InternetOfLawThe Internet of Things, or IoT, is upon us. For years, we have heard how devices in our lives are becoming interconnected. The coffee maker talks to your car; the refrigerator talks to the microwave oven. This interconnectivity, we are told, makes our lives easier. Run low on milk and the refrigerator will tell the grocery store. If the washing machine is about to malfunction it will call the repair company. All the mundane things we need to do each day to keep our lives running will drift into the world of computers and we will be left free to … well, we’re still working on that piece.

With the IoT comes the Internet of Law, or IoL. The IoL, like the IoT, is an interconnectedness of laws in self-effecting systems. In some cases, the laws will embed in the IoT, so that knowledge of the law is not necessary when using the thing. A car can have a Breathalyzer built into the starter system. The car won’t start unless the driver passes the Breathalyzer test. The driver doesn’t have to know the law about driving under the influence, because the law is built right into the thing. The driver can’t operate the vehicle if his or her blood alcohol level exceeds the legal limit.

The Internet of Legal Documents

These simple legal applications are, however, only the beginning. Corporate loans often have many compliance ratios and other requirements set out in the loan documents. Each reporting period, the corporation’s finance department must run calculations and then report to the lender that the corporation is in compliance with the loan covenants. A loan document could instead be built so that it resides in the lender’s and borrower’s computers. Each reporting period, the loan document automatically retrieves the necessary information from the borrower, runs the calculations, and flags any discrepancies.

You could argue that loans aren’t things, but I’d say that even if that distinction is valid, it increasingly will be a distinction without meaning. When the loan document is over 125 pages and even its creators have difficulty following what it says, people will be motivated to connect that thing to a computer and let the computer sort out the niceties. The important evolutionary point will be that we expect computers to take off our backs mundane, tedious tasks and do them without bothering us. We only want to know about the exceptions.

Equity Should Have a Role in the Internet of Law

Lawyers get nervous hearing about the IoL. When you live in a world where things are gray, it can be unsettling to hear others talk about the world moving to black or white. Lawyers think in terms of judgment calls, where a person makes the judgment. Was there really a breach of the covenant or was there a timing glitch where something that should have happened on March 31st didn’t get recorded until April 1st? If a human was in the loop, equity would prevail and no breach would be declared. Without a human, the computer thinks in binary terms: no payment on the 31st means a default. Since a default can trigger a cascade of defaults, shouldn’t we build equity into the system? How will the computer determine if the slight delay was okay or not?

The IoT and its companion the IoL are here to stay. Lawyers may fret about whether this is good or bad, but regardless lawyers and clients must deal with them. The scary thing isn’t that the IoT and IoL have arrived it is that lawyers are still unprepared to deal with them. Rather than focusing on the many fascinating issues these developments raise and then preparing clients and corporate compliance systems to address these developments, lawyers are stuck quibbling over the mundane.

Solving Client Problems Includes Efficiency

Lawyers should focus on solving client problems, and not just the problems of yesterday but the problems of tomorrow. As a real estate lawyer, you should learn how to make leases easier and clearer for clients and tenants. Most large retail companies have teams of lease administrators who spend time making sure the retail company doesn’t overpay on leases. Isn’t that something the real estate lawyers should look to resolve through process improvement with a dollop of technology? As a software license lawyer, shouldn’t you help clients turn contracts into data to better administer and predict potential dispute areas? This list expands into every area of law – shouldn’t lawyers do more than just get it on paper?

Clients need lawyers and will continue needing them for many years to come, unless lawyers give clients no reason to use them. The IoL provides abundant opportunities for lawyers to improve services to clients, reduce problems clients face, and demonstrate that they are staying on top of developments in the world. Perhaps if lawyers take advantage of these opportunities, clients will buy into an IoT app that sends a payment to the lawyer with the push of a button when the client accepts the service and give it an Emoji smiley face for “job well done.”

1935 Duesenberg SJ LA Phaeton, Source: Wikimedia.
1935 Duesenberg SJ LA Phaeton, Source: Wikimedia.

Jonathan “Jony” Ive is being promoted to Chief Design Officer for Apple. If you read SeytLines regularly, you have noticed that I talk about Ive, Apple’s long-time design guru (for example here and here). Apart from Ive, I’ve talked about design and legal materials a few times (for example, here). Since this is a blog about the practice of law, you might ask why I’m spending so much time on design.

I believe that law is a persuasive art. As lawyers, you must persuade people to accept a viewpoint. That viewpoint could be a negotiating point in a contract, a settlement offer, or simply your advice. Today, the art of persuasion is going through a transformation in the legal industry. Lawyers are learning that visualization of data, presentations, and persuasion tools other than complex documents, all play roles in convincing clients and opponents to do what lawyers ask.

In Ive’s new role, he will have broader responsibility for design decisions at Apple. For example, he will be involved not just in products, but also in retail store design decisions and in the design of the new corporate headquarters. Ive is prolific when it comes to design, with over 5,000 design and utility patents that bear his name, so it comes as no surprise that his thoughts are highly valued at Apple. Ive is in the persuasion business, just like lawyers, and that is why I think it is helpful to understand how an expert in design could help lawyers.

Lawyers Swim Against the Current

When it comes to design, lawyers traditionally have swum away from rather than to good design. They have treated design almost as a dirty word, never to be mentioned when talking about serious law. Law departments don’t have design people on staff. Large law firms have, at best, a few people conversant in design, but severely limit their roles. Smaller firms don’t have even that luxury. In my experience, a large law firm designer typically makes sure the colors work well on newsletters, helps with the website and marketing materials, and may assist with the odd trade booth. When it comes to the real work of the law firms, however, designers beware.

I have always thought this shunning of design a bit odd, since throughout my career I’ve spent a substantial amount of time attempting to persuade people and could use all the design help I could get. I was a litigator, which meant I was always trying to persuade someone – the judge, the jury, the opposing attorneys or parties, and my clients. When I became an in-house lawyer, my persuasion duties continued. I still had my clients to persuade, but the group included in the term client expanded – executives, directors, shareholders were added to the list. I appeared before zoning boards, city and county commissions, groups of concerned citizens, various third-party organizations, and so on.

I had three primary tools in my persuasion arsenal: the spoken word, the written word, and presentation materials. I’m going to skip talking about the spoken word, but not because it is unimportant. Learning to persuade through speaking is a lifelong skill development area, but not the primary focus of this post. Instead, I’m going to focus on the other two persuasion tools.

Presentations are a Missed Persuasion Opportunity

Most lawyers think of the written word as their second main form of persuasive art. Few would talk about presentations. I think most lawyers don’t recognize how often they make presentations, which is why they don’t focus on them. If you are an outside lawyer, you present each time you meet with a potential client and often when you meet with an existing client. You present when you meet with opposing counsel and when you negotiate with opposing counsel and his or her client. You do presentations to regulators, boards, and so on. Often you are presenting, but you don’t use and understand the tools of a presenter. Instead, rather than taking advantage of displaying information visually, you use only spoken communication denying yourself a key persuasion tool. From my perspective, writing and presentation tools are becoming more intertwined and lawyers should get help with both.

Aim to Excel at Persuasion

Much of your professional time is spent persuading so you should aim to be great at persuasion. You should use the tools of persuasion to your best advantage. When you write, you should pay attention to typography, use of white space, color, imagery, and the other elements of visual presentation.

Putting aside content, which invites the reader into the document – this magazine or a typical legal document? Sources: The Outpost; Docstoc.com.
Putting aside content, which invites the reader into the document – this magazine or a typical legal document? Sources: The Outpost; Docstoc.com.

SampleContract

People seldom read things that look ugly unless forced. Giving people something ugly to read tells them you aren’t trying. The more you make the reader work to understand your material, the more frustrated they will be and, therefore, the less receptive to your message.

Now, imagine doing the same thing in person. Instead of illuminating your points with clear, attractive, visually compelling materials you either bore the listener by droning on or – shudder – resort to the traditional PowerPoint or Keynote presentation. At that point, you are practically screaming, “I don’t value your time.”

In an age where people absorb much of the information presented to them visually, to disregard this form of persuasion places lawyers in handcuffs. It is too much to expect lawyers to become wizards in the graphic arts on top of all else they must do. So perhaps instead, law organizations should hire experts in visual communication and let them work their magic. In addition to hiring project managers, process improvement experts, and technologists, maybe now law organizations should also bring on board chief design officers.

