I was talking with a friend the other day about training lawyers and it occurred to me that someone must have worked through why it is so important to teach lawyers to fail. Someone did. Legal education today is based on the model Christopher Columbus Langdell developed around 1870 when he became Dean of the Harvard Law School. Dean Langdell introduced the case method, the most widely used method of teaching in United States law schools today. Under the case method, students read a decision issued by an appellate court. Through a variety of techniques, often based largely on the Socratic method, the students learn about the principles of law raised addressed in the case. In other words, students study massive failures to learn about the law.
Before I go further, I’ll point out that law schools have adopted many other models for law student education. They use experiential learning, classroom teaching methods other than the Socratic method, and in some cases have started using the case study method built off of the famous Harvard Business School teaching method (followed decades ago by most graduate business schools). Nevertheless, the case method is still widely used as the primary method for training law students.
Think about a lawsuit. Lawsuits exist because of massive failures somewhere in the processes run by two or more entities. For example, in a contract dispute the processes to create the contract or the processes to implement the contract, or both, broke down. The contract creation processes didn’t adequately capture the necessary content of the contract or the individuals charged with implementing the contract did not properly follow the contract provisions. We can come up with additional scenarios, but they generally boil down to creation or implementation of the contract. Notice that I say the process failed, not the substance. If the process is properly designed and correctly followed, the necessary substance will be included in the contract. The process ensures that it gets there. If the process is not properly designed or correctly followed, the substance still may get into the contract, but it will be hit or miss. This is one reason why process is critical to consistently providing high quality services.
The same process breakdown explanation holds true for other lawsuits. Regardless of the subject matter, there was a massive failure of processes leading up to the lawsuit. I call the failures massive because today, corporations will seldom if ever go to war over minor failures. The costs of doing so are too high, the time to resolution too protracted, and the vagaries of the legal system too many to risk using the justice system for anything but a massive failure. Even if we look at lawsuits with very small stakes to at least one of the parties, the failure leading up to the lawsuit was massive when viewed in the context of the processes involved. In other words, when I say massive I’m comparing the process breakdown to the process, not to some arbitrary standard of what constitutes massive.
Now let’s go the next step in our study of a lawsuit. There was a massive failure so the parties went to court to resolve their dispute. There are some decisions worth studying that were written by the judge of the trial court and law students read a few of those decisions. Most of the time, however, law students study appellate decisions. To get to the appellate level, there was another failure. The judicial process failed to resolve the lawsuit at the trial court level. Litigation is a costly process so each step adds to the burden on the parties and society. The issues in the lawsuit remain unresolved as the parties take the case up on appeal. Those issues may affect more than just the parties to the lawsuit, creating a broad circle of uncertainty. The parties pay more in legal fees. The courts have additional cases to resolve, pulling resources from other areas of society.
As you read through this story about a series of failures, note that I talk about process failures not people failing. This is an important distinction. If the process is properly designed, people will follow the process. Either they will follow it because it is the best way to do things or they will follow it because they don’t have a choice – the process will not allow them to proceed along a path different from what is set out in the process. When the process forces them to do things one way and only one way, we call it a poka-yoke process. Poka-yoke is a Japanese phrase that roughly translates to “mistake proof.” The process is designed so that you can’t make a mistake. Blaming people does not add value, so we focus instead on the process and ask where it failed and what can be done to change it so that it won’t fail again.
Going back to the study of law, law students often read cases resolved in the United States Supreme Court. To get there – you guessed it, there had to be a third massive process failure. The appellate court decision did not resolve the case. That leads to a longer time of uncertainty and more costs.
If a contract case reaches the Supreme Court, the string of failures is impressive. Lawyers were involved in drafting the contract, lawyers were involved in trying to work out the dispute pre-litigation, and lawyers were involved at the trial, first level appellate, and Supreme Court stages. Each step of the way, the process the lawyers followed did not lead to a successful resolution of the lawsuit and so the lawsuit went to the next stage. Another way to think about this string of failures is to imagine a product that malfunctions. The malfunction was the first failure. The decisions of the courts are the subsequent efforts to fix the malfunctioning product. Each attempt to fix the product fails, and so another attempt must be made to fix the product.
Wait a minute, you say. This process of resolving disputes through the courts leading to decisions is one of the main ways we have to function as an orderly society under the rule of law. The process is (mostly) transparent and the public can read the decisions and learn from them. All true. Nevertheless, if the parties had been able to reach a satisfactory resolution at any point along the way, they would have done so. Nothing obligates them to continue litigating. Even public interest cases continue because a satisfactory resolution cannot be reached at some stage in the process. In other words, the process did not lead to an early resolution so litigation continues. People and entities don’t want to litigate they litigate because processes failed.
