The rise of good enough

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Developments last week in the world of electronic discovery have gotten me thinking about matters of a weightier nature. The Wall Street Journal published an article about the rise of automated e-discovery services and the degree to which they’re eliminating the need for lawyers in this area (it’s subscriber-only, so I’m relying on the good graces of Carolyn Elefant at Legal Blog Watch, who provides some highlights).

New e-discovery tools, says the article, promise cost savings of more than 85% — something bound to elicit sweet hosannahs from clients, but perhaps rather different responses from lawyers. One such lawyer, a partner at Fenwick West, cites a cautionary tale of a client that decided to go the cheap route and handed over an e-mail archive search to its internal IT personnel. You can guess the result: disastrous disposal of necessary files and big money paid to the law firm to clean up the mess.

Now, there are two things worth noting about this example. The first is the dichotomy it suggests: either have the professional lawyers do the work or give it to the complete non-specialists, and no in-between. But in fact, there’s a lot in between, and some law firms are figuring this out. Ron Friedmann at Strategic Legal Technology brings us word that Dorsey & Whitney has launched its own e-document review service, at fixed prices to boot. As Ron says, this is less a challenge to e-discovery providers than it is to other law firms, who might have to start rethinking how their business models incorporate e-discovery.

But there’s another angle here, one that goes to a more foundational matter in the law. The example above presents a familiar, even archetypal warning to clients: engage a lawyer now to do the job right, or engage the lawyer later, for more money, to fix the mess you made by trying to do it on the cheap. You might even call this the Cardinal Principle of Lawyer Marketing: the short-term cost of hiring a lawyer is less than the long-term cost of going without one. We’ve all heard it, and many of us have used it, but few of us have examined its foundation or implications.

Now, let me state that in many cases, this principle is absolutely true. There’s probably not an estates lawyer alive who hasn’t dealt with the expensive fallout of a do-it-yourself will, while many litigators can attest to the enormous time, financial and emotional trouble pro se litigants put themselves (and others) through to “save money” on a lawyer. The law is complicated, the penalties it exacts for failure can be punitive, and it’s generally no place for amateurs. Hiring an expert to help you navigate something important and complex is just common sense.

But over time, I think our profession has come to focus on the two extremes — full lawyer or no lawyer — and to overlook the spectrum in between. And I think that’s because lawyers, and the legal system we’ve helped create, tend to value the exhaustive pursuit of perfection over the simple expedient of just getting it done.

Lawyers, when you get right down to it, are aesthetes: we love exactly the right answer, and we’ve created a system that values it equally as much and doesn’t easily forgive blemishes or half-measures. We like to turn over every stone and recommend the all-points option because we believe, in our heart of hearts, that either you do something right or you shouldn’t do it at all. We’re driven, by both training and personal inclination, to value the ideal more than the sufficient.

You can see the evidence of this perfectionism throughout the common law.

  • Malpractice jurisprudence sets an extremely high standard of care for doctors, whose insurance rates are sky-high and whose medical recommendations often take into account potential lawsuits.
  • Functioning commercial contracts can be voided for the smallest of errors or inconsistencies, even the placement of a comma.
  • Criminal convictions of which few doubt the inherent merits can be overturned on the basis of a flubbed standard warning.
  • Title insurance incites lawyers because it papers over cracks in underlying land titles rather than fixing them outright, as solicitors’ opinions on titles can.
  • Lawyers even judge each others’ conduct harshly, successfully claiming liability or professional misconduct for pivotal but small and understandable lapses in procedure or judgment.

We demand exactitude or very close to it from ourselves, the law, and the world. In many ways, we’re idealists, and we’ve made the law in our image.

But the world doesn’t tend to operate according to best practices and the highest possible quality — maybe it should, but that’s another story. And what I think is happening is that our clients are coming to see the costs of exactitude in the law as simply too high. A gap is starting to open up between clients’ definition of sufficiency and lawyers’ definition, and theirs aims for rather a lower threshold than ours. For better or for worse, I can see a day coming when “good enough” is the standard to which lawyers are normally expected to reach — and that will have huge repercussions for everything from our business model to our professional self-image.

For a good example of this line of thinking, check out this article in Originate! newsletter, by in-house lawyers Carolyn Clift and Verlyn Suderman, “What General Counsels Want: How You Are Assessed for Corporate Work.” The two GCs list seven criteria for selecting outside counsel, and the very first is: Just OK can be good enough.

Because it’s generally true that the very best lawyers cost the most, I don’t often seek out the very best lawyers. The work we don’t handle in-house is primarily employment and commercial litigation, with some real estate, transactional, or IP work thrown in, and most of our litigation is what I would characterize as routine, low-stakes, and/or low-merit. In these limited-exposure cases, I don’t need the sophistication, depth and research capabilities of a top-tier firm – I just need someone with some demonstrated practical experience and a strong business orientation.

