Category Archives: Law Practice Management

Lawyers, information, intelligence (organic and artificial), which is primary?

I’ve come across three articles today that grapple with artificial intelligence.

One says that automation and artificial intelligence will take over all human jobs within 125 years (half in the next 25 years). Another says, well, OK, but lawyers have at least 7 skills that no machine will ever take. And the third says that all routine lawyer jobs will be taken by the machines, but maybe not the exceptional, non-routine, jobs.

All businesses will be (are) information in some fashion. Virtually all information can be digitized. Ultimately, all that information will be obtained, accessed, and understood by means of automation and artificial intelligence.

Virtually all evidence in virtually all business and commercial cases will be obtained and accessed as it comes into being. Discovery will be completed before there is a complaint.

The role of lawyers will be something new. Or, maybe it’s more accurate to say that the role of lawyers will go back to the origins of the profession.

One of those articles says, “Lawyers Are in the Information Business. Get Over It.”

Maybe instead, information companies are in the law business.

 

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Cardinal principle of law firm management, the inverted yield curve, Heaven’s Way

Demographics are key to midsized law firms. And as Baby Boom lawyers enter their 70s, the yield curve demands deft management.

Mandatory retirement policies don’t work well in midsized firms. Nobody likes them, and they do a poor job of realizing the value of senior lawyers. Experience, judgment, and client relationships last, but at some point, the yield curve inverts. At some point, diminished stamina, the potential for disabilities, and cussedness kick in.

How to maximize the former and minimize the latter?

The Sixth Century Chinese sage Laozi gave thought to the problem. He observed:

“Stretch a bow to the very full,
And you will wish you had stopped in time;
Temper a sword-edge to its very sharpest,
And you will find it soon grows dull.
When bronze and jade fill your hall.
It can no longer be guarded.
Wealth and place breed insolence.
That brings ruin in its train.
When your work is done,
then withdraw! Such is Heaven’s Way.”


-Laozi, Dao De Jing

The principle goes beyond midsized law firms.

Bright long-term future of the right lawyers and mid-sized firms affirmed by tech guru

Kai-fu Lee, leading artificial intelligence exponent, makes the following observation about lawyers and artificial intelligence. He’s in line with MidLaw’s dogged confidence in the prospects of lawyers who focus on core (indeed, 19th Century) lawyer skills and MidLaw’s confidence in the mid-sized law firms that provide the best setting left for cultivating those skills. 

Top lawyers will have nothing to worry about when it comes to job displacement. Reasoning across domains, winning the trust of clients, applying years of experience in the courtroom, and having the ability to persuade a jury are all examples of the cognitive complexities, strategies, and modes of human interaction that are beyond the capabilities of AI. However, a lot of paralegal and preparatory work like document review, analysis, creating contracts, handling small cases, packing cases, and coming up with recommendations can be done much better and more efficiently with AI. The costs of law make it worthwhile for AI companies to go after AI paralegals and AI junior lawyers, but not top lawyers.

10 Jobs That Are Safe in an AI World

MidLaw has been saying so:

Blockchain, Bartleby, and real property lawyers

Bartleby, The Scrivener, A Story of Wall Street, by Herman Melville.

It was published in 1835, but it is uncannily contemporary. Uncanny: Bartleby is a direct comment on the application of blockchain to the practice of law in the 21st Century – coming from a guy otherwise best known for his study of albino whales and certain broader aspects of the whaling industry in the 18th Century.

The book is an almost perfect thing for a holiday weekend. It is free. Published in 1835, you can download it at no charge. It is short. And it is written in an engaging style. It is funny.

Withal, you can still feel a sense of accomplishment from reading it. It’s said to be “the most noted of American short stories.” It’s among the most interpreted, commented upon, and alluded to stories ever. The Economist magazine maintains a blog named Bartleby. Bartleby.com is a major Internet repository of classic texts. The character, Bartleby, is a stereotype, a trope even. So, it’s good to know what’s behind all that.

