Teach

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.

HoneymoonersI grew up watching the first runs and in some cases re-runs of great, early sitcoms. The Honeymooners (1955-1956). The Dick Van Dyke Show (1961-1966). The Andy Griffith Show (1960-1968). I Love Lucy (1951-1957). Each of these shows featured pioneers in television comedy. They have been so influential, that if you watch sitcoms today (something I rarely do), you can catch moments when the writers will pay homage to the early shows by throwing in one of the famous tag lines.

Jackie Gleason’s show The Honeymooners ran in its first outing for only 39 episodes. It faced a timing problem—it was up against the extremely popular The Perry Como Show. The Honeymooners broke new ground by featuring a working-class couple living in Brooklyn. Years later, All in the Family  would pick up on this theme by featuring a working class family living in Queens.

Jackie played Ralph Kramden, a Brooklyn bus driver, and his wife Alice was played by two actresses, the more memorable being comedienne Audrey Meadows. Ralph’s friend was Ed Norton played by another great comedian, Art Carney. Ed’s wife, Trixie, was played by Joyce Randolph. Alice was the inspiration for Wilma Flintstone, Ed was the inspiration for Fred Flintstone, and Trixie was the inspiration for Betty Rubble (and if you don’t know The Flintstones cartoon, you missed a popular culture icon).

The plot revolves around Ralph who has a never ending series of get-rich-quick ideas, each of which Alice shoots down throughout the show. Ralph and Alice, with Ed jumping in, bicker about Ralph’s ideas shooting streams of one-liners. And, of course, by the end of the show Alice’s concerns are borne out and Ralph never reaches the pot of gold.

One of Ralph’s taglines became the instant identifier for those who watched the show. As Alice and Ralph bickered, both would get frustrated until Ralph would bark out (with many variations): “One of these days…” followed by “BANG, ZOOM! Straight to the moon!

Lean is More Than Cost

Today, when I hear over and over again misleading to blatantly wrong descriptions of lean, I’m tempted to shout “BANG, ZOOM! Straight to the moon!” Of course, I’m seldom around someone who would get the line, so I just say it to myself.

Why do I get so frustrated? First, I recognize that most of the comments come out of ignorance (and, in that, I see myself ignorantly speaking about other areas). It is a lawyer habit to read what is written in a paragraph or a blog post and think, “now I too am an expert.” We then want to pontificate on the topic and that leads us into swampy waters. Nevertheless, when I hear someone say “lean is all about cost cutting …” Well, BANG, ZOOM!

Second, I know as we all know that repeating incorrect things often can derail good ideas. It is easier for us to take in what we hear as gospel rather than dig deeper and learn the facts. Say lean is all about cost cutting enough times, and lawyers (who already aren’t interested in becoming efficient) will take those comments as defining lean and reject it.

Third, the person who describes lean as merely cost cutting frequently follows their statement by adding that they tried lean and it doesn’t work. Lean is not the only new idea in law that elicits negative comments. The same people often deride value fees. Dig a bit deeper with them and you find that they were opposed to the ideas, they didn’t make an effort to implement them correctly, and that the so-called failures were mostly if not entirely due to the person not the ideas. In other words, the person is against change and their agenda is to prove they are correct, not to explore new ideas.

The Real Lean

Lean thinking (the original name was Toyota Production System, but I’ll use the name given by James Womack and Daniel Jones in their book, Lean Thinking) brought together many ideas from many streams starting at Toyota back in the 1890s. It worked in part because the right people were in the right place at the right time.

Japan was in its post-World War II phase. As an island nation, it did not have the raw materials necessary for automobile production, which is what Toyota was focused on shortly before and coming out of World War II. Lean was born in a situation of many constraints, which made efficiency and creativity priorities. Contrast that with the United States, which had the necessary raw materials,  could be inefficient without blocking progress, and traded space and brute force for creativity in operations.

