You buy holes, not drill bits

DDo you think about what you are buying when you purchase legal services? Do your lawyers ask you what you are buying? If asked, many clients would respond that they were buying one of the following:

  • Time (the lawyer’s)
  • A work product (e.g. A lease, contract, advice)
  • A legal outcome (e.g. A successful court case, an injunction, an effective contract).

Some more sophisticated purchasers of legal services may answer they are purchasing a solution. The truly enlightened will understand they’re buying both the solution, and the effect of the solution and the experience of obtaining the solution.

In Bill What You’re Worth , David W Cottle repeats a story from a surgeon:

Do you know how long it takes a good surgeon to remove an appendix from first incision to closure? Seven minutes.  If you gave me two hours with anyone smart enough to finish college in five years, I could teach him or her how to remove an appendix.  It’s really very simple.  But do you know how long it would take me to teach that same college graduate what to do if something went wrong while removing that appendix?  Six years of medical training.”

A couple of lessons from this – when purchasing a service, you should be paying for skill rather than time spent.

But even more importantly, you should be focussing on outcomes and the experience, which define value, rather than the mechanics of the task itself.  The value to the patient is the successful removal of the appendix, and resolution of any complications, rather than the time taken.  As someone else put its – you are buying the hole not the drill bits.

Some consultants, when advising about cost management, emphasise the desirability of ensuring that the least expensive fee earners do the greatest proportion of the work.  This can be a false economy – it may be more effective for a skilled and experienced lawyer to undertake the work, providing a better outcome.

You don’t buy drill bits (the service), you buy holes, or the capacity to create holes.  When considering the value of the service, look at what you are actually purchasing.

“Doing Church” and the future of law firms

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I am reading “What Matters Now: How to Win in a World of Relentless Change” by Gary Hamel. He describes an address he gave to Christian church leaders and the factors he identified as reasons for falling congregations. One of these is holding onto legacy beliefs about how to “do Church” including:

  • Church happens in church
  • Church is a lecture, not a conversation
  • Clergy lead while lay people follow.

Hamel notes that there is an adherence to the same “delivery model”, yet that model is one developed by organisations, rather than the Bible.

It strikes me that there are strong analogies with law firms.  Most law firms have the same delivery model and equivalent legacy beliefs:

  • Law happens in a lawyers office – yet look at LegalZoom and the myriad of online legal services available.
  • Law is a lecture not a conversation – clients need to be told what to do. Yet we have had decades of Peter Drucker and others emphasising how clients want a Trusted Advisor who is part of the client’s conversation, rather than preaching to the client.
  • Clergy lead while lay people follow – sadly some lawyer still believe that it is their way or the highway.

In the age of discussions about AI and robot law, perhaps the distinguishing feature for lawyers will be less about innovation than empathy.  Empathy extends to understanding what works for the client and what doesn’t, what type of service delivery helps the client, and most importantly, what it is the client really wants and needs through an understanding of the backstory.

This may mean that the firm needs to have different conversations with the client about how services are delivered in order to provide value, or it may mean that the law firm needs to look at process improvements in order to ensure the price of legal services is proportionate, but at a cost which the firm can bear.

But there is no doubt that the key change in the delivery model is the power of the client, not that lawyer, to determine what it looks like.

Narrative law: the future in the age of AI?

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Narrative medicine is gaining a following in medical schools, with Columbia now offering a Masters degree in the subject. Narrative medicine has been described as using “the ability to acknowledge, absorb, interpret, and act on the stories and plights of others” to enable doctors to ellicit, understand, and interpret their patient’s stories about their life as well as their illness. Better listening and interpretative skills will lead to better diagnosis and treatment.

My grandparents would not understand or see the need for the practice. Their family doctor knew the family history and circumstances of every patient simply by being part of the community. Nor did those doctors have the diagnostic tools available today , so were reliant on interpreting not just what the patient was telling them, but what they observed, heard around town and knew of the family history.

My grandfather and father were both lawyers in a provincial town. They both knew more about the circumstances of their clients than their clients ever told them. I’m sure they both knew when to expect a visit from a client because they had already heard about the circumstance leading to the visit, such as a death in the family, business purchase, or recent accident.  Both were David Maister’s Trusted Advisors ever before he coined the term.

I studied medicine for a couple of years before transferring to law and at the time was bemused by the proportion of incredibly smart kids who were studying with me, but were incapable of communicating with the other students.  It was a topic of discussion as to how these students would ever be able to extract a medical history from a patient.

Law schools need to offer something similar.  I have spent more than 25 years dealing with clients with issues about their lawyers, and the vast majority of the time the problem stem from a failure to communicate.  Companies talk about the “Institutional knowledge” – the knowledge of the corporate history which is often given as a reason not to change law firms.  But one of the problems for clients nowadays, where the leveraged model requires delegation and multiple lawyers working on a matter, is that institutional knowledge is not passed on to others in the firm.  The partner knows the history or backstory for the work, but does not pass that onto the more junior lawyer, who then does not have the full context for the advice.

In conducting training in Legal Project Management, one of the aspects we highlight is defining what “done” looks like.  This involves understanding what the client sees as acceptable outcomes, which in turn involves an understanding of the backstory – the reason the work is being undertaken, who the relevant stakeholders are, any relevant “institutional knowledge”, and how the client defines value.  All of these can only be ascertained through narrative listening.  With all the talk of AI reducing legal jobs in the future, perhaps Narrative Law will help create a truly valuable legal role which can only be undertaken by a human?

