Five years to save the world

He’s at it again.  For a guy that has made a living in the legal profession, he does like predicting the end of days (or more accurately the end of lawyers).

This time Professor Richard Susskind (for it is he), speaking at the Law Society’s law management annual conference (catchy title) has warned us that:

You have five years to reinvent the legal profession.

Gulp.

That’s 2021 then until the game’s up and we’ll need to pack up, put our drafting pens down and leave UberGoogZon to dispense legal advice at the blink of a virtual reality headset.

You’d think lawyers would be grateful for the warning really, after all it does leave time to prepare, retrain and qualify as an accountant or something.  But judging by the comments section in the Law Society Gazette from the Gazette Commentariat, such gratitude is lacking, in fact Richard doesn’t receive much thanks at all.

This bloke is like some prehistoric creature, emerging from the primeval swamp every few years with a bellowing message of doom for the profession.

You can grow up, or you can become a legal futurologist.  You cannot do both.

Management consultants only have 5 years to think of new ways to grab headlines in legal journals in order to drum up business.

Utter tosh.

Etcetera etcetera.  Other commenters take exception to Susskind commenting on the profession on the basis he is not “on the Roll” and has “never practised” and is therefore not qualified to comment.

Oh dear.  Oh dearie dearie me.

Let’s take a proper look at what he said shall we?  I mean, I don’t want facts to get in the way of a good story, but I guess as lawyers we should do a little bit of analysis…

Beneath the headline is a story that this is a time of fresh opportunity for those in and entering the law.

The 2020s will be a decade of redeployment not unemployment [as] more and more legal services will be enabled by the support of new technology.

That doesn’t sound so bad, does it?  And is broadly consistent with this excellent recent piece by Michael Skapinker in the Financial Times about how technology is “Breaking the Law” (*Susskind warning kaxon* he pops up in this piece too).  Skapinker notes that “Many lawyers sneer at the idea that their work could ever be done by a website or app” (see above comments for proof of that).

Skapinker goes on to tell the well known story of eye watering law firm hourly rates, even more eye watering partner profits, cost restraints faced by the buyers of legal services and how that resulted in the creation of various so-called ‘new law’ players who are doing things differently to the trad players.  Some are even, would you believe it, talking about using tech to deliver those services.  Madness!

So is that it then?  Big Law Bad, New Law Good, New Law Tech Better?

Well, if I were a stock market player, then I’d go short on the Gazette’s Commentariat and long on Susskind (with an option to put early).  But what about the here and now?  What do we do whilst we’re preparing for the tech revolution (because it ‘aint here yet in law, certainly no-one has shown me the silver bullet)?

Before answering that, let me share some research we carried out at LOD with some real life lawyers.  These aren’t our views, it’s what a mix of our clients and lawyers told us.  We asked 70 lawyers which qualities they rated most highly to be an in-house leader and published the results in a pretty infographic thingy.

Interestingly, the skill-set of ‘technologist’ featured pretty low on the list of skills that these in-housers felt they needed to prioritise.  They are not necessarily about to imminently skill-up in the way that Susskind recommends.  Okay, it’s a limited data set and our poll methodology might not stand up to Mori levels of scrutiny, but it paints an interesting picture (or infographic). Perhaps those Legal Technologists are still in law school.

But before the Gazette Commentariat celebrates victory for the status quo, our research did show that lawyers value skills such as project management reasonably highly and the the need to be innovators higher still.

Which begs the question, is it possible to innovate and project manage without high end technology that arguably doesn’t yet exist in the industry?  The answer is yes.  Only a fool would argue that the provision of legal advice, drafting of legal documents and negotiation of deals is a case study in efficiency optimisation (*waits for “Utter tosh” to appear in the comments section).  Both clients, lawyers and legal service providers want to improve this.

But you don’t need an IBM Watson plug-in to achieve that.  Many of us in the New Law space are regularly deploying a mixture of Project Managers, PM methodology, MI, Playbooks (does everything have to begin with P?) and Dashboards as what I think of as a ‘wrapper’ around our lawyers.  Our reasoning is that:

Lawyer + Wrapper > Lawyer Alone

New Law is no longer just about labour arbitrage.  Don’t get me wrong, it’s very much about that too as both corporates and law firms look to reduce their fixed cost base and ramp up when needed, we’re only just getting to a stage where this kind of resourcing is business-as-usual for many organisations.   But we at LOD and others in the New Law mixer get up to far more than that day-to-day when we’re helping those of our clients who want things done not only differently but more efficiently.

