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Every day of the year buyers and sellers enter into millions of contracts covering the purchase and sale of billions of dollars worth of goods and services.  Each one of these transactions requires each party to analyze the governing agreement to assess whether the agreement fits within its risk profile.

This analysis commonly is performed in one of two ways: (1) the party accepts whatever risk may be in the contract with no real analysis, or (2) a legal expert conducts an unstructured review and issues his or her opinion regarding the agreement. Continue Reading Can contract analysis operate like a utility? (225)

Photo by Mathieu Stern on Unsplash

Contract optimization is more about business than legal.


In 2019, the world collectively achieved a GDP of $87.5 Trillion.  This economic activity results from millions, if not billions, of transactions for the purchase and sale of goods and services, with each transaction being governed by some form of contract.  Remarkably,  even with minor improvements to our horribly inefficient contracting process, global GDP in 2019 likely would have exceeded $90 Trillion.

Now would be a good time for the world to have access to an additional $2.5 Trillion.  And it is fully within the reach of lawyers working with other allied legal professionals. Cf. Post 226 (discussing an expanded legal profession that includes other disciplines). Yet, to get there, we have to become willing to rethink and simplify contracts, which is the basic building block of all other commercial activity.

Post 228 is organized in two parts. Part I begins by examining the two main areas of loss: (1) contract formation and (2) post-execution contract management.  Part II then looks at the impact of one key driver of this loss—contract complexity—and concludes by exploring several vehicles to help us solve significant parts of our $2.5 Trillion problem.

I. Contracting and Economic Loss

Economic loss, or value leakage, occurs at every stage of the contracting process. These losses, however, manifest themselves most acutely during two phases of the process: the contract formation phase and the post-execution contract management phase.

A. Losses during contract formation

The contract formation phase begins when the parties start to discuss the possibility of a deal and ends when a contract is signed or accepted. Three types of loss typically occur during this phase.

1. Transaction costs

The cost associated with finalizing a contract varies widely. At their most efficient, business-to-consumer transactions occurring in an app store have virtually zero transaction costs. Business-to-business contracts, however, commonly have significant up-front costs associated with them.

Top Performers Others Delta
Cost of Completing Simple Contract $3,800 $6,900 45% saving
Cost of Completing Medium Contract $14,000 $23,000 39% savings
Cost of Completing a Complex Contract $49,000 $100,000+ 50%+ savings
Source: Tim Cummins, The Cost of a Contract (IACCM, November 20, 2017).

Simply bringing average transaction costs down to the level enjoyed by today’s top performers alone would reduce economic loss by at least $3 Billion per million impacted transactions.

2. Cycle times

Transaction cycle times also vary widely. Business-to-consumer transactions in app stores take seconds. Business-to-business transactions commonly take weeks, sometimes even months.

Top Performers Others Delta
Transaction Cycle Time 11.5 days 21.2 days 46% savings
Source: Bryan Ball, Contract Management: How the Best-in-Class Maximize Their Potential (Aberdeen Group, July 2017)

There is a clear linkage between negotiation cycle times and cost. Reducing these cycle times down to the level enjoyed by today’s top performers would add roughly 10 days per year of additional economic activity under these contracts. With global daily GDP equaling roughly $250 Billion, the impact of these cycle time savings could be huge.

3. Transaction abandonment

Completing transactions is not easy. At a minimum, the parties must agree on product fit, delivery schedules, pricing, etc. Every additional hurdle, such as agreeing on contract terms, increases the likelihood that a transaction will be abandoned rather than consummated.

According to one recent study, “research showed that 57% of B2B buyers did not complete a purchase for their companies because the vendor checkout process took too long.” See MSTS, “B2B cart abandonment: Hidden problems & possibilities,” Payments Next, Sept 19, 2019 (citing MSTS, More Payment Options Means More Purchases (2019)). With the average business-to-business contract requiring over ten days to complete, it seems inevitable that contracting is one of the largest causes of the abandonment-inducing delay.

If streamlining the contracting process could reduce abandonment rates by even a tenth of the current rate, global GDP could easily increase by as much as one percent or over half a trillion dollars.

