Standard processes deliver efficiency and risk management. Personal touch ensures effectiveness. In our business, we need both.
While the legal and technology professions may seem diametrically opposite in many ways, certain functional elements of the roles executed by lawyers and technologists are, perhaps surprisingly, similar.
One example is how both professions have standards or methodologies for stepping through defined processes. Like most conventions, these structured practices are in place for very good reasons, having been tested over time to deliver results that are predictable within a narrow band of risk. Of course, whether a lawyer or technologist, the skilled technician also understands that there will be circumstances that occasionally warrant a personal touch.
Here at Legal Evolution, we often emphasize that “legal professional” is slowly being expanded to include allied professionals from a wide range of other disciplines, as this is the path to productivity-enhancing one-to-many products and services. See, e.g., Post 221 (discussing the different flavors of T-shaped legal professionals); Post 203 (discussing how NewLaw and legaltech offerings require new ways of designing, bundling, and selling legal solutions); Post 159 (noting the hiring of a “storyteller” and “cultural systems engineer” as part of Microsoft’s Modern Legal initiative); Post 126 (presenting human capital map for one-to-many legal solutions).
Yet, a single cohesive professional identity requires some common foundational knowledge and values, starting with what we already have in common. That’s the purpose of this post, which is organized into three parts.
- Functional examples: salient examples of established processes in both the legal profession and legal technology profession.
- When a personal touch might be appealing: factors and criteria that may justify process deviations illustrated with a few case studies to brainstorm about the abundance of options applicable to exigent or onerous scenarios.
- Concluding tips; thoughts on how to approach different situations, and possible ramifications of taking the right (and wrong) fork in the road.
Quick Aside: One can debate the pros and cons of strictly following processes vs. subtle alterations in norms via automated strategies such as Human In The Loop (HITL). While that is an excellent topic, for the sake of simplicity and to adopt some scope constraints, I will leave this topic for a future post.
I. Functional examples of process
What’s a real life example of a standard process where circumstances dictate variations from the norm?
Purchasing a home is a good example. We all understand the general steps:
- Secure a mortgage commitment
- Find a property you like
- Make an offer
- Negotiate a purchase price
- Execute inspections and title searches
- Complete financing, and
- Finalize the purchase.
If you can do all that, you can be in your dream home!
That being said, anyone who watched 60 Minutes a few weeks ago understands the rules are rapidly changing in the home buying process. Investment firms are heavily involved in bidding wars and many properties are snapped up before they’re even listed. To compete with the Tricon Residentials of the world, expediency and quick decision-making are now required. Accordingly, in some markets, it has become essential to have personal relationships with real estate brokers to get early warning notices and inside intel on upcoming listings. The standard process of homebuying, thus, may be on its way to being altered.
This helps encapsulate the main theme of this piece. Standard processes exist for good reason, and they certainly lay the foundation for most legal functions to be transacted. But, just like new home buyers are learning, if you really want that property—or, in our world, the most favorable legal result—there are often compelling reasons to go down a different, often personalized path, to achieve the best available result.
Examples of process in legal
Oftentimes, a solid strategy for a good outcome is to retain a neutral party or legal expert to facilitate workflows within their sphere of expertise — one of many reasons to engage outside counsel. This is especially true in a contractual or litigation dispute where stakeholders often become too invested in an outcome to be objective. Most mediators follow a process designed to help the parties find their overlapping interests.
Another obvious example of functional standards in the legal industry is court proceedings. As those in the legal profession know, it is expected one follows established procedures and rules such as the Federal Rules of Civil Procedure or state rules (such as the court rules in my home state of New Jersey). Other types of “standards” might include the defined processes of a certain type of legal proceeding. The Bankruptcy Code, or Federal Rules of Bankruptcy Procedure, based on the constitutional concept of uniform laws relating to the topic, is a good example of this concept. Prosecuting intellectual property matters (patents, trademarks, copyrights) is another area with clearly defined work steps. Although following rules of procedure can be expensive and time-consuming (hence the popularity of mediation), their eventual endpoint is the unearthing of relevant facts combined with an opportunity to be heard.
Legal process aided by tech
A third example of standard processes is the emerging area of automation in the legal field. For example, the McKinsey consulting practice estimates that 23% of a lawyer’s work can be handled by automated technology, with a much larger 78% assigned to legal secretaries. See “Automation and US Jobs,” McKinsey Global Institute (please forgive the admittedly overwhelming graphic). There are other studies indicating that many lawyers are using either artificial intelligence (AI) or machine learning (ML) in some legal functional areas. See, e.g., Matthew Stepka, “Law Bots: How AI Is Reshaping the Legal Profession,” Business Law Today, Feb 21, 2022 (“Superhuman Lawyers” section discussing contract analysis and discovery being good examples). As we generally understand, the use of automation tools empowers faster and more accurate work.
A good example of overlap between legal procedure and technology is the development of a systematic process for implementing a legal hold, thus increasing speed and transparency and substantially the risk of noncompliance. See, e.g, Sam Toward, “Why your business needs a systematic process for executing legal holds,” Thompson Reuters Corporate Counsel Connect, Feb 2014.