Bartleby has become a mental model, a way of understanding the world.

And – 200 years down the road – it has become impossible to conclude that, with Bartleby, Melville was not commenting on the application of artificial intelligence to law practice – with precision and humor.

The story is told by a Wall Street real property lawyer, who describes himself as:

a man who, from his youth upwards, has been filled with a profound conviction that the easiest way of life is the best. Hence, though I belong to a profession proverbially energetic and nervous, even to turbulence at times, yet nothing of that sort have I ever suffered to invade my peace. I am one of those unambitious lawyers who never addresses a jury, or in any way draws down public applause; but in the cool tranquility of a snug retreat, do a snug business among rich men’s mortgages and title-deeds. All who know me, consider me an eminently safe man.

The lawyer’s snug retreat has been threatened by changes in the marketplace and profession, and by accompanying changes in the law and legal system:

The good old office, now extinct in the State of New York, of a Master in Chancery, had been conferred upon me. It was not a very arduous office, but very pleasantly remunerative. I seldom lose my temper; much more seldom indulge in dangerous indignation at wrongs and outrages; but I must be permitted to be rash here and declare, that I consider the sudden and violent abrogation of the office of Master in Chancery, by the new Constitution, as a—premature act;inasmuch as I had counted upon a life-lease of the profits, whereas I only received those of a few short years.

But, for the moment, the lawyer is experiencing an upswing in his business, and he needs to hire a fourth “legal copyist” or scrivener. Scriveners were 19th Century word processors. (Note for younger readers: until the late-Twentieth Century, word processors were human beings.)

So the lawyer hires a scrivener, Bartleby, who had lost his job as a clerk in the Dead Letter Office of the postal system due to a change in administration. Thereby hangs Melville’s tale of a man who copied legal documents, word-by-word and by hand, for his living.

Today, in the 21st Century, scriveners have been entirely replaced by small machines. Lawyers today – at least those in search of a snug retreat – are now the ones being re-ordered, if not largely eliminated, by changes in the law and by the advance of blockchain, artificial intelligence, and their supporting technologies, also delivered by small machines.

It’s hard to see how Bartley is not commenting on all that – although as Bartleby says, “I’d prefer not to.”

Possibly, the story is also a comment on contemporary politics. That’s for others to say. I’d prefer not.

Two words lawyers hate most: “mandatory” and “retirement”

Observations made in the field over the course of decades confirm that the two words most abhorrent to the greatest number of practicing lawyers are “mandatory” and “retirement.” (The former is virtually universally despised.)

Recent surveys report that 73% of lawyers in the United States plan to “die at their desks.” Seventy-seven percent (nearly 78%) of law firms have no retirement policies.

Is there is a law firm management problem here? If you die at your desk, were you doing your best work just before?

After age about 60, some issues become statistically significant for everybody:

  • stamina
  • mental fluidity
  • dementia
  • disability
  • mortality.

For most people the statistics are not alarming. But 9% of people between ages 65 and 74 will encounter some form of disability. It gets worse later.

So, lawyers thinking about their lives and careers must face INELUCTABLE facts. At some point, you will not be able to do some things as well as you did when you were younger. Deal with it.

And, while individual lawyers in good health may find a 9% chance of disability a reasonable chance to take, their firms don’t have the same luxury. Sixty percent of law firm partners are older than 55. In that context, a 9% dysfunction is a strategic issue. How many partners does a firm have in the 65&up zone? Multiply by 9%. Adjust for 75&up.

What are the implications of this? Dying at your desk is problematic. “Mandatory” and “retirement” are not getting the job done. Problems are growing as Baby Boomers burgeon into their “maturity”. Strategic problems.

Some thoughts about this anon.

MidLaw among the mortals

I am back from Quebec where I was invited to present again my topic from last year in Vienna, “The Aging of the Professions and How to Stop It.”

Again, I brought my message of aging, disability, and death.

By some accounts, 25% of the legal profession is 65 years old and older.

