As good as it gets?

I’ve been thinking recently about three separate issues fundamental to the provision of legal services. I’m now starting to wonder if we’re actually dealing with a single issue with three related manifestations.

Here are the three:

Standard setting: What are the baseline standards of competence, accuracy, and effectiveness in legal task performance and legal services delivery, and how can these standards be established and promulgated most effectively? This question was prompted most recently by the efforts of the Corporate Legal Operations Consortium to standardize many aspects of legal services and operations, as well as by the founding of the Standards Advancement for the Legal Industry (SALI) Alliance. I’ve also written about this issue for the NALP Professional Development Quarterly.

Quality assurance: Does the performance of legal tasks and the provision of legal services by lawyers and law firms meet those baseline standards of competence, accuracy, and effectiveness? This question was prompted most recently by a fascinating study of legal briefs that were submitted by 20 leading law firms in California, which found those briefs riddled with errors in law, grammar, and even the spelling of the judge’s name. I asked myself: Isn’t anyone training the people who are drafting these briefs? Isn’t anyone reviewing this work before it goes out?

Client value: How can we define and measure the degree to which the people who buy legal services from lawyers and law firms receive a worthwhile and satisfactory result from the services delivered? We keep saying that law firm strategies, lawyers’ fees, and client service standards should all be aligned with “client value,” but neither lawyers nor clients themselves can consistently define what the term means in actionable, measurable terms. This question was prompted most recently by my two-part series of posts on legal services pricing, as well as by a growing amount of literature about defining client value.

The more I think about these three issues, the more I’m coming to think that they’re fundamentally connected. That is to say, they’re all variations on the same basic question: Are legal services any good?  Are the people who sell legal services doing good work, and are the people who buy legal services getting good results? And how can we prove that the answers we provide to those questions are correct?

This might seem like too abstract or philosophical an inquiry — if clients get results and lawyers get paid, who cares about how “good” the work is? But I think it’s important, and to help explain why, I want to use an illustration from medical history.

Although Dr. Joseph Lister first published his antiseptic treatments for surgery in 1867, it took a generation before they were widely adopted by the medical profession. I’ve referenced Lister’s story here before, and linked to Atul Gawande’s majestic account of it, when talking about rates of innovation in the legal profession.

Advanced medical procedures, circa 1880

But what I want to focus on here is the fact that, at least as late as the 1880s in Europe and North America, non-septic surgery was considered “normal.” Not only was it standard practice for surgeons’ gowns to be caked in blood and bodily fluids from previous operations, but it was considered a mark of professional distinction to have a gown that was so encrusted it could virtually stand on its own. Your grandparents knew people who had surgery under these conditions. Some of them even survived.

If you had convened a discussion within the medical field in 1880 to talk about standard setting, quality control, and patient value, it’s probable that filthy, detritus-strewn surgical gear and infection-plagued patients would have been accepted as (literally) standard operating procedure. (Gawande points out that “the discharge of pus from a surgical wound was thought to be a necessary part of healing.”) Most doctors would not have disputed that, and most patients would have agreed. And a major reason for this state of affairs was that hardly anyone imagined that it could or should be any better — they just assumed that this was as good as it gets.

There are, I think, two stages in the evolution of any professional discipline, whether law, medicine, engineering, architecture, accounting, or whatever.

  • The second stage is the steady advancement, usually gradual but sometimes in leaps and bounds, of experts’ understanding of the natural forces that underlie their work and the development of more reliable and effective tools and practices to achieve better results.
  • The first stage, the precondition to the advancement of better practices and superior results, is the conception and recognition that “better” is something that even exists — something that’s possible, practical, and desirable.

Most professions advanced through the first and second stages a while ago. I’m not certain that law has gotten past the first stage yet.

If you ask most lawyers today, “Are legal services any good?”, the answer would be, “Well, obviously.” If you asked most clients, “Are legal services any good?”, the answer would be, “Yeah, I guess.” But so far as I can tell, there’s never been any sustained, objective inquiry into that subject. It has never even occurred to most lawyers to ask.

