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.

The College student or the Surgeon – Who do you want to remove your appendix?

In an excellent book “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.

Secondly, you should be focussing on outcome, which defines value, rather than the mechanics of the task itself.  The value with the surgeon 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 shovel.

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.

Legal project management requires that the lawyer and client define the acceptable outcomes and work backwards from there.  How often does your lawyer ensure that everyone is clear on what “done” looks like and what are acceptable outcomes.  The surgeon has a very clear view of this and it is a successful removal of the appendix without causing harm to the patient, and in the manner which is most likely to ensure a speedy recovery.  He or she also has the knowledge about the best methods to achieve the acceptable outcome, even if there are problems in the procedure.  The college graduate does not.

What lawyers can learn from Japanese car makers

Simon Sinek in his great book “Start with Why” tells the story of a visitor to a Japanese car plant asking how they ensure the doors of the cars fit perfectly. The response – “we make sure it fits when we design it”. The solution is engineered at the beginning of the process. The outcome is influenced by the decisions made at the start of the process.

What does this have to do with legal project management? The first question to be asked by a good project manager is “What does done look like?”  In the context of a legal matter this means, “What do acceptable outcomes look like?”

The answer influences the strategy, and in turn the work required. Project management also involves regular review against a project plan, looking at the acceptable outcomes defined at the outset, and checking whether the matter remains on course. This periodic review enables early identify if a matter is going off track, either because the course of conduct is not likely to achieve the acceptable outcome, or because the nature of the acceptable outcome has changed.

For example, new facts may require a change of strategy, or may require a change of mindset about the acceptable outcome, with a consequential need to change course.

This question of “What does done look like?”  applies to all deliverables in the process, not just the final outcome.  Defining the “look” of any deliverable by necessity influences the work required. Ensuring that all team members understand what an advice will look like, requires a clear understanding of the points to be covered, how the advice will be presented (e.g. dot points, executive summary, footnoted caselaw, tables or images), the level of information required (e.g. detailed analysis of all caselaw, or only references to relevant cases with no analysis).  In turn, the decision of the level of information required is determined by the nature and needs of the client – an in-house lawyer whose company is regularly involved in a particular type of litigation is unlikely to be requiring an advice explaining the basic principles applying, whereas an unsophisticated client will not always benefit from a complex analysis of the law.

So follow the lead of the Japanese car makers and understand the importance of the decisions made at the outset. Draw your clear picture of “done”.

 

It’s all about trade-offs

One aspect of my services is assisting clients in project managing litigation – perhaps it is better expressed as managing the lawyers who are conducting the litigation.

This morning I read an article by Jim Hassett on project management and one of the succinct and crucial points he made is that lawyers need to embrace the concept of trade offs.  Jim’s point is that very few clients live in a perfect world with unlimited resources to throw at a legal problem.  Lawyers need to embrace the concept of “good enough” rather than “perfect”.

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