And for those Susskind doubters, it’s worth a retrospective read of this Legal Futures piece from 2011.  Perhaps that futurologist guy does know what he’s on about after all.  Right, best crack on, there’s only four years three hundred and sixty four and a half days to go.

 

Art, brains and law

Have you heard the one about the artist, the neuroscientist and the lawyer?

No, nor had I until I attended my first Life With Law event last night where the programme (curated by a barrister believe it not) facilitated just that.

Life With Law is an LOD project, a series of talks which offer inspiration and ideas for living a good, happy and satisfying life whilst – wait for it – practising law.  Does that remind you of your training contract?  No, me neither.

I started my evening in discussion with a Legal IT Consultant as to whether the contract drafting process itself is creative.  The ability of the lawyer to speak to their client, grasp the idea percolating in a client’s brain and put it down clearly on paper.  We reached broad agreement that this was an example of creativity, of sorts, in action.  But I ended my evening putting forward this theory to one of our LOD lawyers who tore the argument apart, pointing out that the lawyer is merely documenting the client’s own creativity, rather than demonstrating any creative nous themselves. It’s up to you to decide who is correct.

Perhaps that lawyer’s view was reflected in an audience poll.  Whilst the majority of the audience felt themselves to be creative, only a minority believed the practice of law offers much room for creativity.  We’re just a bunch of frustrated muses trapped behind our keyboards.  Arguably most worryingly of all, only a few felt that their workplace was where they thought most creatively about work.

The main event was talks from Cathy Haynes, a curator, artist and writer, and Professor Vincent Walsh, Professor of Human Brain Research at UCL.

Perhaps surprisingly, we heard some common themes from the worlds of art and science (which reminds me that when I was at Uni, the Law faculty couldn’t decide which of these categories it sat in and Law was designated as a Social Science – perhaps that explains a lot).

Cathy advised us to: make it a habit to break our habits; create virtuous problems; set ourselves a weekly pleasurable conundrum; create empty head space; get bored to prompt some creativity; have the courage to be vulnerable; dare to get into the arena; not be afraid to fail; learn the rules then forget them; and do something different in our working week.

The Prof underlined the need to sleep a lot and often.  As he memorably put it:

Sleep is 36 per cent of our lives and we just hope it kind of goes alright [but] the smart things in the brain are done when we aren’t thinking.  Sleep helps creative problem solving.

There you have it – if you ever needed an excuse for being late for work, forget the tube strikes, this goes straight to the top of the list.

Life With Law attracts a broad church, there’s no agenda and the only rule is to come with an open mind.  You might not agree with everything you hear, but what you do hear will make you think and just possibly take you outside of your comfort zone (I certainly was when the discussion turned to finding out the weight of our soul…).

Follow @LifeWithLaw for details of the next outing and see #LifeWithLaw for tweets from the event.

Assembly-line lawyering

I was talking to a friend over coffee the other day, describing what my old gig as an in-house lawyer had been like (don’t you just wish you had more coffees with me?).  I said that much of the time it had felt like sitting at the end of a never-ending conveyor belt of work, dropping onto my desk.  However hard I worked, the conveyor belt kept on delivering more and more packages of work that needed assembling, faster and faster.

That’s not to look for sympathy.  There aren’t too many jobs where the conveyor belt consistently delivers quality packages of work that require the recipient to apply legal intellect, strategic thought and commercial awareness.  And whilst most lawyers are not fat cats, the corporate end of the profession gets paid well for what it does.  But the problem with being a lawyer is that lawyering is a time intensive activity.  By the time you’ve dealt properly with one piece of work that fell off the conveyor belt, several more pieces of work have landed around your feet needing to be assembled.

How do lawyers deal with this problem?  Well, for a smart bunch of people, we don’t always deal with it very smartly.  The initial inclination is to work harder.  That might be followed by a decision to hire more employees and get them to work harder too.

