A framework for making the legal delivery system better
Hello – I’m Jeff Carr and I am not a lawyer. Now, I was licensed to practice law in Texas and the District of Columbia and was responsible for the delivery of legal services at two Fortune 500 companies. And I’ve been doing this legal delivery thing for almost 40 years, albeit most of that time spent being pretty lonely out on the radical fringe. Perhaps this is because, at my core, I’m a business person. A member of the company’s executive team. A manager. And yes, at times, a consigliere. But despite a JD on my resume, I don’t do interesting questions of law.
I am writing this essay because two colleagues whom I like and respect — Jason Barnwell and Bill Henderson — badgered me to do so, see Post 281, claiming that the legal profession stands to benefit from my experience and perspective. Although this sounds very lofty, I’m willing to give it a shot.
In my capacity as the leader of a legal department, I have gravitated toward frameworks as a way to communicate complex ideas, as this is a necessary first step toward creating internal alignment among team members, implementing a strategy, and achieving desired business results. Likewise, by the end of this essay, I hope readers understand the above lead graphic, Four Waves in Change in #LawLand. But before getting there, I want to discuss some foundational concepts that tie us together as legal professionals.
Making the legal delivery system better
Over the course of my career in law, my professional goal has always been to make the legal delivery system better, which is different than making the underlying “law” in and of itself better. After all, I’m not in the morality game. That’s what lawmakers do. I’m in the delivered value game of effectiveness, efficiency, and great customer experience. I’m here to make legal delivery better in order to enable our customer’s success by removing obstacles, mitigating risk, and maintaining the ethical compass. All through that lens of delivered value.
To get to the view of true “better” in legal service delivery, it is useful to return to first principles. We are not here for ourselves, for the guild. We are here to promote and protect the social good called “the law” for the benefit and service of those we call clients. As such, when access to legal assistance is too difficult, too expensive, too unpredictable — and yes, too unfair — it is our job to fix the imbalance. To the extent we — members of the legal profession — ignore the imbalance in order to make another dollar out of a broken status quo, we have become corrupt guardians who betray our professional values.
Unfortunately, the more broken the status quo becomes, the greater our eventual professional reckoning. Thus, in my view, we have no time to waste.
The best legal problem is the one you never have
Let’s be honest: No one wants a legal problem, but when you have one, you want a legal gladiator. And no one likes the insurance inspector; we’d rather celebrate the firefighter. And that’s part of the root of the problem. We like being a firefighter — being a hero. But time and time again we see that teams outperform solo greatness. That planning trumps bravado. That flawless execution delivers results but requires a process rather than improvisation. That the best legal problem is the one you never have.
But prevention, the highest and best use of a counselor, well, that by it’s very nature limits the heroic entrance and performance. Heroes are who we like to be — indeed, who we mostly strive to be. Without fires, who needs firefighters? Without problems who needs lawyers? As the iconic film Demolition Man emphasizes, without violent crime, who needs the police and their SWAT teams?
Our legal delivery system is designed around the past — around disputes and gladiators. Combat and brilliance. Confrontation and conquest.
But when I’m truly honest with myself and with you, in my role as general counsel, I’m just a well-paid, well-dressed janitor who deals with the mistakes and bad behavior of others. Like the guy in the graphic (see right), I’m just following a big elephant and cleaning up the mess.
Don’t get me wrong. There is great honor in being a street sweeper — heck, Jimmy Buffett wrote a song about it called “It’s my job.” But make no mistake, the players in that ecosystem have a strong vested interest in the continuation of problems to clean up. But to reduce the mess prospectively for the benefit of clients, we legal professionals have to change the way we look at lawyers, at legal processes, at legal training, at delivery systems, and indeed at what we call justice.
Four waves of change in #LawLand
To move from reactive clean-up expert to preventative problem solver, we need a framework that can get us all on the same page. That is the purpose of the Four Waves of Change in #LawLand.
Wave 1 is “What.” In response to Old Law, which is about hours, activity, and inputs rather than outputs and results, the nascent change agent of “What” looks to ensure that what they are doing is really legal — and that it really matters. While a fee-for-service provider might be willing to wash your car in the name of customer service — especially if they can bill like it’s a bankruptcy matter — that’s not legal work and certainly need not be done by a lawyer, a law firm, or a legal team. That’s why in a change management lexicon, this is a Stretch away from where we were in the direction of where we want to go. It’s not a big change, it just moves us a bit out of our comfort area. Yet truth be told, a huge portion of legal dysfunction is traceable to a lack of clarity, and thus organizational confusion, on “What” issues.
