Tag Archives: legal process management

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.

Law firms are surrounded. We must circle the wagons. But around what?

165hThe Financial Times recently published a very good, short article about legal technology: “Artificial intelligence disrupting the business of law.” It drives home the point that law firms are surrounded by new technologies, by alternative providers, by accounting firms providing legal services, and more. Big Law is under attack and it is beginning to fight back by investing in big technology.

MidLaw can never do that. Mid-size firms must look to third party providers to bring technology solutions.

But that’s fine. It frees mid-size firms to focus on their particular competencies, their core clients, and their home markets.

What does a mid-size firm do uniquely well? What is its focus? Get clear about that. There is a different answer for every firm. Context matters. Identity matters. Competence matters. Ethos matters.

The counter-intuitive next step after finding focus is to go beyond it. After you know who you are, the next step is to ask what goes with that? How do you grow it? What else can you be? What other services are natural expansions of core competencies?

And here is a key: growth beyond core competencies may not be limited to services that require a law license. The definition of the “practice of law” has limited relevance to the growth of a law practice. Do not allow the fact that you are a law firm delude you into the belief that you are limited to delivering legal services. Non-lawyer competitors are thriving based on the proposition that much that law firms do is not the practice of law.

Context matters:

  • who are you?
  • what are you good at?
  • what are you uniquely good at?
  • who are your clients?
  • what services can you provide to them, whether the practice of law or not?
  • what markets do you reach, can you reach?

The definition of the phrase “law firm” is shifting, shaking, and shrinking. Potential clients don’t see law firms as alternatives that all do about the same thing. And they don’t much care what the legal definition of  “the practice of law” may be.

Blockchain for dummies: more transformation, more change

duck-chainBlockchain is coming. It will radically transform commerce. And the economy. And the practice of law. It’s another one of those things.

So what is blockchain? What is it going to change?

Start with this: blockchain is not a technology that blocks chains (of data). Instead, it assembles blocks (of data) into chains. Start there.

Blockchain is also called “distributed ledger technology.” In effect, it promises an internet-accessible registry system. Data is recorded electronically. And, instead of having one central official “place” where it resides, the data is “distributed” among all participants or potential users. Participants “agree” electronically about the validity of relevant information.

The resulting “distributed ledger” is analogous to land registration, such as that authorized in North Carolina, only it is digital and it goes much further. All the components of ownership, or an agreement, or a transaction, including enforcement, can be linked, block by block, into an inalterable, decentralized, automated digital chain — a ledger — that is Internet accessible.

  1. There is no need for a government or other central registry to record anything because the distributed ledger does that, making the data universally accessible among participants. And the technology can make recorded data unchangeable.
  2. There is no limit to what kinds of ownership or value or transactions can be recorded in a blockchain because the parties themselves make those choices electronically and the technology accommodates the data.
  3. In effect, the technology enables a universally accessible decentralized registry whose validity cannot be forged, and whose terms cannot be altered. And it can be made  “smart,” which is to say, capable of executing agreed actions with certainty.

This has the potential for “radical transformation” of commerce. Ownership, agreements, and transactions can be digitized. The processes of authentication, verification, validation, recording title, and executing transfers upon counter-performance, can be blocked, chained and automated.

Currently, functions such as these are heavily dependent on assurances from lawyers: opinions and certifications.

But with the technology that is coming, lawyers will no longer be needed for those functions. Blockchains will provide them. Lawyers will be replaced by 1’s and 0’s.

Blockchains though will recast the role of lawyers.

North Carolina lawyer Nina Kilbride says that while lawyers will no longer be administrators of commerce; they will become instead its engineers. (That began this summer, she says.)  The future role of lawyers, she says, is not to administer and validate processes, but to design the digital processes (blockchain structures) best suited to automate particular commercial objectives.

Good places to start to understand this are

North Carolina appears to be right at the center of blockchain’s emergence, with Nina Kilbride and Monax, the Raleigh company she’s associated with. At least, that’s the evidence of the recent North Carolina Bar Association program on the subject (“What Lawyers Should Know about Blockchain Today”).

This has the feel of that moment in 1839 when Caswell County’s Stephen Slade awoke from his slumber and discovered the process for flue-curing tobacco.

People get ready, there’s a chain a-coming.

ABA studies the future; Axiom opens an office: hires lawyers in Charlotte

cat-in-tieThe American Bar Association recently released its Report on the Future of Legal Services in the United States. Not long afterward, the ABA House of Delegates refused to approve outside investment in law firms. The ABA Commission on the Future of Legal Services contemplates state-by-state examinations of the issue, to be followed by local decisions state by state.

Last week, Axiom, a provider of “legal solutions” and “leader in the business of law,” announced opening an office in Charlotte.

