colpm

Fast Followers

Over the weekend, I participated in the 2009 Futures Conference presented by the College of Law Practice Management at the University of Denver Sturm College of Law.  It was a good program with some excellent and provocative speakers.  Most sessions focused well on the topic at hand:  What's going on in the business of practicing law and how will it change?

Perhaps because I tend to approach things with the Monty Python view of things ( "And now, something completely different!!") I was most intrigued by a concept of "Fast Followers" put forth by Harry Trueheart, Chairman of international law firm, Nixon Peabody.

It's an idea that has been around for a while.  In essence, it suggests that it is smarter to avoid the pain and heartbreak of taking a totally unique concept to the world, and instead, choose the strategy of making someone else's innovation better, faster, cheaper and thereby taking advantage of their hard start-up work and learning to surpass them. Sort of like winning the auto race by "drafting" in the pull exerted by the front runner.

There have been strong opinions on both sides of this. You can read management consultant Jim McGee's explanation of the theory's flaw.  And you can read Constantinos Markides and Paul Geroski's 2004 book, Fast Second: How Smart Companies Bypass Radical Innovation to Enter and Dominate New Markets to learn all the ins and outs.

I like it, however, in the context of the business of practicing law.  In a world where anything without precedent can be viewed as toxic, the "Fast Follower" approach allows the determined innovator to say "YES, someone else HAS done this before!!" to calm the critics then move forward in a way that is frequently impossible in a law firm if it is a brand spanking new concept.

Something to think about, anyway.

Dressing the Emperor: Jones Day M&A Lawyers Speak Out

[by Ron Friedmann]  Two senior Jones Day M&A lawyers have revealed that the Emperor has no clothes and suggest a plan to dress him.  Their article raises thought-provoking questions about how deal lawyers practice law.

It's Time To Rethink The Lawyer's Role In Dealmaking: Start By Facing Up To The New Realities by  Robert A. Profusek and Lyle G. Ganske of Jones Day in Metropolitan Corporate Counsel, December 2007, makes several  key points:

• "Many lawyers no longer add real value to dealmaking."
• Lawyers do deals the way they always have while business has moved on: "merger papers for public company deals have become the intellectual equivalents of deeds in a real estate deal."
• "[D]eal document creation has become a decidedly commoditized process."
• Lawyers must re-think their roles in deals.  Lawyers add value "in mobilizing and managing multidisciplinary risk assessment teams, not in shuffling reams of paper."
• "We are spearheading an initiative to rethink deal documentation fundamentally, and we intend to invite other leading firms to join our effort."
• "[W]e will completely deconstruct what it is we do. We will reevaluate how we should staff our deals, what expertise our firms really need, how we serve our clients, and how we bill for our services."

I have written about several ideas that support re-thinking law practice:

• Document assembly and expert systems (online interactive advisory systems) to address commoditized elements of law practice
• Developing by empirical methods best practice guidelines for how law is practiced and deals are conducted.
• Business intelligence to help assess staffing models and alternative billing.
• Formal risk assessment using decision trees.  Granted, I've only discussed that tool for litigation, but perhaps it or other quantitative techniques can be developed to understand, discuss, and perhaps even measure deal risk.
• Knowledge management to capture and re-use documents and to tap the appropriate expertise.
• Outsourcing to offshore lawyers routine, higher volume work such as due diligence and contract drafting and review.

The authors' initiative "to dress the Emperor" includes other law firms.  I hope they include the broader community of legal professionals who have thought long and hard about improving law practice.  If this initiative does not succeed, does the profession go back to pretending the Emperor has clothes?

Fellow becomes Australia's new Sex Discrimination Commissioner

I was delighted to see from this morning's Sydney Morning Herald that College Fellow Liz Broderick has become Australia's new Sex Discrimination Commissioner, after a stellar career in her previous firm Blake Dawson Waldron, where she ran the legal technology group, pioneering the development of an online "Virtual Lawyer" service and other computerised legal products, well before most other firms. 

Liz describes her interests issues related to the impact of the internet, women in business, work and life balance, gender equality and corporate social responsibility.  She is also excited about the use of innovative techniques to stay in touch with the issues and concerns of people from all walks of life.     

"Technology is rapidly changing the way we communicate. I think we have just begun to tap into the great potential of new media to promote a fairer Australia."

Her answers to the SMH's big questions are revealing:

THE BIG QUESTIONS

Biggest break Winning the NSW Telstra Businesswomen's Awards in 2001. It opened up my world and showed me the breadth of women's activities across the country and the problems associated with them.

Biggest achievement Developing a range of flexible work practices [at law firm Blake Dawson Waldron] that allowed women and men to build careers without sacrificing family. It was a traditional law firm environment but there was substantial goodwill and a desire to innovate. By advocating for change, I think I did something that mattered to many people.