I’m not talking here about “access to justice,” at least not in the way that term is generally understood. It’s widely accepted that most people can’t gain access to legal procedures and remedies that could help solve their problems and improve their life situations. But even if that issue were to disappear overnight — if we were somehow to institute universal legal-care coverage, so that everyone in the world would have access to the best legal services available today — that doesn’t answer a prior question: Are the best legal services currently available any good? Kings and titans of business in the 19th century could afford doctors with the filthiest operating gowns available. That didn’t mean they were well served by it.

And if we’re not certain whether the best legal services are any good, what does that say about the legal services that we know are less good? Because we all accept that the services of the best lawyers are superior to the services of the average lawyer, and vastly superior to the services of the below-average lawyer (a category, let’s not forget, that by definition represents almost 50% of the legal profession). You might object that even the “worst lawyer out there” is good enough to practise — but would you be willing to test that theory by hiring that lawyer for your own legal problem?

So I think that if we’re being really honest with ourselves, as a profession, we would recognize and concede that we can’t actually prove definitively that legal services are any good, because we’ve never applied ourselves fully to the question of what a “good legal service” ought to be. As I noted in my NALP article, we’ve barely inquired into what “good legal service” currently is. It’s no defence to say, “Legal services today are as good as we can make them,” because (a) we don’t know whether that’s true, (b) we’ve never tried very hard to discover whether it’s true, and (c) read the paragraph about Joseph Lister again.

I do have a point, and I’m coming to it.

  • It’s good that we’re talking about setting standards for legal services and operations, because cross-platform interoperability of legal procedures will increase efficiency, lower costs, and reduce errors that result from needless systemic idiosyncracy.
  • It’s good that we’re examining whether law firms’ work product meets acceptable minimum standards of competence and accuracy, because lawyers can become lazy and smug about their “excellence” and thereby threaten both their clients’ interests and their own professional respectability.
  • It’s good that we’re striving to better understand what we mean by “client value,” because that term can easily morph into a cheap talisman containing only fake empathy and empty promises of efficacy (some might say we crossed that bridge a while ago).

All these inquires are good and important. But they should be accompanied and guided by an equally strenuous inquiry into what kinds of baseline and aspirational reference points we’re using when we talk, inevitably, about the “quality” of anything that takes place in the legal market.

Okay, I didn’t finish reading it either.

Because not only do we rarely understand what we actually mean by that word, we don’t even know what it means when applied directly to the things we do for the people who hire us to do them. Are legal services any good? How would we possibly know, unless we had formed a very clear conception of what “good” means, can mean, and ought to mean when used to describe legal services? And by the way, who gets to decide that?

Answering those questions is a task beyond my limited skills. But I would urge you to give it deep and serious consideration — if you happen to be a legal academic or someone with access to a legal journal, you might want to take it on as a foundational question for the future development of legal services. Since the search for “standards” inevitably leads to objective criteria, and the search for “value” leads just as inevitably to subjective measures, this won’t be an easy task. But I think we need to at least try.

One hundred years from now, legal historians might regard even today’s best lawyers as the equivalent of 19th-century doctors who  cut into patients’ bodies with unwashed hands. Sure, it’s conceivable that we live in the best of all possible legal worlds — that legal services can never be better than they are today, and our only task now is to standardize our ideal practices and assure clients that they’re receiving great value. But I wouldn’t bet on that.



5 Comments

  1. Mark J. Guay, PC

    In neuroscience, because the term “qualities” comes from the Latin word “qualia”, it refers to the qualities of how we experience the world around us. How a client experiences a legal matter is a “one size fits one” client individualized experience, not a one size fits all. The trinity of minimum professional standards, the current legal system, and the specific client legal matter cannot be aggregated in a “quantitive” measurement. The Latin word “qua” [“in relationship to”] addresses the situation you seek to explore, because the answer depends on what legal paradigm you are speaking about, viz; the standards, the system, or the situation. And as lawyers know “if you change the facts, you change the law”.

  2. Mike O'Horo

    I hope this becomes a provocative discussion industry-wide (yes, I said “industry”). In an age of almost universal mass customization, where consumers expect — and routinely receive — increasingly individualized products, services, and solutions, more conveniently and at decreasing cost, the legal world remains far behind. Whether due to complacency, hubris, or allowing themselves to be overly reassured by the blunt instrument of longstanding pricing power (“They keep paying higher rates; we must be doing something right.”), lawyers think it ain’t broke, so why all this nattering about fixing it?