Axiom is not a law firm. It is a business. It employs lawyers. It delivers legal services. It is an “alternative to the traditional law firm” — “more flexible, elastic, and commercially-minded”.

Axiom has begun hiring lawyers for Charlotte. It is hiring “elite talent that wants to practice in the Axiom mode.” And “looking at every practice area.

So, there’s them that studies and them that does.

 

The worm at the core of law firm management

Blake2Writing for Bloomberg Law, Aric Press gives an account of a presentation made by Albert Bollard from McKinsey about the nature of “expert organizations” like law firms.

There’s a worm at the core of law firms. “Expert work,” Bollard says, “is misaligned with customer value.”

Clients want “higher levels of service, delivered faster and more responsively, in a rapidly evolving landscape.” But, expert practitioners value expertise, autonomy, and independence, which they understand as the foundation of their ethics and the core of their identity as advocates and advisors.

In traditional law firms,

  • expertise is “valued for its own sake, rather than for contributing to customer value;”
  • knowledge is not “codified or shareable”, but is transmitted by apprenticeship;
  • individual practitioners own their separate engagements, and they are not oriented to improve “the way their organizations perform tasks;” and
  • there is no “end-to-end ownership” of the client’s experience, and limited ability to create and enforce “standard ways of working.”

Independence and autonomy foster counselors and empower advocates; but not managers and processors — and not efficiency.

It’s the rare law firm of any size that functions for very long as an integrated, cohesive, centrally directed team. The phrase “herding cats” comes to mind. And cat-like independence impedes efficiency. It breeds misalignment between lawyer and client. It feeds the worm.

Commercial and institutional clients are themselves, managers and processors. They want service, fast and efficient. Don’t talk to them about autonomy. Don’t try to get them to care about expertise for its own sake.

The worm is a core challenge for lawyers. The misalignment between professional values and commercial values generates tension. Expertise and independence are GOOD. Efficiency and responsiveness are GOOD. If managed well, the tension between them can be creative.  

Easily and obviously, mid-size law firms are the practice setting best suited for aligning values, for keeping clients close and fostering creativity.

 

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.”

 

 

NC Lawyers Weekly interview of MidLaw scrivener, Part I

MidLaw’s mild mannered scrivener was interviewed by the North Carolina Lawyers Weekly last week. This was in the broader context of the recent announcement that scrivener is stepping down as managing partner of the venerable Brooks Pierce McLendon Humphrey & Leonard, after 15 years in that role.Rabbit

The interview was in the vein of, “Over the course of your long career, Elder Winslow, you must have seen many changes in the practice of law. Is that not so?”

And that set the tone for the responses.

Heath Hamacher fashioned a fine article out of his questions and my answers. It’s in the current issue of Lawyers Weekly. Sort of an old-guy-speaks piece.

MidLaw is setting out the original questions and answers. in two installments. The questions below address changes in the legal profession. A later installment will be biographical ones.

LW:   What problems exist today that did not exist when you began practicing law?

MIDLAW:   Since I began practicing law, American society and the world economy have grown and expanded and become exponentially more complex. At this moment, we are in a time of huge social and economic change. All that growth and complexity and change depend critically on the law and legal system evolving to match it. Needs for legal services have grown wildly.

Our system for delivery of legal services has not kept pace.  North Carolina’s court system is underfunded. People with average to low wealth have limited access to legal services. And, our traditional system of “full service” law firms in the partnership form, responds very imperfectly to the needs before us.

LW:   What will it take to fix these problems?

MIDLAW:   We need to reinvent our system for delivering legal services, which we are well along the way to doing. We are behind the curve, but we are catching up.

New institutions, alternative services providers and new practice settings are developing almost daily. And, many organizations now have sophisticated legal departments that have evolved into really impressive contexts for professional practice.

At the core of this, we need to rethink law firms in fundamental ways – both to ensure that firms respond better to clients’ needs, and also to be sure that law firms continue to be fun and fulfilling settings for practitioners. And some firms are going there.

North Carolina probably needs to reinvent the courts system from top to bottom. Anyway, the courts need more resources.

Low wealth people must get better access to legal services. Our society is so complex. The most mundane aspects of life are bound by laws and rules. But as many as half our citizens can’t afford the expense of untangling legal snarls when they occur, or planning to avoid them. I think this is going to require radical new ways of delivering legal services. And, again, more money.

LW:   What is your biggest concern right now regarding the practice of law and what needs to be improved?

MIDLAW:   My biggest concern right now is the plight of new lawyers. So many new graduates don’t find jobs. Whether they get jobs or not, our traditional systems for bringing new lawyers into the practice and enculturating them into the community of lawyers, aren’t working the way they used to. The profession is segmenting. Lawyers have less and less in common, and less basis for trusting each other. That is clogging the system, and it makes the practice of law less gratifying for lawyers.

