Originally published by D. Casey Flaherty.
praise of allied professionals, specialists, and experts who are
increasingly vital to the delivery of competent legal services. But just as
lawyers are not alone in the legal supply chain, lawyers are not alone in
bearing responsibility for its deficits. As we head into ILTACON, I want to restore some balance
to The Force by pointing out that we are all (author included) predisposed to
myopia and stay-off-my-lawn syndrome.
- A CIO I know feels like he serves in the clandestine
services: our failures are known, our
successes are not. He is so fed up with criticism from his lawyers that he
reflexively dismisses any complaint as rooted in a toxic mix of technophobia,
change aversion, and ignorance. He has developed a bad habit of publicly
complaining that his lawyers are endangering sensitive client information by
copying it to their unencrypted personal devices. Yet, if you relax the man
with a few libations, he will admit that the frontline lawyers have a point.
For years, he has been unable to get the budget he needs to upgrade the firm to
a mobile but secure digital work environment. Lawyers who need to take work
home or on the road often have to choose between security
and actually getting the work done. Unsurprisingly, they choose the work. But
the CIO does not totally understand why. Since security is part of his mandate,
it trumps all else in his mind.
- A lawyer I know was handling a sizable matter
involving a high volume of PDFs. Among other things, she needed to be able to
redact information and compare two versions of the same document. She
determined that her best option was to upgrade to her PDF software to the Pro version. But when
she approached the office manager, she was told that such an upgrade was
impractical because the partners in her practice group had no use for the
additional features. The firm had a policy that partners are the
first to get upgraded hardware or software. Information technology was
treated as a perk rather than a tool–as if the soldier should never be armed
with a higher caliber weapon than the general or the professional video editor
must limit herself to the hardware and software the company CEO needs to send
email.
- A knowledge manager I know was disheartened that
her new KM system was being ignored by the lawyers. She understood why they were not yet using it for research. First, it had to be populated with tagged
documents. But she could not fathom why the lawyers were not taking the time to
tag documents and populate the system. After all, the system was purchased for
their benefit. And, if used properly, the system would make their lives easier.
She did not recognize the incentives that ran counter to her program. She did
not comprehend the tradeoffs between billable and nonbillable time. She did not
see the free-rider problem of expecting a lawyer to take the time to update a
searchable database with information that the particular lawyer would never
need the database to find. Instead of trying to overcome some fairly common
(though still challenging) collective action problems,
she spent her time wondering how lawyers could be so smart in some areas and so
very dumb in others.
Specialization drives economies of scale. But specialization can also lead to
diseconomies of scale as work becomes siloed and communications
overhead explodes. It is not easy to collaborate
for real. Lawyers do themselves and their clients a disservice if they fail
to recognize the value that can be provided by allied professionals in
technology, project management, pricing, marketing, knowledge management,
research, professional development (including training), etc. But allied professionals do themselves and their
clients a disservice by not understanding what the lawyers actually do and why.
from allied professionals. And there are allied professionals who genuinely
comprehend the lawyers’ perspective. But, in general, there is a failure to
communicate that both sides are responsible for remedying. All of us are
susceptible to making the fundamental
attribution error:
We disagree because we explain our own
conclusions via detailed context (e.g., arguments, analysis, and evidence), and
others’ conclusions via coarse stable traits (e.g., demographics, interests,
biases [, job title, credentials]). While we know abstractly that we also have stable relevant traits, and
they have detailed context, we simply assume we have taken that into account,
when we have in fact done no such thing. (Overcoming
Bias)
Just as I recommend structured
dialogue between law firms and their clients that includes nontraditional
stakeholders, I am also in favor of internal dialogue between lawyers and
allied professionals. Given how law firms and departments are typically
structured, the responsibility is ultimately on the lawyers to be willing to
work differently. There are already too many mandates for allied professionals to
change everything while making sure that the lawyers don’t have to change
anything. But, when the opportunity presents itself, allied professionals need
to be able to comprehend the lawyers’ perspective, understand the tradeoffs the
lawyers face, communicate with the lawyers in terms the lawyers understand, and
offer viable solutions that minimize the disruption to client work. Neither
side should assume that the other is petty, parochial, or obtuse. And
both sides need to work at not appearing petty, parochial, or obtuse.
a great message. But I am evolving. As
someone who genuinely wants legal professionals to work differently, I was
seduced by stark statements like, “if you dislike change, you’re
going to dislike irrelevance even more.” I was attracted to the self-certain rectitude and the sense of inevitability. And, in the long run, I do believe that the only thing that we can say for certain about the future is that it will be different. But the
long run can be a quite long. In the mean time, there are minds to be
change and real gains to make. I have therefore concerned myself with being
able to articulate positive cases for near-term change like deepening
relationships, return
on investment, profit,
and quality
of life. The core message remains the same. But finding a framing that
resonates with my intended audience has improved its salability.
While I enjoy going to ILTACON to figure out what’s coming
in the next decade, I have to say the most valuable sessions and conversations for
me are those in which people explain how they got their organization to embrace
the advances of the last decade. I can’t think of any such story that is primarily
one of shoving an innovation down everyone’s throat. There are always holdouts.
But they are holdouts from a new consensus that only exists because of buy-in
and effective change management. The hard work of collaboration
is really hard. But it is also necessary.
failures to communicate.
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