Source: managementhelp.org
Source: managementhelp.org

Recently, there has been an uptick in the publication of articles about technology applied to law practice or at least it seems that way. Perhaps some of the uptick comes from the spring season conferences. As artificial intelligence capabilities increase, and as the idea of smart contracts takes hold, the vision of a world where documents are data and computers talk to computers about that data seems to be getting closer. In a way, this is part of a bigger trend where things talk to things and artificial intelligence becomes a bigger part of our every day lives.

A discussion of some of the practicalities of the new world is absent from many of the conferences and articles. While maybe it is considered bad form to introduce the real world into a visionary discussion about our technology-enabled future, doing so may have some value.

Our Technology Future

In case you missed it, our technology future extends a bit beyond what we see today in the legal industry. There isn’t anything wrong with what we see, but based on what we are being told it is just the tip of the spear. Technology will advance and as it does computers will move into the role of speaking with each other about legal issues, frequently cutting out the lawyer-middleperson.

Part of the key to this future is transitioning legal documents from pages of words only a lawyer can love (and read), to data. Let’s start with that plain old vanilla contract. Think of how many contracts start (Ken Adams put your hands over your eyes):

This widget manufacturing agreement (the “Agreement”) is entered into as of the first day of July, 2015, by and between Corporate Party, Inc., a Delaware corporation (“Corporate Party”) and Manufacturing Biziness, Inc., a New York corporation (“Manufacturing Biziness”).

This is a human way to convey several pieces of information:

Object of the Agreement: Make widgets

Start date: July 1, 2015

Party A: Corporate Party, Inc.

Party A Incorporation: Delaware

Party A Short Name: Corporate Party

Party B: Manufacturing Biziness, Inc.

Party B Incorporation: New York

Party B Short Name: Manufacturing Biziness

In the first version, the ordinary contract version, we have to teach a computer to pick apart the sentence and find the data. In the second version, we code data into specific fields. The computer doesn’t have to parse the sentence and the data is easier to share.

As we turn contracts into data, we eliminate the need for an intervening human to read the sentences and turn them into data. We also weed out ambiguity. Without humans, computers can efficiently manage contracts. For example, a computer could have data fields that tell the software to expect a payment from Party A to Party B on the first day of each month (with a grace period of five days after the first day of each month). The computer could check incoming payments during the permitted window for payments from Party A in the amount shown in another data field. If the payment isn’t received within the permitted window, the computer executes whatever steps are programmed into the system, such as notifying Party A it is in default.

We can ask computers to do more. If Party A is in default, Party B’s computer could take steps such as preventing Party A from ordering more widgets, cancelling orders already in the system, and automatically notifying third party credit agencies. We have converted the contract from words on a page that must be parsed by a human and then turned into actions running through several systems, to data and algorithms used by computers. No human intervention necessary.

Where is the Equity

When I practiced law in Chicago, I was primarily a litigator. Although I spent most of my time handling cases in federal courts, I did handle quite a few cases in the Cook County Chancery Division. Cook County’s court system is a bit of a throwback to the old days, when separate courts handled matters arising in law or equity. The Chancery Division operates similar to the federal district court system. One judge handles a case from beginning to end. The Law Division of Cook County operates on a different system. One group of judges handles motions and a separate group handles trials.

Since Chancery Division is primarily an equity court (it can handle claims in law as long as they are ancillary to the equity claim), you can hear more interesting arguments before the court. For example, if your client wants to get a temporary injunction, the case will be pled and heard in Chancery Division.

When we talk about computers handling contracts built out of data and algorithms, equity is a more difficult concept. Let’s go back to Party A missing a payment to Party B. If two computers are talking to each other, it is difficult to see where equity comes in to play. Perhaps in some distant future, computers will understand equity and handle those claims as part of the electronic discussion, but not in the foreseeable future. Today, if Party A doesn’t pay, Party B might make a call to Party A asking what happened. Party A may have several reasons. Perhaps it was a glitch in Party A’s computer. Or, maybe there was a defect in the last shipment from Party B. Party B might accept Party A’s reason and not put the contract into default.

We stumble when we think of computers handling these steps. Although computers already handle many contract situations, we still get nervous when humans are cut out of the loop. We can all come up with examples where the exception mitigated what otherwise could have been a bad outcome.

Until computers can handle equity issues, what will we do? This is the first question in a series of questions that come up once you start talking about a legal world populated by computers and humans. The questions include liability allocation, interpretation, and drafting conventions.

For public companies, we might raise audit questions. For example, who ensures the integrity of the decision-making process? If revenue generating contracts will be handled by computer systems, will auditors want to check the integrity of the software systems handling the revenue transactions?

We also will have “unscramble the eggs” issues. Computers can work much faster than humans. When something does happen and the humans decide to reverse what the computers did, how do we unscramble the eggs? Today, we hope to avoid the mess in the first place (Party B calls Party A), or at least catch the problem soon after it has happened. In a computer world, even seconds can be a long time. Unscrambling may not be easy.

Don’t Abandon Our Clients

The issues I raise, and the many more I have not raised, are not reasons to shy away from technology or avoid implementing it. Rather, they recognize that the technology world is not perfect. Trying to take systems run by humans for hundreds of years and port them to computers, even assuming we simplify along the way, will still uncover problems.

We should have lawyers working alongside the technologists. As algorithms evolve to automate what lawyers do, we should be developing the systems to address what happens when things go awry. We also should be developing how we live in the hybrid world of humans handling some things while computers handle others.

We will not move smoothly from lawyers handling certain things on Monday to computers handling all of those things on Tuesday. It will take many transitions to get us from the old world to the new. During each transition, we will live in a hybrid society – part lawyer and part computer. Will computers be given more deference than humans when it comes to certain issues? Will we allow computers to resolve disputes without human intervention?

Today, we are going places with technology because we can. But, our processes for developing law move slowly. By the time even a few of these issues get into court and we see decisions, technology most likely will have moved far beyond these issues. We are in a race, with technology playing the rabbit and law playing the tortoise.

If it were simply a matter of technology moving faster than law, a situation that has existed for many years, we might stumble through. But, the situation is more challenging. We have few lawyers who are even considering the issues raised by the hybrid computer / human lawyer world. These issues, however, will impact corporate and individual clients. Without lawyers focusing on these issues today, when our clients turn to us for answers we won’t have any. It does not seem that we are giving our clients a great risk mitigation strategy if all we offer is “we’ll deal with it when we get there.”

I have limited this post to questions about the interaction of computers and lawyers. The real world presents many other interactions. Nanotechnology, drones, autonomous cars, and other technological developments all present hybrid world opportunities. The regulatory world will deal with technology issues that don’t have clear answers under our existing schemes and don’t have many people addressing the questions they raise. Just look at the situation in California. The technology companies are ready to test autonomous driving cars and are being held up by the lack of a regulatory framework.

Lawyers should stop treating technology as if it is just a way to analyze invoices from outside law firms or fill in the blanks on contracts. Technology will be a powerful ally and confusing force during the next decade and lawyers should understand, embrace it, and learn how to work with it. Clients need lawyers who can help them wend their way through the legal issues raised as our world moves more into a hybrid computer / human society.

In this two-part post, I cover in more detail the concept of deliberate practice and innovation in the legal industry. I explain why lawyers, law firms, and law departments are not positioned to deliver disruptive innovation today, but can eventually get to that point.

Pablo Picasso self-portrait, 1907.
Pablo Picasso self-portrait, 1907.
The 10,000-Hour March to World-Class Performance

Deliberate practice is the foundation, but to make deliberate practice work you must do it – a lot. By a lot, I mean put in 10,000 hours of deliberate practice or, as some describe it, follow the 10-year rule. Since lawyers are comfortable with billable hours, let’s talk about deliberate practice as if it were billing a client. To get to 10,000 hours, you would have to deliberately practice for five years at 2,000 hours a year. Imagine focusing on the skills you are trying to improve for eight hours a day, five days a week, 52 weeks a year, for five years. You would eat, sleep, enjoy a bit of leisure time, and deliberately practice those skills. Remember, Mozart and Picasso each had almost twenty years of deliberate practice behind them when they were really innovating.

