Too much of today’s legal innovation and technology talk focuses on disruption, artificial intelligence, and whether robots can practice law. Interesting topics, yes. But this discussion threatens to distract us from discussing fundamental changes that can be implemented immediately to significantly improve legal-service delivery across the industry.
Discussions about artificial intelligence and the like can make legal innovation and technology feel inaccessible and overwhelming. It doesn’t have to be that way. Lawyers, law students, and legal-services professionals can learn fundamental disciplines and begin applying them today to modernize their practices and increase their personal value in the marketplace. Engaging and empowering all legal-services professionals is important for improving legal-service delivery and thereby improving access to legal services for everyone.
Learning is not compulsory[.] . . . But to survive, we must learn.”
―W. Edwards Deming
What fundamental disciplines should be leveraged to deliver legal services in the twenty-first century? While this list could include several additional items, the following five deserve your focus now:
- process improvement
- project management
- metrics, data, and analytics
- business of law
Must lawyers and law students become experts in these disciplines? No, that’s not realistic. Experts in these fields have invested significant time perfecting their skills. Lawyers who’ve taken a class or attended a workshop will not replace them. What the legal industry needs is T-Shaped Lawyers. As described by my colleague R. Amani Smathers, T-Shaped Lawyers have deep substantive legal expertise (the vertical part of the “T”) plus the ability to collaborate across many disciplines (the horizontal part of the “T”). Although they do not need to be experts, lawyers must have more than awareness of these disciplines. Lawyers should know enough to practice these disciplines at a basic level, engage experts when necessary, and collaborate with experts in these fields to leverage multiple disciplines to improve legal-service delivery.
Below I briefly introduce each of these disciplines and identify some resources for lawyers and law students to start learning about these disciplines. In many cases, I’ve pared ten resources to three or four. Consistent with the “continuous improvement” approach I favor, I intend to continue to refine and update this list of resources. Finally, I do not endorse everything in these resources. Some merely include excellent examples or have been included for the thinking and discussion they generate.
1. Process Improvement
It all begins with process improvement. Process improvement disciplines have great potential for improving the efficiency and quality of legal services and thereby improving access for everyone. Lean, a well-known process improvement discipline, aims to get the most value for the customer, using the least amount of resources, with the shortest overall lead time. It bears repeating that the client defines value. Lean, like design thinking, is client focused.
Lean provides a pathway for establishing legal-service delivery best practices and standards, which are largely lacking today. Ask ten different lawyers to perform a common legal task and you see significant variance, mostly due to each lawyer’s personal preferences. Unnecessary process variance leads to inefficiency and lower quality. Through lean, we identify what clients value, improve processes, and establish best practices and standards to deliver that value.
“If you can’t describe what you are doing as a process, you don’t know what you’re doing.”
―W. Edwards Deming
Process improvement is a critical first step before exploring technology solutions. You cannot automate chaos. You cannot automate what you do not understand. Applying technology to unstable, poorly defined processes is a recipe for expensive failures. Lean, on the other hand, is inexpensive, can be implemented immediately, and leads to identifying the right opportunities for technology solutions. Lean paves the way for successful technology implementation.
Beyond efficiency and quality, lean offers additional benefits for organizations that develop a lean “continuous improvement” culture. These organizations foster multidisciplinary collaboration and empower everyone to contribute to the core mission of providing value to clients. In a “continuous improvement” culture, lean fosters innovation, intrapreneurship, and leadership.
Resources to Get Started (Process Improvement):
- John E. Murdock III and Nancy Lea Hyer, Lean Lawyering (July 28, 2012)
- Bradley Staats and David M. Upton, Lean Knowledge Work, Harvard Business Review (October 2011)
- Jim Manley and Daniel W. Linna Jr., Applying Lean Thinking to Legal Services, Presentation Slides (July 15, 2014)
- Ed Finkel, Mapping the Relentlessly Efficient Law Firm, Illinois Bar Journal (August 2016)
- Atul Gawande, The Checklist Manifesto: How to Get Things Right (2011)
- James P. Womack and Daniel T. Jones, Lean Thinking: Banish Waste and Create Wealth in Your Corporation (2003)
2. Project Management
Lawyers spend a substantial amount of time managing projects. Litigators manage cases. Transactional attorneys manage deals. Associates manage electronic discovery, diligence, and research. Lawyers delegate tasks and manage teams. The list goes on and on. Lawyers at every level would benefit greatly from project management training.
