Tag Archives: complexity

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

mont4

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.

 

 

Advertisements

A note of concern about pending proposals to cut funding for major NC legal institutions

MidLaw has learned with concern that the General Assembly is considering cutting the North Carolina State Bar’s revenues to a fraction of their current level and also reducing the appropriation for the UNC Law School dramatically.

MidLaw believes these proposals would be harmful, not only to two key legal institutions but, in the long run, also to the administration of justice in North Carolina and to our economy generally.

If North Carolina is to succeed in national and global economic competition – which is what we must do to create jobs here – then North Carolina’s businesses and its justice system must be served by well-prepared lawyers operating in an effective system. Commerce will not come right if our justice system is not up to par.

The legal profession and broader legal industry are currently undergoing dramatic changes. These include the rise of national and global law firms, competition from Internet and off-shore services providers, and disruptive new technologies. Potentially all of these may be good things, but North Carolina must keep up no matter how things go. We must provide a credible local justice system to support a growing economy. This requires well-trained lawyers, a highly functioning oversight agency, and well-resourced courts and processes.

Proposals to cut State Bar revenues and take funds away from the Law School risk long-term damage to our ability to compete and build North Carolina’s economy.

Legal aid is infrastructure, not welfare: got to have bridges so traffic can move

Word has come that the next federal budget will cut or eliminate funding for the Legal Services Corporation. Legal Services Corporation is the largest funder of legal services for the poor in the country.

Does the impetus for cutting legal aid come from a sense that legal aid to the poor is a form of welfare? Does it come from a sense that legal aid funds lawsuits against the wealthy?

That’s the wrong way to look at it. Legal aid, even when given free to the undeserving poor, is not a handout. It’s an investment in infrastructure.

The rule of law is the foundation of the economy and society. And it depends on the justice system.

Our system is complex and getting more so. (“Increasing complexity is the story of human evolution, and the story of how and why law emerged.“)

If poor people do not have effective access to this complex system, two bad things happen. First, the legal entanglements of the poor clog and burden the system. Either controversies don’t get resolved, or people try to fix them without assistance. That makes things worse.

Second, bad outcomes contaminate society. People get soured and distracted from positive, productive pursuits.

North Carolina Chief Justice Mark Martin perceptively points to domestic affairs: spousal abuse, child abuse, child custody, divorces. Often intervention by the justice system is the only fix in those cases. People helping themselves makes things worse.

That’s domestic relations. The same things can happen with healthcare, housing, veterans’ rights, benefits for the elderly, and any number of other everyday things. The unmet legal needs of poor people in these areas are growing, while funding is already on the decline.

Removing legal aid from the federal budget will make things worse. It will make our system more expensive for everybody, not less. And it will exacerbate negative spirits generally — in a way that drags down the economy, politics, and society at large.

Legal Services Corporation channels funds to local agencies such as Legal Aid of North Carolina. If there’s something wrong with Legal Services in particular, then fix that. But don’t take the resources out of the system.

Legal aid ain’t a handout. It’s bridges and roads.

Traffic has to move. Pay me now, or pay me more later.

 

 

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.

Job description for the midlaw managing partner

He was writing about something else altogether, and suddenly, there it was. Somehow, he had written the best job description I know for the managing partner of a traditional, mid-size business law firm in the 21st Century. He said,

Organizations are complex systems, in which cause-and-effect is nonlinear, path-dependent (history matters), and often unknowable in prospect. Deciding what to do (or not do), and how and when to do (or not do) “it,” is a matter of judgment and experience, as managers try to accomplish short-term objectives while keeping their longer run options open.

David K. Hurst, Why Business Books Still Speak Volumesstrategy+business, S+B Blogs (November 17, 2015).

RabJust now, law firm management starts from that place (that is, from the place of nonlinear, path-dependent unknowability). The same may also be true for other kinds of organizations (maybe all of them, as the author says), but just now it is more true of law firms than almost anybody else. Indeed, to the extent that this proposition is not true of a law or legal process organization, then – to that extent – I say it is not a law firm. Instead, it is probably best characterized as a “legal services organization.”

Firms in which cause-and-effect is linear and for which management outcomes are predictable, likely are process managers, and likely to be replaced one day by machines. Members of those firms are likely not seasoned and rounded “attorneys and counselors.”

The task of the manager of a law firm is to understand the path upon which the firm is dependent; to find the opportunities that path has created in the present; and, to identify new domains of uncertainty, ambiguity and complexity, toward which to boldly go. Yes, keeping options open.

More grandly, the same writer says, “we all need narratives.”

Data is not the same as knowledge; information is not, in and of itself, insight. As humans, we need narrative “centers of gravity” to make sense of our experience.

* * *

Although the advent of big data calls for a good deal of calculation, it also demands more judgment — “big” judgment, which will require more and better-disciplined analogies to help us synthesize our experiences and grasp their meaning.

Such is the nature of strategic planning for non-linear, path-dependent professional services organizations. The process is sometimes described as “herding cats.”

 

 

Core lawyer function not special knowledge, but managing hard problems – Mauboussin: a thinker about that

migrating canada geese

Farnum Street recently called attention to Michael Mauboussin‘s observation that the capability of IT-enabled networks, which can harness the wisdom of crowds, reduces the scope for experts to add value.

A much narrower but related point has been made here at MidLaw in the context of law firms. The growing ability of smaller firms to network with each other and harness combined wisdom, diminishes the advantage of larger firms. Much of the value that large firms bring can be replicated by networking; and technology is rapidly enabling better networking. This does not eliminate the need for law firms, but it reduces the need for so many large firms, and it affirms the growing opportunity of mid-sized firms.

