Category Archives: Law Practice Management

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.

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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.

 

New software can do in seconds work that takes lawyers hundreds of thousands of hours annually

 Bloomberg recently reported that JPMorgan Chase has deployed contract-analysis software that does in seconds work that takes lawyers hundreds of thousands of hours annually.

One thinks of John Henry who was a steel driving man. He died with a hammer in his hand.

JPMorgan’s technology budget runs to $9.6 billion. For that kind of money, you can eliminate more professions than one (or, at least more categories of services).

Keep on pounding.

 

Law firms: consider the pilot fish and the shark

pilotoceanic_whitetipFor all the well-known reasons, aggregate demand for legal services delivered by traditional law firms is flat. That has been pretty well documented. (In fact, enough already.)

So, the firms that are succeeding are the ones taking business from others (they are taking business from other law firms and taking it from alternative legal services providers, as well).

Here are three opportunities for midsize firms in this jungle:

Midsize firms can take business from big firms when clients elect to hire smaller firms where (i) the service is equivalent or better, (ii) costs are lower, and (iii) firm principals are more directly engaged in direct client service.

Midsize firms can take business from small firms where the midsize firm can bring broader and deeper capabilities.

Midsize firms can take business from anyone, anywhere, any time a midsize firm can provide experience-honed legal judgment delivered person-to-person by empathetic, seasoned professionals.

But “taking business” from others need not be all tooth-and-claw. Think instead pilot-fish-and-shark.

Artful midsize firms can build lasting, mutually beneficial relationships with other firms — large and small — law firm and alternative provider —  by networking, collaborating, complementing.

Midsize firms are uniquely apt for networking.

Mid size law firms doomed to planning, diligence

due-diligenceGuilford College president Jane Fernandes once counseled the College’s board of trustees that there is a difference between “planning” and “hoping.” (She communicated this very diplomatically, a measure of her fitness for her job.)

In a word (well, two words) the difference is “due diligence.”

British law firm consultants Edward Drummond & Co recently advised “mid-tier” firms in England that the largest London firms are shouldering mid-tier firms out of high-margin work. Mid-tier firms, Drummond says, are in danger of losing their ability to attract new business.

But, there is hope. Drummond, itself a planning consultant, says there is

scope for mid-tier firms to improve their margins by placing greater focus on ‘rigorous strategic planning’. For their new ventures to be effective, the consultancy said, it was imperative that mid-tier firms dramatically ramp up in-depth market research and competitor analysis while also ensuring a thorough understanding of the potential opportunities and risks of the work.

Firms were warned that without carrying out detailed due diligence, they could risk seeing seemingly profitable new business ventures suffer or even fail.

Before firms commit to “new lines of business” though, a Drummond partner counseled

  • analysis of competitors,
  • identifying gaps in the market, and
  • targeting potential clients

Failure to commit to rigorous due diligence is more strategic hope than strategic planning. It risks doom.

What all this means in the context of mid-size American law firms is a horse of a somewhat different color than what British mid-tier firms face, but still a horse.

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Midsize law firms showing vigor

A glass building in downtown Greensboro,North Carolina. Notice the reflection on the glass.

An outfit that calls itself “MidLaw” and extols the virtues of midsize law firms probably has an obligation to call attention to January 12’s Georgetown Law Thomson Reuters “2017 Report on the State of the Legal Market” wherein it is reported (pages 13 and 14) that

midsize firms saw a consistent upward trend in demand growth and fees worked, as well as an improvement in productivity from the beginning to the end of the [last 3 years]. … One possible interpretation of these results is that clients, while still directing some types of work to high-end, fairly specialized, premium firms (like the AmLaw 50) are increasingly willing to move substantially down market to smaller firms (midsize firms) in order to achieve significant price savings.

For purposes of discussion, MidLaw is going to be large-minded about these references to what is “high-end” and what is “down market.” We could have found more directionally accurate terms.

Much in the 18-page report confirms what you’ve heard here at MidLaw for years in multiple posts.

 

The ecosystem of our kind: consultants to consultants to consultants

evolution-013First-of-the-year projections are still arriving at my inbox.

Added to the traditional providers now there’s a lively and growing new ecosystem of law firm consultants. There are all kinds of them. They do M&A, marketing, strategic planning, headhunting, IT, cyber security, all kinds of risk management, and more. Their categories are subdividing, their numbers multiplying. And they are projecting up a storm.

Many report that demand for legal services is growing again. “Exciting,” one of them said this morning. Transactional work for lawyers at all levels is growing, they say.

But just about as many say that demand is flat. That group tends to say that relatively few firms are taking work away from everybody else.

Still others are looking a bit further out. They are assessing artificial intelligence, non-lawyer legal services providers, the growth of legal departments, and the continuing expansion of accounting firms onto old-time lawyer turf. Most of them predict different kinds of long term demise. Some not.

I’m seeing a trend, myself. Demand for law firm consultants is up (it must be because there seem to be so many of them). But, wait, maybe it’s down (it must be because they are marketing so hard with their projections and all).

Anyway, I project a growing market for advisors to law firm consultants. Consultant consultants.  Just like anybody else, law firm consultants need advisors: someone to help them with their elevator speeches; someone to advise them about their mergers; someone to think about the impact of artificial intelligence on what they do.

They need somebody to tell them to be agile. We all do.

Holiday special: low rates for legal research and document review if you act now!

Xmas still life - red balls, tinsel with blurred red Christmas lights bokeh background

Holiday prices on selected services. Order now!

Did MidLaw recently say that “non-lawyer competitors are thriving based on the proposition that much that law firms do is not the practice of law”?

Well, you can get holiday pricing with that.

MidLaw received an email message that same day (subject: “Christmas Blast”) from somebody in India who offered an “end of the year special.” Special low rates, good only until December 31, for

  • Legal research
  • Summarizing medical records, depositions and trial transcripts
  • Indexing, proofreading & cite-checking of legal documents
  • Preparing case chronologies
  • Review of legal documents
  • Preparation of discovery requests & responses
  • Contract review and abstraction
  • Drafting of summons & complaints
  • Doing redactions, and applying bate-stamps on legal documents
  • Data entry, form fill-ups, template based drafting
  • Making entries on accounting systems.

I am serious. This offer came from a firm that is “not a law firm and neither provides legal advice nor practices law.”

Cut-rate legal research and document review. But you must act now!

How beautiful on the mountains are the feet of those who bring good news.