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.