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One practical consequence of the big gap between attorneys’ excellent formal schooling and the skills they need to do excellent work for clients:

Attorneys who graduated from law school 4 years ago or less typically lack the skills they need to serve the client independently — i.e., without “supervision”.

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Leading law practice consultant Jordan Furlong initiated a discussion in which he asked lawyers who’d begun their careers as law firm associates and who were now partners at law firms or held other responsible law practice roles in companies: “How many months and / or years did it take before you felt like a reasonably competent and confident lawyer?”

Two dozen lawyers went on record and named their firms / organizations:

“The lowest number of years offered was two, the most was ten, but the frequently cited median was five.”

“Only one person said they never felt unready for law practice; everyone else said, essentially, ‘It took me years to feel like I knew what I was doing.'”

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This certainly corresponds to my own experience in a large Wall Street firm — and with what I witnessed in a smaller firm on the West Coast after I was fully developed as a lawyer myself and saw others struggling.

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There’s not much in the way of practical how-to instruction for new attorneys. So there’s a big gap between their excellent formal schooling and the skills needed to do excellent work for clients.  

This gap poses two practical consequences:

1. Attorneys who graduated from law school less than 4 years ago typically lack the skills they need to serve the client independently — i.e., without “supervision”, and  
2. The presence of junior lawyers on legal teams usually means that the client company pays for what law firms themselves sometimes refer to as their “training”. 

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About this “gap”.

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In Part I of this two-part series I contended that the vast majority of law firms and in-house departments haven’t adopted Six Sigma, Toyota “Lean” protocols, or other process improvement standards because the legal industry’s cost-plus business model undercuts any incentive for operational efficiency.

Undercuts how?

Law firms and in-house departments “organize” their work by simply assigning bodies (of admittedly smart people) to tasks. 

So the adoption of systematic, measurable processes of the kind long since developed everywhere else in your company would reduce lawyer-bodies-assigned (and hours worked). That’s not what legal industry — its business model — is designed for. 

This Part II addresses a rare exception: The“Electronic Discovery Reference Model” — EDRM — a collaboration between lawyers, companies, technology providers and legal process outsourcers to create business process and technology standards for cheaper and more accurate “e-discovery”. 

“E-discovery” stands apart from most legal industry tasks. Because here the incentives favor — in fact they require — operational efficiency.

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The vast majority of law firms and in-house departments haven’t adopted Six Sigma, Toyota’s “Lean” protocols, or other process improvement standards.   

Why? Because the legal industry’s cost-plus business model undercuts any incentive for operational efficiency. The legal industry doesn’t structure its work into activities sequenced in a specific order to produce a service or product for the customer. 

Instead, both law firms and in-house departments assign bodies (of admittedly smart people) to tasks. They aren’t motivated to take process improvement seriously because their work flows aren’t sufficiently organized to be called a “process”.     

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Six Sigma at GE — Motivation Driven from the Top Down: 

As an executive at GE I saw firsthand how incentives for operational discipline drove Six Sigma adoption under Jack Welch.

More accurately, Jack Welch himself was motivated to drive those incentives down into the rest of the company.

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As I said in Part I, too many individual judges and bureaucrats indulge their own preconceived, subjective legal and regulatory views in ways that create bad surprises.

Your best protection?

The sound judgment of a lawyer who’s immersed in the views of those who call the legal and regulatory shots likely to impact your business.    

A couple of examples:

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EXAMPLE #1

Where an idiosyncratic court ruling might expose your business entity to liabilities that you expected to be protected against:

Form your business entity — corporation, LLC, etc. — under the laws of a state whose court system handles the relevant issues frequently — and that values predictability in its rules.

Example: Delaware.

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Despite our nation’s sacred aspiration to have a government “of laws, not men”, businesses often find themselves governed by the preconceived, subjective opinion of some judge or bureaucrat.

Even when that preconceived, subjective opinion conflicts with the plain meaning of a statute’s or regulation’s actual words.  

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The Dodd-Frank Act provides specified whistleblower rights to an employee who communicates a securities law violation “to the [Securities and Exchange] Commission”.

