We’re all tuned into the fact that law seems to be changing, but we don’t all experience or understand the change in the same way. To broadly generalize, I’ll say:
• 10 percent of lawyers are actively trying to manage change along the lines we’ve been advocating here at the New Normal;
• 20 percent recognize change but don’t know what to do or can’t see how change is in their near-term self-interest;
• 30 percent are more or less in denial and experiencing a lot of stress as a result; and
• 40 percent work in a context where very little really is changing (either because it already has changed or will change very slowly), and so much of this conversation truly is irrelevant.
The ABA Journal has dubbed the change agents “Rebels,” which I’ve never been comfortable with. The New York Law Journal just came out with a “Pathfinders and Trailblazers” (PDF) piece. There’s a big powwow in New York in February (and sponsored by the ABA Journal) called “ReInvent Law NYC.” We’ve called this column “New Normal” (after the eponymous 2004 book by Roger McNamee which has since become a very popular term ). But New Normal really describes a context (less secure careers, global competition, technology substitution, slow growth, upending hierarchies) that is much broader than law, and doesn’t tell us anything in particular about what we should do in law.
So I want to suggest a term to describe the direction of change in law, which I neither claim to be wholly original or perfect, but which I hope will be helpful: Legal by Design.
Why Legal by Design?
With the success of Apple and others like it, we’ve come to recognize that “design”—seeing how all the pieces fit together and organizing them in an integrated fashion —is a critical success factor. Lawyers have always had a fair bit of design mojo, but just as Steve Jobs needed to rethink how different (mostly pre-existing) pieces fit together to make the iPhone (and ultimately the whole ecosystem supporting it), we now need to re-design how we deliver legal services to both take advantage of new capabilities (e.g., networks) and address new challenges (e.g., complexity).
The best example of a well-designed legal department is Cisco, the model for much of this thinking. The best description of design thinking came 50 years ago in Christopher Alexander’s “Notes on the Synthesis of Form.” The best description of the “classic” style comes from Northeastern Dean Jeremy Paul, who refers to lawyers traditionally creating “narratives” versus “managing systems.”
What’s driving Legal by Design?
As law gets more complex, we need to move from a world of legal-by-the-hour to one of Legal by Design, blending best practices from other fields with the best traditions of law. While many firm lawyers are great at Legal by Design, this tends to be more of a focus for in-house lawyers, because they (a) have been exposed to these approaches in other parts of the companies they work in and (b) think in terms of managing the totality of their company’s legal issues, rather than hyper-focusing on one matter at a time. Think individual surgeon versus a chief medical officer at a Veterans’ Administration.
In the popular press this usually gets discussed as a problem of cost or law firm business models. But it’s mostly a problem of complexity. Underlying the trend is the migration of information from documents to more dynamic digital forms, both the information that lawyers use to create their work product and the work product itself.
Is Legal by Design really new?
Per “Ecclesiastes,” there’s nothing new under the sun; so it’s always possible to dismiss anything as not entirely new. But let me suggest a few things that are pretty new, or at least different:
• Law firms have bought into a false hierarchy of complexity and value, describing some work as “bet the company” versus “commodity.” Leave aside for the moment that no competent CEO or general counsel would ever want to “bet the company” on a legal (or any other) matter, or there’s no evidence that “elite” firms get better results in “bet the company” matters. “Commodity” work is (1) the core of what the company does, hence it is high volume, (2) the foundation for all legal work, and (3) the enabler for changing methodology, so actually the most strategic in terms of how the legal department is run.
• The problem that Legal by Design has to address is not cost, or law firm business models, or even employment for recent grads, but the client-centered problem of better managing complexity. Rule schemes like Dodd-Frank or HIPAA create pervasive complexity through organizations that can’t be managed with lawyers’ traditional “first principles” based approaches, but require systemic design.
• There is a far greater expectation of serious empiricism. (At Legal OnRamp, we talk about a 3-tier Quality model: Quality of Outcomes, Quality of Work and Quality of Training.) If Sarbanes-Oxley tells us we need to separate the role of chairman from the role of CEO, we expect to see evidence that companies which do so actually perform better. Traditional legal decision-making is largely “tribal,” reproducing the experience of a small group, without leveraging the broader knowledge of diverse networks.
• What’s really interesting, even startling, about the last 24 months, is how the locus of change has shifted from clients (who could drive change more, but are slower than they might be) and law firms (whose governance model makes them slow to change) to law schools. As we saw recently, applications and enrollment are continuing to drop. We see initiatives ranging from those at Northeastern and Michigan State to Stanford.
It is both right and appropriate that law schools get “in the fight,” because the locus advancement of any profession is in its professional schools. Increasingly educators are recognizing that the case method, while terrific as an introduction to legal reasoning in the first year, should probably mature into more of a design method by the third year.
So let’s try Legal by Design as a descriptor for a while and see if it sticks.
Paul Lippe is the CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering.