Tag Archives: process

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.


Demand for legal services booming; lawyer hiring down — what’s up?

It’s an abiding irony of the “legal industry” bear-fighting-tigertoday that, even as lawyer hiring is way down  and a return to growth in law firms is said to be a “mirage” – and as students are staying away from law schools in droves – the demand for legal services is said to be growing – maybe even growing “exponentially” (as the phrase goes).

Here’s the catch: the growth is in legal work that lawyers (understandably) don’t want to do. It’s work that doesn’t pay. This includes (i) legal services needed by low-wealth clienteles, and  (ii) what is called “tiny law” (legal services for small matters), and (iii) legal decision making that is now embedded in so many routine commercial and social transactions.

As many as 80% of Americans are said unable to find affordable legal services.

Even as lawyers evince little interest in low-pay and no-pay work, many want to hold the line on “the unauthorized practice of law.” They scrutinize computerized services which target low-pay customers and they mistrust law-related services delivered by people without law licenses. That’s understandable. Relaxing “unauthorized practice of law” strictures, can threaten harm both to unsophisticated consumers and to the legal system. But, at the same time, help from internet providers, corporate vendors and paralegals may be better than no help at all for unsophisticated consumers and others. Reportedly, millions are satisfied with the “unauthorized” providers.

This is going to take some sorting out.

Apparently, the ABA has begun.



The future of work, the practice of law and computers that drive cars

unclear complexIBM’s Watson Computer famously can play chess better than flesh-and-blood chess masters can, and it is a Jeopardy champion. It has cousins that can drive cars. Now Watson is coming after lawyers.

Pretty clearly, Watson can pass a bar exam already. But, it doesn’t just come up with answers to questions. It synthesizes information, develops arguments and puts them forth in a logical way. IBM’s general counsel modestly avers,

Watson won’t replace the judgment of a senior law firm partner, but it could eventually handle tasks of senior associates. [IBM] sees [Watson] researching and writing a memo summarizing the law and suggesting the most persuasive arguments and precedents. Or it might quickly review stacks of contracts . . ..’It would have encyclopedic knowledge and an inexhaustible work ethic.’

It’s not just Watson and lawyers. Lawrence Summers, Vivek Wadwha, Ray Kurzweil are asking what work will be left for anybody to do — when machines begin doing all they are capable of. (I particularly like Wadwha’s suggestion that, within 20 years, it will be illegal for people to drive automobiles.)

The “future of work” is a topic keeps coming up.

The thinkers don’t agree about where we are headed. But they do agree that, in this second machine age that is upon us, education and laws will be key — because what’s coming will be, well, new. People are about to be pushed out of the knowledge business. What’s left for people will be skills. And, principal among needed skills will be the ability to boldly go where we have not gone before. The skills for doing what’s new, that’s what will be needed.

To me, that says (i) the educations we will need must be of the liberal arts, and (ii) the skills we must bring must be those that lawyers came in with.

Lawyers are often hung with the label of being precedent-bound. Look at that another way: applying precedents wisely is a skill needed to understand and manage new problems.

The lawyer skills that are depreciating most rapidly are the abilities to extract answers from existing data, and to process almost anything.

The skills that are appreciating most are the abilities to navigate uncertainty: to discern how precedent provides guidance on new ground, to advise when answers are not known, and to act where outcomes are hard to predict.

It will be a good computer that has those skills.

Creativity and the Practice of Law

Is what lawyers do “creative”? Recently, I heard a speaker say,that what lawyers do is solve problems and problem solving is creative. Yeah, but maybe that just restates the question.creativity bulb

  • When a person identifies and restates the law applicable to a static set of facts, is that creative?
  • Is legal process management creative?
  • Is counseling clients about possible actions, tactics and strategies in developing circumstances creative?
  • Is advocacy creative?

Do the answers to these questions point to a possible approach to defining “the practice of law,” or at least to dividing lines among types of law practice?

The Art of Thought outlines 4 stages of creativity, which are described at Brain Pickings and also at  Farnam Street, recounted in The Creativity Question, and critiqued in Seeing What Others Don’t: The Remarkable Ways We Gain Insights.

   Stages of creativity or not, they sound like a method of practice for certain types of legal work. The four stages are:

  1. Preparation
  2. Incubation
  3. Illumination
  4. Verification.

The ongoing process of disaggregating certain law work from what lawyers do and giving it to non-lawyers, raises the question: what functions are not susceptible to disaggregation? And also, disaggregation from what? Is a kind of creativity at the core of this?

The Structural Changes that Are Driving Lawyers’ Numbers Down

What are the permanent structural changes that have driven down law firm hiring and law school class sizes? structural changes

Professor Burk says the market has produced new, cheaper ways to do tasks once done by associates in large firms. And, now we can “disaggregate” those tasks from other law-firm-delivered legal services. This gives clients the ability to move that work to lower cost providers. All has been enabled by data processing and other technologies; by instant, remote communications; and by networked providers.