Japan also had a very strong cultural belief in employing individuals for life. In fact, to this day Japan still places a high value on lifetime employment. Many businesses will re-deploy workers to keep them busy (even tending gardens) rather than lay them off when times get tough. In the United States, employees always have had less job security and today are treated as disposable by most businesses. When workers aren’t afraid to lose their jobs they are more likely to actively support efforts to remove waste from their jobs, even if doing so eliminates the job they do today.

Japan’s management style was quite different than the management style in the United States. Japanese companies placed a high value on discipline and order. In fact, order is something prized in Japanese society, while clutter has been widely accepted in the United States. If you already favor order, then engaging in a system designed to bring more order doesn’t seem as foreign.

I am not praising Japan over the United States. There were many challenges to Japan’s approach, and emotional intelligence in management was one of them. But it is important to understand the context in which lean thinking came together. Lean thinking flourished in an orderly, disciplined, clutter-free, secure world. Porting lean from Japan to the United States, therefore, was always going to be a difficult task. But it was not a task first and foremost about cost, it was about waste and creativity.

One of the early contenders for this new system’s name was Respect for Humanity (as was the Ohno System, in honor of Taiichi Ohno who did much to pull the streams together). So let’s take a brief trip back to Japan post-World War II as the lean thinking story started and think about respect for humanity.

Don’t be Wasteful

The Toyoda family (they switched to Toyota for public use) had decided to enter automobile production prior to World War II. Coming out of the war, they resumed their efforts, but all the things they needed—steel, rubber, iron—were in short supply. Toyota also faced an efficiency challenge when compared to auto manufacturers in the United States and other countries. What took Toyota 100 workers to accomplish, took Nissan only 30 workers, and Graham-Paige (a U.S. manufacturer) 18. Ohno had to figure out how to get the most possible from each unit of raw material and how to use brains instead of brawn to compete with other companies. In other words, he had to get waste out of the system and harness creativity to solve operational problems.

As I noted above, the idea of removing waste, or not even creating it, fits well with many Japanese philosophies. When you live on islands and have constrained resources, efficiency becomes a way of life. Look at Japanese farming techniques and you will instantly recognize terraced hills for rice growing, making use of space only a very sure-footed individual would dare to reach. Go to a Japanese fish market and you can buy whole fish or every part of the fish separately. Nothing goes to waste. Even Japanese martial arts share the no-waste philosophy. The movements of a great martial artist are lean and focused on the goal. Students spend their lives trying to master the physical and mental goals of simplicity.

Many societies have similar practices, but in post-World War II Japan frugality and simplicity were central to daily life. It did not feel unnatural to have the same view in manufacturing (although Ohno met with resistance just as we do in the United States, since change seldom comes easily).

Lean was focused on removing the eight (originally seven) types of waste, or muda. One clear benefit of removing waste is cost reduction. If you don’t waste raw material or humans, you reduce the cost of the product. Ohno reminded everyone that the equation for a business is Price – Cost = Profit (not Profit = {rice – Cost or Price = Cost + Profit). The customer will only pay a certain price. Therefore, a business earns its profit by reducing its costs. Remove waste, costs drop, and the business becomes more profitable. Cost reduction is part of, but not all of, lean.

Lean Concepts Seem Foreign in the U.S.

Contrast the Japanese context with the United States context post-World War II. The United States had gone through the Efficiency Era, which lasted from 1890 until 1932 and the start of the Great Depression. Many blamed the Depression in part on an excessive focus on efficiency. As a result, businesses downplayed efficiency.

World War II brought incredible demand for products, but even the United States had trouble meeting demand for raw materials. After World War II, supply remained tight for many years. Still, the United States was the land of great riches and it could grow supply to meet demand. Japan, the land of islands, had to import its raw materials.

As you look at the period from 1945 to the present, you can see how the paths taken in Japan and the United States diverged. Toyota remained focused on efficiency through to the present. United States manufacturers did not swing their focus back to efficiency (in large scale) until the late 1980s. Law did not start dabbling with efficiency until after 2005.