Two days ago (February 21, 2018) the U.S. Supreme Court held that this provision did not apply where the employee communicated a securities law violation to an internal company official — instead of the SEC. (Digital Realty Trust v. Somers).

No report to the SEC. No recovery under this statute. The proverbial no-brainer, right?

Why did it take the employer company four years of litigation — and appeals all the way to the U.S. Supreme Court — to confirm what a reasonably intelligent 6th grader would have understood from reading the text?

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Because our legal institutions indulge idiosyncrasies and whims on the part of judges and bureaucrats that frequently render the law’s demands unpredictable.

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Part III

For routine, repetitive, or high-volume legal or regulatory compliance tasks, ask yourself which service provider brings the the right business processes — and perhaps the right technology — to the need presented.

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Some of your company’s legal and regulatory needs call for a team and a process.

Not for a particular attorney.

And certainly not for an attorney who happens to be under-utilized or to have only partial aptitude for the task.

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Unlike general management, the legal industry doesn’t usually break down routine, repetitive, or high-volume tasks according to Six Sigma, the Toyota Production System, etc.

As a friend put it when we were both first year associates in a prestigious Wall Street law firm: “We’re in a cottage industry!”

He didn’t mean that our work was small beer. After all — each lawsuit and transaction had lots of zeros after the dollar sign.

Instead my friend meant that lawyers at our firm were essentially individual artisans, sitting at work benches making shoes by hand, etc. sitting at our desks, proof-reading trust indentures, researching case law, etc.

Most tasks handled by large law firms, by small law firms, and by in-house legal departments are made-to-order. Lawyers’ work is usually marked by intellectual rigor in the thinking behind it — but not by management rigor in its execution.

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Part II

Match the attorney you pick to the decision-maker you face if a court, regulator, or prosecutor with a distinctive viewpoint will be driving the legal outcome.

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An iconic statue of Lady Justice adorns many courthouses.

Don’t take her blindfold too literally.

For instance, a lawyer who practices in Chicago should think twice before taking a case before a circuit court in downstate Illinois. Here the distinctive viewpoint consists of favoring those attorneys who are members of the local legal community — and disfavoring strangers. It’s not universal — but it’s widespread and very real when you run into it.

It’s called getting “home-towned”.

A distinctive viewpoint can go beyond locality to take the form of “the way that this regulatory agency does things” — or “the way that this prosecutor’s office approaches a criminal charge”.

Beyond this, decision-makers like judges or bureaucrats often have their own individual idiosyncrasies in the way that they approach their work.

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So when some distinctive viewpoint might cause Lady Justice’s blindfold to slip you should consider a lawyer who’s privy to the secret handshakes, inside baseball, and other esoterica involved. 

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Part I

Where there’s a lot at stake in the matter at hand it’s usually best to begin with “Who’s the right lawyer?” — Not: “What’s the best law firm?”

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Jane and Susan entered my office:

“Jack wants us to ask you which environmental lawyer we should hire”.

Jack was our company’s president.

Jane was head of a new environmental business unit — an accomplished environmental engineer.

Susan was associate general counsel — whose corporate law acumen I’d long admired.

(All names changed to protect ….)

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I was two years into a transition from practicing lawyer to general manager after a corporate client had invited me to run one of its divisions.

Neither Jane nor Susan reported to me. And I wasn’t part of the general counsel’s office.

I replied: “It’s always great to see you guys. But I don’t know why our president has sent you to talk to me about this!”    

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Take-away #3:

• AI won’t replace a lawyer’s judgment.
• AI will drive labor-saving technology to perform law’s “manual” tasks.

Jeffrey Carr put this best:

AI doesnt' replace lawyer judgment (essence of lawyering) but does replace brute force efforts that are the essence of #LawLand's bus model https://t.co/nNqN4C018h

— Jeffrey Carr (@CarrNext) March 22, 2017

Jeff Carr is that rare general counsel who reduced total legal costs and proactively headed off liability before it arose — instead of the steady, single digit increases in legal budgets that are the norm. 

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