And I bring this further insight: the older you get, the more you depreciate. If you are 60, it’s time to start counting.

Yes, I know.  Actuarially, your life expectancy actually begins to lengthen modestly after a certain point on the principle that, if you survive for long enough, then that implies that you will continue to survive modestly longer than what the projection might have been earlier.

But (in the end) life expectancy is really death expectancy, and it never goes away.

Of course, this insight, that the older you get, the more likely you will experience the depredations of age, has major implications for individual professionals (“Old Lawyers Not Fade Away“). But in Quebec and Vienna, my point was that there are different implications for the management of professional firms that demand separate attention from the implications for individuals.

More than that: BigLaw has options — mandatory retirement, client succession, senior status — that may not be open to MidLaw. And, increasingly, small firms and solo practices have options to sell that are not open to mid-sized firms.

So, the issue of aging in mid-sized law firms demands separate, different management. The issue is strategic and the solutions are not as simple as the terms “mandatory” and “retirement” may imply.

A different discussion ensues.

Justice innovations — chucking 20th Century models out the window

In the clamor about innovation in the legal profession, a singular idea is striking a chord.

Real innovation, some are saying, will not consist of new ways to perform the chores of 20th Century lawyering. Instead, real innovation will focus on new ways to solve people’s problems. Maybe not every legal problem requires a lawyer. Maybe not every question implicates the Magna Carta.

Outside the justice business, the great new companies of the 21st Century — Amazon, Apple, Uber — are chucking 20th Century models out the window. They are reinventing what they do and getting things done cheaper and faster than ever before.

For law, it’s different.

Society has gotten way more complex. Demands for law-based outcomes have exploded —especially in low-dollar personal contexts like healthcare, housing, domestic affairs, veterans rights, social security, disaster recovery, and consumer financial issues. But legal outcomes continue to be delivered for the most part in the same old ways.

All this weighs most heavily on people without a lot of money. They are the ones with all the domestic and housing and veterans issues. 80% of the people who need to use the justice system can’t afford it. They can’t afford the lawyers. And the ones who can afford lawyers aren’t happy about that. Too often, they get expensive, slow, lawyer-centered solutions. “There is far too much law for those who can afford it and far too little for those who cannot.

Innovations are coming, but before now they have focussed mostly on how lawyers work, and not so much on customer experiences.

In North Carolina though, some intimations of change are appearing. George Hausen says that Legal Aid of North Carolina (LANC) is North Carolina’s “laboratory of innovation” for the justice system and he claims some victories. He points to

  • LANC-fostered medical-legal partnerships,
  • LANC’s eviction diversion program,
  • LANC’S call center, self-help clinics, and videos,
  • LANC’S foreclosure prevention programs, and
  • partnerships between LANC and North Carolina’s members of Congress to ensure delivery of veterans benefits.

LANC catches problems aborning and finds solutions that bypass the legal system. They take lawyers out of the picture.

LANC receives high volumes of requests for services in low-dollar kerfuffles. It has developed expertise in subject matters that not many private lawyers can match such as personal housing issues, foreclosure prevention, consumer issues, veterans benefits, healthcare, domestic violence, natural disasters. LANC’s perspectives on the system (high-volume, low-dollar) are unique. Its solutions are innovative.

Government support and private philanthropy (institutional and personal) for LANC is a good investment in justice system innovation. LANC needs a lot more support than it gets.

Old Lawyers – Not Fade Away

For reasons we can discuss at another time, I’ve been reading materials about retirement lately.

Most recently, I’ve read: Aging Well, by George Vaillant, which somebody told me is the best book about its subject (it presents Vaillant’s conclusions arising out of the Harvard Study of Adult Development); and Managing Oneself, by Peter Drucker, which is Drucker’s celebrated article on knowledge workers, a big chunk of which is titled “The Second Half of Your Life”; and a recent article that appeared in the NY Times. The Times article is “Asked About Retiring, They Have a Simple Answer: Why?