Studying Failure is Beneficial
Dean Langdell’s case method for teaching had many benefits. Students learned from the same cases, bringing a level of consistency to legal education and to law. Legal studies became more rigorous and by studying decided cases professors and students could see where courts may have taken a path at odds with the general body of law or society’s values. We can learn from failures, and sometimes that is where we get the most powerful learning experiences. Studying failure can be a very good thing.
Processes will fail. We have not reached that stage in our evolution where we can design perfect processes or have computers design them. When they do fail, we should study the processes and learn from the failure. Studying our failures, making changes, and trying again is a key means of advancing, so I’m not against using our failures to learn. But, taken to an extreme and when used as the primary method of teaching students, it becomes a vicious circle keeping us trapped in a cycle of failure.
Think back to law school. How often did you study success? A general counsel is faced with a new business model. She investigates the obvious legal risks of the model and does not find anything at odds with existing law. As far as she can tell the proposed business model is perfectly legal. But still, something does not seem right to her. She pushes further into the model. As she studies it, she realizes how it may conflict with evolving concepts in the law and societal trends. Today the model is perfectly legal, but in three to five years, it most likely will be problematic. Our general counsel could do nothing and leave any problem to the future. She could follow the maxim of make money today and let tomorrow bring whatever it may. Or, she could look for something to mitigate the risk. As she considers the model and the risk, she finds ways that small changes significantly reduce the risk of future problems. The changes are not enough to hinder the model. She meets with the business team and lays out her case. It is early in the business model’s lifespan so the business team agrees to make the changes. Three years later the lawsuits start. But, they aren’t against our general counsel’s company they are against competitors who did not make the tweaks.
In graduate business school, I did study these types of stories. I learned about success from the stories and from practitioners who would visit our classes and share their personal success (and yes, sometimes share their failures). We learned about shaping our future not just reacting to the past. We learned about leadership and we learned to think strategically. Of course, our studies also involved the nuts and bolts of our chosen discipline. As a finance major, I learned the basic theories of finance and how to do the calculations. But, I didn’t spend all of my time studying companies that went bankrupt. I didn’t spend years focusing on all the ways a CFO could make mistakes. In other words, studying failure was mixed with a healthy dose of studying success.
Teaching Success is Better
As law students and lawyers, we learn law through the rearview mirror. It is natural, for us to practice law looking in that mirror. We are taught to solve problems more than to prevent them, and that is where we feel comfortable. By learning principles of law we hope to help our clients avoid problems. But even then we are helping clients avoid the problems of the past—the problems we studied in those cases—not the problems of the future that have yet to make it into the cases.
Future problems will never be in case law or statutes. Those future problems are in evolving trends, advancements in technology, globalization, clashes of cultures, and other complex areas. They require more than just taking the law and walking it forward a step, they require creativity, insight, judgment, and at times leaps of faith. In other words, they require us to really think not just produce by rote another document.
Technology is moving far too fast for lawyers to simply extrapolate from yesterday’s cases. When a lawsuit may take three years to resolve and it took a year or more to develop before it became a lawsuit, law simply can’t keep up with the modern world. The iPhone came out in 2007, roughly two generations of lawsuits ago. Siri was introduced in 2011, about one generation of lawsuits ago. Will the resolution of a lawsuit in 2019 or 2020 arising out of something being done today really help a client? What if the trial court decision is appealed? Can we afford to wait that long to resolve today’s dispute when, by the time we know the resolution, technology has moved far past whatever issue gave rise to the lawsuit?
The slow advancement of the law, case by case, has some benefits and my point here is not to challenge that approach. Rather, it is to recognize that since that slow advancement is the basis of our case law system, as lawyers we must learn to work within that system and help our clients. It simply doesn’t help our clients our society to explain that the law won’t catch up with the present for another five to ten years. Clients need to know what to do today and what to do tomorrow so that in the next five to ten years they aren’t facing major problems.
Teaching failure has some benefits. But, teaching success and how to achieve it also has value. Much of the best lawyering ever done was not recorded in case books or articles. It went unrecorded because that work prevented failure from happening. The lawyers who provided those services kept their clients out of trouble, kept costs down, and avoided burdens on society. If lawyers want to be the leaders of the future, then we need to teach lawyers how to recognize failure, but how to achieve success.