Yet my experience and that of many lawyers I know, is that working harder and hiring more permanent staff does not solve the ‘conveyor belt problem’.  Admittedly, it might mitigate it in the short-term.  Staying in the office until the small hours might mean there is one less package of work lying on the floor when the lawyer finally leaves to go home, but it doesn’t mean that everything gets dealt with.  Hiring new staff can have a short-term impact on picking up all of those as yet unopened work packages, but the problem with new staff is that eventually they end up sitting at the end of their own conveyor belts of work and suddenly two of you have the same problem that caused you to hire the second person in the first place.

So, what’s to do?

You know that there is a change afoot in the way we think about work when the Financial Times, the self-proclaimed ‘friend of the honest financier’, is publishing articles raising difficult questions about the long hours culture prevalent in the legal profession.

As the FT’s John Gapper put it:

“The good news is that this method of organising work is inefficient and thus ripe for reform. The bad news is that many lawyers do not care much about that.”

Gapper’s first sentence is spot on.  It goes back to my earlier point about lawyers needing to work smarter, not harder.  I’m conscious that ‘smarter, not harder’ is a throw away line and any lawyer reading this at 9pm on an evening looking at the piles of work in front of them is entitled to think that it’s easier said than done to re-engineer work processes.  But that doesn’t mean it can’t be done.

I don’t though agree with Mr Gapper’s view that ‘many lawyers do not care much about’ working long hours.  Nobody joins the legal profession because they want to spend 12 or more hours each day behind a desk.  The motives for joining are varied and not the point of this blog post.  But a desire to work long hours is not a reason to become a lawyer, people become lawyers in spite of the long hours culture, not because of it.

And it is now acceptable to say that.  It is acceptable in the modern legal workplace, whether in a law firm or in-house, for a lawyer to say that she aspires for a better work/life balance, that he wants to work flexibly, that she’d like to work from home on a day when there are no client meetings.

Indeed, a recent research report found that:

“Many young lawyers would like the law to be more like a commercial business than a profession and see embracing technology as the key to transforming what many consider to be outdated working practices.”

It may surprise you, if you have read this far, that this research was not commissioned by a legal commentator who has never sat behind a lawyer’s desk or a wishy washy not-for-profit think tank, but by Eversheds, a City law firm.  [*Teaser alert* tune in to the @LOD_Law twitter feed over the next week or two for a very interesting research piece we’ll shortly be publishing.]

Lawyers don’t really like to work long hours – they don’t mind hard work and they’ll pull an all-nighter without blinking if they have to, but they don’t like to work incessantly long hours simply on the basis it was ever thus.  They also want to work more flexibly, to take more control over their career and increasingly they don’t mind telling their superiors this.  Many are increasingly working as freelancers as a way of seizing back control of their career.  It is a given that technology will at some point help re-configure the conveyor belt, although I’m not aware of any single killer app which has done that significantly just yet.

The much heralded and inevitable change in legal services will come through incremental re-configuration of the way that lawyers work, not by big bang trickery.  For example, legal process improvement is a bit of a buzz work in law firm circles at the moment.  I’ve seen it in action and it is an incredibly powerful exercise that does not require expensive technology or a huge shift in working practices.  Nor do you need to be a six sigma black belt to make it work (I had to look it up too).  Two or three hours spent logically de-constructing a workflow can quickly highlight where the inefficiencies are in a particular work-stream, what the ‘repeat problems’ are that come up and how best to reduce them.

It’s all about working smarter, not working harder.  Lawyers are definitely smart.  When you’re next sitting at the end of a conveyor belt of work, you have two choices.

Work harder and sit there longer to get a bit more done.  That’s the wrong answer by the way.

Or instead, be braver, work smarter, ask yourself (and your team) a few questions.  How does the conveyor belt work?  Is the right work being put onto it in the first place?  Who does the work that falls off it?  How do they do it?  And most of all, just approach the exercise with a big WHY do we do it like this?  Don’t think you can’t make it work better. Of course you can.

You just need to switch it off for a few hours to see how.

A modern day Aesop’s fable: the GCs and their budget

Much has been made of what you might call (only if you are a lazy blogger) DLA-gate.  The story of the associates and their jolly email japes about bill padding.  Except the jokes don’t look so jolly now they have escaped the DLA-servers.