Taken together, the three types of losses occurring during the contract formation stage are staggering.

B. Post-execution losses

Contract formation losses pale in comparison to the value leakage that occurs after a contract has been signed. Studies over the past decade consistently show that the average company suffers annual contract value leakage equal to almost ten percent of revenues. See, e.g., Tim Cummins, “Poor Contract Management Costs Companies 9% — Bottom Line,” IACCM, Oct 29, 2012; Supporting Local Public Services Through Change, Contract Optimisation (Ernst & Young 2016) at 2; KPMG LLP Strategic Sourcing Point of View: Shared Services, Outsourcing Contracts Can Hinder Business Plans Without Proper Governance (Feb. 23, 2012).

This leakage often occurs as a result of non-compliant goods or services, billing errors, etc. If consequential losses (e.g., lost sales due to an inability to perform, etc.) are included the value leakage number increases dramatically.

While the losses occurring at the formation phase and the post-execution phase differ in nature, they share at least one common root cause: contract complexity. The remainder of this post explores the impact of contract complexity and steps that can be taken to drive improvement through simplification.

II. Contract Complexity

Contracts can be complex. There is a reason that we all throw up our hands and just click “I accept” with no analysis whatsoever when making simple consumer purchases. The alternative of trying to wade through multiple pages of legalese and numerous embedded policies, secondary agreements, etc. is simply overwhelming, and the risks associated with blind acceptance are often insignificant.

A. B2B contracting

In the B2B space, the complexity is often magnified. Likewise, the dollar amounts at stake are often significant, thus requiring businesses to conduct a meaningful assessment of risk. The resulting contract analysis and negotiations can be lengthy, made more complex by contracts that only lawyers, paid by the hour, can understand.

As noted above, the more complex the contract the longer the negotiation cycle. Even worse, as the complexity of individual contract provisions increases, so too does the likelihood that each party will draw a different conclusion as to the provision’s interpretation.

The presence of complex legal provisions in a contract has another highly pernicious impact: they shift focus away from the business issues that ultimately determine the value of a contract.

Members of World Commerce and Contracting (WorldCC) (formerly known as the International Association for Contract & Commercial Management, or IACCM), an industry association of over 70,000 contracting specialists working for more than 20,000 companies around the globe, have observed that a reduced focus on business issues during contract negotiations often causes key business protagonists to disengage at the contract formation stage, which can result in significant value leakage during post-execution. Thus, it is hardly surprising that sub-optimal delivery occurs when the business people responsible for performing under a contract do not properly understand key provisions in the contract such as obligations, milestones, etc.


[Editor’s note: One of the authors, Paula Doyle, is VP and Global Head of Research & Analytics at WorldCC.  Core to her job is reducing the problem of contract complexity. wdh]


B. Types of Contract Complexity

Contract complexity exists in at least two flavors: qualitative complexity and quantitative complexity. Any attempt at contract simplification requires focus on each of these areas.

1. Qualitative Complexity

A contract is qualitatively complex when it is drafted in a way that makes it hard to understand. The relevant lens here is not what a seasoned lawyer might find intuitive but what the average business person who is responsible for negotiating the business transaction and/or managing the contract post-execution finds intuitive.

Unfortunately, many contracts fail abysmally at this hurdle for several reasons.

First, the contract may simply fail to address a salient point in the formation of the business relationship, forcing the parties to rely on extracontractual measures to make sense of what they are trying to achieve. Economists generally agree that the more complete a contract is, the higher the level of economic performance it will generate. The problem can be challenging to solve since contracting parties simply cannot foresee every eventuality in a prospective relationship (especially one of long duration and/or wide scope).

Second, clauses within contracts may be drafted in an ambiguous manner, rendering them impossible for even a seasoned attorney to interpret in a definitive manner. This problem is more widespread than you might think. A recent TermScout analysis reviewed 327 standard, click-accept agreements used by a wide range of IT vendors and found that roughly one quarter failed to achieve high levels of clarity. This number is remarkable given that the agreements reviewed were all based on standard contract templates that (a) get used hundreds, if not thousands, of times, (b) are drafted without time pressure, and (c) can justify a significant investment of legal resources to get them right. Negotiated agreements, which are one-offs created under extreme time pressures, likely suffer from substantially higher levels of ambiguity.

