The New Normal

What Language Is Best For Talking About the New Normal?

Posted Sep 12, 2012 1:27 PM CDT
By Paul Lippe

Paul Lippe

Last week the Institute of Medicine released a report suggesting that 30 percent of health care spending, or $750 billion annually, is wasted. According to the report, the waste falls into six categories:

• Unnecessary services.
• Inefficient care delivery.
• Excess administrative costs.
• Inflated prices.
• Prevention failures.
• Fraud.

This report links back to a 1999 IOM report concluding that “at least 44,000 people, and perhaps as many as 98,000 people, die in hospitals each year as a result of medical errors that could have been prevented.” When the 1999 report came out, I was working as CEO of a Stanford University School of Medicine-sponsored venture to improve online information and education for doctors, and hopefully, by implication, reduce the number of errors.

Of course, we have no comparable meta-analyses for law, but one can reasonably infer based on experience that there is a comparable level of waste and error in law practice.

Both reports have influenced New Normalist thinking, including our language. In 2005, I wrote an essay with Mark Chandler, the general counsel of Cisco, for the ACC Docket (sub. req.) in which we even talked about ‘muda,” a term used in “Lean” thinking to refer to waste, and as recently as two weeks ago I argued for the utility of systems like Lean and Six Sigma for lawyers because these approaches are designed to address problems of error and waste in large-scale systems.

Yet it is clear from some of the comments on and elsewhere that this “industrial’ language is anathema to many lawyers, even though nobody seems to substantively rebut the New Normal analysis. Just last week, Kent Zimmerman from the legal consulting firm Zeughauser—which, like most legal consultants had long been a champion of the Old Normal—gave an interview on Bloomberg Law echoing what we’ve been saying in these pages for some time: Clients are driving change by pushing efficiency, law firm revenues will continue to stagnate, some firms will fail, firms need to cut costs that don’t matter to clients, clients are forcing firms to “unbundle” and seek lower-cost service providers, and firms need to reinvigorate their value strategies.

Certainly nobody can explain why it is fine that law seems to have no system of self-reflection and analysis like medicine that would even begin to guesstimate what our levels of error or waste might be. Instead, some hostile commenters respond to the New Normal with a lot of ad hominem attacks. Phrases like ‘smug know-it-all,” “provocative” and most ignominiously, “consultant,” are thrown around.

My colleague Pat Lamb touched on many of these issues in “Lawyers are Not Special,” yet it is clear that challenging many lawyers’ sense of “specialness” attacks something at the heart of their professional identities and shuts down the conversation.

Modern authorial practice might be just to ignore the haters. But my goal isn’t simply to preach to the converted and annoy others. My goal is to persuade and to learn. So if challenging many lawyers’ sense of “specialness” attacks something at the heart of their professional identities and shuts down the conversation, we may need to find a different language.

So the question I am wrestling with is whether using industrial language like Six Sigma is counterproductive, and if we should employ professional language. This approach was first suggested to me by Lance Liebman, who used to teach at Harvard Law School, became the dean at Columbia Law School, and is also director of the American Law Institute. Lance asked whether we should consider updating the ALA Restatement of the Law Governing Lawyers to address some of these issues. My initial reaction was bewilderment, but he may well be right. If you go to law schools, most of the (few) folks who actually pay any attention to what lawyers do in practice are ethics specialists.

Certainly I was encouraged by the ABA’s recent decision to say that technology competence is a basic requirement for attorneys.

I don’t have a ready answer, but I promise to explore it as best I can, and would appreciate feedback. Let me suggest some basic questions for which I think good answers should be found in professional norms:

• Do lawyers have a professional duty to be efficient and to use the most effective tools and processes to deliver services as high-quality and low-cost as they can?
• Do lawyers have a professional duty to apply “evidence-based” approaches when contrasting risk, as opposed to presuming a greater riskiness to the unfamiliar?
• Do lawyers have a professional duty to let clients determine the degree of risk and certainty that the client wants on a given matter, or should the lawyer rely on his or her own judgment?
• And finally (for now), can today’s system of professional ethics, which is a system of and for lawyers, serve as an appropriate catalyst for change, if many of the drivers of effective change are coming from outside law?

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.

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