LW:   The practice of law has clearly changed since you began practicing. Have you seen positive changes? If so, what are they?

MIDLAW:   In your earlier questions, you asked me about problems so I gave you problems. But please understand: I believe that positive changes abound. Our law firm had a planning retreat last weekend; and our partner, Jim Williams, who is far, far older than I am, said the same thing. He said, “Now is the best time there has ever been to practice law.” He is absolutely right.

Let me list some positive changes (there are so many):

  1. The bar is much more sophisticated than in the past, and are therefore able to be of immediate assistance to clients who need top-notch, sophisticated solutions.
  2. Access to the law and legal resources for lawyers is improved infinitely. Virtually all lawyers have access to virtually all the law virtually all the time – much of it at vastly reduced expense.
  3. Resources for continuing education and professional improvement have gone from essentially none (I remember the NC Bar Association’s first CLE courses), to constant and limitless. That has made a big difference in the quality of the law practice.
  4. All of the alternative dispute resolution processes – mediation, arbitration, etc. – have been great improvements over what we did before, settling on the courthouse steps, etc.
  5. Non-legal resources for lawyers have come into being. Lawyers may have been among the last professions to regularly access to things like self-improvement and quality-of-life resources and training; psychological, wellness and substance abuse counselling and help; and life transition services.
  6. Our tools of the trade are miracles: word processing, scanning, emailing and cell phones. Once, there was carbon paper and whiteout. Once, law firms in New York would charter airplanes to deliver papers to us to get them filed on time.
  7. We are in a time when the world needs lawyers more than ever before. What we do matters.
  8. Millennials sound to me like they may have values and attributes that suit them better to be lawyers than any generation since the 19th Century.

LW:   You said that North Carolina is one of the finest places in the world and needs well-educated lawyers to lead and make it the best. Tell me about that.

MIDLAW:   North Carolina has always been a tapestry of small towns with distinctive, vibrant and interesting local cultures. Local people lead and define their local communities. Lawyers are key contributors to the infrastructure of communities. They are well educated critical thinkers; their training is values-based; and they are uniquely able to articulate community mores. Of course, lawyers are critical to commerce and to the system of justice; and lawyers are connectors. The good ones are peacemakers.

[To be continued in a future post. Return next week to MidLaw & Divers Items, to learn fascinating details of the scrivener’s personal life elicited by Lawyers Weekly reporter Heath Hamacher. Or, as Lawyers Weekly may prefer, get the current issue of that organ to see the entire interview, “edited for length and clarity”.]

The once and future legal profession – 10 things (plus 4) lawyers had in the 19th Century they should get back

Coming out of the 19th Century, practicing law was an almost unimaginably great way to live.

  • Orginal-SinThe work was knowledge work and, by and large, it was challenging.
  • The practice entailed a craft to be mastered – both in terms of knowledge and experience, and also in terms of analytical and persuasive skills. Lawyer skills enhanced life skills. They developed judgment.
  • The work was meaningful. It made a difference in the lives of clients who had personal connections with their lawyers.
  • The profession itself was set apart. Its members had attended the same or similar schools, and had read and studied the same literature and culture. There was a high level of trust among practitioners.
  • Many lawyers practiced by themselves, controlling their own comings and goings, while regularly associating fellow lawyers as needed. Others practiced in small, personal partnerships. Experienced lawyers helped new lawyers learn the practice, regardless of firm memberships.
  • Lawyers’ work contributed in a vital way to the system of justice, and also to a growing system of business and commerce.
  • Lawyers were compensated based on value delivered and the clients’ ability to pay. There was a grounded sense that lawyers had an obligation to render services for the public good without pay in appropriate cases.
  • There were no timesheets. There was no billing software. There were no hourly rates, and no billable-hours quotas.
  • Lawyers commonly earned a good living, often by investing alongside their clients in new ventures and being involved in the operations of those and other businesses; or, more simply, by farming while they also practiced law.
  • Commonly, lawyers played leading roles in the civic and cultural affairs of their communities, both as a matter of interest and perceived duty, and also because it promoted their law practices.
  • The technologies used in legal work imposed a slower pace on professional life.
  • Lawyers’ public and private roles were not separated. Few perceived a need to balance different aspects of their lives.
  • There was little need for lawyers to get up early in the morning.
  • For the most part, lawyers were not called upon to lift or carry heavy things.

Why would anybody screw that up?

Current developments in the legal profession and in the broader workplace offer the hope that a 21st Century version of what was lost can be recaptured.

Legal services technologies and artificial intelligence, alternative legal services providers, networking capabilities, and communications technologies – these are tools that relieve practitioners of the need to perform high-volume, routine tasks. They enable new forms of collaboration. They can support newly envisioned, smaller, more cohesive, and more creative professional associations.

This will require differently trained lawyers, and new kinds of legal services providers. For lawyers and the schools who prepare them, it will require rethinking legal education, and a new understanding of organizational development, talent management and professional development.

Those things will come, albeit not rapidly. Some heavy lifting may be required.

 

This “the profession is doomed” thing: if winter comes, can spring be far behind?

This past week, a consultant who is “renowned in the areas of legal management, marketing and technology” got a lot of attention for reporting, after participating in a bar leaders panel on the future of the legal profession, that “the profession is doomed.”Bluebird

“Doomed,” because lawyers’ training and experience have made them “a reactive and dogmatic group,” and this prevents them from embracing changes needed in delivery of legal services.

He cited a discussion about “limited license legal technicians.” This is an idea, adopted in the State of Washington, that permits persons who are not lawyers to practice law. These “LLLTs” will be permitted, in limited circumstances, to help clients prepare legal documents; advise them about the documents; explain legal procedures and proceedings; and gather and evaluate facts.”

Apparently, the bar leaders on the panel found only problems with this idea. They worried about potential harm from bad advice; they complained that licensed lawyers don’t have enough work to do as it is; they brushed aside evidence that most poor people handle most of their legal needs without any help from a lawyer because they can’t afford it, and that traditional sources of funding for legal services for the poor are steadily being reduced.

Doom.

BUT – also last week – the  ABA Journal reported that opening the practice of law to practitioners with limited licenses has met with some form of encouragement in Connecticut, Oregon, New York, Vermont and Massachusetts in addition to Washington. And for-profit services like Legal Zoom and Avvo seem to be making steady headway.

The American Bar Association, however carefully, seems to be encouraging the profession to consider new ways, many of which will threaten to loose the unlicensed into legal services.

AND – also in the past week – Brooks Pierce entered into serious conversations with – not one, but two – separate groups that have ideas for cooperative efforts by law firms and others to design and deliver standard legal services at low costs using cutting edge technology and the Internet. I’m not going to tell you what those two groups have in mind. That is secret. But, I can say this: one group would cut compliance costs and improve performance for boards of directors and particularly the boards of public companies; and the other will deliver innovations along more predictable lines in litigation support and document discovery.

Now I am often accused by my “reactive and dogmatic” colleagues of being an optimist – maybe even an inveterate optimist.  But, just now I am asking: “Skippy, if winter comes, can spring be far behind?”

This could be a very good time to be a mid size law firm – at least, a nimble and efficient one.

New lawyers, old ones and NewLaw — a prediction that the profession will survive

This winter of the legal profession’s discontent.HiRes

Work is down across the profession. Revenues are flat. Job offers are down. Applications to law schools are down. Older lawyers are not retiring, even as the conclusion is being drawn that fewer lawyers are needed, and younger ones are said to be departing the profession for the lack of opportunities. Although paying work is down, the legal services needs of low wealth communities are not met.

But this winter shall pass. Old lawyers will pass. New ones will rise. I predict this.

Maybe, the work of the future will be distributed differently among law firms, law departments and alternative services providers. Maybe, computers will do more of the work. Maybe, law firms will no longer deliver “full service.” Maybe most firms will serve targeted niches and deliver limited modules of service.

Perhaps the practice of law will look little as it once did.  Perhaps lawyers (like doctors and academics) will carry more the mantle of technicians than professionals. Perhaps generalists will be supplanted by specialists — by non-lawyers and service bureaux and by machines.

In the end, the new will rise. So be it.

But there will remain a constant demand for professionals who can bring experience and judgment to legal questions that are complex, uncertain and ambiguous. And this is not work for the institutions of NewLaw. “Classical lawyering” will remain.

And, there will remain those questions posed here several years ago — but repeated now in the words of an observer today.

Most, if not all, contracted lawyers working under the auspices of one of the NewLaw firms are essentially self-employed with the freedom and positive challenges this brings. But they have no security of income, no superannuation, no permanent social work environment, no paid annual leave, no long service leave and, usually, no training and organised continuing professional development.

Especially for young practitioners there is no structured professional education program and no employer-provided training in the basics of practice. And certainly no apprenticeship – the foundation on which the next generation of the profession has been built for generations.

So, when that new day comes and the new lawyers rise, who will have prepared them? Who will have trained them? How will their judgment have been forged?

Today, when experienced lawyers are plentiful, the institutions that might invest for the needs of the future are hard to discern. Who will train, develop, sustain and marinate lawyers for that day? Legal departments? Alternative providers? Or, law firms?

Whither apprenticeship?