Biggest regret Sure, there were things I could have done differently but throughout my career I've always followed my own interests and instincts. When you do that I think you can stand by your decisions and not waste time looking back at what might have been.

Best investment Spending time with my mother when she was dying and exploring with her the issues of life and death. She taught me that death is a part of life.

Worst investment At age 16, buying a pair of beautiful fluoro gold boots. They were two sizes too small and I still bear the scars. I wore them to several law firm interviews in great pain and without success.

Attitude to money Time is in short supply. Follow the interest and not the money.

Personal philosophy Human rights start at home. Be the example you want to see in the world.

Commentary on her appointment can be found in a piece on how law firms fail women at Australian Business and also here and in a commentary at the start of her new listening tour of Australia.

Advocatus Clienti

The indispensable Bruce MacEwen writes another superb piece at Adam Smith, Esq., this time on the lessons law firms could learn about client relations from consumer packaged goods companies' marketing strategies (short answer: a lot). This quote in particular grabbed my attention:

Focusing on clients means viewing the service your firm provides from their perspective and ensuring it's aligned with what they really anticipate, need, and expect from a premier law firm.  ... At FedEx, it means that a key part of marketing's job is "speaking up on the customer's behalf and ensuring that what we have to say is taken seriously," according to Mike Glenn, executive vice president of market development and corporate communications.

Wouldn't it be great if a law firm adopted FedEx's credo in real terms?

Power to the Client

The August 2007 edition of the Law Society Journal (New South Wales) talks about Nova Legal and Advisory, an incorporated legal business in Sydney consisting of both a traditional law firm and a corporate governance, compliance and risk management consulting firm. It’s the latter business that has come up with the innovative Nova Solutions, “an integrated online management tool for the governance infrastructure needs of organizations.”

As the article (membership required) explains, Nova Solutions is an online training and compliance program authored and maintained by the firm. Armed with the knowledge of clients’ legal needs in HR, compliance, governance and training, Nova’s lawyers worked with researchers, technical writers and tech people to create, says writer Julie Lewis,

“an intranet package tailored to each company, where users can click on a screen to see the company’s policies in relation to a range of regulatory and compliance issues, and click again to complete a training course to bring them up to speed on the company’s requirements in those areas.”

This is the third such online training and compliance service I’ve seen law firms provide (the Self-Administered Legal Training program at Blake Dawson Waldron and the Compliance Management System at Holland & Hart are the other two), not to mention Howrey LLP’s Virtual University for internal associate training. I wouldn’t be surprised if there are more, and I certainly expect this kind of service to flourish.

This is how lawyers will survive in the legal marketplace of the future: client empowerment. We will partner with clients, individual and organizational, and help them take greater responsibility for their legal lives — help them to develop “good legal habits” that prevent problems from developing. These online services don’t just provide an efficient, 24/7 means of providing clients with legal knowledge; they also anticipate and disable the kinds of issues that otherwise grow into full-blown legal headaches. Doctors don’t just cure patients; they also help them develop regimes to stay healthy in the first place. Why should lawyers be different?

One of these days we’ll see a law “firm” with no bricks, no mortar, no street address — just a full-scale online presence with which clients interact to reduce their legal exposure. Of course, there’s no guarantee that lawyers will be running it.

Three Law Firm Innovators

The Wall Street Journal Law Blog, in A Trio of Law-Firm Innovators, reports on three law firms that are innovating.  Sullivan & Worcester is getting business in an international niche, Schnader Harrison is sharing some of its practice secrets with lawyers outside the firm, and Arnold & Porter is going environmentally green.  The WSJ blog post references articles describing each law firm's innovation.

The Coming Crisis in Small Town Lawyering

At the Law Society's Solo and Small Firm Conference ten days ago, my partner Gavin MacKenzie spoke as the Treasurer about the looming problem of access to legal services outside the big cities. As he travels to meet with County Law Associations he's learned in community after community that Ontario's small town lawyers are an aging breed whose ranks aren't being replenished by new graduates. The average age is 55 and within a decade fully half expect to leave the practice of law.

We face the very real possibility that not merely will legal services be priced beyond the average income but there simply won't be lawyers to provide those services. I pause to observe that paralegals may be perfectly positioned to exploit these market failures.

So why aren't younger lawyers opting for small town practice?

Economics: with margins on conveyancing cut to the bone and with the rise of title insurance, the demise of personal injury litigation, and legal aid being tightly controlled by its government funders, its tough to make a living, even given lower costs of living and business overhead.