Each piece advises: stay engaged, keep up connections to others, sustain a sense of purpose, exercise, and don’t drink too much. These are the keys to aging well.

And each of those pieces points to selected lawyers as their best examples of persons who are aging well.

One is amused.

Lawyers themselves at this moment are identifying aging and the retirement (or non-retirement) of the Baby Boom Generation as great challenges facing the legal profession.  Lawyers who stay too long are seen as a growing problem. Bar institutions are beginning to examine age-related infirmities, to offer programs on aging, and to form support agencies to counsel with lawyers about retiring, transitioning their practices, and managing disabilities. In law firms, many are more direct: they want advice about how to get older lawyers out of the way. And consultants are queuing up to meet the demand.

So, what are lawyers: models or problems?

Let’s get one thing out of the way. The lawyers cited by the Times and in Aging Well are really judges. The Times poster-senior-citizen is Judge Jack Weinstein. Judge Weinstein is 96 years old. “I’ve never thought of retiring,” he says. He is a senior Federal District Judge for the Eastern District of New York. After he exercises, he goes to work every day at 7 AM. He hears motions in the morning and tries cases in the afternoon.

No doubt about it, the picture of going full bore to 96 is a great image.

But the guy is a Federal District Court Judge. He has a lifetime appointment. It’s guaranteed by the Constitution. That’s bound to affect how you retire. And remember, judging is unique. It’s one of the few jobs that is commonly done by sitting in an upholstered chair, often with your eyes closed, listening to other people talk. And it’s a job best performed by experienced, deliberate practitioners who are adept at recognizing patterns of behavior and applying time-tested responses to them. It’s the perfect old-guy job.

And remember too, this guy is Judge Jack Weinstein. For Judge Weinstein, if he’s limited himself to hearing motions and trying cases, then he has retired. Years ago, he was Chief Judge, he was handling a huge load of the most complex litigation in the country, and he was writing one book and article after another – including a major, multi-volume treatise on civil procedure. If what he’s doing now is limited to motions and trials, then, for him, that’s cutting way back.

Maybe the best lesson here is that Judge Weinstein is still engaged, still connected with other people, and still grounded in a sense of purpose. And he exercises every morning at 5:30 AM.

Well, the rest of us are not Weinsteins and we’re not judges.

Our energy, stamina and mental fluidity begin their decline in our 20’s. In our 60’s, susceptibilities to disability, cognitive impairment and mortality become statistically significant. But the fund of our experience and relationships, our ability to recognize patterns, and the wisdom of our judgments continue to grow – up to a point. Troublesomely, that point is different for every person.

Traditionally, lawyers have had many choices and good options for navigating these waters. Practicing law was never a job. It was a career. And lawyer’s careers have had an arc that corresponds in large measure with commonly recognized stages of adult development.

In broad terms those stages can be characterized as (i) developing mastery of the profession, (ii) connecting developed skills with purposeful work, (iii) making a contribution (Vaillant: “generativity”), (iv) playing a role in conserving cultural and institutional values (Vaillant: “keeping meaning”), and ultimately (v) growing into an integrated and meaningful life (Vaillant: “integrity”).

Peter Drucker characterized the careers of knowledge workers in parallel ways. He observed that “knowledge workers are not ‘finished’ after 40 years on the job, they are merely bored.” He said,

At 45, most executives have reached the peak of their business careers, and they know it. After 20 years of doing very much the same kind of work, they are very good at their jobs. But they are not learning or contributing or deriving challenge and satisfaction from the job. And yet they are still likely to face another 20 if not 25 years of work.

Drucker envisioned these accomplished, but bored executives as either developing a second career, or parallel career or becoming “social entrepreneurs.” And, like Vaillant and the Times, Drucker pointed to lawyers as examples of professionals who do this well.