Mauboussin extends this thinking beyond the observation that problem-solving is no longer something that must always be handed over to subject matter experts. He suggests methodologies for solving problems, including solving problems with networks that include experts.

This is important learning for lawyers. Subject matter expertise is not what’s at the core of lawyering. Problem-solving is. Lawyers are not so much possessors of key knowledge as they are professionals who know how to confront and manage hard problems. Mauboussin provides useful thinking about how to think about thinking about these problems.

Knowing when and how to hand things off to subject matter experts and then how to use what you get from them, is an important part of solving problems. As computering advances, this kind of competence will be a larger part of lawyering.

A closed system — you have to have a lawyer to get in or out

Bird caught in a netAt one time, many politicians perceived legal aid as a program that subsidized poor people to assert grievances in the courts against businesses and institutions. That is not the case for legal aid, not now. Now, it’s about access to social systems.

American social, economic and government systems have become staggeringly complex. Ordinary people, when they encounter snarls in these systems, can hardly cope. Not without help. Think: mortgages and credit, employment, health care, consumer scams, domestic relations, government benefits, retirement, taxes.

People turn to lawyers when they get into these jams. In many cases only lawyers are permitted to help. Anything else is the unauthorized practice of law.

Where the system is so complex, the case for legal aid is about access to the system –  not subsidizing lawsuits. It’s about the social system; not the justice system.

80% of the civil legal needs of poor people are not met. And that applies to 20% of the people in North Carolina. 34% of the children.

The system ain’t working.

Maxims of an aged manager

Once I thought: Analyze rigorously. Conclude correctly. Execute effectScholarively.

Now I think: Understand as well as you can. Accept that your understanding is not complete. Act. Adjust. Persist.

Repeat if desired.

Gen Y & law firms – the turnover, the turnover

Brooks Pierce‘s professionals and staff directors spent a morning recently with Rogan Kersh, who is Provost and a political science and demographics scholar at Wake Forest University. (I have concluded that Brooks Pierce needs a provost-political-scientist-demographer, too (at least, we need a brilliant one like Wake Forest has).)

Dr. Kersh brought us his celebrated insights about the digital age and Generation Y (Millenials).birds-leaving-nest

Invariably, those of us in the vanguard of the Baby Boom are shocked in such discussions. Shocked, to hear that members of Gen Y will hold so many different jobs in their lives.

Projections differ. Some say typical millennials will have 5 or 6, or even a dozen, jobs before they are 30 years old. Others project that millennials will have well over 20 jobs in the course of their careers.

Doesn’t matter what the exact number is: this is a challenge for traditional law firms.

It may not be so much of an issue for narrowly specialized lawyers, or for lawyers whose work is to handle high volumes of routine or standard matters. But, for lawyers who are problem solvers – for those whose stock in trade is judgment applied in conditions of ambiguity, complexity and uncertainty – the work experience they need takes more time to get than job-hoppers have got.

If “apprenticeship” is the way problem-solvers are trained best, that takes time. Is there enough time for job-hoppers to learn as they go from job to job? Can the legal profession work that way?

This is not to say it can’t be done. Job-hopping may be a good way for new lawyers to find the professional setting that suits them best. In some circumstances, different experiences at different firms may enhance professional development.

But the turnover wreaks havoc with the staffing model of old fashioned law firms.

That can be managed, too. And managing starts with identifying and understanding the issues. Thanks to Rogan Kersh for doing that so cogently for Brooks Pierce – as it appears he is doing for Wake Forest and its law school as well.

More about Watson, the chess-playing computer — and the sweet spot of mid-size law firms

IBM’s Watson, the chess-playing, cognitive computer has gotten everybody’s attention. No one is more fascinated than the lawyer-futurists. Most recently, Paul Lippe and Daniel Martin Katz have spoken. They are lawyers (one a former general counsel and one a law professor) who are working with IBM as consultants. We suspect they are telling IBM all the lawyer secrets.

The Lippe-Katz article is“10 Predictions about how IBM’s Watson will impact the legal profession.”

Watson apparently can organize, analyze and restate law; and it can manage both simple and complex legal processes. Lippe and Katz say it is “the most significant technology ever to come to law.”

Lippe and Katz doubt that Watson “will displace the reasoning processes of lawyers,” but they believe it will show “how rare it is” that lawyers actually employ those processes. On the other hand, they say, most of what most lawyers do is merely to apply “proven approaches in slightly different contexts,” which Watson can also do. Solving problems the first time requires legal reasoning. Applying the same solutions later to similar problems, is “managing a process.”

The thinking is that, if Watson can analyze a matter and outline the process that will lead to a desired outcome, then the job is done. (This is analogous to how Watson is applied to diagnose medical problems.)

But that dog won’t hunt in Superior Court. Or in the regulatory agencies. Analyzing a matter and determining what should be done is THE EASY PART. The hard part is bringing adverse parties together, persuading decision makers, confronting the unexpected. The hard part is persuading flesh-and-blood decision makers to do what a machine might readily see is sensible.

What seems blindingly obvious to a lawyer is often merely blinding to ordinary mortals (sometimes referred to as “non-lawyers”). Players in legal matters (clients, judges, juries, regulators) persist in doing what computers say they shouldn’t. It takes lawyers to fix that: to resolve impasses, forge agreements, persuade, react, and overcome.

Watson and other machines certainly do seem set to take away large swaths of work that lawyers have made a lot of money on in recent decades. But what will be left is what we came here to do in the first place, and that is where we should focus our practice henceforth: on creative problem solving — both intellectual and practicable.

Need I say that creative problem-solving is the sweet spot of mid-size firms?