Change is hard. Elliot T. Berkman Ph.D. wrote a good article about the subject of neuroscience and behavioral change last year in the Consulting Psychology Journal. He points out that any human change in behavior requires “the will” and “the way.” Let’s look at these in the context of legal innovation.
The “will” is the “why” of behavior change. You can call it the business case. 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? Do you have a project manager?
Both - the will and the way - are necessary for successful change management. But the interventions needed to help a client struggling with change management are different.
The first step is to identify the nature of the problem that needs innovation. We help achieve this by facilitating a Lean Kaizen event with the relevant team. We collaborate to create the right process map for your organization and your innovation goal. Through a Kaizen event, we 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, we tackle those issues one by one, as a team, and we create a process map to implement the change. 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. Note, however, that 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.” Of course, 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. For lawyers, time is money; and, as an industry, we have not placed a lot of value in legal process innovation. This necessarily leads us to address the why for innovation.
There are instances when the organization has all the tools and know-how available, technically savvy Millennials, and phenomenal systems and software. But none of it is being used appropriately to implement change and legal process innovation. Maybe the organization does not want to pull the trigger on an actual mandate or, if a mandate is given, the legal professionals are not complying with it. This points to a lack of “will,” and we must address the “why do it” through metrics, motivational and inducement programs.
The obvious question is: why is it so hard to motivate lawyers to do something they have the ability to do? In his paper, Berkman describes how “motivation is intertwined with reward value. And reward value, in turn, is deeply influenced by past experience. An important consequence of this biological fact is that new behaviors are rarely as motivating as existing ones that have previously been rewarded.” This is a fundamental problem for those wanting to innovate the practice of law.
Traditionally, lawyers have been rewarded for billing lots of hours. That is their revenue source. Innovation = efficiency = less billable hours = less revenue. But the resistance is a lot more complex than that simple, sometimes unfair, explanation. I have worked with many lawyers in my 25 years of practice and I am proud to say not one of them ever set out to be intentionally inefficient to make money. Are there some like that out there? Probably so. But you have to also understand that lawyers traditionally have been rewarded for perfection. The “leave no stone unturned” approach is taught early and forcefully. Mistakes are frowned upon, a missed legal authority in a brief is not easily forgiven, etc., and the consequences can be serious. We are taught to over-prepare to avoid public humiliation with the Socratic method in law school. Generally speaking, lawyers don’t see themselves as business people but as warriors. We are in to win it, at all costs.
The phrase "at all costs” is meant literally because, until recently, the war was won by brute manual human force. Those of us that worked harder and longer were the ones likely to find the needle in the haystack. How many "all-nighters" you put in a year were (still are?) a badge of honor. The phrase “until recently” is significant because Generation X is still calling the shots and the technological transformation happened under our watch and also, for many, under their noses. So, if motivation is intertwined with reward value and reward value is influenced by past experience, then the current leaders/owners/stakeholders may have never been rewarded for embracing the technological transformation, and innovation, that artificial intelligence and automation of processes allows. Therefore, they may lack the "will" to change.
For innovation to take hold in your organization, we need to make the business case loud and clear and present the innovative behavior as rewarding. There are many ways we can accomplish this depending on the type of innovation and organization implementing it. In every instance, however, you have to start at the top of the chain. Without “the will” of the owners and stakeholders, your initiative will fail. If you are neither the owner or the stakeholder, but are tasked with change management at your organization (because the owner/stakeholder has heard this is the “thing to do,” not because they are truly “willing” to change), seek outside help to facilitate the engagement and commitment of the key players, owners or stakeholders of your organization. A facilitator with the experience and ability to communicate the reason for the “will” and the path for the “way” to your owners and stakeholders may be the key to success.
Another key step to encourage “the will,” is to emphasize continuity. According to a recent study in the Academy of Management Journal, employees fear that after a change, the organization they value and identify with will no longer be the same. The more uncertain they felt about the change, the more they expected it to be a threat. The AoMJ 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.
Behavior change will always be hard, but we can facilitate it. We can help find the how, when, and why behavior change efforts succeed and fail. Be aware that promoting ‘the will” and “the way” towards change are not mutually exclusive. In fact, in the legal process improvement arena, we find that skill-building is a must, but it usually needs to be combined with a motivational and inducement program. In any case, it is a useful exercise to recognize the differences between these two concepts, and address them separately.
LBerkman, E.T. (2018). The neuroscience of goals and behavior change: Lessons learned for consulting psychology. Consulting Psychology Journal, 70, 28-44.
Association of Corporate Counsel. Guide to ACC Value Challenge Process Improvement. (2019). [online]
Available at: https://m.acc.com/valuechallenge/resources/
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Catherine's Career Corner. (2011). 12 Reasons Why Employees Resist Change in the Workplace - Catherine's Career Corner. [online] Available at: https://catherinescareercorner.com/2011/07/26/12-reasons-why-employees-resist-change-in-the-workplace/ [Accessed 18 Jul. 2019].
SNeal and RWellins. (2018). Generation X — not millennials — is changing the nature of work. [online] Available at https://www.cnbc.com/2018/04/11/generation-x--not-millennials--is-changing-the-nature-of-work.html [Accessed 23 Jul. 2019].
Harvard Business Review. (2018). Research: To Get People to Embrace Change, Emphasize What Will Stay the Same. [online] Available at: https://hbr.org/2018/08/research-to-get-people-to-embrace-change-emphasize-what-will-stay-the-same [Accessed 10 Jul. 2019].