Continuing forward, in areas where transformational technology is injected into the process, we have technology workflows governed by strict coded rules (e.g. computer logic and processing). These types of technology standards are often virtually impossible to deviate from, mostly because lawyers with an average level of knowledge of technology can not be expected understand the technical nature of the implementation well-enough understood to veer from “the standard” set by the software.
Finally, and notably, for a vast array of reasons (prudence and risk management being two leading factors), even when there are not “locked-in” rules and regulations, taking the “usual approach” and “checking boxes” are not unsound approaches for a legal professional. On the contrary, they are high-quality, defensible approaches to addressing legal-oriented situations, a thought one should always be mindful of when considering the benefits of adopting a more personal or customized approach.
Legal technology
My profession (technology), not unlike the legal domain, is one laden with de facto standards. The general readership of Legal Evolution is likely more attorneys and legal ops experts than legal technologists, so for the sake of brevity and comprehension, I’ll broad-brush through a few from the 40,000 or so foot level.
One example, in “my world”, is how it’s imperative to maintain strong change management principles to keep track of system and network changes. More specifically, we ensure significant updates traverse through a documentation and approval process. To better explain, one person, no matter how skilled and talented they are, should not be designing, testing, and implementing a key change that might take down a network or applications; rather, we want multiple sets of eyeballs on it. Likewise, we have certain security procedures, such as monthly patching of systems and periodic network reviews, etc., which might easily be considered “tech standards”.
A few others conventions are, for example, when we build new software for our technology subsidiary, which offers cloud-based case management software in the legal domain, we work to document requirements via a formal process, we rely on ticketing systems to track issues to manage problems, and we store source code within industry-standard version control management systems. For anyone further interested in these topics, here are links to some of the industry standards or leaders in these areas (Agile Development, ServiceNow, Git).
Clearly, the majority of the time it is proper to follow industry-standard processes. In my field, we obviously frown upon “Shadow I.T.” activities (think users transferring files on their personal Dropbox accounts to external parties, attorneys unnecessarily extracting data including Personal Identifiable Information (PII) and medical information to Excel files for manipulation and sharing, etc.).
All in all, it’s fair to say “we” (both those working in the heart of the legal profession and legal technologist) have something important in common — that being a few, special choice words for peers who are unwilling or unable to follow standard processes, thus putting everyone else at risk.
II. When might personal approaches be appealing?
Shifting gears a bit, we understand that in life there are often situations that call for a deviation from the norm, and, at times, a personal touch.
Perhaps an easy one to understand is the integration of GPS technology with live traffic, the fusing of which results, by those willing to adopt on-the-fly recommendations, adjustments to our driving routes we probably would not have envisioned when we started our journey.
GPS adjustments are a fairly easy deviation to accept. But the pathway to do this in the business domain is far more nebulous, as risk-reward permutations are often subtle, varied, and complex. Thus, we can all readily accept a deviation from a standard process requires deliberation and care. That being said, the desire to maintain the good health of an important relationship (e.g. with a client, fellow member of the bar, other employees, or a vendor) is, in my view, one of the most compelling reasons to move one away from time-tested processes down the continuum towards the more human approach.
Most of the time, such departures from standard conventions are triggered by unique circumstances, and often a crisis. For example, when standard levels of military operation intensify, established escalation levels (think DEFCON 1 or 2) are well defined and the typical “next steps”. Of course, business is a completely different animal from the military, this example is merely meant to be illustrative of the value of well-defined levels of escalation based on previously defined (or experienced) scenarios.
That qualification in place, when one moves into the “business version” of DEFCON 4 or 5 zones, that’s probably a strong catalyst for attorneys and technologists alike to consider the alternative folk in the road.
What might be some examples? Here are a few, recognizing that the possibilities are endless.
Case Study 1: Appeasing an exceptionally frustrated or dissatisfied client
Whether it is a legal matter which took a turn for the worse, or perhaps a computer outage related to infrastructure or security issues, the recipient of substandard professional services is bound to be frustrated. That’s human nature. For example, I myself exhibited frustration (internally only, of course) during a recent maintenance event that delayed an airport takeoff. Efforts to strive for world-class service are never perfectly executed, no matter how hard we try.
In the world of legal technology, which I obviously understand better than the inner workings of the legal profession, there is a tendency in imperfect situations like this to revert back to the terms of a Service Legal Agreement (SLA), an Engagement Letter or to engage in discussions about whether or not the customer chose the equivalent of Gold, Silver or Bronze levels of support. This line of thinking, though clearly functionally accurate, is often not the most advisable tactic during troubled times (more on that later).
Or, sometimes the issue in play might not even be as ominous as a poor outcome. New concepts might also call for a personal approach. For example, consider times when a client is simply in need of better, more timely information for cost forecasting or projection purposes. In such instances, technologies such Digital Litigation (as featured in Jennifer Buser’s Post 283) likely can add value. But do all attorneys understand the advanced principles as outlined in this Ms. Buser’s post? Admittedly, probably not. Therefore, citing our recurring theme, a situation like this is probably an awesome time to initiate verbal conversations to explain how portfolio / matter-level data management and analysis can improve case strategy, and then discuss if these techniques might be beneficial to current client needs.
