Not a Zero Sum Game

Originally published by Zena Applebaum.

 
Earlier this month, we were
debating how to approach a client problem. There were two differing points of view, both had merit and either
could be right. Either would get us to the finish line, solve the problem,
score the run – insert your analogy of choice. But each position also had its
drawbacks.  Someone wisely said to me
“its not a zero sum game”  I realize it
is not dissimilar to the recent white paper published by TR Canada put out to
the market about Building
vs Buying a KM Solution. Which, was one of the first thought leadership
pieces for TR Legal Canada that I have been involved in since I started working
here, having left the law firm.  As it
happens, I also had a conversation today with a new employee – a customer solutions
success consultant who has come to TR after working in consulting, start up and
technology environments. He mentioned to me that he notices the legal industry
is changing, and it is all very exciting. As I reflect on all three of these
interactions I realize that all too often we look for dichotomy to measure
success. What’s happening in the market is exciting, and there is lots of
change but we also know there is a great deal of resistance as well.  Just last week, we learned that The Old Boys Network Is As Strong As Ever —
Study Finds Male Clients Prefer Male Attorneys, so any strides we may have made in the arena
of diversity are tempered and every step forward can feel like two steps
backwards. It is not a zero sum game.  We
know law firms are inefficient, and while some firms have adopted and use AFAs,
the hourly rate still prevails though of course every buyer of legal services
would like to see a lesser hourly rate. We know firms are closing their
libraries as a result of expensive lease rates in downtown buildings and a
perception that everything is online now. But firms do need legal research
resources and a people need a quiet and collaborative space to read and
connect. Shutting libraries negates that opportunity.   As
people, we are wired as Billy Joel suggests to go to extremes. We see progress
only in the face of disruption or complete change.  We don’t like to be in the middle where
somethings are working but others are not – we want it all, and we want it all
to be efficient, properly priced and still market savvy and smart. 
 
As I write this, and
notwithstanding my wish
for 2018, I can’t help but wonder if this changing legal market thing does
not need to be a zero sum game. We are waiting for the moment we can say the
legal market how now changed.  But like
the Big Bang, I am not sure that moment will ever come in a way any of us will
see or recognize. Neither Lexpert nor American Lawyer is going to print a
headline that reads: The Evolution is Complete – Law firms run like businesses
as of X Date, X Year. We won’t see an effective end to the partnership model,
or the complete death of hourly billing, any more than we will see robot AI
enabled lawyers doing all the commodity work while business and legally trained
lawyers are doing the bespoke transactional and bet-the-company litigation work
on an annualized flat fee basis.  No, I
think the change that is upon this industry is more grey – it’s happening in
fits and starts, it’s suited to  some practices
and not others, it jives with the way some lawyers work but not others.   And
ultimately, I think that’s ok because it’s not an industry but a profession
that needs to change. The legal profession is a profession that is deeply rooted in public service but
has become something much different over the course of the last century or so.
I think it may also take that long for us to really see its next iteration.
I am not
suggesting that we should stop trying to make it better – I certainly won’t –
but I also think we need to be patient. We need to see what is working,
celebrate those achievements and use those small scale wins as fuel for the
next fire.  Maybe the answer is take out
the “but”, replacing it with an “and” so that we don’t look at things in a zero
sum way.  We need to think about the
hourly rate and some alternatives, partnership models and other kinds of firms
– the same can be true of diversity, legal research tools, efficiency plays and
any of the ways in which the legal industry must change. This makes it very
difficult to provide service to an industry that is changing – to help firms
weather the change while also maintaining the practices that are not
changing.  You have to be innovative,
while also being traditional and the one size fits all model really doesn’t
work. In this non zero sum game, we all have to be more creative with the way
we approach our markets and our clients, regardless of which side of the legal
services delivery fence we make our gardens.

 
Change is hard, change is slow
but it is happening and that is no zero by any calculation. 

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