Project management is distinct from process improvement. Processes are ongoing and repeatable. For example, the client intake process or the process of filing a lawsuit. A project, on the other hand, is “a temporary endeavor undertaken to create a unique product, service, or result,” as defined by the Project Management Institute. A project “has a defined beginning and end time, and therefore defined scope and resources.” For example, a specific matter that a lawyer is handling for a client is a project.
Many law firms have begun to use Agile project management, rather than traditional waterfall project management. Agile, which started in software development, is a flexible, iterative approach with regular feedback cycles. Whereas the traditional waterfall approach calls for a detailed plan from the beginning, Agile considers changing circumstances and the fact that we do not know everything at the beginning. Frequent, but very short meetings keep all team members on the same page. Many lawyers have had great success with Agile project management.
Resources to Get Started (Project Management):
- Kim Craig and Jenny Lee, A Nontraditional Approach to Legal Project Management, ILTA (December 2013)
- Kenneth Grady, Herewith, a Process, Process Improvement, Project, Project Management Post, SeytLines (August 20, 2015)
- John E. Grant, The Dawn of the Agile Attorney, ABA Law Practice Today (February 13, 2015)
- Chris Sims and Hillary Louise Johnson, Scrum: a Breathtakingly Brief and Agile Introduction (2012)
3. Metrics, Data, and Analytics
Data is the new oil, many have said. Inexpensive information storage and increased computing power have driven analytics that are transforming old industries and creating new ones. Lawyers who know how to leverage metrics, data, and analytics have an advantage (at least today they do).
“Without data, you’re just another person with an opinion.”
―W. Edwards Deming
Among the ways data can be used in the legal industry today is for improving processes and outcomes. Law firms, legal departments, and other legal-service organizations can create basic metrics and capture data about the efficiency, quality, and value of legal-service delivery. For example, there is very little tracking of “wins and losses.” Many lawyers object that this is a crude, improper way to measure success, but they have not seized the opportunity to create alternative metrics and capture and analyze relevant data.
As for improving outcomes, lawyers can use data about prior cases, courts, judges, opposing parties and counsel, to supplement their anecdotes and intuitions and improve outcome predictions. Lawyers must be knowledgeable consumers of this data so that they can ask the right questions, properly weight the data, and construct decision trees and other visual tools to help them counsel clients. Better forecasting leads to better client counseling and better outcomes.
Quantitative training is relevant, of course, for more than creating legal-service delivery metrics and predicting case outcomes. Many civil and criminal case outcomes hinge on data, statistics, or research design, for example. Even when lawyers have expert witnesses to address these issues, they still must communicate effectively with the expert, opposition, judge, and client.
Statistics, sampling, and other data issues arise in numerous other contexts, such as electronic discovery, healthcare fraud, and discriminatory algorithms, to name just a few. Without at least basic quantitative training, lawyers cannot meaningfully participate in the discussion with other professionals who are grappling with today’s and tomorrow’s problems.
Resources to Get Started (Metrics, Data, and Analytics):
- Connie Brenton and D. Casey Flaherty, The data deficit: Proper measurement is a prerequisite to proper management, Inside Counsel, (November 1, 2015)
- Kenneth Grady, A Metric for Getting Work Done Complete and On Time, SeytLines (December 9, 2014)
- Nancey Watson, Performance Measuring: Three Buckets of Important KPIs, Thomson Reuters Legal Executive Institute (July 13, 2016)
- Owen Byrd, Legal Analytics, Data-Centric Lawyering and Early Case Strategy, Inside Counsel (December 7, 2015)
- Ed Sohn, alt.legal: The Forecast For Legal Analytics Is Mostly Sunny, Above The Law (May 18, 2016)
Technology-driven change has radically altered many industries. There is little reason to believe that the legal industry will be immune. Again, it is a mistake to jump to technology solutions before implementing process improvement and project management. But we cannot ignore technology, including advanced technologies that have the potential to radically transform legal-service delivery.