Amusing as it might be to see the joke now turned on the jokers, it would be wrong to draw any conclusions about DLA as a firm or its culture from the content of those emails.  I’m willing to bet that most organisations, not just law firms, have some emails hiding on their servers that would – if taken literally and out of context – show that organisation in a bad light.  That’s email for you and you can’t control the uncontrollable.  So anyone doing too much hand-wringing at the email etiquette of others had better keep their fingers crossed that their luck holds in the future.

For me, the most interesting thing to come out of this little saga is this extraordinary article by Mark Harris, the CEO of Axiom, on Forbes.com.

As legal-watchers will know, Axiom is a so-called new model alternative law service (its detractors claim, unfairly and to their own detriment, that Axiom isn’t really a law firm).  I only say so-called because Axiom isn’t really very new.  It speaks volumes about the general inertia of the legal market that Axiom is still in some way regarded as a new kid on the block, an outlier, a disruptor.  And I’m willing to bet that Axiom management are only too happy to cultivate that image.  After all, it continues to set them apart from Big Law, or perhaps more realistically, Medium Law, and gives them somewhat of a USP – “we’re different”.

I found the article extraordinary because you rarely see law firms turning their fire on other law firms so publicly.  Mr Harris pulls no punches in his (admittedly self-interested) view of Big Law, the charging model, the incentive model, the culture and the conflict those models have with their own client’s interests.  Whilst they are fair points well made, I was still surprised to see an article from someone within the mainstream legal services community turning their fire on competitors in such a direct way.  One can’t imagine the managing partner of Clifford Chance writing a similar article about his friends down the road at Linklaters.  It’s just not the done thing old chap.

But extraordinary does not mean wrong.  Perhaps it takes the odd sabre-rattling moment to remind the legal market to wake up and smell the coffee.  Despite constant (in fact boringly consistent) talk of market change, believe me (or if you don’t believe me, then at least believe the New York Times), the hourly rate is alive and well and remains the starting point of most fee negotiations and the cornerstone of law firm metrics, even if it is usually possible to avoid its direct application after a conversation or two.

And in terms of who needs to wake up and smell the coffee, I’m not sure that the real target of Mr Harris’s article is actually his competitors in Traditional Law.  I suspect he is more than happy to see them continue hourly billing themselves to an inevitable death for as long as they like.  As is evident from a couple of references towards the end of the article, his real target is clients.  Clients hold the purse-strings, money equates to control and control can effect change (as Jon Busby outlined succinctly in a recent tweet).  No amount of blogging, tweeting, or legal ceremony award giving is going to change the fundamentals of legal service provision.  Only the reallocation of client budgets is going to do that.

DLA-gate says nothing much at all about DLA.  It is a high calibre firm, who really cares if a couple of associates went off piste for a bit of an in-joke, no doubt after pulling yet another 12 plus hour day.  You’ve got to get your kicks somehow. But the real side-message of this episode as articulated so well by Mr Harris is really about clients and, dare I say it, GCs.

To quote Mr Harris,  “if we’re going to see real change, then clients must allocate their business accordingly, as many are starting to do. How does that saying go? Fool me for 100 years, shame on you. But fool me for another 100 years…”

The market might be ripe for change.  But it’s up to those of us on the buy-side to make it happen.  The next few years really are put up or shut up time.  Some email joshing isn’t a crime.  But a failure to deploy legal budgets in a way that ensures shareholder value is.

Things I know now which I wish I’d known then

Alex Aldridge was kind enough to ask me to originally write this piece for Legal Cheek as part of the “If I knew then” series – hopefully some helpful(ish!) pointers and tips for law students/trainees.

Things I know now which I wish I’d known then:

1. That those law students with the loudest voices do not have an exclusive right to be lawyers.  My University certainly had more than its fair share of students whose confidence was not always proportionate to their ability.  I wish I’d known that those with louder voices than mine in tutorials did not necessarily know more than me and certainly had no more chance than I did of being a lawyer.

2. That playing the networking game is important even when a student.  I can remember a morning spent in a hotel meeting room.  About 30 of us invited there by a City law firm following a drinks event the night before.  I naively had no real idea what for.  When I arrived I found a clearly quite forced and artificial debate in full flow between some students and representatives of the law firm.  I froze, not really seeing how I could nor having any desire to contribute to such a manufactured conversation.  As a result, many of my peers got summer placements with said firm, I did not.  I wish I’d known that superficial networking is occasionally necessary to get noticed, however unfair that may seem.