For Drucker and Vaillant and the Times to lift up lawyers was no mere coincidence. Unlike business executives, lawyers in the 20th Century were not, like organization men or women, trapped in “jobs.” Their productivity was not (at least, not entirely) measured in terms of narrow productivity metrics. And, as lawyers’ careers developed, they moved naturally through those development stages, from mastery to purpose to generativity. Many lawyers became leading conservers of cultural and professional values. For many, their continuous transition through those different roles was baked into careers at a single firm. Over their careers, they evolved in place, and there was room to do that. Ultimately, rather than retire, lawyers could gradually “cut back.”

In effect, lawyers could retire in place. They continued to inhabit their identities as lawyers but reduced the levels of their engagement apace with their personal circumstances.

That alternative was not open to people with jobs. People with jobs can’t cut back. Jobs are cogs in organizations. They are measured by productivity. More is better and less is rarely a choice. The job extends beyond an individual’s career and the organizations must provide for the continuation of the job. So, after holders of jobs reach a certain point, they must go so the job can stay. Their organizations think of productivity and succession and transition.

Until the advent of large firms and practice groups and specialization, practicing law was not fraught with these concerns. Lawyers shaped their work to their lives.

Today though, lawyers are much more likely to have jobs. Lawyers in private practice are likely to be members of firms. And most firms are intent on surviving as organizations beyond the careers of their current members. So the context in which today’s lawyers are aging is changing.

For those lawyers who have jobs, they must plan for retirement like other knowledge workers who have jobs.

Lawyers in firms must accommodate their firms’ larger concerns. As lawyers age, their firms will be focussed on client demands, which are more likely to run to responsiveness and efficiency (even youth) than to deliberation and professionalism.

Internally in firms, the interests of senior members must be balanced against the expectations of younger ones. Firms must manage the advancement and retention of younger lawyers. They must provide training, experience, client development, and compensation for younger members. They must grapple with a changing profession.

All this means that choices are narrowing for older lawyers. Increasingly, traditional career patterns no longer suit. Latitude to align law practice with personal circumstances is shrinking.

But, like all Americans, lawyers today are remaining active and living longer than in the past. And lawyers are no more interested in retirement now than before.

So new models are needed, new ways of cutting back. The best of lawyers in the best of firms are not yet entirely job holders.

What lawyers are for: what Montaigne said: a respite from artificial intelligence, alternative providers, and accountants

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Michel de Montaigne

Now is a time when great chunks of law practice are breaking away. Law work is going to alternative providers and artificial intelligences and accountants. Lawyers are challenged to get clear about what their core function is. What, if anything, do lawyers do better than machines and bureaux and accountancies?

“Advocacy” is an answer that comes back soonest and most frequently. “Managing uncertainty” is another. Often these come down to acting in the moment: functioning on your feet in courtrooms, boardrooms, and conference rooms. In those contexts, the unexpected can break out. When that happens, who are you going to call?

Artificial intelligence, quick as it is, can’t yet come into a room and take up the lists. Alternative service providers want stacks of documents and time to sift through them. Accountants want to classify and quantify. They want time and premeditation.

For now anyway, it’s still left to the lawyers to manage uncertainty — controversy — in the moment. Particularly lawyers in mid-size firms are called for that. They are the ones that get the most experience with it.

Michel de Montaigne, himself a lawyer in the middle market, was the brain scientist of the 16th Century. He commented on the lawyer’s brain and on acting in the moment — and he distinguished between what he called “the mind”, on one hand, and “judgment”, on the other. His comments (in his essay Of Quick or Slow Speech) call to mind the work of his fellow (albeit modern-day) brain scientist Daniel Kahneman and Kahneman’s recent book, Thinking Fast and Slow.

In the gift of wit or eloquence, Montaigne said

some have facility and promptness, and, as they say, can get it out so easily that at every turn they are ready; whereas others, slower, never speak except with elaboration and premeditation.