Wave 2 is “Who & Where.” This is New Law, which is about lower-cost hours, while still being all about activity and not results. This is about doing more with less and is essentially a cost and labor arbitrage play. It’s also about the elimination of brick and mortar office edifices— the mahogany & marble, chrome & glass, or trendy urban open concept beehives of scriveners — and recognizing that in a connected world, it matters little where the work we decided to do in Wave 1 is actually done. It’s not a huge change in focus or business model. It’s good, but not good enough and not ultimately sustainable in a world of rising legal complexity. See Post 277 (Jason Barnwell concluding that to keep pace with client needs, the legal profession must embrace industrialization of legal work); Post 280 (LexFusion founders observing significant change efforts that are being outpaced by the need for even faster change). And that’s why it’s just another Stretch away from our comfort zone on the journey. Most important, it’s why we should not stop at Wave 2.
Wave 3 is “How.” This is Elevated Law and a fundamental change in focus away from activity and toward measurable results. Wave 3 is about solving customer legal problems effectively and efficiently. Here we dissect everything about the “What” we’re going to do as well as “Who & Where” with an eye towards the elimination of waste and eventual optimization. This is a workplace that leverages process and about project management, GAANT charts, lean, six sigma, best practices, and continuous improvement. Wave 3 is also the transition zone between the real world of business and that cloistered protected place we call #LawLand. It’s a big wave where some surfers will wipe out, some vessels will be swamped and capsized. Eventually, Wave 3 becomes a tsunami, as clients vote with their pocketbooks in order to enjoy the tremendous benefits of dramatically higher legal productivity, transparency, and control.
Wave 4 is “Why.” This is Next Law and it’s all about prevention. It’s about embracing the concept that legal demand arises from bad or at least ill-advised decisions about products and services provided, about treatment of others, and about deals that fail or deliver no future value. Here we co-opt the safety mantra and believe that every legal problem can be prevented. Our goal is Destination Zero. For example, prevention in this legal area of contract risk means Responsible Revenue Acceleration by understanding the operational, legal, financial, and commercial risks associated with a particular contract and, based on that understanding, making rational decisions about prevention of the situations where risk arises and mitigation of those situations that do arise. With this as the vision and goal, you won’t accept anything other than rigor in behavior. Invariably, this requires a mindset focused on processes and procedures to move ever towards Destination Zero.
In my four-wave framework, Wave 4 is the most turbulent sea because it requires the most change — not in tools, structures, and techniques but in mindset and culture. It requires us to leave the land of heroes and gladiators as we vastly reduce the situations needing gladiators and janitors. It threatens our very LawLander soul — what we do and who we are — and as such requires the greatest change. It is therefore the hardest as it requires us to leap away from where we’ve been towards where we as customer service providers truly need to go.
Leadership is not the practice of law
Some readers might be thinking, “This is fine in theory, but it will never work in practice.”
As the general counsel (i.e., chief executive) of two Fortune 500 legal departments, I’ve been on enterprise and legal teams that have done it — twice. The key is leadership that is willing to chart the course into the deeper waters of Waves 2, 3, and 4. Once we know our starting point and are clear about our destination, then we must stop talking and start changing.
Moreover, leadership is not the practice of law, which bring us back to my initial point — that I am not lawyer. In my capacity as general counsel, I spent the vast majority of my time doing nonlegal things, including the creation of easy-to-communicate frameworks that could get all stakeholders onto the same page. A companion framework to the Four Waves of Change in #LawLand is the Leader-Manager-Operator graphic, below, which originally appeared in Post 112.
When directed at a legal audience, Leader-Manager-Operator is meant to convey several interrelated insights:
- Foremost, the task of lawyering is done at the operator level. An operator is an individual contributor, though organizational results also depend upon effective collaboration with others and compliance with rules set by managers.
- Second, an effective manager will make a team of lawyers more creative, productive, and efficient. But managing is different than operating; it is also not the practice of law.
- Third, leaders are responsible for results, which flow much more reliably when managers and operators are professionally challenged and have all the tools and resources they need to succeed. This requires clear organizational principles and prudence decisions related to people and resource allocation (i.e., design, construction, maintenance of the “platform”). Leading, which was my job at FMC and Univar, is different than managing or operating; it is also not the practice of law.
- Finally, for reasons based on personality and training, most lawyers are comfortable in operator mode and rarely think about managing or leading, albeit that can be fixed through the creation and communication of a framework. But again, none of this is legal work.
The professional ethos that knits us together is an obligation to serve our customers/clients as efficiently and effectively as possible. Yet, that can only happen when we let go of the lawyer-as-hero myth and embrace the potential of working together as a team.