage others to do the same.

Add your article to the body of knowledge. If you publish your article in a traditional journal and it uses DOIs, indexing services can capture the DOI. You can use other vehicles to get your ideas out in addition to that lawyer trade journal. Authorea, ResearchGate, SSRN, SocArXiv, and Academia are publication outlets (and for most purposes, they are free). Try to retain pre-print or post-print rights to your article, even if you must assign the copyright. Ask whether the publication permits you to self-archive. Use your rights and publish through one of these vehicles. All of them give you ways to get your knowledge and research in the public domain, even if access to the final version or typist version remains behind a paywall. Don’t let legal publishers benefit from your work and exclude you from benefitting and helping the community.

Of course, being part of a knowledge community means you should access knowledge beyond articles outside the law silo. It seems that every day, I hear a lawyer speculate on how to address an issue outside the law. Checking, I find articles and books addressing the topic. But, the lawyer—staying within his or her silo—fails to look for the knowledge that exists. Clients pay for those knowledge deficits. By exploring the larger knowledge community, lawyers benefit from the work of others who have tackled many of the tough problems.

Red HerringWe should start with the phrase “red herring.” We know that it means a decoy intended to lead us in the wrong direction. But do you know the origin of the phrase? No one knows. As with many phrases, we can find an origination. The oft-cited story explaining the modern use of  this phrase is that someone used a red herring (a type of salted herring) to obliterate his smell so that hounds or wolves lost his scent.

Today’s red herring is the argument that we must have de-regulation, or changes in regulation known as re-regulation, in the legal industry. Through these changes, we can overcome the appalling and declining lack of access to justice. Let’s tear this decoy apart.

De-regulation or Re-regulation

I think most individuals looking for change in the legal industry stay away from de-regulation. Eliminating regulation of legal services delivery would let the charlatans who prey on the unsuspecting ply their trade. We can put de-regulation to the side. I have heard and read arguments for the alternative—re-regulation or changing legal services regulation. In this version of the future, lawyers lose their monopoly, but those who provide legal services must follow “legal consumer” protection laws.

Those who favor re-regulation believe authorities should remove the monopoly chokehold lawyers have on the practice of law. The UK’s Legal Services Act of 2007 gets dragged into the fray as one example. Australia’s and New Zealand’s changes are others.

Removing the monopoly should encourage new parties to provide legal services. Those new parties would bring cost competition, creativity, and access to legal services for people without access. The corporate end of legal services should benefit too. The influx of new providers will drive innovation. The theory is we will move from our dismal world ranking on access to justice (out of 100, the US falls between 65 and 94 depending on whose ranking you look at). The hope is that our ranking will improve because clients will get what they need in legal services.

Fair enough. Changing the regulations, depending on how they change, may deliver those benefits. In the UK, citizens have gotten benefits, though fewer than they or the government expected. The UK has established a group to examine the 2007 Act’s with the hope of determining what has limited the effects of the law. Let’s all agree—changing the regulations could help.

So…

We Can Do Better Without Waiting

The red herring is the re-regulation argument. We have what we need to fix the lack of access to civil justice problem. Changing the regulations may make a few things easier and transaction costs could drop. But, the problems we need to solve are independent of the regulatory structure. The barrier to solving the problems is lawyer resistance to change. Fix that problem and changing the regulations will become a side show at best.

Consider this one example. Solo practitioners argue they have a technological disadvantage. The cost of emerging software is beyond their grasp, either in time to implement or money. The professional responsibility rules prohibit law firms from having owners without law licenses. If we re-regulate, the argument goes, these firms can get access to money and resources through new owners. They can use those investments to bridge the technology gap. We already have a solution. Create a technology business (incorporation costs are trivial). Get investments in the second business which acts as a services business to the law firm. Spread the technology firm’s costs across several small firms. This model, or variations of it, exists.

We could change the current business model for legal aid. Necessity being the mother of invention, we will need creativity if the federal budget drops the Legal Services Corporation (which the proposed budget does). Middle class Americans lack or shun access to legal services. But, we have tools and can put in the field a different legal services model, compliant with the current rules, that gives this group access to legal services. The small firm lawyers providing the services would make a nice living.