Specialization: I sense that its tougher now than it ever was to be a general practitioner, willing to take whatever comes through the door. Legal education: as the cost of legal education has increased the debt load gets tougher to repay at salaries that may be a fraction of big city firms. The distorting effects of NYC starting salaries are felt far afield.

And the law schools haven't been focussing on small town generalists.  Our Bar Admission Course has been slimmed down too, and must serve the entire body of graduates.

So what's to be done?

Following on the model of subsidizing new medical graduates to practise medicine in underserved or smaller communities, we may have to fund debt relief for those willing to work as lawyers in similar locations. All of us involved with the legal profession need to remind ourselves that solos and small firms dominate the numbers of the profession and that the world of big city megafirms represents a small and atypical minority that can appear so dominant that it distorts perceptions.

Technology may play its part. The Law Society's Solo and Small Firm Conference attracted 250 lawyers hungry to learn about practice management, marketing and how technology can help. We need to take the show on the road though.

Richard Susskind has long theorized about the potential for consumer oriented intelligent systems to package legal advice to meet a vast latent market for legal services.

We've seen more of this kind of innovation in Britain though Richard Granat and others in the SE have been doing some pioneering work.

Legal information has been subject to price increases that have far outstripped inflation for a generation. Equipping a basic law library for a general practitioner remains expensive. Web access to statutes and regulations helps as does Baillii, Austlii and CanLII. But we haven't seen the sort of cheaper alternatives like Loislaw or onelexis.com in smaller markets like Canada or the  UK. Indeed the consolidation of legal publishing has only increased rates to the point where it becomes more difficult for solos and smaller firms to justify the expense. The model of sponsoring basic legal information that the Chambre des Notaires pioneered in L'Inforoute Notariale might have more traction given collaborative tools like wikis.

We need more hard thinking before shifts in demographics get translated into a new problem of access to legal services.

Starting to Blog

There is a great set of postings that provide wonderful advice to folks just about to start blogging, or who might be tempted but are hesitant. 

Nine Lessons for Would Be Bloggers sets out some great practical guidance for getting going.

And I really liked a basic entry level introduction to Web 2.0 at the MARS website. 

Innovation and Collaboration

At the 2006 annual meeting of the College of Law Practice Management, innovation expert Eric Mankin presented the keynote address.  Eric also has a regular column / e-mail on Innovation (2007 updates here).  In his latest update (3/12/07), Eric invited Fred Mandell of HotHouse Innovation to write the update.

Mandell's Water Lilies and Innovation - a Guest Update is an excellent piece and different take than usual on innovation.  He lists seven key competencies for creativity:

1.      Preparation:  Deliberately engaging in activities which predispose us to creative insight;

2.      Seeing:  The ability to observe without preconceived ideas;

3.      Leveraging Context:  Taking advantage of one’s understanding of the strategic and social environments in which one works and lives;

4.      Embracing Ambiguity:  Acting on opportunities presented by change and uncertainty;

5.      Risk Taking:  Taking action without certainty of outcome;

6.      Discipline:  Acting consistently whether or not one feels motivated;

7.      Collaboration:  Working with others towards a common end.

Read the entire post - which has an engaging analysis about painter Monet as innovator - and see how many of these competencies you think the typical lawyer or law firm has.

You can't live in fear!

Okay, I admit it, I played hooky last Friday afternoon so I could be one of the first in my neighborhood to view Nicholas Cage's new movie, Ghost Rider.  It's a rip-snorter, all right. And, as movies-made-from-comic-books go, this one's right up there with Hellboy! But that's beside the point.

I'm here to address Ron F's earlier post on the "fear of blogging" (Where's Erica Jong when you need her?) and how it plays out.  Don't you think that's a great jumping-off point for a really good conversation about why it's so difficult to innovate in a law firm setting?  I do.

While I hate "profiling" as much as the next person, I do believe that organizations consisting largely of a single kind of person (hospitals, schools, sports teams, girls schools . . .) tend to replicate behavior characteristic of that type in every aspect of the organization.  So here's what we know about lawyers - present company excepted, I'm sure:

Risk adverse In fact that's what clients hire you for.

Precedent based Just like the system of common law, eh?

Success oriented  He who makes mistakes shall be eaten for lunch.  Which leads to,

Competitive Do I even have to explain this?

Traditional  See precedent base, above.

Time sensitive If the meter's on, I'd better be doing client work!

Why - on this round earth - would someone with those characteristics choose to go online and potentially make a fool of themselves trying to do something they've never done before, they won't get paid for and there's no way they can be the best at?  Huh?

Well, there are two parts to this answer.  Number one:  Because management has altered things in such a way that it is irresistible - and rewarded.  Number two:  See Ghost Rider reference, above:  It's like Johnny Blaze says,                           "YOU CAN'T LIVE IN FEAR!!!"