    Lawyers work really hard, for long and often inconvenient hours. It’s understandable if they interpret that as an indicator of doing a great job. (“I’m destroying my health and my marriage. What else can clients ask of me?”) However, let’s not confuse effort with results. They work long hours because they sell hours. Sustained effort is inescapable in such a system. However, when you feel that you’re already giving the maximum, you might be forgiven for harboring just a hint of resentment about the suggestion that what you do is broken and requires major repair. Your entire experience has been shaped by the ethos of “to get more, do more (of the same things).” The idea of doing things completely differently is alien to anyone who is successful in the present system, and for the most part, those are the influential lawyers who would have to lead any serious change effort.

    Beginning with the 2008-2009 crash, when clients had perfect C-suite-demand cover for changing the game by fiat, I’ve been continually surprised by clients’ reluctance to flex their purchasing muscle to change the game. Had they said then and since, “This is what we deem acceptable quality standards, this is how we’ll measure it, and this is what we’re willing to pay for it,” the conversation would sound very different today. For reasons beyond me, they abdicated that position, and now they’re trying to reclaim it, slowly, an inch at a time.

  3. Susan Hackett

    Hey, Jordan and Mike – I recognize the truth of Mike’s note about client’s not seizing the moment to not only demand, but better define, the value of legal services. As someone who works with law departments (so still through lawyers and ops leaders) to help them define their value to their clients, I regularly run into the following issues, which could also help us shape or address the next conversation about what client value is and how we can measure it:

    – aversion to technology and automation that helps us perform or transform our work, combined with skepticism of and outright refusal to rely on data generated by examining our practices and workflows. Without data on what results our workflows do (or don’t) deliver, how can we define a starting point, nonetheless a goal?

    – problems understanding how to report legal results to management, which is an issue of both “language” (as in speaking the language of business, and should I use a dashboard or a weekly/quarterly pptx?) and poor presumptions about what clients want and need to know (usually caused by lawyers telling them what they want them to validate instead and framing issues as legal problems rather than business impacters).

    – metrics still focused on lawyer activity (hours and applied expertise) rather than on performance to goals, comparative productivity or results delivered.

    – a lack of performance evaluation standards (for both in-house and outside lawyers) that connects what they get (pay, praise, promotion or review, demotion, fired) to what CLIENT result they delivered.

    There are a lot of other issues on the client side that I’m happy to share if folks decide they want to jump in and pursue this.

  4. Karen Dyck

    I wonder if the question, are legal services good? is the right one or if we should be asking instead (or already are asking) are the services good enough? I recognize that in either case we still need to come to agreement on what “good” means, but I feel like there needs to be an element of subjectivity in terms of the definition which is where “enough” comes in. That makes me think that maybe we’re talking about adequate legal services – are the services provided sufficient to the purpose for which they are required and to the individual for whom they are required. Just musing…
    Great post. I will definitely keep thinking about this one!

  5. CAROLYN ELEFANT

    So much of whether legal services are considered good is determined in hindsight and with regard to prevailing social values. Enron’s in-house counsel was considered “good” at the time because they were deal makers and not deal breakers )something lawyers are criticized for). Too bad those lawyers didn’t speak up sooner. David Boies is considered a superstar lawyer – smart and getting great results for clients whether it was DOJ up against Microsoft or LGBT couples fighting for the right to marriage. Yet turns out he’s also the equivalent of a monster, hiring Israeli trained security operatives to intimidate victims or whistleblowers. Ethically problematic and costing mega bucks but who’s counting when you win?

    Even judging by cite checking standards is not definitive. Do we really need to waste time getting cites in word et form when courts can find every case on Google? Certainly relying on outdated information is objectively problematic – as is operating in non sterile conditions.

    I realize that these issues are significant for corporate counsel who spend millions of dollars on legal services. I’m just not sure how much the question matters on an individual consumer level where the quality of service rendered is typically colored by personal preference and whether a client puts more value on results obtained or how the lawyer treated the client.


Leave a reply