I’m guessing most of you recognize that schedule isn’t possible, assuming you want to earn a living. We could ease the schedule by spreading those hours over 10 years, so that you only have to spend fours hours a day instead of eight hours deliberately practicing your skills. You can now get a feel for the type of deep immersion it takes to deliver world-class performances, and why so few achieve it.

Most lawyers at large law firms specialize. They class themselves as litigators, labor and employment attorneys, antitrust lawyers, and so on through a list of substantive areas or practice skills. By the time a lawyer reaches a high proficiency level in her area of specialization, she has been practicing law for seven to 10 years. Add to that time the law school experience, and you can see that lawyers also pursue a level of practice beyond simply playing around. Still, we see some lawyers who are rock stars and others who are good, but not great. Look closely, and you will find that the rock stars are the ones who engaged in deliberate practice. The amount of hours they poured into polishing their skills significantly exceeds what their peers have done, and the quality of the time they spent was different.

The Legal Industry has a Skills and Knowledge Deficit

Going back to where we began, we can build a story for why we aren’t seeing much innovation in law firms and law departments. Lawyers are not trained in the theory, art, or science of legal service delivery. Law schools do not provide courses in service operations management. In general, law schools do not educate law students about legal service delivery. Law schools have assumed for the past 100 years that legal service delivery falls into the lap of those who hire graduating students.

A student going to a large law firm will learn that firm’s service delivery model while working at the firm. As we know, what really happens in most firms is that the junior lawyer learns the service approach used by those partners with whom she works. I recently sat next to a former managing partner at a conference. He said that when he asked at a firm meeting how many models the firm had for delivering M&A services, an associate piped up with the answer “at least eight.” When the managing partner asked how the associate knew that answer, the associate replied “because I have done deals with eight partners and they all do them differently.” Imagine what happens when there are hundreds or thousands of lawyers in a firm. There is no such thing as one service delivery model for the firm.

A student going to a public defenders’ office, a prosecutors’ office, or any other similar organization experiences the same thing. He or she will learn whatever more senior lawyers in the office use as service delivery models. The student who goes into a small firm, or even starts his or her own firm, may be left to develop a model without any guidance or with some help from some friendly mentors.

In all cases, the students are not engaging in deliberate practice that will lead them to the skills and knowledge needed to innovate legal services delivery. Service delivery is not where they focus their time. They aren’t spending a lot of time reading about delivery models (if for no reason other than there isn’t a lot written about alternative models). There isn’t any feedback loop and they don’t have any goals they can use to measure performance. Lawyers who practice today have grown up under the billable hour model with a sprinkling of alternative fee approaches more recently. They have not studied in depth project management or process improvement. There are some who know a bit more about technology, but even in the technology realm there are few lawyers who have engaged in something approaching deliberate practice and far fewer who can claim to have done so for more than 10,000 hours.

Innovation without Deliberate Practice is Hard

When we ask why there isn’t much legal innovation going on, and we consider the role deliberate practice plays in innovation and creativity, the answer becomes clear. Lawyers work in institutions that are not designed to support innovation and creativity. Even those that have liberalized their views towards these activities are still a far distance from what we see in the business world. Law firms like other organizations cannot reinvent themselves overnight. Expecting organizations with decades of history to pivot in a few years or less from what they were to organizations embracing and nurturing innovation is unrealistic. What we should expect, and what we see, is some incremental movement among a few firms.

Even in those firms that have moved towards becoming more accepting of innovation, we don’t have lawyers who through deliberate practice are prepared to innovate. For the reasons I described above, few lawyers have developed their skills and knowledge to the level the profession needs.

We do see a gradual flexing of the traditional service delivery model to be more inclusive. Project management is a proven area that has been around for many decades. Now we see law firms adding project managers. Process improvement is another proven area that has been around for decades, and we see some law firms using process improvement. Compared to other firms or departments not using these decades old approaches, firms and departments using them appear innovative and they justly get recognition for their boldness. But, compared to the world at large, we see firms and departments just starting to make a transition that businesses started decades ago.

Our innovation challenge then is driven in large part by simply not having a lot of people who are in the position to innovate. Lawyers stand in the spot that our clients stood in 100 years ago, before innovative business leaders engaged in deliberate practice building their skills to world-class performance levels.

Time and Hard Work Cures All

There is good news in this story. First, as service delivery becomes important to clients and, therefore, to firms, we see more people paying attention to service delivery models. More people are writing about the models, more people are studying them, and over time we will develop a richer and more sophisticated understanding of legal service delivery systems. This body of literature will be important to those who want to innovate legal service delivery systems. It will become the basis for learning beyond the historical word-of-mouth approach. The addition of metrics will give us ways to differentiate between successful and not-so-successful models. Legal service delivery will join other fields and we will be freed from “this is the way we always have done it.”

Second, it turns out that the more you know about something, the more likely you are to be successful at innovation. The old belief that those who know a lot about an area are least likely to innovate is wrong. Rather than limiting creativity, increased knowledge adds to our understanding of an area and provides us with the in-depth knowledge we need to see new opportunities. This is good news for those of us who already have invested in learning the many details of service delivery in the legal industry.

Third, deliberate practice is not just a game for the young. The research shows that we can engage in deliberate practice at any point in our careers and achieve world-class performance (well, we can if that performance is not dependent on a physical characteristic such as strength or agility). Lawyers are fortunate. Provided our mental faculties are intact, we can keep practicing long past traditional retirement age. We also can continue learning, engaging in deliberate practice, and innovate well into our careers.

The Race is On

The legal industry is in an Age of Confusion. We aren’t satisfied with where we are in legal service delivery, but we don’t have a clear roadmap where to go and most lawyers do not have the skills at the world-class level to get there. We see this confusion play out every day. Law departments consistently say they don’t like the current law firm model, but they can’t point to one they do like. Law firms want to evolve their models, but they can’t say specifically to what. Our current status is to play a labor arbitrage game, reducing cost by using less pricey lawyers or moving from lawyers to other service providers. The labor arbitrage approach will work for a short time, but it isn’t a long-term solution.

To find the long-term solution, lawyers must be able to build or buy innovation. Building it requires developing lawyers who have, over 10,000 hours, practiced deliberately in legal service delivery so they can innovate. We have a few lawyers today who have reached that skill level where they can act as teachers and coaches. They can help others reach the same level. To buy, we must find others who have built up their skill sets, developed the innovations, and then will sell or license them to the law firms. The challenge for all lawyers is time. While lawyers are trying to get to the innovation stage in legal service delivery, we have disrupters at the doorstep in the form of technologists.

Technologists don’t know legal service delivery, but they do have the skills to build computerized processes. They also have the ability to learn. The race, then, is between the lawyers and the technologists trying to get to the innovation stage in legal service delivery. Lawyers must learn skills outside of legal analytics; technologists must learn skills outside of software coding.

Getting to the finish line first is not a winner-takes-all proposition. Lawyers, however, have more at stake than technologists. If the technologists don’t win they will move on to other opportunities. If the lawyers don’t win, it means they will become irrelevant to clients. The best outcome, of course, is for the lawyers to team up with the technologists. By combining their skill sets and finding those willing to build world-class skills, we can innovate in ways that help our clients, creating the true win-win-win.

In this two-part post, I cover in more detail the concept of deliberate practice and innovation in the legal industry. I explain why lawyers, law firms, and law departments are not positioned to deliver disruptive innovation today, but can eventually get to that point.

Pablo Picasso self-portrait, 1907.
Pablo Picasso self-portrait, 1907.

If you want to have some fun, play with the Google books Ngram Viewer. Simply type in a word or phrase and the Viewer displays a graph showing how frequently the word or phrase appears in books between 1800 and 2000 (you can extend it to 2008). If you click on the “About Ngram Viewer” link at the bottom of the page, you will find ways to run a universe of creative word and phrase searches.

The chart below shows the results of a search using (reading the labels on the right side of the chart from top to bottom) “innovation,” “creativity,” “inventor,” and “innovator.” [make chart title: To see the chart a bit better, double-click on it.] When you look closely, you will see that innovation and creatvitiy took off around the 1950s (compared to prior use) while inventor and innovator have remained relatively stable. If you run a chart using the phrase “legal innovation” you will see the same trend that you see for innovation and creativity, though the absolute number of uses is very small.

