Arguably, the way we "practice law" hasn’t changed very much: we still conduct investigations, do research, file motions, conduct discovery, take depositions, go to trial, etc. However, the manner in which those services can be delivered has been forever altered. Technological advances now allow us to practice law more efficiently and effectively by deploying available tools. This in turn should reduce costs and significantly speed up the delivery of those services, thereby increasing value.
But the practice of law and the available legal technology have not fully met; sure, there is the occasional dabbling in the dating pool, but no marriage. In this article, we will address the why and the how to approach this new year, and the beginning of a new decade, with a strategy for innovation of legal services delivery. Comments are welcomed.
First, because it would be malpractice if we don’t. It is not up to client to ask for the lawyer to embrace innovation and deliver services in a more efficient, hence valuable, manner. Unlike other professions, lawyers are officers of the court. We are bound by court rules, fiduciary duties, and rules of professional conduct and responsibility. I always start by asking lawyers these questions:
Who is the “client”? And, what does the client know about the ins and outs of your legal services. delivery? Hint: it is not your college or law school buddy, Mrs. Or Mr. J. Smith from Legal, it is the corporation or organization that retains you. So, the question becomes something along the lines of: Does your Client, the Corporation, know, for example, that you are still doing or paying for page by page document reviews, not using or deploying analytics, DMS, MMS, CMS, KM, not using AI for legal research, not project managing your cases, not providing training to your lawyers on legal tech innovation, Lean methodologies, project management, etc.? Do you have a strategic plan to up-skill your lawyers?
By this I mean, can you act competently (includes tech competency), diligently and speedily in your representation (MRPC)? Can you ensure the just, speedy and inexpensive determination of every action and proceeding you handle (FRCP)? Can you keep your clients’ data confidential, protected from unintended disclosures, and comply with your fiduciary duties (Restatement (rHRD) of the Law Governing Lawyers, MRPC)? Are you deploying reasonable best practices in connection with all the above?
Second, because if law firms do not change, many will face the same consequences as Digital Equipment Corporation. And if you aren’t familiar with DEC, that is exactly my point. This will not happen tomorrow, but it is inevitable. Many books and thesis have been written on companies that failed to innovate and subsequently failed. Remember these companies:
And there are many more examples of companies that failed because of management's inability to innovate and change with the times. Sure, it won’t happen overnight, but unless you live under a rock, or in a gilded castle, you know that change has been happening.
In this new decade, the disaggregation of services that we are seeing today will not only continue but it will speed up dramatically.
California - The Task Force on Access Through Innovation of Legal Services has proposed new rules on fee sharing and allowing non-lawyers to practice law. It will issue a ruling on 3/31/2020.
DC - Allows for non-lawyer ownership of law firms (an exception to Rule 5.4).
Arizona - Exempts certain document preparers from Unauthorized Practice of Law claims. It allows court navigators. The Task Force on the Delivery of Legal Services Report, adopted by the Arizona Judicial
Council in October, recommends elimination of 5.4 and also the restrictions on non-lawyer ownership and dramatic reform of advertising rules.
Florida - The Special Committee on Technologies Affecting the Practice of Law has proposed an amendment to Florida Bar Rules that would create Registered Online Service Providers.
Utah - Allows Licensed Paralegal Practitioners. This year the Supreme Court ordered the creation of a working group to study the legal regulatory landscape and make recommendations to optimize it for innovation.
Washington - Created Limited License Legal Technicians.
New York - Allows for court navigators.
Texas - Exempts self-help books and software from UPL claims.
New Mexico-The New Mexico Supreme Court formed a working group to explore Limited License Legal Technicians. A report will be delivered in January 2020.
In addition, a new American Bar Association resolution encourages U.S. jurisdictions to consider innovative approaches to lawyer regulation to increase access to affordable and quality legal services. If approved by the ABA House of Delegates, the resolution would support the revision of existing regulatory structures to better align with the public interest. The resolution and report, which was released by the ABA’s Center for Innovation, supports regulatory reform in three broad areas. These include new categories of legal services providers, reexamining Rule 5.4 (which prohibits lawyers from partnering and sharing fees with those who aren’t attorneys) and exploring new approaches to policies on the unauthorized practice of law. The report points out that Rule 5.4’s prohibition on partnering and fee-sharing “impedes the development of innovative legal service delivery models, especially those that require the active involvement of other kinds of professionals, such as technologists, or that need substantial outside capital to succeed.”