Ignore the re-regulation decoy, we could improve today. But, lawyers resist change. Go back to that false premise: many lawyers believe that they have a monopoly to practice law. Wrong! Lawyers, at best, have a monopoly to represent other parties in certain situations (e.g., court hearings). Want a will? Go ahead, draft one. Or, go on LegalZoom or Rocket Lawyer and use a form. Or, go on the Internet and download a form. Confused? The online services have help sections, you can read many articles, you can buy DIY books that may answer your questions.

You can be your own lawyer whenever you want. Bye bye monopoly. “But wait,” you say, “that isn’t what I meant. I meant you can’t hire someone to do certain things for you unless that person is a lawyer.” If you need that someone to go into court, the lawyer monopoly applies (unless you count self-representation). Clients go without lawyers because lawyer put barriers between themselves and clients. Other niches exist. Everything else requiring hiring someone to do work for you falls into that ambiguous bucket the “unauthorized practice of law.” And watch out for smart contracts. Computers practicing law without lawyers.

Could a consultant draft a contract? They do. Could a financial planner write a will? They could point you to LegalZoom. Most lawyers would say “no” to both questions. But Legal Zoom, Rocket Lawyer, and the Internet have blurred the line. It is difficult to define the unauthorized practice of law because we can’t define  the practice of law. We like to think we know it when we see it.

If we go big, to corporate legal work, the unauthorized practice of law gets fuzzier. Most bar authorities believe that corporations can take care of themselves (they can) so they don’t waste time protecting them. That has left the field wide open for entrepreneurs to move in. It is hard to say today that lawyers have a monopoly. Lawyers have a pre-existing claim to certain legal services that shrinks by the day. This is one of the reasons small firm lawyers have stagnant income.

Strange, since lawyers resist change to protect incomes. They want to defend what they have left of the monopoly. They want to retain some level of prestige. They want to retain power. The list of actual and possible reasons seems unlimited. Whatever the reasons, lawyers resisting change is the principle barrier to fixing our access to justice problem.

Making Progress

My concern with the re-regulate movement is that it has become a distraction. Rather than acting to fix problems, we justify lack of action on failure to re-regulate. Regulation may affect how we structure changes and it may make some structures higher cost than others. Those are details. Let’s dig in and fix the problems. As the problems get fixed, regulation will become a minor issue and regulatory change will happen. As the regulators ponder, we will solve problems.

If we can fix problems, what holds us back? Go back to lawyers resisting change. We are 10 or 15 years into real change efforts in the legal industry. I have been at it for 38 years. Others have decades of change-resistance fighting on their resumes. In the boom times of the 1980s, lawyers gave no thought to change despite what I and others said. As lack of access to civil justice came to the forefront, as the recession hit, and as lack of access to civil justice is tied to larger societal problems, change is in the air. But, lawyers hold us back.

We can measure change in the legal industry by the movement of glaciers. Lawyers agreeing to change is the start. Change is big—it requires lawyers learning new ways to deliver legal services. Lawyers have to work as part of teams. Lawyers will cede some authority to gain influence. How a lawyer earns money needs to change. The changes needed to fix the problems like access to civil justice aren’t small and they aren’t without controversy.

For those who want to direct their limited time and resources at the American Bar Association or state bar associations and argue for re-regulation, go for it. The ABA is a byzantine group with as many political agendas as members. I think focusing on fixing the problems is a better use of time.

That statement presumes we can fix the problems, and I think we can. One problem that gets in the way of most others is the economic model for legal services. The current model uses high-cost labor. It is a model that worked in the 1800s, but is ill-suited to the 21st century. We know how to change the model. The tools to change have existed for decades. Some tools have existed for 100 years. Newer tools emerge each day, such as computer technology. But a world with tools ignored or left idle is as good as a world without tools.

Fix the Problems

Should we abandon the re-regulation fight? We should continue the fight, but put it in perspective. Ask yourself a question—What do I want to do to fix the access to justice problem that I am prohibited from doing by regulation? Ask if you could find a different way to do what you want to do. I ask those questions of people who tell me re-regulation is the barrier. I believe we can do what we need to do despite the lack of re-regulation. Re-regulation may help, but I am willing to solve the problems without it.