Why lawyers don’t innovate

“How can I get my lawyers to change?” This might be the question I hear most frequently from managing partners and law firm CEOs who are trying to help their organizations innovate and adapt to the new marketplace, but who are frustrated by the fierce resistance they encounter. The conventional culprit is lawyers’ bullheaded refusal to countenance any sort of change, driven both by an inherent attachment to the status quo and by the comfortable livelihoods that many lawyers make and see no need to disturb.

But that’s only part of the story. The main problem with the question above is simple: You can’t make people change. You can’t really make people do anything, short of using a weapon, a court order, or post-hypnotic suggestion. Human behaviour is ridiculously complicated and, based on Daniel Kahneman’s work at least, driven to an alarming extent by unconscious habits and urges.

People do what they feel like doing, and most lawyers feel like doing today what they did yesterday. David Maister’s final book, Strategy And The Fat Smoker, made this point very clearly: No matter how sensible and positive a particular change might be, lawyers (like everyone else) will change only if they want to change. And very rarely do they want to do that.

So how can law firms evolve — specifically, how can they innovate and reconfigure and adapt to new circumstances — when their owners, managers and workers don’t wish to do so? Law firm innovation is clearly possible — there are plenty of examples out there to inspire us — so it can be done; but how?  [do_widget id=”text-8″ title=false]

A good place to start is a terrific article published in a recent edition of The New Yorker by Atul Gawande, the medical doctor whose book The Checklist Manifesto should be required reading for all managing partners. Gawande’s magazine article, “Slow Ideas,” explores the complex and seemingly random nature of innovation, using examples from the history of medical advancements. Surgical anaesthesia and antiseptics (Listerism) were both discovered in the 19th century, for example; but while the former caught on almost immediately, the latter struggled to gain acceptance for decades. Why? Gawande suggests a couple of reasons:

First, one combatted a visible and immediate problem (pain); the other combatted an invisible problem (germs) whose effects wouldn’t be manifest until well after the operation. Second, although both made life better for patients, only one made life better for doctors. Anesthesia changed surgery from a brutal, time-pressured assault on a shrieking patient to a quiet, considered procedure. Listerism, by contrast, required the operator to work in a shower of carbolic acid. Even low dilutions burned the surgeons’ hands. You can imagine why Lister’s crusade might have been a tough sell.

That second reason certainly resonates in the legal market. Courthouse security, to draw a parallel, is pretty airtight, because failing to ensure it would threaten judges, lawyers and litigants alike. But our failure to ensure access to justice continues to be a scourge, in no small part because although it’s terrible for members of the public, it’s not really much of a problem for lawyers at all.

But difficulties around innovation aren’t restricted to doctors and lawyers; they’re universal. It’s not that we don’t know how to make a process better, and it not that the people in charge of a process don’t want things to be better. It’s that getting people to do things differently, in order to achieve that better outcome, is incredibly hard.

Consider the three most common methods cited by Gawande that are traditionally used to change behaviour:

1. Politeness: You ask people nicely to do things differently. But only some do, and not all the time, and the whole process collapses if the kindness of others is absent or withdrawn. Asking lawyers nicely to change the way they do business does not have a long and notable record of success.

2. Force: You punish people for failing to do things differently. But if the threat of force outweighs the rewards of the job (or if people have other options), they’ll quit rather than risk the penalty. In the law firm context, lawyers threatened with penalties take their books of business across the street to rival firms.

3. Incentives: You provide money or other rewards to motivate people to do things differently. But as any managing partner will tell you, this cure is often worse than the cause. What metrics do you choose? How do you track compliance? How do you keep the system from being gamed? Worst of all, how do you actually allocate the rewards among numerous participants? Veterans of partner compensation committees know these questions all too well.

Politeness, force, and incentives constitute 99% of the methods used in law firms to try to effect change and encourage innovation. Few of these efforts succeed, and many of those successes prove to be only temporary. But there’s another, better way identified by Gawande: much simpler, much easier to understand, and much easier to train people to do. The only problem, from lawyers’ perspective, is that it requires them to do something most of them don’t like. It requires them to take enough time and care to talk with each other and build trust with each other — and through these efforts, to change “the way we do things around here.”

[N]either penalties nor incentives achieve what we’re really after: a system and a culture where X is what people do, day in and day out, even when no one is watching. “You must” rewards mere compliance. Getting to “X is what we do” means establishing X as the norm. … To create new norms, you have to understand people’s existing norms and barriers to change. You have to understand what’s getting in their way. …

Technology and incentive programs are not enough. “Diffusion is essentially a social process through which people talking to people spread an innovation,” wrote Everett Rogers, the great scholar of how new ideas are communicated and spread. Mass media can introduce a new idea to people. But, Rogers showed, people follow the lead of other people they know and trust when they decide whether to take it up. Every change requires effort, and the decision to make that effort is a social process.