[I]f I had to give advice regarding these two diverse abilities …, which seems in our time to be the profession principally of preachers and lawyers, the slow man would do better as a preacher, it seems to me, and the other better as a lawyer. For the former’s calling gives him all the leisure he pleases to prepare himself, and then his course is run in a straight continuous line, without interruption; whereas the opportunities of the lawyer press him at every moment to enter the lists, and the unseen replies of his adversary force him off his course, so that he must immediately take up a new line.

It seems to be more peculiar to the mind to be prompt and sudden in its operation, and more peculiar to the judgment to be slow and deliberate. But a man who remains completely mute unless he has leisure to prepare, and also one to whom leisure gives no advantage for speaking better, are both abnormal cases. They tell of Severus Cassius that he spoke better without having thought about what he was going to ay; that he owed more to fortune than to diligence; that it was an advantage to him to be interrupted in speaking, and that his adversaries were afraid to goad him, for fear that anger would redouble his eloquence.

These two temperaments, thinking fast and slow, have their different characteristics, each its limitations. Reflecting on himself, Montaigne observes:

I know by experience this sort of nature that cannot bear vehement and laborious premeditation. If it doesn’t go along gaily and freely, it goes nowhere worth going. We say of certain works that they smell of oil and the lamp, because of a certain harshness and roughness that labor imprints on productions in which it has a large part. But besides this, the anxiety to do well, and the tension of straining too intently on one’s work, put the soul on the rack, break it, and make it impotent; …

It is no less peculiar to the kind of temperament I am speaking of that it wants to be stimulated: not shaken and stung by such strong passions as Cassius’ anger (for that emotion would be too violent); not shocked; but roused and warmed up by external present, and accidental stimuli. If it goes along all by itself, it does nothing but drag and languish. Agitation is its very life and grace.

I have little control over myself and my moods. Chance has more power here than I. The occasion, the company, the very sound of my voice, draw more from my mind than I find in it when I sound it and use it myself. This its speech is better than its writings, if there can be choice where there is no value.

This also happens to me: that I do not find myself in the place where I look; and I find myself more by chance encounter than by searching my judgment.

There is insight here for lawyers who advocate and counsel and negotiate – and also some respite from the onslaught of artificial lawyers, alternative lawyers, and accountants.

Be the one who can bring surprise and uncertainty, but also be prepared to welcome uncertainty when it comes upon you. Lawyers are the ones who are best in the moment, but they must bring judgment in those moments. Maybe artificial intelligence will be able to do that one day; I can’t see accountants getting there.

Be the one who goes along “gaily and freely.” Be the guy who brings the hammer to a computer fight.

 

 

Advertisement for myself: The Aging of Professionals and What Can Be Done to Stop It

Herewith is essentially a press release to account for where I am and what I am doing.

Ed Winslow to present at World Conference of Lawyers and Accountants in Vienna

Brooks Pierce partner Ed Winslow has been invited to speak at the 2017 World Conference of the Geneva Group International (GGI) taking place from Oct. 19-22 in Vienna, Austria. GGI is a worldwide alliance of independent law, audit, tax, accounting, and professional advisory firms, ranked among the largest such organizations in the world with 566 member firms in 123 countries.  Winslow’s topic is “The Aging of Lawyers and What Can Be Done to Stop It.”

Following his presentation, Winslow will lead a panel discussion of lawyers and accountants from France, Germany, Washington, DC and Wichita, Kansas in which the panelists will address progressive management practices of professional services firms responding to the retirement of the Baby Boom Generation, including succession planning, creative roles for senior professionals, and alternatives to complete retirement.

Winslow, former managing partner of Brooks Pierce, has practiced law for over 40 years, with a focus on litigation, corporate law, and banking and financial services. He is the current chair of the board of trustees for the North Carolina State Bar Plan for Interest on Lawyers’ Trust Accounts and was the first North Carolina attorney appointed to the American Bar Association’s Commission on the Interest on Lawyers’ Trust Accounts. He is also chair of the board of trustees for Guilford College and a past member of the board of governors of the North Carolina Bar Association. He served as general counsel for the North Carolina Bankers Association for several decades.