Finally, even when a contract addresses a point in a manner that is clear to a highly skilled attorney, it may do so using legalese that is at best partially intelligible to the businessperson who is responsible for the business deal or managing the contract post-execution. Increasingly organizations are making efforts to write their contracts in plain English, but these contracts often are still insufficiently user-centered and difficult for non-lawyers to understand.

As shown in a survey of 475 organizations conducted by WorldCC in October 2020, uncertainty about the meaning of key provisions is the single biggest threat to realizing contract value. At the root of this uncertainty is a lack of clarity, which commonly stems from the factors discussed above.

Source: World CC [click on to enlarge]
2. Quantitative complexity

A contract is quantitatively complex when its length, including all referenced or nested documents, exceeds that which a user can efficiently process.

One good example of this is the AWS Customer Agreement which, at first sight, is approximately 14 pages in length.  This seems reasonable until the reader discovers that it contains no fewer than 14 different sets of nested or referenced terms.  One of these sets of nested terms alone, the Amazon Service Terms,  has 82 different clauses that are augmented by other sets of referenced terms.  The sheer volume of these agreements, coupled with the difficulty in locating and assembling all of them into a coherent body, is simply overwhelming for the user.

This type of structure and volume of contract terms is hardly unique to Amazon.  Many companies, especially large ones, have extremely diverse product lines and, for logical reasons, want to use one agreement for as much business as possible.  In many cases, this often converges with customer needs and wants.  After all, most customers don’t want to have to renegotiate terms every time they do business with a supplier.

C. Addressing Contract Complexity

No single silver bullet exists for addressing contract complexity.  There are, however, at least three things that can help companies make meaningful improvements in this area.

1. Tools

AI tools have made remarkable strides over recent years.  A number of these tools are focused on contract analysis and allow a meaningful portion of the work in analyzing a contract to be offloaded to the machine.  For example, consider the LawGeex’s AI Legal Landscape from 2018.

[click on to enlarge]
Three years later, the market is both more crowded and more advanced.  In terms of sheer usability, the quality of output from these tools–indeed, virtually all legaltech tools–still has a way to go. But, over time, it seems reasonable to expect that AI tools can assist materially with the issue of contract length and complexity.  They also have the potential to translate complex legalese into plain English, which would also help us here.

As discussed in Post 225, however, the cost of using these tools remains high and their effectiveness depends upon the data sets provided (e.g., main contract and all nested documents) for the machine to work with.

2. Services

We recently have seen the emergence of multiple contract review services such as Knowable, Contract Standards, and TermScout.  These services offload the challenge of assembling and analyzing contracts for companies.


[Editor’s note: Regular contributor Bill Mooz is Chief Product Officer for TermScout. He is also  co-founder and Board Member of the Institute for Future of Law Practice. wdh]


Most of this analysis, however, focuses primarily on the legal terms in the agreement, and not the business terms.  That said, these services stand to assist with the complexity problem in multiple ways.

First, they relieve the companies of the burden of assembling the data set—at least where standard contracts are involved, and of the burden of analyzing that data.  They also can translate legalese into plain English. Below is an example of explanatory data from Termscout:

[click on to enlarge]
These capabilities should allow companies to efficiently handle larger document sets, even when they are not written in plain English.

Second, they can provide broad transparency into issues with a vendor’s contract, such as unclear drafting, unfavorable provisions, noticeable gaps, etc.  It seems reasonable to expect that this transparency will help drive standardization within vendor agreements which, as discussed below, stands to significantly ameliorate the complexity problem.

3. Standards

Leaving aside the not-insignificant issue of poor drafting, contracts tend to be complex for a reason.  The business relationships they cover are complex and may be wide-reaching and/or of long duration.  Covering the nuances of such a relationship, especially as it evolves over time, is not an easy task.  Doing so in a small number of pages, in terms that everyone can understand, is even more difficult.