Legal processing.  So, clients with large legal processing needs – document discovery, litigation holds and due diligence (but also loan closings, collections, foreclosures, legal forms) – now have alternatives to hiring law firms who assign that work to associates. Those include:

  • Outsourcing – law firm sends the send the work to an outside contractor.
  • Insourcing – client itself does the work or hires the contractor.
  • Downsourcing – law firm assigns the work to contract lawyers or others who work in the firm but at lower rates than conventional associates.

Costs of training lawyers. Also, training law graduates to practice law in firms is time-consuming and expensive. Traditionally, many large firms financed that training, in effect, by charging clients for associates’ time. As new, technology-enabled economics take hold, law firms are recognizing the value of keeping trained lawyers who may not become practice leaders in their firms. So, more big firms are keeping more lawyers longer – in new categories: non-equity partner, senior attorney, contract attorney. That is, trained lawyers are retained to do work that might once have gone to new associates — thus cutting the need to hire more graduates.

Other structural changes. Professor Burk does not mention explicitly other structural changes that may also have reduced the demand for large firm lawyers. These might include: (i) the expanding role, sophistication and capabilities of in-house legal departments; (ii) expanded multi-jurisdictional and multi-disciplinary commerce and law practices; (iii) competition from new law firm models: boutiques, mono-line firms, virtual firms; and (iv) competition from newly-enabled networks of smaller firms. These are both alternatives to large firms, and also modes of practice that are less dependent on hiring large numbers of new lawyers every season.

Quicker, Better, Cheaper. In short, new technology and shifting market forces are creating opportunities for new ways to deliver legal services and new ways to organize legal services providers. New ways only emerge where they represent improvements: quicker, better, cheaper.

In almost every case, “quicker, better, cheaper” means finding new ways to get more legal work done with fewer lawyers. And that drives down hiring, and law-school applications and class sizes.

The horror! The horror!          horror_animaatjes-44

The Power of Practice

A founding purpose of Midlaw & Divers Items was to learn about blogs. And the immediate learning was that they take time and discipline.  Not an Act but a Habit

In my case, making a rough commitment to post something once a week or so is a burden, although it has paid off in modest ways. Unexpectedly, the continuing business about hummus has put me in touch with people from all over. The spots about 19th Century lawyers fed into a presentation at the UNC Festival of Legal Learning that put me in touch with others. And the stuff about law firms has led into presentations to North Carolina Bar Association groups and more connections.

Also, writing things down has forced me to examine them at a different level and I have learned from that.

This points to two themes sounded here before. First, is the value of the “examined life,” which was Socrates’ point, later  applied to law practice by Jim Williams and commented on here. Second, is the primacy of practice over inspiration – an Aristotle point, carried forward here some time back.

A worthwhile article posted this week by Maria Popova, entitled The Pace of Productivity and How to Master Your Creative Routine, emphasizes the power of sustained practice. She quotes Aristotle: “We are what we repeatedly do. Excellence, then, is not an act, but a habit.”

Popova draws from Manage Your Day-to-Day: Build Your Routine, Find Your Focus, and Sharpen Your Creative Mind, edited by Jocelyn Glei. She also quotes Glei, quoting Gretchen Rubin quoting Anthony Trollope:

 “A small daily task, if it be really daily, will beat the labours of a spasmodic Hercules.” Over the long run, the unglamorous habit of frequency fosters both productivity and creativity.

All of this arises from my fretting about making no posts here for three or four weeks, while I have been diverted by other things.

What would Aristotle say? Or, Socrates? Or, Trollope?

What Lawyers Are For

What are lawyers for? And not for? And law firms?

In his article, The Second Economy, Brian Arthur at McKinsey says digitization is set to replace people doing process work – on a vast scale. Already, vastly fewer people are needed to receive, record, assess, and convert information, then act on it (that is, apply knowledge or rules to processed information). Arthur’s example is supply chain management.

But much of lawyering in the 20th Century was that: applying knowledge to information.

So what are lawyers for, if not for analyzing facts and applying knowledge? Well, they are for encountering complexity; navigating uncertainty. The analysis and knowledge-application is the easy part and not any longer the value-adding part.

And that work (managing complexity, resolving uncertainty) takes ability, motivation, integrity, experience and judgment. What law firms are for is assembling and developing those resources:

  • identifying and assembling professionals with ability, motivation and integrity,
  • providing them with experience,
  • fostering judgment,
  • fostering effective teams,
  • communicating those resources to the marketplace.

The lawyers do the legal work, the firm prepares and enables the lawyers.

(For process work this may not be so. It may be that firms, not lawyers, do the work. This difference has important implications for firm management and structure, professional development and culture. A discussion for another day.)