Get ready for the process era

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You know the old expression, “Life’s not a destination, it’s a journey”? I have to say, it’s never worked for me. I’m all about the destination — the journey is the time-consuming necessity between Point A and Point B that I’d dispense with if I could. I don’t have much interest in the scenic route — my itineraries are designed to provide the shortest distance and quickest trip (though I’ll make an exception to avoid ever having to go through Heathrow again). Similarly, I never liked having to “show my work” in math class, or to follow the standard procedures, or to get bogged down in anything that delays my arrival at a solution. Let’s just get to it already!

I’ll also be the first to admit that this isn’t a particularly healthy or sensible way to be. Scenic routes are, well, scenic — they deliver numerous physiological benefits and they’re, you know, nice to look at. Showing your work demonstrates you actually understand the formulas and how they’re applied. Everyone should go thr0ugh Heathrow once, just so they can tell their grandchildren scary stories one day. Nonetheless, I appear to be wired for the destination first and the journey second, and I’m finding that it’s very hard to change.

I have a theory that many lawyers are like that, too. We think our essential purpose is to solve problems, and we focus our energies on cutting through the clutter in order to reach that destination. But you know, clients think the clutter is kind of important: telling the story of how they got here is at least as important to them as finding out where to go next. This applies to both corporate clients — who wish their lawyers would take a big-picture view of their ongoing business realities, not just the legal matter at hand — and individual clients, who want to relate personal stories of complex and difficult life events, but whose lawyers often dismiss all the “background” in favour of summarizing the facts and reciting the applicable law.

So I think we could all stand to be better at holistic legal services — putting the client’s well-being on par with the legal issue he or she has brought, paying more attention to the process by which we address client concerns. Now, you might not buy that, thinking it’s too touchy-feely for a gunslinger like you. If so, then you ought to consider that process is about to become the most important feature of modern legal services delivery.

There’s a process revolution coming to the legal industry. For decades if not longer, law firms of all sizes have tackled client issues the same way: by creating a file and giving it to a lawyer to complete (although the dullest tasks sometimes made their way to secretaries and paralegals). The lawyer’s process was simple: (a) identify the legal problem and work out a legal solution, (b) using a pen, a legal pad, and whatever precedents are on hand, (c) taking as long as required and docketing time spent along the way. Clients invariably didn’t know enough to question this process, and in any event, many tools by which more efficiency could be introduced didn’t yet exist.

Now, however, the tools are appearing — not just through technological advances, but also with the development of business process theory and the rise of logistics. There are now entire disciplines devoted to making manufacturing and service provision more efficient, from workflow analysis to project management to business process outsourcing to just-in-time delivery systems. Contrary to what many lawyers might believe, a substantial amount of what law firms do is susceptible to the application of workflow and logistics. (You think document review can’t be automated, due diligence can’t be systematized, legal knowledge can’t be distilled and packaged?) Modern clients, especially on the corporate side, understand these systems very well and believe quite sincerely that they can apply to what law firms sell.

Ron Friedmann touched on these points in a post at Strategic Legal Technology late last year:

I think most GCs are failing, however, to focus enough effort on process, on how lawyers practice law. [Early case assessment] and staffing controls go to the “how”. Where … are efforts to require matter budgets, application of best practices, automation, risk analysis with decision trees, document assembly, and proper use of KM systems? … Real costs savings mean changing the process, focusing on how lawyers practice. The profession needs to overcome its “I am an artiste” attitude and develop better ways of working.

In The End of Lawyers?, Richard Susskind talks about “decomposing and multisourcing” legal tasks, chopping them up  and directing each segment to the solution with the best combination of competence and cost-effectiveness. Lawyers simply aren’t wired to think this way, but systems analysts are:

Sometimes, by decomposing legal work and viewing it with the eye of a systems analyst rather than a lawyer, it will become apparent, in the jargon, that some “re-engineering” can occur.  This means that some fairly fundamental reconfiguration or reorganization of the tasks can be introduced which of itself might being greater efficiency. An analyst, looking at some legal work with a fresh mind, might pinpoint, for example, some opportunities for avoiding the duplication of tasks or might identify some tasks as redundant. From a systems and process analysis point of view, the lawyer sometimes cannot see the wood for the trees.

I was listening to Richard deliver the keynote address at the ABA TECHSHOW last month when it occurred to me how fundamental a change this will be within our profession. We’ve never needed to worry about process or efficiency before — we dictated the terms of the marketplace, so we could take as long as we liked to do our work and in whatever fashion pleased us. That’s coming to an end, and most law firms will face a huge challenge converting their business models to adapt. I twittered as much during Richard’s presentation: “Future legal business: process consultant for law firms. Lawyers will need help mapping out and re-engineering their practices.”

In the near future, it won’t be good enough for lawyers to ignore the journey and focus on the destination — we won’t be able to focus solely on the ends and let the means take care of themselves. The nature and quality of how we do our work will become at least as important as the work itself. That’s going to be very tough for us to wrap our heads around, but I don’t see any way we can avoid it.

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3 Responses to “Get ready for the process era”

  1. Simon Brownlie

    Couldn’t agree more Jordan. I’ve been a business lawyer for 20-odd years in the US and Africa, and I’m struggling to get my ahead around this; and I’m at least thinking about it! Once concept I keep coming back to is the intriguing possibility of becoming a lawyer who advises on whether you need a lawyer, that is, a sort of portal that dissects the tasks and directs clients to the right places, be they automated document assembly, CPA’s, attorneys or nowhere at all.

  2. Patrick Lamb

    Outstanding post, Jordan. This post joins Susskind’s book and presentations by Jeff Carr as “must read/must know/must practice” statements. Jeff Carr’s view is that the work of lawyers divides into four buckets–process, content, counseling and advocacy. He is willing to pay high fees for the latter two–the destination, but not for the process and content–the journey. We’ve shaped Valorem to focus on the destination and work with others as needed and at a cost approved by the client (and generally decreasing) on the process and content. Every place I hear clients talk about the practice, I hear demands for greater project management skills, cost analysis and the like, just so the “fat” can be excised from a lawyer’s work. Your view of the future, like Susskind’s, is closer to today’s reality than most lawyers realize.

  3. Jeff Carr

    Jason — outstanding! Pat — thanks for including me in the same sentence as Richard, that’s lofty company indeed! You are both oh so right — but the law is a jealous mistress and in this case, one laden with flotsam and jetsam of inefficiency and self-delusion. Machiavelli writes that the advocate of change faces the most arduous of challenges as he can expect only lukewarm support at best and passive if not active resistence from those that benefit from the status quo. But in that challenge lies the secret of ultimate success for the law firms of the future and the successful lawyers for that future are those that have the gumption to seize the opportunity for change now and provide customers with the opportunity for better value – -and that means achieveing results effectively and efficiently. Those that structure their engagements to reward that success and share that risk will ultimately prevail. Diogenes is no longer alone!

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