InnovationChart

 

As I said, these charts are fun, but they don’t prove anything. It is interesting to note that innovation, including legal innovation, is something we have been discussing with greater intensity for over 60 years – it just seems like a new thing.

Source of Innovation

As many of us have written, law firms have drawn the ire of just about everyone for not innovating when it comes to legal services delivery. Within the universe of law firms, some innovate more than others and receive recognition for their efforts. Outside that universe, though, much of that innovation doesn’t look very innovative.

To understand innovation in the legal industry a bit better, we should start with the terminology. It is incorrect to say law firms do or don’t innovate. Law firms are organizations and organizations don’t do anything, people do things. Law firms provide environments which may be more or less hospitable for individuals who want to innovate. But, in the end, it is the individuals at the law firm who must do the innovating.

Law firms, and specifically large law firms, were not designed as legal service delivery innovation houses. From the early part of the 20th century when law firms started growing beyond a handful of attorneys to about 10 years ago, clients focused on many things other than legal service delivery models. As they grew, law firms responded to client needs, but they did not branch out and try new service delivery models. Clients were not demanding that type of evolution. By the 1990s, large law firms have hundreds of lawyers and operate with offices in many countries. They are complex organizations with cultures dating back decades. The lawyers working in the firms have been selected for compatibility with the organization cultures. As the firms regenerate – bringing on new partners and watching senior partners retire – they continue reinforcing the cultures that made them large and successful. Nowhere in the litany of successful large law firm characteristics would we find “innovator of service delivery models.” When the legal industry starts to structurally change in the early 21st century, large law firms have weeded out most lawyers who had any interest in legal service delivery innovation.

Law departments, however, live in different cultures. They live in corporations where changing business models are the norm. Businesses can’t afford to pick a model and then stick with it for decades, as they did during the first half of the 20th century. For example, one well-known manufacturer of chewing gum made the same three flavors of chewing gum for fifty-nine years. The major phone company operated with one model for 100 years, as did utility companies. Today, the common lifespan for a business model is three to four years and a company that can stretch its model to eight years has reached business nirvana.

Law departments live in worlds where business models are constantly changing. The lawyers in those departments are more in sync with the business world in which they live than the law firm world from which they came. To a lawyer in a law department who must run to keep up with client demands as the business model evolves, it can be frustrating when outside lawyers aren’t running or even walking. To in-house lawyers, outside lawyers seem to be standing still or perhaps tentatively crawling.

The Talent Myth

Lawyers in law firms are rather intelligent and they recognize that the legal industry is going through changes. Why, then, don’t they just get on with it and change the law firms? I’ve written about some of the dynamics impeding change in both law firms and departments, so I won’t cover that ground again here. One short answer is: change will come when the benefits to change are great enough or the consequences of not changing are severe enough, and those benefits or consequences are immediate.

There is a deeper reason why we aren’t seeing rapid change in law firms or, for that matter, even in law departments. That reason has to do with the nature of innovation itself.

When we talk about innovation, we tend to think of the intelligent, insightful, creative person who has the spark of inspiration. Innovation, like creativity, comes from that magical moment when the new idea comes to the mind. There are, of course, examples of innovation and creativity all around us and through them and the stories we learn in school, we believe that those innovative and creative people are the lucky few who just have what it takes.

In the arts, think of Mozart or Picasso. In manufacturing and business, think of Eli Whitney (the cotton gin) and James Watt (the steam engine). These are the people who have that spark that allowed them to go where no one else could go, or so we believe. But, if we dig deeper into their stories and consider research into innovation and creativity, we find that our belief is wrong.

Deliberate Practice Drives Innovation

When we study the lives of the innovators and creators and we look at the research building up over the years, we find that world-class performance doesn’t come from innate talent, it comes from something called deliberate practice. I recently touched on deliberate practice, but I’m going to delve into it a bit deeper here because it is the other main reason we aren’t seeing rapid change in law firms or law departments. If you want to read more about this topic, I suggest Geoff Colvin’s book Talent is Overrated: What Really Separates World-Class Performers from Everybody Else.

Talent assumes some skill that we have at birth and that manifests itself at some point in our life. Mozart was a great musician and composer because he had talent. Picasso was a great painter because he had talent. Whitney and Watt were great inventors because they had talent. If you believe that talent is the key, then you must also believe that without talent you will fail to deliver a world-class performance. Yet, every day we see people who show no evidence of “talent” and still deliver world-class performances. How do we resolve this paradox?

The resolution brings us back to deliberate practice. Research shows that what the world-class performers share is a history of deliberate practice. Mozart wasn’t a child prodigy who sat at the piano and created great music from the start. By the time Mozart was creating great music, he had put in almost 20 years of deliberate practice. As Colvin describes it (Talent is Overrated, p. 26):

Mozart’s first work regarded today as a masterpiece, with its status confirmed by the number of recordings available, is his Piano Concerto No. 9 composed when he was twenty-one. That’s certainly an early age, but we must remember that by then Wolfgang had been through eighteen years of extremely hard, expert training.

The same with Picasso. When he painted Les Demoiselles d’Avignong, a painting many consider one of the most influential of the 20th century, he had 17 years of deliberate practice under his brush. He had started intensive training at age nine under his father’s tutelange. His father was a painter, a professor of art, and a curator at a museum and well-positioned through his own decades of work to teach Pablo.

What about Whitney and Watt? Well, it turns out neither of them created their inventions from whole cloth. In both cases, their inventions were extensions of devices that had existed for years. They should receive full credit for making those extensions, but it is simply untrue that there were no steam engines before Watt and no cotton gins before Whitney. Deliberate practice also helped spark the industrial revolution.

Deliberate Practice is Much More than Practice

Deliberate practice supports the world-class performances we see, whether in the arts, the sciences, or business. Most of us practice, but few of us engage in deliberate practice. The difference is what separates world-class performance from simply performing.

The following chart shows the components of deliberate practice:

DeliberatePractice

These five essential components differentiate deliberate practice from practice:

Designed to Improve Performance. The emphasis in this component is on designed. I could spend eight hours each day writing and call it practicing. I may see some improvement over time. But, if I wrote and then had an editor review what I wrote and gave feedback, I would have a system designed to improve my performance. This is one reason why working with teachers, who may be coaches, consultants, or editors is so important.

Repeated a Lot. Now you know why you were told to practice scales incessantly when you were learning an instrument. When it comes to legal service delivery elements, such as project management or process improvement, we need to repeat them a lot to learn how to do them well. In law, there are very few of us who can say we have more than 10,000 hours invested in project management and process improvement.

Feedback Continuously Available. Feedback means some sort of measurement that comes back to the practitioner. In law, we have very few metrics and those we do use often don’t relate to legal service delivery (which includes hours billed and rates). Without data and metrics, we can’t tell whether we are getting better or worse with practice, or whether what we are doing is having a positive or negative affect. We must measure and analyze, over and over again if we want to reach a point where we have the skills to innovate legal service delivery.

Mentally Highly Demanding. I was a music major my first year in college. I played percussive instruments and while I had practiced, I had not engaged in the type of deliberate practice my percussive instrument teacher taught me. Imagine spending hours every day learning to play different rhythmic combinations on a drum, starting from a snail’s pace and going up to full speed and then back down to a snail’s pace. Each repetition had to match the prior one precisely in timing and sound intensity. It takes incredible concentration to do that. Writing well requires the same discipline. Providing consistent, high quality legal services does as well. The mental concentration is exhausting.

Not Much Fun. By now, you are asking yourself “what fun is there in deliberate practice?” The answer is, not much. Most of us like to find the things we do reasonably well and keep doing those things. For the things we don’t do well, our motto is “find someone else to do it.” Deliberate practice works differently. We find the things we don’t do well and we drive ourselves to improve on those things. When I first learned lean, I was taught to spend very little time on those things where the team scored high on metrics, and to spend most of my time on the things where we scored low. We constantly talked about those low scoring areas and kept questioning what we could do to get better. It wasn’t much fun to concentrate on the bad, but it did help us get better.

The second part of this post will be published on May 5, 2015.