Basing contracts on standards, however, can make this challenge more manageable in at least several very significant ways.

  • Independent standards administered by a trusted third party can evolve naturally over time, greatly reducing the need for the parties to attempt to foresee the future and address all possible contingencies.
  • Standards that get used on a repeated basis become familiar to people in the relevant industry, making them easy for those administering a contract to understand and work under. When a standard achieves sufficient adoption, companies can even align their business systems and practices to it.
  • Incorporating standards by reference allows contracts to be shorter and can significantly reduce negotiation times, without compromising breadth. This is analogous to the way that nested terms work today, but unlike bespoke nested terms that are drafted by parties with vested interests, independent standards come with a level of trust and consistency that can make the process easier on all parties.

D. Sources of much-needed standards

The incorporation of different types of standards could have a very positive impact on contracts.  Unfortunately, not all the required standards exist today.  Some of the potentially more promising areas for further development appear below.

1. Laws

A significant component of contract complexity stems from differing laws and regulations across jurisdictions.   For example, roughly one-third of the 14 sets of nested terms in the AWS Customer Agreement referenced above stem, at least in part, from differences in laws.

Expecting a single global set of laws regulating all aspects of commerce is unrealistic.  But examples exist showing that some improvement may be possible.

For example, the EU has adopted the GDPR and other laws and regulations that standardize at least certain governing rules across its members.  Even broader sets of countries have come together to adopt conventions relating to various aspects of commerce.  Some, such as the United Nations Convention on Contracts for the International Sale of Goods, routinely get disclaimed and are of relatively limited impact.  Others, such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (a/k/a The New York Convention), get used quite broadly.  It is at least theoretically possible that additional conventions could get adopted across jurisdictions, reducing international business complexity.

The U.S. offers great potential for further amalgamation of standards.    To date, the U.S. federal government has shown little inclination to exercise its authority over interstate commerce and set out a single set of regulations, even in such areas as telecommunications where the benefits of creating a single federal framework are logically indisputable.  Still, the authority exists and could be used more.

2. Policies/agreements

Building upon the greater standardization of laws, ample room exists for standardization of the policies and agreements that are mandated by various laws such as HIPAA and the GDPR.

These could be administered by independent third parties to help with up-take.  World Commerce & Contracting has developed a set of balanced contracting principles that apply across multiple contract types   Why do companies burn time and costs reinventing the wheel every time only to arrive at similar positions, much of which are largely mandated by law?

The economic benefits of using standard contracts within industries are significant.  In a number of cases industries have proactively driven this transition on their own, e.g., residential home sales, ISDA agreements, etc.  These cases tend to involve high volumes of repeatable transactions, parties having similar levels of bargaining power, and/or strong time pressures for executing the agreement.   Where these pressures are not present, inertia and the set ways of buyers and sellers have impeded this shift.

Outside forces, however, may cause change to accelerate.  As discussed, contract rating companies like TermScout are lifting the veil of secrecy around what is in a particular vendor’s contract and how those provisions compare to market. Below is sample market data on one provision, which was generated by Termscout:

[click on to enlarge]
It seems logical that this sort of transparency will cause vendors to consolidate around a set of provisions that reflect the realities of their marketplace.

3. Operating practices

Contracts often seek to specify the operating practices that a party will follow in a particular area, with data security being the prime example.  Holders of data have multiple obligations (under contract, regulation, and/or common law) to ensure that their vendors protect a wide variety of information appropriately.  What constitutes appropriate levels of protection changes constantly as hackers continuously up their game.

To some extent, vendors have attempted to standardize their approach to data protection by agreeing to submit to periodic audits based conducted by a third party and based upon some defined standard (e.g., System and Organization Control (SOC) audits).  Significant room exists for these standards and audits to become more prevalent.

4. Contract Terms and Structure

We know that most contracts are drafted by lawyers for lawyers. But why?

Contracts, in their various guises, are first and foremost business instruments that define what the parties are planning to do together.   They are ultimately about communication and should be written as plainly as possible to make them understandable for all stakeholders.  This is more likely to happen when contracts become more standard in the terms they use and the structure that they employ, as opposed to being largely bespoke documents.  A number of groups, including WorldCC, have made significant strides in developing standard contract terms and structures that are balanced and straightforward.