To sum up, while someone like a Customer Success Manager in a software company might be technically correct in citing SLA’s in tumultuous times, that approach is not likely to generate goodwill. Conversely, offering a client your ear (or, in selected highly sensitive circumstances, something more such as a financial credit for the outage or problem), is probably an approach more likely to expand and improve long-term relationships.
Case Study 2: An issue threatening the long-term retention of a key employee
In today’s world, given the “Great Resignation” and what Frank Luntz coined the “Great Rethink,” employers are well served being open and proactive regarding changes to the workplace. To list some examples, human resource matters oftentimes relate to one of these types of situations: A compensation issue, work/life balance or working arrangement desire (on-premise, hybrid, etc.), inappropriate workplace conduct, career path/advancement concerns, etc. Leadership in professional services firms can choose to handle these situations via conventional approaches (cite compensation models or surveys, company policy, outsource investigations) or choose to get personally involved.
In my view, there is a strong imperative for tilting the scales toward personal involvement of employment considerations within professional services firms. Of course, people are critically important in every organization, there is no doubt about that. That being noted, within professional services, the skills and capabilities of your people are typically the actual product (versus something manufactured in a factory, a transportation or hospitality service, a healthcare institution, etc.).
For whatever that is worth, and again no disrespect intended to any and all talented individuals throughout the entire workplace ecosystem, in the legal profession, it clearly is an excellent business practice to get a step ahead of human capital considerations with a personal touch.
Case Study 3: A legal situation exceptionally risky in nature
It’s definitely not my place in the world to define what a “bet the company” legal matter is, though I suspect that a litigation with huge liability potential, or one which threatens to denigrate or destroy the reputation of a client, comes pretty close to fitting the bill.
Naturally, I can provide better examples in the technology field. Events like a ransomware attack, data breach or a prolonged outage within a software company must immediately command the attention of the highest levels of an organization.
Suffice to say that whenever the “end game” could potentially be a catastrophic mistake or a “game over” scenario, in any profession, that’s all the more reason to consider all options, both classic processes as well as off-the-beaten path ideas, to do whatever it takes to get the proverbial ship back on course. Anything along the continuum of the guiding hand of experience to the creativity approaches (left vs. right side brain thinkers) should be on the table.
Efficiency is not always goal number one
A final thought in this area. Particularly for those with my background, in technology, there can be a tendency to rely on analytics, metrics, and efficient ways of communicating such as Slack, IM, Email, and other written mediums.
Ooma, a Silicon Valley internet-based telecommunications company, offers this blog with “6 Reasons Why A Phone Conversation Is Better Than An Email“, which is interesting food for thought on communications strategies both for attorneys and legal technologists alike.
As useful as those advanced technological tools are, being conscious of long-term traditional methods of employee and client interaction (such as phone and conversation) is important to keep in your arsenal as you work to assuage challenging situations. We all want to be efficient, but it is more important to be effective.
III. Concluding tips
Here are some of Ken’s rules of thumb.
- Seek a confirming opinion before you deviate from a process. While our case studies seem to be oft-leaning towards a personal approach, clearly, following standard practices is typically the preferred and lower-risk option. Thus, when deviating from common processes, it’s often useful to seek a confirming opinion. For example, before modifying a key process (like a support mechanism in the tech field or an unorthodox legal approach), taking the temperature of others within your organization on your viewpoint or doing some industry benchmarking to help evaluate your ideas is often a useful mitigating step.
- Don’t let processes undermine important relationships. In my opinion, valuing relationships over results is an essential consideration. The resolution of a parochial matter in a way that threatens a long-term relationship might seem like a victory, but it is a hollow one at best, and hardly a win-win in anyone’s book.
- Get personal in times of crisis. Many in the business world, be it legal or technical, will far more vividly recall a timely phone call or a personal touch during troubled times than any ultimate legal victory or project success. This is particularly true in instances when the likely result or options for a situation are less than ideal. Talking things out face to face affords the opportunity to interject a touch of solace and concern along with any necessary pragmatic message (e.g. Heart-Head-Heart methodology). For further thoughts in the category of “it all begins with a conversation”, see Anusia Gillespie’s excellent Post 258 describing how the needs of clients are changing.
- Don’t let responses to extraordinary circumstances be defined by a leitmotif. Rather, evaluate individual situations to craft the best response. To offer a classic example within the context of my “closing argument”, let’s consider the Apollo Space Program. Very few organizations are governed by more formal processes (the detailed launch checklists we watched on TV of course being the most famous). Yet, most consider Apollo 13 (a mission with a revised flight plan, improvised air filter constructed on board only with available materials, and last minute revisions to LEM power-up procedures developed by an exhausted backup astronaut at Mission Control) to be their finest hour. Starting with established practices, then altering these as necessary as business conditions warrant, often delivers the best results.
Lawyers and technologists have a natural affinity for process. Yet, it is means to an end, as the long-term goal is effectiveness and value for clients. And occasionally, that requires a personal touch.