This is something that salespeople understand well. I once asked a pharmaceutical rep how he persuaded doctors — who are notoriously stubborn — to adopt a new medicine. Evidence is not remotely enough, he said, however strong a case you may have. You must also apply “the rule of seven touches.” Personally “touch” the doctors seven times, and they will come to know you; if they know you, they might trust you; and, if they trust you, they will change. That’s why he stocked doctors’ closets with free drug samples in person. Then he could poke his head around the corner and ask, “So how did your daughter Debbie’s soccer game go?” Eventually, this can become, “Have you seen this study on our new drug? How about giving it a try?” As the rep had recognized, human interaction is the key force in overcoming resistance and speeding change. [Emphasis added]

People change their behaviours when encouraged to do so by someone who has earned their friendship and trust. That’s all. It’s just that simple — but in many law firms, it’s also just that difficult.

Law firms have become extremely low-trust workplaces, and the larger and more diffuse the firm, the lower the trust.

  • National and global firms are overflowing with “partners” who have never even spoken to each other, and never will.
  • The gap between the highest- and lowest-earning members of a partnership is at least 10 times in many firms, much higher in others — and those gaps grow every time a new partner is “recruited” with the promise of money siphoned from less powerful colleagues.
  • Many law firm partners (and not just in large firms)  find themselves in direct competition for business with lawyers in their own firm.
  • Many law firm partners have little to no information about the real state of their firm’s finances.
  • Even in smaller firms, lawyers fight each other for origination and billing credit in a zero-sum game where every gain is a “partner’s” loss.
  • As client business continues to shrink, the growing threat of de-equitization hangs over every seat at the partnership table, save those few within the inner circle of management — and the skulduggery employed to remove seats from some of these tables would impress a Machiavellian prince.

This cultural crisis in traditional law firms is full-blown, and I don’t see any way for it to end happily. But even in well-adjusted law firms, you’ll still find a certain reluctance among many lawyers to develop with their colleagues the kind of friendship and trust that makes possible the innovations Gawande describes. Why is this? I can think of a few reasons:  [do_widget id=”text-7″ title=false]

  • Higher productivity expectations: Lawyers at many firms are under constantly rising pressure to bill hours and justify their continued presence on the roster; this priority shoves aside more pedestrian matters such as conversations with colleagues (the non-billable kind, anyway).
  • Increased lawyer mobility: Why invest time and effort building relationships with colleagues who could be competitors tomorrow? Why open up to someone who could eventually exploit the vulnerabilities you provide them?
  • Lawyers’ personal conservatism: (In other contexts, it would be called shyness), rooted in our risk-averse nature: trust is built by extending confidence before it’s been fully earned, a leap of faith that helps grow a relationship — but lawyers have a near-pathological aversion to risk, and risk is at the heart of trust.
  • Lawyers’ antisocial tendencies: David Maister tells another story, of a law firm whose partners asked him to build a sort of automatic compensation system; when he told them that successful compensation systems were personal and were built on trust, they replied, “But we don’t want to have to trust each other; that’s why we want the system.”

So when managing partners ask me, “How can I get my lawyers to change?” I have to respond: You can’t make your lawyers do anything they don’t want to do. They’ll do something only if they decide they want to do it, and they’ll want to do it if encouraged by those they like, respect and trust. In a number of law firms, I’m sorry to report, building a culture of “like, respect and trust” among lawyers can be considerably more difficult than getting lawyers to adopt a new innovation. It requires a level of effort and openness and generosity that many lawyers these days feel they can’t afford. But I’m coming to think it’s the key to successful, long-term, sustainable law firm innovation. And it can be done.

Gawande ends his article by relating the story of a trainer in India trying to get a rural birth-delivery nurse to adopt simple yet critical steps to increase newborns’ odds of survival and good health. It took numerous visits and the slow establishment of a friendship between the two professionals before the nurse’s behaviours began to change. Gawande later interviewed the nurse.

“Why did you listen to her?” I asked. “She had only a fraction of your experience.”

In the beginning, she didn’t, the nurse admitted. “The first day she came, I felt the workload on my head was increasing.” From the second time, however, the nurse began feeling better about the visits. She even began looking forward to them.

“Why?” I asked.

All the nurse could think to say was, “She was nice.”

“She was nice?”

“She smiled a lot.”

“That was it?”

“It wasn’t like talking to someone who was trying to find mistakes,” she said. “It was like talking to a friend.”


Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  


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