We are not diminishing the important role that lawyers still play.  Their input is a critical component for assessing and quantifying risk and for ensuring that the contract will be enforceable.   What we are suggesting is that lawyers could become better business partners by understanding the costs of the complexity that they often create and placing a greater emphasis on creating business-friendly agreements, even when that means tempering their creative instincts and drive for perfection.

User research conducted by WorldCC clearly shows that plainer, more user-centered contracts reduce sales and negotiation cycles, sometimes by as much as 50%.   This research further reveals that contract users feel better about organizations that make their contracts easier to understand and navigate.  It speaks to their brand and aids greater collaboration among internal and external stakeholders.  These combined factors have a significant positive impact on the value that companies derive from their contracts.

Conclusion

Inefficiencies in the contracting process costs the world’s economy and each of its participants dearly every year.  Much of this inefficiency stems from the qualitative and quantitative complexity of contracts.  Reducing complexity will not happen overnight, but companies have a growing number of tools at their disposal to start making real progress today.

Achieving true gains likely will require a far greater use of standards than occurs today.  The high costs of not standardizing and the transparency being provided by AI tools and contract rating services make it likely that the pace of standardization is on the cusp of rapid acceleration.  As this happens, we should expect to see gains in both the contract formation process and in post-execution contract management.


Position isn’t destiny — especially times of turmoil.  Eight charts illustrate the true extent of volatility underlying apparent stagnation in legal markets and give an advance peek at the state of play for 2021.

This post is the third in a 5-part series, #GreatExpectations for the #GreatReset.  The aim of this series is to provide a shared foundation of fact and data to help envision the market dislocations likely to occur in the current economic downturn and recovery. Continue Reading #GreatExpectations, Part III: As the Mighty Fall, New Challengers Rise (218)


“It is no exaggeration to say that the Restatement of the common law is the most difficult as well as the most important public work ever undertaken without the aid of government by the legal profession in this or any other country.”  William Draper Lewis, “Present Status of the American Law Institute,” 11 NYU L Rev 337, 343 (1929).

This essay is about the importance and value of building shared “legal infrastructure,” which is a term coined by the eminent economist and law professor Gillian Hadfield in her book, Rules for a Flat World (2017). Continue Reading Legal infrastructure and the forgotten story of the Restatements (207)

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Incumbent utilities struggle to adapt to a new marketplace of consumer choice and clean energy. Are law firms on the same path?


Part of being a good lawyer is pattern recognition. We see patterns in case law, patterns in legal procedure, patterns in client relations, and patterns in our dealings with other lawyers.

After 12 years of working for energy industry clients, particularly in the renewable energy vertical, I have witnessed the transformation of the power sector through the rapid and widespread deployment of distributed solar power systems. As a result of this experience, I see a pattern among legacy utility companies that applies to the traditional law firm. Specifically, both have incredibly strong hands to play to reinvent their businesses in responses to changing consumer (or client) demand; yet, both struggle to see and act upon the opportunity.

In this post, I’ll discuss some of the key changes that are currently transforming the energy industry. I’ll then use this framework to make my case that law is on track for a similar disruption.

Solar power in the energy sector

I have been a lawyer for over 20 years, with experience practicing in both Brazil and the United States.  In 2008, I obtained my LLM from UCLA Law with a concentration in Energy Transactions and Environmental Law. Thereafter, I have focused my practice almost exclusively on clients in the energy sector, albeit in a variety of roles, including as an associate and counsel in US and South American law firms, a consultant at the intersection of law, business, and energy, and most recently as head of legal for Santa Fe Natural Gas, a high-growth company that buys, sells, and manages the scheduling and logistics of natural gas and hydrocarbons in the US and Mexico.

During my 12 years in the energy sector, the biggest (and fastest) change has been the widespread deployment of distributed solar power systems.  Since 2010, solar capacity has increased at an annual average rate of 49% per year.  As shown in the chart below, there is now enough solar capacity to power 15.7 million homes.

