You practice law for a few years and decide mom was right. You should have gone to medical school. You take the test, apply, and find yourself sitting in a classroom on the first day of classes at a prestigious medical school.
The professor strides to the front of the classroom and announces, “Today, we will start learning surgery. Our first lesson will be on how to remove an appendix. We will focus on the attachment site and how to cut and suture that area.”
Your confidence drains on to the floor. You must have missed some steps. How could your first class be on surgery and start deep into a surgical process?
Your raise your hand and ask, “Um, professor, shouldn’t we start a bit earlier in the process? I mean, shouldn’t we cover the location of the appendix in the body, how surgical rooms work, the place to make an incision, and other stuff like that?”
The professor gives you a quizzical look. “This is a medical school. We skip over that type of stuff and go right to something in the middle. We assume you will learn those other things some other place.”
Puzzled, you ask “But, aren’t those, like, essential to making the operation work? Without that other stuff, won’t the operation fail and the patient die?”
The professor is exasperated. Lawyers who become medical school students ask irrelevant questions. “If we wanted every operation to succeed we would send our students to the business school so they could learn operation management. This is a medical school.We focus on the part that interests us: cutting the appendix out and suturing the attachment site.”
Lean Thinking Training—A Checkered History
I am sure you have guessed the topic of this essay. It is how we teach … lawyers in law firms and law departments to use lean thinking. Yes, that’s right. Lawyers have taken the path never chosen to educate those in our profession. But, I digress, so let me go back to the beginning.
From the end of WW II through the mid-1980s, Toyota Motor Company built a car company that excelled. It had other specific goals, but the result was, as James P. Womack titled his first book, “The Machine that Changed the World.” Toyota pulled ideas from many areas and dating back to the 1800s, melded those ideas with some new ones, leading to the Toyota Production System (TPS). Womack and others brought TPS to the United States and re-branded it “lean” thinking to widen its appeal. Companies in every industry adopted it and today it is the most widely used philosophy and group of methodologies for improving business operations. Old story.
As we know, the legal industry was the last to join the lean thinking party. But clients will be clients. With the 21st century came their desire to stop throwing endless piles of money at law firms. A strange notion, perhaps, but what are you going to do?
Lean thinking has worked in all industries and geographies, so if lawyers must pay some attention to improving efficiency, it qualifies as the ideal place to start. How hard can it be? Clients do it so the elite lawyering class can learn it in an hour webinar over lunch. The effort to train practicing lawyers the art, science, and theory of lean lawyering began.
Ignoring oddballs like me who have done lean lawyering for over two decades, the broader effort started in 2005. One could say, if one was generous, that the “industry” has worked on learning lean for a dozen years. The reality is that isolated clients and firms have done some work to learn lean. The majority of the profession has thrown a massive wall of resistance at any form of change. Despite all the talk of change throughout the profession, data tells no tales. Pick any improvement metric and a small percentage of the profession has made the change—fee arrangements, project management, process improvement, metrics themselves, new technology (versus updating Word), design thinking, and so on. Outside law, these have become common ideas. Within law, lawyers have barely taken the wrapper off the box. But, I digress.
Back to educating lawyers on lean thinking. It is incumbent on those who believe to teach those who don’t know. So it was in the mid-1970s. Toyota decided it was time to spread the word of the Toyota Production System. The first evangelists to teach TPS were engineers and consultants who had worked with Toyota. They had the knowledge and experience needed, but they had to market the idea. Lean thinking was and is counterintuitive in many ways, so one had to be an evangelist.
One consultant started selling TPS to companies in Japan. He put on a two-day workshop giving participants a taste of process improvement. It was enough to show participants the power of lean. That plus Toyota’s reputation convinced companies to try the new way. As the consultant succeeded, he turned his sites to the United States.
He tried his two-day workshop in the United States, but ran into problems. He decided the root cause of his problems was time—two days was insufficient. He expanded his marketing workshops to one week. His one-week kaizen event marketing tool became the way to implement lean thinking.
Toyota did not do one-week kaizen events. Toyota did “continuous improvement.” TPS and its Western cousin lean thinking lack a goal that says “improve over a week and walk away until you are ready to come back (if ever).” Toyota’s goal is continuously improve processes in a cycle, as putting money in the bank starts a cycle of compound interest (at least back when banks paid interest on deposits). As a fundamental component of lean thinking, the one-week kaizen event sucks. But as a marketing ploy, it was a ball hit out of the park.
Marketing successes can take on lives of their own and that happened with the kaizen event. Companies decided to go through lean transformations and kaizen events became the way to drive the transformation. Rather than find ways to build the basics of lean thinking into the business, companies started with kaizen events. Small teams gather in conference rooms, plot the activities for the week, go to gemba, find ways to improve, implement, measure, create new standard work charts, report out, and celebrate. In one week, at team could get 50%, 75%, or greater improvement. We got this lean thinking thing! But, I digress.