Edward TufteI have posted a few articles about how lawyers should think about design as it intersects with the practice of law.[1] As I have talked with many of you about this topic, I’m struck by the “I get it” and “what are you talking about” separation of groups. Of course, the “I get it” crowd tends to be those who already know about design and in many cases come from design backgrounds. They look at what lawyers produce and cry. The “what are you talking about” crowd is populated with lawyers who believe design is for the marketing and advertising folks. As lawyers, the art is in the words not the visual. I’m going to take another stab at explaining why I think design is important to the future of law. I keep hoping I can get my quite intelligent lawyer friends to see that design isn’t just about making things look nice, it is about finding ways to more clearly, efficiently, and effectively convey information from one person to another and do so without making the experience dreadful.

The Beautiful Contract

Discussions about design can get rather abstract, so I’m going to keep this one grounded by talking about contract design. Right now, when I say design I really mean the look of the finished product. Later in this post, I’ll touch on design in a broader sense.[2]

For in-house lawyers, contracts are an important part of any law department’s business. Today, at least when it comes to representing large corporations, law firms work mostly on unique or complex contracts requiring skills or knowledge not commonly found in a client law department. But, contracts still comprise a substantial portion of what law firms handle.

Since IBM Selectric typewriters took over law offices in the 1960s, the standard design for a contract has been 12 point, Times New Roman font, black ink on white paper 8.5 inches by 11 inches (at least in the US), with 1 inch margins all around.[3] Lawyers have shown their creative side by double-spacing some contracts, single-spacing others, and varying the paragraph numbering system (I., II.A., III.B.(1)(iv), or 1.1, 3.1.2.3, 5.1.2.1.34.6). With one exception, going outside these norms could result in public shaming. That exception came when software packages for personal computers started offering some formatting options. Lawyers played around with mixed fonts in documents (10 point and 12 point, sans serif and Times New Roman), and in extreme cases employed a multi-column approach (but no more than two columns per page, please). Some particularly devious in-house lawyers tried to make a few contracts look like pre-printed forms, in the hope of dissuading opposing counsel from attempting to change the terms and conditions.

To compound the problem of graphically challenged lawyers, those persons who did the typing were not well trained in using the software. To this day, I still see contracts where the typist used several spaces to indent the first line of a paragraph rather than tapping the indent key, and where all of the paragraphs are manually numbered rather than using one of the outline numbering options available in the software. This last item is particularly annoying, as it can mean manually renumbering an entire contract when doing revisions. (Yes, I have tried replacing the manual numbering with the automatic outline numbering available in Word, only to have the typist for the other party strip out all the automatic outline numbering and replace it with manual numbering.)

But really, why should lawyers care? Isn’t Times New Roman easy to read, and don’t 1 inch margins leave white space for comments? If this approach to contract formatting has worked since the 1960s, why change it now? We should all let sleeping fonts lie and move on to more interesting things, like re-writing force majeure clauses.

Contracts are for Clients

When I started practicing law, I was taught to give my client a copy of the draft contract and ask him or her to review it. We wanted them to review the contract for several reasons. They could tell us whether the basic contract terms were accurately reflected in the contract. They also could tell us if terms we had inserted to clarify some things the parties may not have discussed would work. We wanted them to pay attention to the mechanics of the arrangement – for example, did time periods for notices and responses work, was the basic flow of information correct, did we have cure periods aligned with risk tolerance. We expected our clients to read and understand the contract, because they would have to manage the contract once it was signed.

During the last decade of my in-house practice, it was difficult to get a client to read even small portions of a contract. I found clients had many reasons why they resisted, or mostly refused, to read draft contracts. Clients said they were too busy. Some clients admitted that they didn’t read much beyond emails any more. Other clients said that it was the lawyer’s job to handle the documents. Many complained that contracts were unreadable.

I found a constant tension between my redrafting provisions into plain English, only to be confronted by an opposing attorney who replaced plain English with legalese in the interest of being “more accurate” or “clarifying a legal position.” Finally, clients basically found contracts off-putting. A thick sheaf of paper with a boring design filled with uninteresting writing simply wasn’t going to pull them away from what they wanted to do.

Enter the Visual Era

So why should lawyers care? The current system of document design has worked well for decades, and before it the manual typewriter design (quite similar to the current design) worked well for decades, and before it the scribe design (quite similar to the current design, though a bit harder to read) worked well for centuries. Why the need to change?

I see several reasons that lawyers should bring designers into the process and change the look and feel of what they produce. Before I enumerate a few, let’s talk the twenty-first century. We are in a visual age, which actually works well for humans because our brains work well with visual information. Look around and you will see that you are bombarded with information visually, sometimes overtly and sometimes in the form of subtle cues. Visual information can be quite complex or very simple, but we shouldn’t dismiss information just because it is visual.

So what are some other reasons for going visual? First, we want people to read and understand our documents. We want businesspeople to know what the contract says, know what they should do when, and to spot potential problems before they turn into lawsuits (“I never knew the contract required us to do that”).

Second, we want to avoid misunderstandings. Have you ever seen a complicated formula written out rather than expressed as a mathematical equation? Have you seen time periods described in free-flowing text rather than shown in a simple chart? Have you struggled to find a defined term buried in a contract because the parenthetical with the defined phrase was buried in a long paragraph of text rather than cued in the margin using a different font, point size and color?

Third, we want documents to pull readers in rather than set barriers. In an era when our smartphones constantly presently visually pleasing screens, magazines and newspapers sport eye-catching designs, and books use font and design combinations that make them standout yet readable, why must legal documents look like the dog’s breakfast? I know lawyers who put off reading important documents simply because they are imposing and offer up nothing but hours of picking through pages of bland and unappealing blocks of text.

Fourth, we don’t want to become irrelevant. When I first moved in-house, I was as good as any lawyer at drafting things lawyers thought were clear, but clients wanted to avoid. As new lawyers in a Fortune 500 company that had never had an in-house law department, my colleague and I had many cleanup tasks to tackle. One such task was writing and publishing policies setting out the company’s position on relevant areas of law. We needed an antitrust policy, an intellectual property policy, a securities law policy, and so on. We divided the policies among ourselves according to areas of interest, settled on a “style,” and created our first drafts for the general counsel to review. After that review, he convened our small group and exposed the major flaw in our approach.

Each of the documents stated the relevant legal principles and carefully explained the company’s position. But, they were documents only lawyers could love. These were documents we really wanted our clients to love (well, at least read). So, the general counsel sent us back for another draft, and this time he told us to keep our clients in mind.

We submitted the second drafts, he reviewed them, and we reconvened. Not much better, he told us. At this point, our lawyer feelings were hurt. We wanted to take each sentence and defend it. We knew the law, the policies correctly stated the law, and we felt we shouldn’t pander to our clients by trying to dumb down the language just because they didn’t want to make the effort to read the law.

Having far greater wisdom than the team, the general counsel gathered up the drafts and sent them to a professional writer who worked with corporations. Her job was to turn our lawyerly prose into English, and English our clients would actually read. A month later, he gave us the revised policies. We did what any self-respecting lawyer would do – we attacked. But, as we tried to tear apart what the professional writer had done, it became clear that she knew her stuff. While occasionally we needed to tweak a sentence, overall she had captured the concepts and presented them more succinctly and clearly than the lawyers had done.

The policies were published as booklets and distributed throughout the organization. After a week or so, comments started trickling back. Senior executives, business directors, and managers complimented us on the fine writing. They said the policies were among the clearest documents they had ever seen produced by lawyers. Our stock in the company went way up, until the general counsel let slip in a senior executive meeting what had really happened. We still got credit, though, for his wisdom of having brought in the professional writer.

If we had stuck to our guns, our policies would have been irrelevant and we along with them. While we could have shown them to a prosecutor or plaintiff’s attorney if there was a problem, we would not have avoided the problem by educating our clients. Out clients would have glanced at them, shrugged, and reminded themselves that gibberish is what one expected from lawyers.

Today, most third party vendors that produce policies and codes of conduct use professional writers. The content initially comes from lawyers and is checked throughout for accuracy, but those who can communicate more clearly than lawyers do the writing. Where lawyers resist using such services, clients can decide the lawyers are irrelevant and simply go direct to the third party vendors. The wise lawyers recognize that using such services enhances their credibility in the organization. The policies and codes are clear, clients appreciate knowing what they shouldn’t do, and the clients appreciate that the lawyers found ways to get the job done well.