This remarkable growth in distributed solar power systems was not due solely to technological innovation and cost reductions in solar panel manufacturing. Instead, solar power really took off when innovative players in the market—such as SolarCity, Vivint, SunPower, Sunrun, OneRoof, and others—started offering financing solutions to unlock the opportunity for homeowners and companies to do solar without a large upfront capital investment.  See, e.g., Eric Wesoff, “Financial Innovation Has Given Residential Solar Much to be Thankful for This Year,” Green Tech Media, Nov. 25, 2013.

The influx of distributed solar power fundamentally altered the energy supply chain by allowing residential, commercial, and industrial power consumers an opportunity to sell and re-inject excess solar-generated energy back to the grid, a concept called “net metering.” In turn, this set the stage for profound changes in the way power is produced, stored and used across power grids with an ever-increasing number of solar providers offering innovative solutions that reduced friction on both the buy and sell sides of the market.

As the transformation of the energy sector continues to gather momentum, it’s important to keep in mind that business model innovation is proving to be a much more disruptive force than tech innovation.

To illustrate, in the distributed power generation space, several “syndicates” have formed to improve the cost and reliability of energy delivery, including solar companies teaming up with storage and device makers to create bundled solutions.  As a result, the lines between power delivery, in-home services, and energy efficiency have increasingly blurred. The idea behind these partnerships is to nudge consumers into buying services differently, often resulting in lower consumption levels, lower costs, and a better overall customer experience.

Incumbent utilities

Distributed power generation essentially breached utility companies’ economic moats, thus creating a significant disruptive threat to utilities’ business models and financial health. As a result, legacy utility companies have had to decide whether they want to fight to maintain the status quo, see, e.g, step out of their comfort zones and compete in the new “prosumer” energy environment.

Many incumbent utilities believe that distributed generation is pushing them toward an eventual “death spiral”.  Specifically, as more customers opt for distributed systems, utilities’ costs to maintain and operate the grid are spread across a smaller demand base, thus causing an increase in customer rates and a greater incentive for remaining customers to “cut the cord.”  See, e.g., Seth Blumsack, “Why rooftop solar is disruptive to utilities—and the grid,” The Conversation, Mar. 24, 2015 (analyzing the economics of grid infrastructure).

Although there is uncertainty over the best way to pay for the upkeep and modernization of the grid, a strong argument can be made that it should not come at the expense of pushing out less expensive and more environmentally sustainable alternatives.

Yet, one point worth emphasizing is that incumbent utilities tend to focus on what they are losing and ignore the fact that they possess enormous competitive advantages, such as strong balance sheets and existing customer relationships, that smaller newcomers lack.  Some incumbents see the opportunity and have, in turn, embraced distributed generation through investments in rooftop solar, distributed generation financing, and self-generation technology.  See, e.g., Gavriella Keyles, “Why some utilities are embracing distributed power,” GreenBiz, Oct. 11, 2016 (discussing examples of New York and California).  Likewise, some incumbents are also offering competitively priced clean energy options to their captive customers. See, e.g., Isak Kvam, “What Midwestern Electric Utilities Are Saying About Clean Energy,” Renewables First, Mar. 18, 2019.

If your longtime service provider embraces new business models that better leverage emerging technology—and in the process, deliver more value—the business relationship is likely to deepen and become more enduring. If this insight applies to utilities, it certainly applies to law firms.

What about legal services?

Business model innovations, unlike products and services, typically travel well from industry to industry. And business model changes such as those in the energy sector are particularly important in the fast-moving world we live in today, as businesses and entire sectors need to constantly challenge/reframe practices and assumptions in order to highlight the limitations and constraints of a current model.

Law firms, much like utility companies over the last 10-15 years, are divided on whether inevitable disruptions, including changing consumers’ buying habits and demands, represent threats or opportunities. Although some are choosing to maintain the status quo, others are starting to embrace the innovations of the new entrants and think more broadly on value creation. See, e.g., Dan Packel, “Big Law Branches Out: Firm Subsidiaries Want a Piece of the $10B ALSP Market,” Law.com, June 25, 2020; Bob Ambrogi, “Wilson Sonsini’s Tech Subsidiary, SixFifty, Releases First Product, For Calif. Privacy Compliance,” LawSites, May 22, 2019.