To me, a lawyer with a business orientation will help me create a strategy that produces the desired result at the lowest possible cost. This requires, for instance, a willingness to prepare and file a motion that may not be perfect, but is good enough to accomplish our tactical objectives. This kind of thing is anathema to some large firms I’ve worked with, apparently because they feel anything that has their name on it has to be the best possible quality.

The message here is clear: perfectionism and all-out efforts are called for on life-or-death matters, but clients (corporate or individual) just don’t bring many such matters to their lawyers. Increasingly, clients want lawyers to understand that the matters they bring will range in priority, impact and importance, and that they want lawyers to adjust their efforts and costs commensurately. We aren’t used to that: deep down, we believe — and not just for income-related reasons — that anything a client brings us requires our maximum effort. But like it or not, clients are beginning to send a different message: good enough is just fine, thanks.

This change won’t happen overnight, and it will require adjustments by both clients and lawyers. On the one hand, clients need to be disabused of the notion that a retainer is an insurance policy, and that a lawyer’s failure to achieve the desired end is automatically grounds for a malpractice lawsuit (especially when “good enough” has been okayed). And on the other, lawyers need to stop catering to that notion: we need to accept that lawyers can’t make everything better and can’t be expected to. It might not be such a bad idea for us to ease off a little bit on ourselves and others.

It’s not that I’m personally advocating this approach as an inherently good thing, you understand: admittedly, it goes against my own grain. Perfectionism is written into my DNA, and as both a lawyer and an editor, I’m doubly critical of flaws, especially my own. But it seems to me that the marketplace is asking our profession for a little more nuance, a little proportion between the task at hand and the means we employ to achieve it.

It’s neither easy nor enjoyable living with all or nothing. I’m getting the feeling we’ll soon be asked to spend more time in the middle ground between the two.

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3 Responses to “The rise of good enough”

  1. Dan Michaluk

    Thanks for the thought-provoking post Jordan, which I read over breakfast this morning. I agree with your perfectionism thesis, but the bit on employment lawyers got me thinking on the bike ride into work and caused me to come up with these two thoughts.

    First, its worth noting that perfectionism can be the opposite of professionalism, because if you’re going that extra mile for yourself (be it to satisfy your insecurities, your interest in the subject matter, your need for hours or whatever), you’re not serving your client like you should. I’m a proud member of the labour and employment bar, and as the GC’s quoted in Originate! might appreciate, we’re good at pragmatic service by necessity.

    Second, I’m not sure I draw the link to e-discovery in the same way. To me, the e-discovery practice issues relate to a different pair of p-words: proportionality and professionalism. As I understand the concept of proportionality, it’s about tailoring procedure (by express rule or principle) to some measure of litigation value. And though running a file through a streamlined process may cause a perfectionist some stress, the compromise in truth-seeking is demanded by procedure rather than person. The perfectionist lawyer is just along for the ride (or better be). As for the second p-word – professionalism – my view is we’re dealing with basic competency issues and a resulting need for specialization. Sadly, our profession hardly has a clean record when it comes to e-discovery foul ups, so this may be more about hiring the right lawyer, firm or service provider than simply hiring one of us.

    Thanks again. I’m enjoying your always relevant and insightful blog!

    Dan

  2. Vickie Pynchon

    GREAT post. Thanks to Blawg Review and Austin DWI Lawyer for sending me here today while I take a break from trying to do the right thing as an arbitrator with “not good enough” contract drafting. I’m not a contract drafter myself so I won’t comment on that. Your post reminds me, however, of discovery IN GENERAL, which occupied, oh, say, 70% of my entire civil litigation career for 25 years. As a mediator (and a former occasional trial lawyer) I’d say the parties usually truly need only 10 to 20% of the discovery they pursue. That 10 to 20% generally represents the whole in the same way minute samples of a toxic lagoon are sufficient to rate the entire contents not only as contaminated, but also what it’s contaminated BY. Research on physician diagnoses show that when the amount of information doctors are allowed to gather is CONSTRAINED, they tend to make better diagnoses. It’s the nature of the contraints that is key. And this fragment of a thought in response to your thoughtful post is just the beginning of an idea about the way in which litigators could conduct discovery in general (not just e-discovery) in a more efficient manner with far fewer human resources without worrying that the one silver-stake red-hot document will be lost to them (maybe it will, but at what cost will it be found?) All great food for thought. Back to my contract problem — which arises from a particular type of drafting short-cut which will always short-change clients — the use of form language for “standard” contract provisions. Probably never “good enough.”

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