By the time lawyers in the United States even started looking at lean, it had gone through several evolutions. I learned lean thinking from sensei (teachers) who worked at Toyota with Taiichi Ohno and were part of the original Toyota Autonomous Study Group that created most parts of the Toyota Production System. I studied at Shingijutsu Co. Ltd., a consulting firm Ohno encouraged these sensei to start to spread lean thinking beyond the automobile industry. I look at lean through the lens of those who developed it.

Contrast that with the background of many who talk about lean in the legal industry today. Most have learned lean from individuals who were two or more generations removed from the original lean thinkers. Much of the discussion about lean comes from an incomplete understanding of its philosophy, because the training they got focused on discrete goals rather than the big picture. The lean practitioners in law skip many of the essentials and concentrate on cost. This distortion makes lean look either like something a low-cost manufacturer would use (not a great law firm) or a misguided attempt to turn lawyers into automatons.

For those who want to really understand how lean thinking can help the legal industry (and work harmoniously with innovation and technology), start by asking yourself this basic question: “Do I believe it is good to have people spend their days on tasks that have no value?” If you answer “yes” then lean thinking won’t work for you. If you answer “no” then lean thinking can help.

Let’s put some meat on those bones. Look at what you do through the eyes of a client and a lean thinker. Is there value in any of the following, or are they simply things you do because you haven’t been creative and found ways to reduce or eliminate them:

  • Moving papers from one place to another (electronically or physically),
  • Emailing,
  • Photocopying,
  • Searching for anything (templates, cases, documents),
  • Waiting,
  • Revising,
  • Reviewing,
  • Correcting,
  • Transferring,
  • Re-creating,
  • Etc.

A big part of the value lawyers bring clients comes through the solutions they create to client problems. The execution of those solutions is the embodiment of the lawyers’ ideas. We should encourage creative problem solving, but we should also encourage efficient execution of ideas. Our current system encourages inefficient execution and, when each day is constrained to 24 hours, that limits the time to spend on problem solving.

Lawyers have trouble separating efficient from inefficient execution, because they haven’t been trained to do so and have been encouraged and taught not to do so. Legal training is largely about teaching inefficiency. If someone has taught you to be inefficient, rewarded you for your inefficiency, and you have been successful (at least financially) because of your inefficiency, you will fight alternatives.

Respect for Clients and Lawyers

The topic of how lean relates to delivering legal services deserves more attention, and I am giving it that attention in other places. But right now, I’ll close with this. Lean thinking reduces costs, but it is not about reducing cost. Lawyers who remove waste from what they do will be happier, less stressed, have more time to focus on substance and quality, and be more engaged in their daily activities. All of those changes encourage creativity and show Respect for Humanity.

All of those changes also reduce the cost of legal services (note: cost, not price, which is the topic of a different discussion). There is nothing wrong with reducing cost through waste elimination. In fact, if you look at the businesses who hire lawyers you will find most of them believe in cost reduction through waste elimination. On a broader scale, society benefits from removing waste (healthcare is one example, another is the food supply chain—approximately 50% of the produce in U.S. supermarkets is thrown away as waste, which is one reason we have an imbalance on access to food).

If you still don’t believe that lean has benefits beyond cost reduction, then do this exercise. Ask one of your lawyer colleagues to sit down with you and the client (that is, the person who really pays the bills, not an in-house lawyer). Tell the lawyer that she will spend more than 50% of each day doing things that add no value to the service the client will get. None. Zero. She will do those tasks merely because no one has bothered to spend time figuring out how to eliminate them.

Then, turn to the client and tell her she will pay for those tasks, even though she gets no benefit from them. None. Zero. Tell her she pays for them because it keeps lawyers busy, makes some rich, and overall because no one has bothered to spend time figuring out how to eliminate them. Ask both if they feel the legal system is showing Respect for Humanity with this structure.

Lean thinking is not a panacea, it is not a silver bullet, and it is not the solution to all that ails the legal industry. But it is a great place to start requiring creativity. So, next time you say to me that lean is simply about cost cutting, don’t be surprised if I say BANG, ZOOM! Straight to the moon!