In the United States, we are in the thick of a presidential race and so far all I know is that things will be better. Every candidate uses every opportunity he or she gets to tell me how things will get better if he or she is elected. As Americans, we will be taller, stronger, and smarter, we will weigh less, move more quickly, make more money, have more leisure time, fight fewer battles, and achieve more of our dreams. Whatever it may be, the candidate occupying 30 seconds of air time will make it better when he or she gets into office.
My wife is a great fan of the old television series M*A*S*H and so I quote the eminent Colonel Potter here when I say “horse hockey!” We are all adults and we know that “better” in the context of a political election can best be interpreted as meaning “different.” I am not saying that, using objective measures, everything will go downhill. On average, people will make more or less money, will have higher or lower scores on education measures, and the average standard of living will increase or decrease. But those statistics are not the same as saying things will be better.
That is one of the great things about normative words, they sound impressive but don’t pack a substantive punch. Politicians love words that don’t mean much, which probably is why I am hearing so many of those words, including “better,” from candidates right now. But words that do not mean much cause us to lose trust in the speaker and that is why I think as lawyers we need to stop using better.
Better Should Have Been Gooder
In law, no analysis of words and their use is complete unless we dive into history. If we look at the etymology of the word “better” we find that it has been around for a long time. Linguists have traced it back through Middle English, Old English and into Proto-Germanic languages. As we all learned in middle school in the United States, English is an irregular language. As a lean thinker, I like to describe it as a non-standardized language. But since Richard Susskind has conditioned us to think about what we do as falling on a continuum from bespoke to commoditized, I guess we should describe it as a “bespoke language.” Better is one of those bespoke additions to English.
If English had moved along the Susskind continuum towards commoditization, “good” would have given rise to “gooder” and then “goodest.” Instead, our ancestors pulled in some German, moving from “good” to “better” and then “best.” The Word Detective nicely sums up our predicament:
Life would be a bit simpler, especially for folks learning English, if the comparative and superlative forms of “good” conformed to the usual practice and appended “er” (“gooder”) and “est” (“goodest”) to the base word (as in “long,” “longer” and “longest”). But it’s too late now, because we’re stuck using the forms that went with the Germanic root “bat,” meaning “advantage or improvement.” Its comparative form was “batizon,” and its superlative was “batistaz,” which entered English as “betera” and “betest.” These were later smoothed out to “better” and “best” and adopted as the companions to “good,” which lacked its own comparative and superlative.
Regardless of the irregularity of our language, it seems we have always wanted a way to say that A is, in some undefined and mostly personal way, superior to B. We have a way, but we can do better.
Better Does Not Add Value
Lawyers have latched on to “better” and love to throw it around, perhaps for no other reason than to demonstrate their familiarity with Old English, Middle English and Proto-Germanic languages. We have better courts, better judges, better arguments, better contracts, better caselaw (or is it “case law,” I’m still confused about which is better), better lawyers, better law firms and better fee arrangements. The list continues with better law schools, better professors, better legal writing, and even esoterica such as better legal reasoning.
This is where we get to the heart of my complaint about lawyers using “better.” In most discussions, it adds little or no value. If we are discussing whether to hire a recent law school graduate, it does not add anything to say she went to a better law school (“she went to Harvard, which is better than Yale”). Absent from the sentence is any suggestion of measurable and objective difference. Is it better because it costs less? Because on average Harvard students speak four languages and Yalies only three? Better leaves us with that faint feeling that the speaker feels he is somewhat “better” than us, because we do not recognize the superiority of his choice.
Substitute Measures for Better
In casual conversations, better probably does little harm while adding little value. When talking about meaningful issues, however, better interferes with serious discussion. To argue one law firm is better than another, the speaker should have solid data to back up their view. We would prefer to see some objective quality measures, metrics demonstrating higher efficiency, lower cost per unit of output, or something equally as solid. Instead, better simply means the speaker chooses that firm over others.
When we compare legal service delivery models, it would help the discussion to show that one model requires fewer steps, overall requires less time, consumes fewer inputs, or yields more successful outcomes along a quantifiable scale. Simply saying “I like my way of handling cases, because it is better” does not help anyone.
Better is a safe haven for those who prefer the comfort of “I know it when I see it” over the risk of “I can measure and demonstrate it” approach to argument. Lawyers have been trained in the former, but abandoned math and science classes to avoid the latter. The challenge for lawyers is that the rest of the world decided to stick with those math and science classes. That is why today people outside of law (referred to colloquially as “clients”) talk about Big Data while in law we think about the Big Empty.
Big Data is the world where people collect data about everything and then turn that data into correlations. When the data is big enough, it does not matter whether A causes B, it just matters whether they tend to happen together. For example, it does not matter whether having a baby causes you to drink more, it is just important for the retailer to know that people who buy lots of diapers also buy lots of beer.
The world of law has preferred Big Empty, where we do not gather data on anything except what we get paid. Even when we have access to incredible amounts of data (and most of us do) we ignore the data in favor of the less resource-intensive “better” approach to arguments. Strangely, this is not leading to “better” relations between in-house counsel and outside counsel. The situation is deteriorating.
Lawyers Have the Data to Improve
We could change the situation by following a new path. The new path would include gathering and using the data all around us to make comparisons. Starting with law schools, we could gather meaningful data about student qualifications prior to law school and student performance during law school. What we gather today is convenient, not meaningful. We also could compare student performance on critical measures at the outset of law school and the end of law school (and, for that matter, at critical points during law school). By tying those measures to other data—first job information—we could develop a model that tells us what inputs yield what outputs. It is not difficult to capture this data, we just choose not to do it.
For practicing lawyers, we have a wealth of data we can gather and analyze. Today, a better law firm usually means a law firm that costs more money and hires its graduates from a few, well-defined law schools. Recently, I had a conversation with an in-house legal operations manager at a major defense contractor. She explained that the company hired only the best law firms. When I asked what that meant, she said “well, the most expensive law firms in New York, of course.” When I asked what defined them as “best,” she replied “it is just like buying anything, you know it is the best because it costs the most.” ‘Nuff said.
Assuming best means something other than “costs the most,” we should collect data on those other criteria and compare performance. Litigators file briefs in courts. We can measure many data points off those briefs and compare them with case outcomes (including interim steps in cases). In fact, some academics and disruptive companies in legal services are starting to do this.
We can review contracts, capture data from the contracts, and run comparisons. Many other documents crafted by lawyers are publicly available and we can use the same process with those documents.
We can track advice to outcomes. We can measure cycle times from beginning to completion, the quality of the outcomes, and yes, even the cost of the outcomes. We are swimming in pools of data. Despite the abundance of data, lawyers like to pretend they live in a world of Big Empty.
The harsh reality for lawyers is that the world has moved from assuming superiority using normative comparisons to wanting proof of superiority using quantitative comparisons. Don’t just tell me it is better, prove it.
The legal world moves slowly and, as I have written elsewhere, most leaders in the legal profession are running out the string on their careers hoping that change will happen so slowly they can retire before having to deal with it. Those who are not in leadership positions seem content to graze on whatever clients throw their way, hoping that fresh work will appear tomorrow without any effort on their part. Perhaps the grazers are making the right bet, but I doubt it.
As we drift through the political season, and continue to hear about our “better tomorrow,” we should start asking the tough questions. For lawyers, the tough questions include how can we use data to show that we really are “better.” If we make the change from normative to quantitative, I think we will be better off. We will know, because we will see an increase in client trust.