From Dreadful to Visual to Delightful

At this point, even if I have you convinced to look at your documents with an aesthetic eye, you may be stuck. While some lawyers also are fabulous artists, most are not. That shouldn’t stop us from going graphic. When I worked in corporations, we had graphic artists all over the place. They sat in marketing, advertising, product design, and other functional areas. All you need to do is go make a new friend. Not only can a good graphic artist turn your bland document into something beautiful, it will take them far less time than you might expect. The design work we need at this point is child’s play to them. If you are really ambitious, read up on design thinking. Design thinking will take you well past making documents pretty. You will learn about designing your work product from the outset, with the end use and users in mind. Strange as it may seem, design thinking will teach you how to be a lawyer whose clients come first. That approach, will make your clients say you are delightful.

 

[1] See Design and the Legal Industry and Time for Lawyers to Think Like Ive.

[2] We also should not confuse visual design with making contracts into data. For example, a visually appealing and understandable contract also could be a computable contract. See, e.g., Computable Contracts.

[3] For those who want to know, the IBM Selectric I introduced in 1961 had a fixed pitch. The IBM Selectric II introduced in the early 1970s had a level allowing you to switch between 10 point and 12 point pitches.

Time for lawyers to think like Jony Ive.Okay, this week I posted about how Jony Ive and his design team brew coffee, and now I’m posting about Jony’s design secrets. You should be excused for thinking I’m slightly obsessed with how Jony Ive does things. The really confusing part may be that Ive is a designer, not a lawyer. It would make more sense if I talked about a jurist, legal scholar, or famous trial lawyer. But, a designer?

Design for Law

Before I get to Ive’s design secrets, let me explain why I think the Ive design team and other top designers have some interesting insights to offer lawyers. Lawyers want to deliver very high quality services. They want to be at the top of the heap when it comes to what they do. For a long time, clients paid as if that was what they also wanted. Today, of course, we hear clients say something else.

We have another trend affecting us and that is the impact of design on everything we do. Lawyers think of what they do as text centric, not design centric. By doing so, however, they have lost most of their lay audiences. Most business people are not going to wade through a thick, densely packed legal document to get to the point. Lawyers need to re-think the user experience of their materials. If IBM can reduce a cloud services agreement to two pages, we should be past the argument that legal documents need to be long, dense and boring just to get the job done properly.

Design forces us to think about the purpose of what we are doing. It makes us ask how the client will work with the materials we provide. It should force us to think about usability. I worked on several financing arrangements while I was in-house. At the end of each deal, the business people who were responsible for working with the documents complained they were unreadable and indecipherable. They were correct on both counts. Ironically, even the finance lawyers had trouble interpreting the documents (and the finance lawyers came from the top firms for financing and spent all day with such documents).

Good design, at least good consumer product design, makes us think simple. Look at your TV remote. Most have dozens of buttons. When the telephone rings I have to search all over the remote for the Mute button. The best remotes have two or three buttons. Why can’t we have legal documents that deliver superior user experiences?

People are wired to process visual information, and to do pattern recognition. Through cognitive science we know that most people process information more quickly, more accurately, and more willingly when it comes visually. As lawyers, we can fight science and stick with 12 point, Times New Roman, single-spaced documents and try to force the world to conform. Or, we can accept how humans work and that visually engaging and stimulating materials will capture our clients. Our task is to integrate what we need to write with how we present it in ways that improve on the old. That is why I think learning about design is important.

Ive’s 12 Design Secrets

These secrets were culled from a recent Jony Ive presentation and reported in Cult of Mac (and Jony Ive presentations are rare, so this is a treat). Without further preamble, let’s ask “What does Jony do?”:

1.              “You are what you make.”

What you produce is the window through which people view you. “People can sense care and can sense carelessness. This relates to respect for each other and carelessness is personally offensive.” If you don’t believe this, just ask a client how she feels when you spell her name wrong. Whether you are turning out a Rolls Royce or an entry-level car, there is no place for carelessness. The same is true when providing legal services. Don’t confuse carelessness with the level of service.

2.             “Great ideas start in conversations.”

Some people may argue with this one. It is the brainstorming versus working at your desk question. Ive feels collaboration is the better way to spark ideas. Others say that working alone you come up with your best ideas. Either way, taking your idea from start to finish by yourself does not yield the best solutions. Lawyers need to become team players and let their ideas and the ideas of others on the team develop in collaborative settings.

3.             “Stop rendering and start making.”

At the start of my career in law, I was taught to get the idea on paper, then edit, edit, edit. You can spend a lot of time researching, thinking, and talking, but ideas develop best when you must convey them to someone else using the appropriate media. If you can’t get your idea on paper, something is wrong. Designers can get stuck playing on the computer, but turning that 3D design into something tangible will tell them whether it will really work (and another reason 3D printing is becoming so popular for it allows fast prototyping). Sometimes lawyers need to stop research and start writing.

4.             “Keep your team tight.”

In the free agency era of law practices where lawyers move from firm to firm and company to company to snag the best opportunity, building a tight team has become a rarity. Ive’s 18 designers have been together for 15 years without even one leaving. Many firms have groups of partners that have been at the firm that long, but that isn’t a team. Think along the lines of a tight, cohesive unit that works together every day to maximize the team’s performance on each matter. You don’t see it in law, because we believe in up or out, lawyers above all, and the survival of one. Perhaps some law departments can boast this type of success, but I suspect not many.

5.             “Copying is not the sincerest form of flattery.”

Developing really powerful and successful designs takes time. When others copy the design, they steal time. Putting aside for the moment the various laws that can protect design, at some deep-seated level we should recognize that when someone does something very well we should respect their time and not take it from them.

6.             “Reject reason.”

On its face, this is another tough one for lawyers. After all, as Aristotle told us, “The law is reason, free from passion.” But as Ive tells it, “To design something really new and innovative you have to reject reason.” Let’s apply Ive’s thinking to legal service delivery. Reason probably tells you to continue legal services the way you learned out of school, the way you have for the past 20 years, and the way that has led you to success at this point in your career. To innovate, you have to ditch reason and allow yourself to explore new ways of doing things. Manufacturers strenuously resisted the ideas of lean thinking, because reason told them they wouldn’t work. Today, manufacturers embrace lean thinking and wouldn’t go back.

7.             “Making gadgets smaller is inevitable.”

Maybe we aren’t to the point yet where we can say making contracts smaller is inevitable (though IBM recently demonstrated making them shorter works). But, making legal service delivery more efficient is inevitable. Stop fighting it.

8.             “Spend energy on the stuff no one sees.”

Have you ever purchased a product that looked very good on the outside, only to find out that the inside was junk? Some companies think they can reduce the price point of a product by taking out internal quality, while leaving the appearance of quality intact. In-house lawyers express fear of this result when you talk about fixed fee pricing. They think some lawyers will be tempted to take quality out of the work that goes into the document and deliver to the client a nice looking, but ill-thoughht-out document. Shame on those who do. You must learn to provide a high quality package “in and out” for a price the client will pay. If you can’t do that, get out of the game.

9.             “Don’t be different just to be different.”

In the era where law firms search for differentiation, some have decided that differentiation is the virtue and the why isn’t really important. Clients care about substance, not flash, so if you don’t have a real point of differentiation, don’t force it.

10.          “If you’re not failing you’re not trying.”

Yikes! There is the “f” word in a post about lawyers. If there is a cardinal rule about becoming a lawyer, one that is microscopically etched onto the back of every bar card, it is that lawyers fail. At most, we don’t succeed as spectacularly as we wanted. Yet, to really move forward and improve, you must fail. You also must distinguish substantive failures from service failures. No one is suggesting that you innovate by trying out new, unsupported, legal positions each time. Service innovation such as experimenting with ways to improve efficiency, will only help everyone over the long run.

11.          “Reject more ideas than you accept.”

Be a curator. When I worked at fashion companies (shoes, clothes, etc.), the toughest part of a line review – the point where the leaders review the proposed products for a coming season – is the rejection part. A good manager must curate the line, weed out those designs unlikely to perform well, and leave a tighter, higher quality line. If you don’t curate well, you will spend a lot of time and resources (your time, the client’s resources) on the dregs. We see this often in discovery. You don’t need to depose everyone, but you do need to curate the potential deponents and come up with the ones that will count the most.

