The New Normal

When will lawyers learn to take their vitamins—and other ruminations on change in the industry

Posted Jan 22, 2014 2:50 PM CST
By Paul Lippe

Paul Lippe

Imagine you were running the British Royal Navy during the Age of Sail. One of your biggest problems is keeping crews safe from scurvy during long voyages.

How long do you imagine it would take you from the time that the first British sea captain (James Lancaster in 1601) gave his crew lemons to successfully prevent scurvy to the time it became a “standard practice?”

Five years?
Twenty years?
Fifty years?
Try 194 years.

Even though it was in everyone’s interests and cost very little to start handing out vitamin C-rich citrus fruits (lemons and limes) during long sea journeys, it took several new experiments and almost two centuries before the practice that gave rise to the nickname “limeys” became the standard.

Law has many of the same characteristics as the Royal Navy, i.e., a mix of hierarchy and tradition with meritocracy and objectivity. So it’s no surprise that change takes a while. While many of us have seen that legal-by-design approaches improve the quality and reduce the cost of legal services, help clients, advance the rule of law and improve access to justice, that doesn’t mean they will be adopted overnight.

If you look at the recent PeerMonitor report (PDF) from Georgetown Law and ThomsonReuters describing the continued lack of growth in law firms, you see the obstacles to change: “The law firm leaders participating in the survey were also asked how serious they believe law firms are about changing their legal service delivery model to provide greater value to clients (as opposed to just reducing rates) … using a 0 to 10 scale, respondents produced a median rating of 5 (in the ‘low’ range). That compared to a median rating of 3 given by corporate chief legal officers when asked the same question in October 2012. The lack of commitment to genuine change reflected in these results seemed confirmed by responses to another question posed to survey participants. Asked to list the greatest challenges their firms face in the next 24 months, the top four answers from respondents (which constituted just over 50 percent of all responses) were all internally focused issues aimed at protecting the status quo of the law firm and not at becoming more responsive to clients. [emphasis added].”

The scurvy example comes from Everett Rogers’ book, the Diffusion of Innovations, pretty much the bible (five editions worth) of how change happens.

What Rogers and others in the field found is that regardless of whether a new practice is superior, it can take anywhere from a dozen years to many generations before that practice becomes widely adopted. The key to adoption is the behavior of peers.

Rogers identifies four elements in the diffusion of innovations: innovation, communications channels, time and social system.

And he notes five stages in the adoption process: knowledge, persuasion, decision, implementation and confirmation.

Finally, Rogers talks about the factors that shape the speed of adoption: relative advantage; compatibility; complexity or simplicity; trialability; and observability.

I’ve written before about the different characteristics of innovation adopters and how law’s preference for supra-majoritarian decision-making slows innovation (especially because it impedes trialability). In addition to the normal impediments to diffusion of innovations, let me suggest we have a few that are (mildly) unique to law, especially our “social system”:

1. A lack of metrics, so it’s less clear when an innovation might truly be superior.
2. Control of market entry through professional self-regulation.
3. Disengagement of professional schools, so that we have (relative to fields like medicine and engineering) less development and assessment of innovation.
4. Supra-majoritarian decision-making models in most legal institutions like law firms, law schools and professional societies.
5. Ambivalence (at best) from those who benefit from the status quo about change and innovation, together with frequent conflation of self-interest and the interests of society in the rule of law.

So it’s always very encouraging to see the many signs of innovation that are occurring in law. Today, Clifford Chance, one of the world’s largest firms, released a white paper on its continuous improvement efforts (PDF), applying approaches we’ve been writing about in these pages for some time.

And Clifford Chance basically wrote a compendium on legal by design, although focused mostly on the creation of work product, and not as much of the quality of work product: “Continuous Improvement is a structured and logical approach to analyzing and improving how people work. It is not new: in fact, it can trace its history back over 100 years to the manufacturing innovations that heralded mass production, but adoption in the legal industry is still rare. Clifford Chance is at the forefront of the deployment of Continuous Improvement techniques in the legal sector. This paper sets out our experiences over the past five years of applying this methodology within an elite law firm; the benefits experienced by our clients and by the firm; and our views on how Continuous Improvement will be used by lawyers in the future.”

So is what Clifford Chance doing limes circa 1601, or 1790?

I see three possible scenarios going forward:

1. The legal-by-design innovations are really not superior and so will die an appropriate death.
2. Although the legal-by-design innovations are superior, they will be adopted extremely slowly because law is inherently slow to change.
3. Because the legal-by-design innovations are superior and well-aligned with what’s happening in other fields (especially the world of clients) and because lawyers tend to follow their peers, the rate of adoption will be extremely fast once it gets started.

Let me close with another historical example. Nearly 100 years ago, as the catastrophe of World War I was being set in motion, the British government was convinced that it would have to ratchet back enlistment because there would be too many volunteers for what leaders expected to be a short and victorious war.

The one exception was Lord Kitchener, who had experience using the new tools of war (machine guns, long-range artillery and barbed wire) against pre-industrial armies, where he oversaw the one-sided slaughter that resulted. Other than Kitchener, the general staff imagined that when the British turned these weapons on the Germans and the Austrians, the result would be the same as when they had used them on the Sudanese. But Kitchener understood that the new tools, used by both sides, would change the nature of war.

In the Cabinet meeting of Aug. 7, 1914, while other ministers talked of a conflict lasting months or even weeks, Kitchener warned them: “It will not end … until we have plumbed our manpower to the last million.”

Next time, I’ll talk about upcoming events like ReinventLaw as evidence of where change is occurring in law, and why I take my cues from the Kitcheners who have more experience with the new tools rather than folks who have only experienced one “Normal.”

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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