ABA Journal

The New Normal

Avoiding Complexity: An Agile Manifesto for Lawyers

By Roya Behnia

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Aspiring to be part of the New Normal, I pay attention whenever Jeff Carr writes about the legal profession. In particular, his comments on my post on the network effect and kaizen bear repeating:

Lawyers, being lawyers, love to ‘complexify’ things. In part, that’s because we make money from complexity. In part because the complexification process shrouds what we do in mystery and fosters the need for even more of our services. And, yes, in part because some things really can be pretty complex. The issue, of course, is how to eliminate unnecessary complexity. Once that step is taken, then we can focus on the breaking down any remaining complex issues and systems into very simple, often binomial, decisions so that they can be resolved and then recombined to create a holistic lasting solution to the issue at hand. Lawyers, being lawyers, would probably prefer to use the double negative imperative and call this ‘de-complexification.’ Being the simple company lawyer that I am, I prefer to simply yearn for, and therefore relentlessly pursue “simplification.”

This point about complexity reminds me of my second-favorite Dilbert strip (GIF) on lawyers. While we laugh at the violence we do to the English language, our business colleagues still lament “the contract lost in Legal.” What do we gain by insisting on complexity, and why do we elevate precision to a religious experience?

The lawyerly pursuit of complexity makes me think about software developers. In a way, lawyers and software developers are alike. Both are attuned to thinking about worst-case outcomes, trained to focus on the details, and oriented to following rigid rules. Just 15 years ago, software development largely was document-driven, highly process-oriented, rigidly adherent to a predetermined plan, and not aligned with user experience. In practice, a novel idea to meet an immediate market need had to undergo months of drafting of a typically impenetrable requirements document. Only after countless meetings spent perfecting these requirements was a single line of code written. Sometimes taking years from idea to inception, the ultimate output was no longer novel and probably didn’t work the way it was intended.

Frustrated with the old normal’s inability to meet the needs of the new, Internet-based economy, a small group of software developers came together 10 years ago at a ski resort in Utah. Calling themselves “organizational anarchists,” they gave the world the Agile Manifesto:

    Individuals and interactions over processes and tools
    Working software over comprehensive documentation
    Customer collaboration over contract negotiation
    Responding to change over following a plan

That is, while there is value in the items on the right, we value the items on the left more.

These powerful principles reflected a new emphasis on collaboration, communication, and alacrity in the service of delivering value. (Read more on the development of agile at the Agile Alliance). Since then, various forms of agile methodology have been adopted by corporate powerhouses like Apple and Google. If you have an iPhone or iPad, you have benefited from agile development.

So, what does the story of a small group of frustrated software engineers teach lawyers?

Software development 10 years ago resembles a large segment of legal practice today. Too often, my in-house legal team entered major negotiations with corporate partners who were reluctant to include their lawyers in the room. Too often, we received drafts of legal documents that were contrary to what the business executives had already decided. Too often, we met our internal goal of reviewing and marking agreements within a 24-hour period only to then wait two months for the other side to complete its own internal legal review. How much time is wasted on a daily basis across the country because of this misalignment between the legal function and business goals?

In the New Normal, it’s time for an Agile Manifesto for Legal Services.

It isn’t too late for lawyers to shift toward collaboration, flexibility, and agility in delivering legal services. We know from the software industry’s successful redefinition of how to deliver value that transformative change can come from a small group of committed individuals. With the agile manifesto and its evangelists, software development turned away from outmoded process toward a focus on the customer’s needs.

What would an agile manifesto for lawyers look like?

The values underlying this call to action could include (1) continual collaboration with clients; (2) a commitment to flexibility and rapidity; (3) direct communication rather than complex documentation; (4) continual focus on client goals; (5) realistically weighing risk; and (6) a strong bias toward simplicity.

These may not be the only values or may not be perfectly stated. But they are actionable for both private practice lawyers and inside counsel. For example, living these values would require lawyers to:

    • Be integrated from day one into business teams to ensure alignment.
    • Move away from lengthy reviews of immaterial contracts towards “good enough” reviews.
    • Discard long memos in favor of face-to-face meetings and action plans.
    • Distinguish between legal and business risk and allow the business to decide the latter.
    • Write in plain English, always.
    • Set internal goals and metrics for rapid legal turnaround and other proof of value.

Can we do what our software industry colleagues did to improve their business? If we can, my favorite Dilbert strip (GIF) on lawyers could be rendered meaningless.

Roya Behnia was senior vice president, general counsel and secretary of Rewards Network Inc. (NASDAQ: DINE) until December 2010 after completing the sale of the business. She led the legal, human resources, and compliance functions and served on the company’s executive management committee where she was centrally involved in developing and implementing business strategy for the company. She has been an in-house lawyer since December 1998, working with Brunswick Corporation and SPX Corporation. Before that, she was a partner at Kirkland & Ellis.

Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, Patrick Lamb, founding member of Valorem Law Group and their guests. New Normal contributors spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. You’re invited to join their discussion.

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