12.          “Make good products and the money will come.”

This is the mantra by which most lawyers have lived throughout their careers. They believed that if they just did really high quality legal work, clients would come. And so it was. But, times have changed. You can’t simply do good law and the money will come. Unless …

Let’s think differently for a moment. Perhaps “good” doesn’t just mean high quality legal work. Perhaps it includes legal service delivery and so we also must provide good service delivery. If your service delivery is expensive, sloppy, inefficient, too expensive, or suffers from other flaws are the services you deliver “good”? I don’t think so. I think the maxim Ive advocates still holds true, but what we must define “services” to include delivery as well as substance.

Design matters, whether we are talking about products or services. Good design outperforms poor design. If you want to succeed as a lawyer today, you must embrace new ways of thinking and being a good service designer is one of them. Perhaps law schools should introduce the new Master of Fine Law Arts?

Books for lawyers to read
The Benjamin Iveagh Library was amassed during the lifetime of the 3rd Earl of Iveagh, Benjamin Guinness (1937-1992).

I do a lot of writing and to write well you must read a lot. In fact, if you follow the advice typically given to writers, reading will be one of your primary occupations when you aren’t writing. When I first learned lean thinking, I read many books on the topic. I was leading a manufacturing facility at the time, so the fact that the books dealt exclusively with lean in manufacturing was not a problem.

Today, I’m often asked what books I recommend to those interested in refining their legal service delivery processes, and in particular what books I recommend for those interest in using lean thinking in law. I’ll provide a list of those in another post (teaser). But, at the risk of needing a spoiler alert, there are not many out there and if you are interested in lean thinking applied to law you will find mostly articles (I’m working on something to solve that problem).

There are some books I recommend, however, that are not about lean thinking or project management or value fees. These are books that help us think about the philosophy behind how we practice law and how to improve. These are not books solely for lawyers, but they certainly present concepts applicable to the practice of law.

Given Mark Zuckerberg’s personal challenge to read a book every other week during 2015, I thought some of you may have adopted similar challenges (because I know you all emulate the Zuck). So, at the risk of igniting the usual firestorm of “why did you include” or “why did you leave off” comments about the list, here are six from my list that I think you will enjoy.

Essentialism: The Disciplined Pursuit of Less

By Greg McKeown

McKeown is CEO of THIS Inc., spending most of his time as an author, speaker, and consultant. He describes the mission of THIS as “assist[ing] people and companies to spend 80 percent of their time on the vital few rather than the trivial many.” Of course, those of you who are familiar with lean thinking know that the focus is on getting waste out, shortening what we call the “value chain” – the distance between the start of a process and the end – by removing what doesn’t add value. In a different twist to efficiency, McKeown’s book focuses on “getting only the right things done.” In other words, even among things that add value you have to make choices, and essentialism is about making those choices.

A Whole New Mind: Why Right-Brainers Will Rule the Future

By Daniel Pink

Pink is a graduate of Yale Law School, though he never practiced law. After law school, he was in politics and government, including working as chief speechwriter to Vice President Al Gore for two years. Since then, he has been an author and speaker. He is perhaps best known for his first book, Free Agent Nation: The Future of Working for Yourself. In A Whole New Mind, Pink tackles an area that lawyers will want to learn. We are trained in left-brain thinking, our analytical side, and usually try to avoid right-brain thinking, what many consider the soft stuff. With software taking on more responsibility in the practice of law, clients will expect (and already are asking for) lawyers to become more right-brain friendly.

Talk Like TED

By Carmine Gallo

Gallo is a former anchor and correspondent for CNN and CBS, and today is an author, speaker, and leader of Gallo Communications. If you aren’t familiar with TED and TED talks, then you have missed out on a lot of interesting, informative, and fun talks. TED talks are known for their specific format – 18 minutes – and for the intense preparation speakers go through. In Talk Like TED, Gallo gives you a detailed analysis of what makes TED talks so special and how to turn your presentations into TED talks. Lawyers often have the privilege of presenting to organizations, and yet most lawyers are ill-prepared to give these presentations. Often, they are (and they sound like they are) something thrown together at the last minute. Rather than impressing the audience with a great presentation, most lawyers succeed in impressing their audiences with how boring it must be to practice law. If you want to break out of that mold and capture the hearts and minds of your audiences, Talk Like TED can help you get there.

The Innovator’s Dilemma

By Clayton M. Christensen

Christensen is the Kim B. Clark Professor of Business Administration at the Harvard Business School. This book is an oldie, but a goodie. It is surprising to find there are still many lawyers who still have not read it. While Christensen and others have done a lot of work subsequent to this book, it still is the basic book you need to read if you want to follow the dialogue today about innovation in the law. Many people misuse Christensen’s terms and over time, just as with the re-telling of stories, what he meant has drifted as people have told and re-told the definitions of innovation.

 

Thinking, Fast and Slow

By Daniel Kahneman

Kahneman is a Senior Scholar at the Woodrow Wilson School of Public and International Affairs. He is also Professor of Psychology and Public Affairs Emeritus at the Woodrow Wilson School, the Eugene Higgins Professor of Psychology Emeritus at Princeton University, and a fellow of the Center for Rationality at the Hebrew University in Jerusalem. Oh yeah, and he won the Nobel Prize in Economic Sciences (technically, The Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel) in 2002 (shared with Vernon L. Smith) for “having integrated insights from psychological research into economic science, especially concerning human judgment and decision-making under uncertainty.” As you might expect, this book is a fascinating read about how we think. Almost 40 years ago when I was learning psychology and neuroscience, our ideas about how the brain worked were very different than they are today. We have learned an amazing amount since then, particularly in the last 10 years. Kahneman’s book will help you understand why we as lawyers need to pay particular attention to how we analyze and advise our clients.

Lawyers as Leaders

By Deborah L. Rhode

Rhode is the Ernest W. McFarland Professor of Law, the director of the Center on the Legal Profession, and the director of the Program in Law and Social Entrepreneurship at Stanford University. Her list of professional accomplishments is long (click on the link for her name to see her Stanford bio), and we can include among them writing this book. Lawyers are leaders in every type of organization out there. Yet, ironically, lawyers have almost no leadership training. To make things more interesting, many lawyerly traits are the antithesis of the traits people want in a leader or that make a leader successful. Rhode helps us understand that, as with many other things lawyers do, the era of “winging it” should be over. Whether it is service delivery, speaking, performing substantive services, counseling a client, or something else, lawyers need training and experience if they want to excel.

 

I’m interested to hear what you are reading and what you think should be on this list. If you have suggestions, shoot them to me on Twitter at @leanlawstrategy.

 

Artificial Intelligence: Risk or NotIn case you missed it, 2014 is being hailed as the year we awoke to artificial intelligence as a risk to humanity. Dr. Stephen Hawking and Elon Musk both made very strong statements (and Musk tweeted) about the potential risk and those statements were widely repeated in the press. As you can imagine, many stories followed in which one or both were featured as authoritative sources. They are not alone (nor was 2014 the first year in which this potential risk was raised).*

What relevance does all this alarm raising have for lawyers? Well, quite a lot actually. Before we cover those topics, let’s narrow the scope of what we mean by AI. Today, though AI work has progressed significantly in the last 50 years and especially in the last 10 years, we are still far from having a computer with an intelligence level equal to a human (a level commonly called artificial general intelligence or AGI). Estimates of when we will see AGI vary from as soon as the next 10 years to as far off as 2100 (or even never). Many of the estimates place the date somewhere between 2030 and 2050. So, for this post, I am talking broadly about computer intelligence at its current level through the moment when we achieve AGI. I’ll use the abbreviation AI to cover this range of software. Most notably, I’ve excluded artificial superintelligence (ASI), which defines software that exceeds the level of human intelligence.

AI and Lawyers

We can break the AI risk topics of interest to lawyers into two categories. In the first category, we have AI as it impacts legal services delivery. In the second category, we have AI as it impacts substantive law.