Jack be nimble, Jack be quick – and a good lawyer

When I ask clients what they want from their lawyer, agile is not a quality that comes to mind.  But what is agile? Agile is defined as mentally quick or alert, nimble.  It means the ability to respond to change.  Don’t you want that from your lawyer?

Agile project management is a form of project management particularly popular with software developers.  Its focus is on flexible, iterative management of projects, and is often used to manage aspects of a much larger project.

The benefits of this iterative style of project management, when applied to legal work, are many.  Legal work, particularly litigation, is subject to outside influences beyond those of a software or construction project.  Lawyers argue that project management techniques cannot be applied to litigation because “litigation is like trying to build a wall, with your opponent (and sometimes the judge) trying to knock it down”.  Agile project management techniques are designed to facilitate change and adapt to these outside influences.

Here is a link to “The Agile Manifesto” developed by a group of software developers.  A couple of the principles ring particularly true for legal work:

  • “Business people and developers must work together daily throughout the project”.

Translated to legal work: Clients and the legal team must work together throughout the matter, with the legal team ensuring the client is part of the project, and the client being prepared to be engaged in the matter.

  • “The most efficient and effective method of conveying information to and within a development team is face-to-face conversation”

The same applies to a legal project – arrange formal team meetings, with agendas and action points, rather than relying on emails, conversations on wikis, and the like.  Many slips ups or redos have occurred as a result of lack of face to face conversations.  And the major benefit of these conversations can be brainstorming and problem solving, finding alternative solutions and approaches, that would never occur through emails.

  • “Simplicity – the art of maximising the amount of work not done – is essential”

Lawyers are taught to seek perfection.   But sometimes good enough is good enough, and we also need to understand everyone has a different view of what is perfect.  Focussing on simplicity – whether it be clarifying the major points in issue, the essential aspects of the contract, or writing an clear advice – is a skill many lawyers never develop.  Watch a great advocate in court – he or she will make the case appear simple by distilling and focussing on the key aspects.

  • “At regular intervals, the team reflects on how to become more effective, then tunes and adjusts it behaviours accordingly”.

This embodies the Japanese principle of Kaizen – the art of continuous improvement by small increments.  Most famously, Toyota adopted Kaizen after World War II to develop a sustainable and competitive automotive business.

How often do you, as client or lawyer, undertake end of matter reviews?  How often do you step back during a matter and look at how it is going, what could be changed to make the conduct of the matter more effective?  At the end of each team meeting, ask your team “What could we be doing or how do we change the way we are now doing things, which would make us more effective on this matter?”  It could be that one team member is creating a blockage by not meeting agreed time frames, maybe we improve delegation to better clarify tasks, maybe the client needs to be more engaged.

As a client, I want an agile lawyer with a responsive, nimble mind, and I want a legal team who is agile and applies agile techniques in legal project management.  As law firm or lawyer, I want to be known for my agility and to adopt the Kaizen principles of continuous improvement.  It will keep me ahead of the pack.

Don’t wrestle with a pig. You’ll get filthy and the pig will love it.

I’ve spent much of this year conducting workshops on Legal Project Management, Estimating Costs and Becoming an Informed Purchaser. One theme from attendees, whether external lawyers, in-house counsel, or other clients, is the difficulty in dealing with a difficult opposing party or lawyer.
Judge Gerald Bruce Lee of the Eastern District of Virginia provides great advice for dealing with that difficult opponent.

“Don’t wrestle with a pig. You’ll get filthy and the pig will love it.”

Judge Lee apparently conducts a vigorous “rocket docket”.  But back to the advice.

Difficult opponents come in many forms –
• The incompetent lawyer who does not know what he/she is doing, causing the good lawyer to do more work to try and solve the lack of action or competency,
• The aggressive lawyer, whose modus operandi is to write frequent and lengthy letters threatening interlocutory applications, about all manner of issues.
• The process driven lawyer, whose automated workflow systems sends reminder letters advising of your obligation to do something days or weeks before the due date, and other process letters which are irrelevant to the particular matter. But when it comes to anything out of the ordinary, the process lawyer has difficulty adjusting to the non standard matter.
• The litigant with the “matter of principle” or whose case is their “cause”.

There are various impacts when a matter involves one of these lawyers. There is a danger of a good lawyer becoming engaged in bun fight which distracts from the main issues, with associated increases in costs and possibly a blow out in duration of the matter.  The problem is how to close down the difficult opponent? If you have a docket judge like Judge Lee, it is easier, but even the most experienced lawyer is sometimes wary of ignoring aggressive correspondence, where there is the threat of an interlocutory application. In many jurisdictions, legislation such as the Civil Procedure Act (Victoria), the overarching obligations in the Federal Court Act, and the like, justify taking a position of non- engagement, and give clear direction to the judiciary to support such positions.

Sometimes its the client who is keen to engage in the fight. It takes confidence and experience to convince a client that it is preferable to take the high ground and simply give the opposing lawyer/party enough rope to hang themselves.

But it’s never the answer to get down in the mud and get dirty.