Toyota built the Toyota Production System over decades, layer by layer, as it gathered, revised, and created elements of the System. Within Toyota manufacturing (curious footnote, TPS has not spread throughout Toyota itself), the System became part of Toyota’s DNA. The lean thinking adopted by other companies was, in most instances, a bolt-on. Employees would run a kaizen event, improve supply purchasing for the marketing department by 50%, party on Friday night and go back to their working lives on Monday. Some might do another event on supplies in six months or a year. The same practice held true throughout the company. The company failed to make the transition from kaizen marketing events to continuous improvement. A few years passed and the company looked for something else to do. Many of those companies no longer exist. All of them left a lot of value on the floor.
If you wander through companies across the United States, you can see remnants of lean thinking efforts in front offices, back offices, and on factory floors. Those companies continue the systems established in kaizen events, because they improved the business. But, the improvements stopped or slowed to a crawl. The businesses failed to complete the jump to continuous improvement.
As in any partial success story, the reasons these companies failed are many. Technology is one reason. Lean thinking overlapped in the United States with the introduction of personal computers and all that has followed. It is easier (not necessarily better, not cheaper) to buy a computer than to fix processes. In some cases, computers do better than humans. So companies bought computers. In other cases, process improvement would have eliminated waste negating the need for human or computer to do a process. Computers without process improvement introduced a downside. Processes have become incredibly complicated and it is tough to sort them out without process thinking. I’m sure artificial intelligence will solve that problem.
There are other reasons. It requires discipline to stick with a process improvement program. Trying to get employees to work as a team and follow standard work procedures can make coaching a synchronized cat swim team look easy. Organization leaders come and go and the turnover brings changes. Competitive pressures intrude, and for public companies the pressure of the quarter can overwhelm “long-term” (that is, one year) thinking.
Why Re-Training Is Imperative
So this is the crux of the matter in the legal industry. First, learning to understand and improve the world through process thinking is an imperative. From clients, to automation, to artificial intelligence, to everything else, you must understand processes to improve.
Second, starting any process training in the middle with a kaizen marketing event is not the way to learn. One-day, two-day, one-week training events don’t cut it. I’ve taught my fair share, I’ve participated in some, I’ve witnessed a lot. If, as a profession, we want to have a real future instead of a stub existence, we need to change the paradigm that lawyers leave law schools fully-formed. Practicing law is a lifelong learning experience and we need to expand our horizons. Marketing is fine, but for learning we need to do a lot more.
Let me expand on the second point. No one can teach you lean thinking or any of its cousins in a one-hour lunch meeting; half-day, full-day, one-week event; blog post; or a webinar. Remember your reaction the last time a client said, “Stop complaining about what we do with the contracts. Come give us a one-hour lecture on contract law and everything will be fine.” Exasperated you thought, “Good grief, this person wants me to teach them in one hour what it took me three years in law school and 20 years of practicing to learn. How ridiculous.”
Third, waiting for the AI revolution or automation won’t save you. Those computers work through processes—coding is tough because it demands disciplined ways of thinking and doing things. To have even a glimmer of what the computer does and integrate it with what you do, you need process understanding.
What To Do
We need to move to investing in the future of the legal industry. I don’t mean investing as in spending a lot of money. I mean investing in the true sense: putting our minds and bodies into driving the future of the legal profession. In law schools, but as important in law departments, law firms, legal aid organizations, courts, and all manner of legal service provider offices, we need to re-learn how to practice law. We need to get curious, study, practice skills, practice them again, and collaborate on new ways to solve client problems.
This may sound like I am advocating for re-training the entire profession. I am. If I expect my doctor to use modern techniques to practice medicine and not treat me as he would have done in 1890, why should I expect less from my lawyer?
Bringing this back to lean thinking, we need to start that lean training at the beginning. What is the philosophy of lean (don’t say cost cutting)? What do we hope to achieve through this philosophy? How does the philosophy translate to actions? What are those actions and how do we build them, layer upon layer, into ways of delivering legal services that meet what clients and society need?
What I am about to say is harsh, but true. In the past dozen years, the legal industry has progressed in lean thinking the same amount that an average corporation would progress in a month. I spent my formative years learning lean as general manager of a plant with 700 employees. Most had stopped at a high school education. Many had not finished high school. Some read at an elementary school level.
They all went through lean thinking orientation and all could work on lean improvement teams—most did. Within six years of my starting at the plant (a few years after I left), the plant won the most prestigious prize in the lean community, The Shingo Prize.
One of the Jeopardy contestants who lost to IBM’s Watson said, “I for one welcome our new computer overlords.” But here’s the thing. Upon seeing the chaotic world of law, those overlords may not welcome lawyers. The rule of law faces immense challenges today. Lawyers have the knowledge to protect the rule of law and make it available to all. But, if we fail to transform from 19th century practitioners into 21st century problem solvers, the impact will extend outside the borders of the legal industry.