Let’s talk about the substantive law category first. AI raises many substantive law questions. For example, we now have software that can write new code or re-code itself. As the software does so, who is responsible for what the software does? We also have software interacting with other software, and doing so in ways that humans can’t follow. That is, we can’t reverse engineer what happened when something goes wrong. Who is responsible when something does go wrong? As we let computers make decisions that humans made, and as the computers can do so not by following programs humans wrote but by developing their own programs, what happens to the concept of causality? How do we handle situations where the computer software resides outside the country where the harm occurred? The list of questions is long and the questions are complicated, but we are just beginning to work through what to do.

The second category is legal services delivery. As computers become more powerful, we will transfer some work done by lawyers to computers. What will we mean when we say lawyers must supervise the software? How does a lawyer effectively supervise a program that can analyze millions of cases and articles to provide a suggested course of action? What role will lawyers play as software takes over steps from lawyers? Is there a line to draw between humans practicing law and computers practicing law?

Hawking, Musk and others are raising alarms about the biggest question: what happens when AI equals or even exceeds human intelligence? They posit that AGI enabled computers could (without proper controls) take over the world from humans. The most extreme risk from AI is called “existential risk,” a world in which computers eliminate the human race. For some, these are scary stories not based in reality. In his recent post, Alan Rothman summarizes three recent articles that suggest the fears of AI taking over the world are not well founded or at least are overstated. Perhaps the best known supporter of AI is Ray Kurzweil, a prolific inventor, entrepreneur, visionary, long time fan of AI and currently a Director of Engineering at Google where he heads up a team developing machine intelligence and natural language understanding. Kurzweil looks forward to a world where AI works in harmony with humans, greatly enhancing our existence.

Lawyers Should An Active Role in Addressing AI Issues

Wherever you fall on the spectrum of those who believe or don’t believe in AI risks, it is clear that 2014 has been the year when the issue was brought to the forefront. From my perspective, lawyers should play an active role in analyzing the issues and devising solutions. Right now, as many have noted, lawyers are almost absent from the discussion. As Judge Richard Posner pointed out in his 2004 book Catastrophe: Risk and Response, lawyers should not leave these issues to others. Rather, Judge Posner said (Catastrophe, Kindle Edition at Loc. 122-127):

The challenge of managing science and technology in relation to the catastrophic risks is an enormous one, and if it can be met it will be by a mosaic of institutional arrangements, analytical procedures, regulatory measures, and professional skills. I am particularly interested in determining the positions that law, policy analysis, and the social sciences should occupy in that mosaic. At present, none of these fields, with the principal exception of economic analysis of global warnings, is taking the catastrophic risks seriously and addressing them constructively.

If 2014 is the year the AI issues were publicly raised, then 2015 should be the year lawyers become engaged.

 

* A list of scientists and others raising concerns is far too long to include in a post, but it includes: Stuart Russell (Professor of Computer Science and Professor of Engineering, University of California, Berkeley), Max Tegmark (Professor of Physics, MIT), Frank Wilczek (Professor of Physics, MIT, and 2004 Nobel Laureate in Physics), and Nick Bostrom, (Professor, Faculty of Philosophy & Oxford Martin School, Director of Future of Humanity Institute, Director of Programme on the Impacts of Future Technology University of Oxford). If you are interested in AI and the arguments about it as an existential risk, check out:

Cambridge Centre for the Study of Existential Risk

Future of Humanity Institute

Machine Intelligence Research Institute

Future of Life Institute

Singularity University

Johnny Carson as Carnac the Magnificent
Johnny Carson as Carnac the Magnificent

I am horrible at making predictions. But, of course, so is everyone else. Even those who claim they are great at making predictions are very bad at making them. Sure, basic probability theory says we all will be right some of the time, wrong some of the time, and spread through the middle more often than not, and that is how it usually works out. Put enough of us out there making predictions, and some soul will be the one who gets it right on some big issue (and cleverly does not point out all the times he was wrong before that).

If we take predictions in the right spirit, they can be fun to read and debate. So, with that spirit, I’m going to look at some predictions from a list of 25 predictions for 2015 that LexisNexis published (that were pulled together by Frank Strong). The predictions come from leaders in the legal industry, so these are people who follow what is happening. Please note that I think they all have equal chances or being right, wrong, or in the middle. To make things a bit more fun, I haven’t included the author’s name next to the quote. At the bottom of this post, I have included the names of the authors whose predictions are included in this post – see if you can match author and prediction. If you really need to know who made each prediction, follow the link above. One final note to stress – the views I express below about the predictions are my personal views.

Here they are, a selection of the predictions and my comments:

1.         “Things won’t change that much. Until clients embrace change beyond asking for ‘AFAs’ we will only see small, incremental changes. Firms are generally ready to change, but until clients force the issue, things will plod along pretty much as they are.”

Spot on!

2.         “One of the Big Four accounting firms will challenge the ABA’s prohibition of non-lawyer ownership of law firms.”

Nope. Too many other fertile growth areas to address before taking the ABA head on. Canada will go first, upping the pressure on the ABA, but we aren’t at the tipping point in the US yet.

3.         “The business of law will continue to cross over into new fields. With 2013/2014 solidifying firms as publishing houses, 2015 will see firms become SaaS providers through strategic partnerships with clients and SaaS companies.”

I agree. Firms will continue expanding into areas beyond core legal services. Since firms already have moved into publishing and software, I think it is safe to say we will see those trends continue.

4.         “Law firms will mine boutique law firms for cybersecurity lateral partners.”

Usually I stay away from the substance of law, but this is an area where substance touches on practice. I agree that firms will work to beef up their cybersecurity practices. Unfortunately, I don’t see firms, academics, or lawyers generally working on the many issues we are confronting and will confront as legal systems evolve and the day of artificial intelligence in computers equal to the intelligence of humans draws near.

5.         “I believe that 2015 will see attorneys and law firms continue to adopt and utilize web-based software and services at an ever-increasing rate.  While the legal industry has historically been slow to adopt new technology, firms that conduct the cost-benefit analysis of these services conclude that it’s almost a ‘no brainer’.”

I understand the terror law firm IT leaders feel in these days of cyber-insecurity. One of the corporations where I was general counsel got hit with a “Zero Day” virus. While our IT department did a superb job of recovering, we had one really scary week. Still, I think fighting the cloud is a losing proposition. I see firms realizing, especially as their workforce becomes more virtual, that web-based solutions and cloud computing are inevitable and moving more quickly to adopt that world.

6.         “Forward thinking law firms that embrace ‘insight selling’ approaches will boost their market share and share of client.  Attorneys that leverage industry and subject matter insights in responses to RFPs, outside counsel selection, and other business development efforts will displace competitors that cling to ineffective ‘solution selling’ models.”

Firms already are doing this, so again I see this as an easy prediction for 2015. Other service providers learned long ago that they needed to organize themselves along industry lines and build deep expertise in client industries. As law departments pull more work in-house, it will become even more difficult for law firms to compete against those departments and other solutions providers who have deep expertise in the relevant industry and company’s business. We have seen this happen in areas such as tax, corporate, trade, and litigation services and the trend will continue.

7.         “Already in 2014, we’ve seen not only an influx of new attorneys starting their own law practices due to scarce job prospects, but also new attorneys moving toward non-traditional legal jobs. As new law students become more discerning about their decisions to pursue legal careers, we will begin to see an even greater focus by educators and students to design innovative solutions to problems with the delivery of legal services, leading 2015 graduates and beyond to contemplate non-traditional career paths, particularly with respect to technology.”

This is an exciting trend and one I hope will accelerate. Lawyers bring an important skill to solving client problems, but client problems seldom are discrete legal issues. As a general counsel, I spent significant time solving client problems where the legal component was a small or tangential part of the overall problem. Our ability to implement solutions was hampered by our lack of skills in areas other than substantive law. I strongly believe that lawyers must expand their teams to include individuals with many skill sets so the team can provide solutions to client problems. I think those lawyers who fail to do so will continue being marginalized to the point where they are irrelevant to clients.

My only prediction is that in 2015 we will continue to experience exciting developments in the legal industry. I do not see us going back to a fairly sedate, almost-never changing environment. I don’t see us roaring forward, either. But I do see us evolving in ways we do and don’t anticipate, and for all of us that means we have great opportunities ahead.

 

* The predictions included in this post were made by (in no particular order): Heidi Alexander, Derek Maine, Toby Brown, Michael Rynowecer, Bruce MacEwen, Ben Stevens, and John Reed.