The more I study the lawyer's resistance to change phenomenon, the more I think that lawyers are not even thinking about changing. It is more than just stubbornness; it is that many lawyers don’t change because they are not even thinking about needing to change. In sum, they are not allocating executive function to change management. Learning new skills, abilities, and information requires executive function as that term is used in neuroscience. That means that learning something new demands conscious attention. To truly be successful, time, energy, and focus, need to be deployed in finding “the way.”
Dennis A. Gioia, a professor of management at Penn State wrote that hidden scripts govern collective behavior, including business behavior, and they take a lot of time and effort to rewrite:
" Executives are bombarded with information. To ease the cognitive load, they rely on a set of unwritten scripts imported from the organization around them. You could even define corporate culture as a collection of scripts. Scripts are undoubtedly efficient. Managers don't have to muddle through each new problem a fresh, (Denny) Gioia wrote, because "the mode of handling such problems has already been worked out in advance." But therein lies the danger. Scripts can be flawed, and grow more so over time, yet they discourage active analysis." (Emphasis added.)
With honest and careful introspection and introspection, followed by a solid strategic plan that focuses on people, process, and technology.
You need to find the will and the way to change management. The “will” is the “why” of behavior change. We discussed the why in the sections above. In contrast, the “way” refers to the cognitive and informational aspects of behavior change. The “way” is the “how” to change. How are you going to innovate your practice? Where do you start? What skills and capabilities are required? Do you have a process map ready? Both - the will and the way - are necessary for successful change management.
In this regard, I strongly believe that adopting a Lean culture will go a long way in effecting change management in your organization. As we discussed, to be able to innovate successfully you need to re-write old scripts. Re-writing the many hidden scripts of lawyers will take executive function, time and training. It is true that behavior change will always be hard, but you can facilitate it. And using a Lean approach is a proven way to facilitate change and process improvement.
Here is a readers' digest explanation of how to use Lean to assist change management. The Lean concepts have been bolded for emphasis:
The first step is to train your team on the principles of Lean. This does not require your team to become Lean Six Sigma certified, far from it. This is merely providing your team with a toolbox full of options for implementation of change management.
Second, define, measure and analyze where you are in the innovation curve and where you want to be. Prioritize and identify the top 3-5 things you will work on beginning in the 1st Quarter of 2020. To help achieve this, it would be ideal to facilitate a Lean Kaizen event with the relevant team. In this type of event, the team will collaborate to create the right process map for your organization and your innovation goal. Through a Kaizen event, you will be able to determine if the barrier is a lack of will (not being sold on the “why”) or not knowing the “way” (lacking the know-how to get there). If the organization lacks the knowledge, skill, or capacity, you can tackle those issues one by one, as a team, and then create a process map to implement the change.
Third, take the necessary steps. Depending on the type of innovation you are trying to launch, tools can be identified, training can be implemented, and a path of continuous improvement can be forged.
You need to keep in mind that learning new skills, abilities, and information requires executive function and this means there is an opportunity cost to deploying the path to finding “the way.” For attorneys, this is significant because it takes time away from billable work, meeting deadlines, preparing for a pitch, writing briefs, etc. Opportunity cost is possibly the biggest challenge we have as legal professionals in trying to innovate the industry. The stakeholders and the leadership have to reduce the stress of allocating executive function to upskilling. They need to actively encourage it, actually providing incentives to upskilling.
Fourth, engage in a relentless pursuit of perfection. The quest for perfection is a Lean principle but also something lawyers understand very well. It is in our DNA to seek perfection. Create a team dedicated to the continuous improvement of legal services delivery. If you are in-house, create or beef up your legal ops team. If you are in a law firm, create or beef up the team of your Chief Innovation Officer. And always communicate with everyone in the team the virtues of, and gains achieved with, innovation. An Academy of Management Journal study found that the more leaders communicated a vision of continuity, the more it instilled a sense of cohesive organizational identity. These effects were greater when employees experienced more uncertainty at work (as measured through employee self-ratings). Leaders must communicate an appealing vision of change through emphasizing the positive – the purpose, goals, identity, and value of the employees remain, only under improved conditions.
Finally, it all goes back to the client. A key Lean principle if always listening to the Voice of the Customer. Lawyers are in the service business and our clients want value. In today's digital world, true value is provided only when delivered using the available legal technologies. There is no time like the present. Embrace this new decade with a fresh approach to your delivery of legal services. As you set your sights in 2020 and beyond, resolve to begin or continue your journey of legal process improvement to stay competitive in new landscape.