3. That I would eventually get a training contract.  Like most law students, I found it difficult to get one.  Multiple applications, multiple interviews, multiple rejections, deferring a year etcetera.  It is difficult not to become disheartened and think that you will never find the holy grail.  Some degree of failure is almost inevitable except for the very top applicants.  You have to keep plugging away – that won’t guarantee success, but nor will giving up.  Whilst it is important to tailor applications and interviews for the individual firm, there is no getting away from the fact that getting a training contract is to some degree a numbers game.  I wish I’d known that a lot of rejected applications didn’t necessarily mean I would not eventually secure a training contract.

4. That joining a law firm does not mean you need to want to be a partner.  Let’s be honest, how many students interviewing for training contracts even know what it is to “be a partner”.  Yet it’s kind of assumed when you join a firm that you must aspire to be one.  And so you kind of have to pretend, even make yourself believe, as a trainee or a junior lawyer, that you too want to join this hallowed club.  Here’s a tip – get a job in a law firm, enjoy it for what it is, get some cracking experience and don’t even think about whether or not you want to be a partner until you are four, five years or so into it.  If you then do, great, go for it.  If you don’t, that’s equally fine.  I wish I’d known that it was okay not to think too hard about what a long-term career in a law firm would look like.

5.  That I’d realised early in my career that corporate law is important, fundamental to the way the corporate world works and can even be fun.  As a junior lawyer I shied away from corporate work.  I avoided it until my last training seat, was grateful to find myself working for a partner as keen to watch World Cup ’98 as I was and generally loathed my IP/IT support role on acquisitions when I qualified.  I didn’t take the trouble to think about why Corporate was the biggest department in the firm nor how all the different parts of an acquisition fitted together.  It was only years later when I was in-house that I began to understand what all the fuss was about.  I now find the conclusion of a corporate project one of the most satisfying things to do as a lawyer.  I wish I’d known that corporate law shouldn’t be viewed in isolation and as completely distinct from IP, IT or media and that I’d known my way around a share purchase agreement before I moved in-house.

6. And this being for Legal Cheek, let’s end with a slightly tongue-in-cheek “things I know now”.  That lawyers don’t tend to run companies, accountants and MBA grads do.  Just think about that when submitting your application for a training contract.  Really!

If I’d known these things then I might have stressed just a tiny bit less about my law studies, a lot less about obtaining a training contract and a lot lot less when a trainee.  Oh yes, and it might have taken me less time to know my escrow from my earn-out (look it up!).

Defining value: art or science?

I am sitting on a panel next week at the Legal Week Corporate Counsel Forum (#CCFE) and as panellists we have been asked to discuss the potentially controversial question, “Can you trust your advisor on fees?”.  Which I think is teed-up really as another excuse to put the in-house boot into those old chestnuts, the hourly rate, bill padding and the general iniquity of external legal fees.

Except, isn’t that all a bit, well, yawn?

For as long as I’ve been going to conferences for in-house lawyers there have been sessions about law firm billing.  Cue powerpoint presentations about fixed fee deals, capped fee deals, all you can eat deals, retainer deals, volume discount deals, contingency fee deals, LPO discount deals, blended rate deals and so on.  Why is the in-house community still fixated on having this discussion?

Well let’s leave that question behind a second (not least because we get to visit really rather nice hotels for the privilege of debating it) and focus on the question set for the panel.  Can we trust our advisors on fees?

The obvious answer is that if we can’t trust them, then we shouldn’t be working with them in the first place.  Whilst there is some truth in that, I believe that assertion is overly simplistic.  A disconnect on fees between law firm and client is not necessarily down to a lack of trust.  What constitutes “value” is subjective and neither law firm nor client will always get this right.  On that point, I recommend this blog post by Nicky Richmond of Brecher, regarding why firms sometimes don’t know what to charge.  It is an excellent post because of its transparency (just don’t ask what Brecher’s Managing Partner thought of such heresy – Nicky is the Managing Partner).

Back at my own ranch, we have had two larger than usual legal bills to deal with recently on matters that could not have been predicted at budget setting time (that’s what I plea during the Q3F anyway).

For one, I used a law firm I know well.  We took about 60 seconds agreeing the amount of two interim and not insubstantial invoices.  I had a figure in my head of what the work was likely to cost and how I valued it.  The partner did the same.  Our numbers were about the same.  All based on trust.  Bingo.