The starting point for most lawyers and law students, nevertheless, should be mastery of basic and intermediate technology. For our purposes, legal technology can be categorized as follows:
Basic Legal Technology – Competent use of Microsoft Word & Excel and PDF software; knowledgeable about metadata, preventing disclosure of confidential information, electronically stored information (ESI), cloud computing, and electronic discovery; competent use of social media, including use for career and professional development, understanding how clients use social media, and understanding social media evidentiary issues.
Intermediate Legal Technology – Expert systems; document automation; process automation; technology assisted review of ESI; case management systems.
Advanced Legal Technology – Artificial intelligence; machine learning; natural language processing; blockchain.
Basic technology includes the knowledge required to competently represent clients. It also includes software that lawyers use to create documents (e.g., Microsoft Word and PDF software) and analyze information from clients (e.g., Microsoft Excel). As demonstrated by Casey Flaherty with his legal tech audit, not only are lawyers inefficient with these tools, their skill deficit causes avoidable errors and other quality problems. Given the pressures on lawyers to improve efficiency and quality, more and more legal employers and their clients will require basic technology proficiency.
Resources to Get Started (Technology):
- Greg Lambert, Tech and Lawyers: Let’s Start Simple, 3 Geeks and a Law Blog (May 1, 2015)
- Christian E. Dodd, Metadata 101 for Lawyers: A Two-Minute Primer, Hickey Smith blog (July 24, 2015)
- David Lat (featuring Sherri Davidoff and Adriana Linares), 7 Cybersecurity Tips For Lawyers, Above The Law (April 2, 2016)
- Dennis Garcia, What Lawyers Can Learn From the SCOTUS Nominee Twitter Campaign, Bloomberg Law (March 24, 2016)
- Kevin O’Keefe, Want a job law grad? Use social media and social networks, Real Lawyers Have Blogs (May 18, 2016)
- Thomas C. Gricks III and Robert J. Ambrogi, A brief History of Technology Assisted Review, Law Technology Today (November 7, 2015)
- Julie Sobowale, How artificial intelligence is transforming the legal profession, ABA Journal (April 1, 2016)
5. Business of Law
Effective legal-service delivery requires business knowledge. This includes both an understanding of clients’ businesses as well as the business of delivering legal services. The latter is not limited to delivering services and developing business in law firms. It includes legal-service delivery by corporate legal departments, legal aid organizations, courts, and government entities.
The rise of legal operations in corporate legal departments has led to the formation of an Association of Corporate Counsel legal operations group and the founding of the Corporate Legal Operations Consortium. These groups are sharing knowledge across the industry, developing best practices and standards, and driving change for more efficient, effective legal-service delivery models.
Corporate legal departments are starting to look and act more like other business units. They are given less leeway to be “special.” As legal departments pursue operational excellence, they will demand the same from their outside law firms.
Resources to Get Started (Business of Law):
- Jill Schachner Chanen, The Strategic Lawyer, ABA Journal (Jul. 13, 2005)
- Connie Brenton and D. Casey Flaherty, To borrow a phrase, just do it, Inside Counsel (December 1, 2015)
- Richard Molina, Several basics lawyers need to know about financial statements, Ohio State Bar Association
- David Curle, New Deloitte Study Reveals Increased Appetite for Alternative Legal Services – And New Partnership Shows It, Thomson Reuters Legal Executive Institute (June 16, 2016)
- Chief Legal Officer Survey 2015: An Altman Weil Flash Survey (November 10, 2015)
- Law Firms in Transition 2016: An Altman Weil Flash Survey (May 2016)
- Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (2013)
Change is the Only Constant
While not an exhaustive list, these fundamental disciplines serve as an excellent foundation for delivering legal services in the future. That said, the 21st century has just begun and we’ve barely scratched the surface of what’s possible with legal innovation and technology. At the same time, the pace of societal change shows no signs of slowing. Successful 21st century lawyers will not only learn and apply these disciplines, but also commit to lifelong learning and adaptation to improve legal-delivery for everyone.
I’ve attempted to identify a variety of resources that will help lawyers and law students learn about and apply disciplines to help them improve legal-service delivery. Have I missed an excellent resource? Please let me know.