For the second matter, I used a firm I do not know well but who have played a good long marketing game – doing ad hoc pieces of work and billing not very much at all and without giving it any “we could do more for you” hard sell.  The long game worked and a big piece of work came along which we sent their way.  Unfortunately the work in progress report has also now come along and it is some way off the figure I had in my head (and some way further off the figure my internal clients were thinking of).  There are some difficult conversations ahead on both sides.  Yet this disconnect is not down to an issue of trust – I do trust the advisors.  Instead, I believe it is down to subjectivity on both sides of the table.  Value is not always an objective touch point.

Readers may be entitled to ask why I sit around until the end of a matter waiting for the bill to arrive before I find out how much our external lawyers are costing.  You may also be entitled to ask why law firms sit around waiting for me to ask before telling me.  Well neither of those things are true but it is worth making the point that projects can blow up quickly or change direction unexpectedly, such that a quote at the beginning of a project based on a number of assumptions can become meaningless (I refer you again to the work of Ms Richmond).  In the day to day heat of an unfolding situation, decisions are needed quickly and so is resource.  It is on projects like these where you really do need to trust your advisors to work with you quickly on a project and then come up with a number that is in the ballpark that you consider to represent the value which has been delivered.

I suppose I am saying what may be the unspeakable  – that occasionally (and yes, this should be the rare exception rather than the rule) you need to crack on with an urgent, multifaceted and ever-changing project that either does not afford the luxury or realistically lend itself to having a sensible conversation about fees at the beginning of the project.  Project management theorists and legal futurologists may shudder, but occasionally that is life.

Where client and advisor come up with a similar number during such a project. per my first example above, should we congratulate ourselves at the depth of our trusting relationship and raise a glass to celebrate the passing of the hourly rate?   Of course not.  Because, as I’ve written before, most if not all flavour of fixed fee deals, including those variants I referred to above, are reverse engineered into an hourly rate, give or take a bit.  And as I’ve written before, that hourly rate is reverse engineered into (arguably inflated) law firm salaries (go on, have a look at that post, its proper controversial) which means it is unlikely in my view that law firm billing will – voluntarily – leave behind the hourly rate as a yardstick of how to bill, whatever a particular alternative fee arrangement might be called.  Yet despite knowing all of this, the number I come up with in my own mind as representing “value” is still based at least in part on my own assumptions  of the blended hourly rate of the combined legal team on a project and the time I think it will take them to do the job in question.

So far from congratulating myself at having such a good relationship with my advisors that I can agree a price over the phone in seconds, I should probably be lambasting myself for helping keep the hourly rate alive, albeit dressed up as something else.

Therefore the reason why we in-house lawyers keep discussing this same issue at conference after conference (apart from the excuse for an annual visit to a nice hotel) is because we can’t break the habit of assuming that a law firm will loosely bill on or around a time spent basis even if it is called something else.  More fool us.   We tell ourselves that we don’t, that we refuse to accept hourly rate billing and so on.  But it is all too easy to do sub-consciously.

And the law firms keep at it too.  Anyone know a mid to large law firm which does not pride itself on flexible fee arrangements for clients?  No, thought not.  And anyone know a mid to large “traditional” law firm which does not require its fee earners to record their time on a 6 minute unit or similar basis?  No, thought not either.  Isn’t that a bit of a paradox?   If firms think they can cut it on alternative billing arrangements, why in their world does the big hand on their clock still move six minutes at a time?  I don’t necessarily think good law firms want to retain an hourly rate model as a matter of principle – I’m just not sure they have come up with a better way of measuring value.

As in-house lawyers we welcome potentially disruptive new entrants to the market – your Riverviews, Axioms, Obelisks, Evershed Agiles and LODs.  However, the disruption should not just be driven by new market entrants.  It needs to be driven by us, the client.

The question for our panel at #CCFE should not perhaps be can we trust our advisors on fees.  But instead can we trust ourselves to kick this debate into the long grass at some point in the next five years?  Because if we can’t, then perhaps we’re not doing our own jobs properly as in-house counsel.  To find that long grass, to kick this into touch, to mix another metaphor, we need to be clear in our own minds and clear with our advisors on what we really mean when we talk about value.

I hope to see some of you at conference – for five more years anyway.