That said, one thing is certain: law firms have started facing competition as they’ve never had to deal with before, ranging from the Big 4 firms, Alternative Legal Service Providers (ALSPs), distributed-model law firms, and other types of providers that don’t even exist yet and who will innovate largely on entirely new business models.

Like the incumbent utilities, law firms have enormous natural advantages: large and diversified client bases, established brands, strong cash flows, deep substantive expertise, etc.  Yet, also like incumbent utilities, law firms are hobbled by several decades of success under a business model that provided the equivalent of a guaranteed return on labor without any improvements in cost, quality, or client experience. The result is a mindset that makes it very difficult for law firm lawyers to see and appreciate how different business models could deliver greater value to existing customers.

Decentralization and disaggregation

The original design of our power system was highly centralized, with one utility that owned and managed the entire power system, from generation, to transmission, to distribution.  Over time, however, it has evolved to one involving more distributed generation and more players offering innovative products, services, and most importantly, increased customer empowerment and value in the form of savings, greater transparency, or an overall better and more positive customer experience.

Similarly, for many decades, corporate law firms were local or regional businesses that handled the legal needs of corporate clients in their local or regional areas. The uniformity of the business models throughout the profession reduced the likelihood of clients switching firms. In turn, the locking in of clients permitted a business model with very high office overhead and operating expenses as well as governance, partnership, and compensation structures that favored the lawyer-owners.

As the legal services market has decentralized away from traditional law firms, we have entered a period of significant disaggregation that is moving work to the legal-sector version of distributed power.  I see this happening in two ways: (1) legal departments unbundling and managing various pieces of work so that each task is performed by the best resource available for the job – i.e., ALSPs, tech, in-house lawyers, legal operations consultants, compliance & commercial contracting solutions, outside counsel (including highly specialized boutique firms); and (2) the rise of distributed-model law firms such as FisherBroyles and Scale LLP.

Regarding the distributed-model law firms, clients increasingly have the opportunity to access specialized legal expertise without it being bundled together with expensive office overhead or associates whose value is difficult to discern. In effect, the distributed-model law firms are inching the market away from the traditional client-law firm relationship to one that resembles a network, an ecosystem, or, my favorite, a grid.

My sense is that the distributed-model and flexible lawyering law firms (or future variations of the model that are yet to be created), enabled by technology, will be well-positioned in terms of governance, resilience (including during economic downturns), coordination, and multi-disciplinary collaboration to serve customers’ future needs.

Irrespective of industry, the shift from centralized models are forcing incumbents—for the first time in their existence—to figure out how to compete and, better yet, collaborate with other market players.

Some incumbents adapt

As noted above, while some incumbent utilities are stuck in their old models and mindset, a subset of progressive companies have embraced the opportunity to use new technologies and business models to compete head-to-head with the new entrants.

Likewise, in the legal sector, we are beginning to see a differentiation between law firms that are standing still versus those that are looking at turning all of these new potential sources of competition into products, services, and revenue.  Indeed, it is now commonplace to read announcements of major international law firm launching legal operations or managed legal services consulting divisions (e.g., Norton Rose), legal tech incubator or development program (e.g., Slaughter and May, PWC Legal, Mishcon de Reya), a productization effort (e.g., Littler), an on-demand lawyer offering (e.g., Honigman), or some form of partnership with other market participants (e.g., Ogletree Deakins and Legalmation).

I see this as a positive development and a sign that law firms are at least experimenting in the creation of new revenue streams beyond traditional legal advisory and, ultimately, seeking to find their place in the future of the legal industry.

Like utility companies, large firms have a stronghold on value chains and corporate end customers. That, coupled with historically restrictive regulations for new entrants and outside investment, makes it difficult to displace or gain market share from incumbents in the legal vertical. Having said that, similar to the syndicates that enabled the rapid growth of solar power, I often advocate for options in which multiple players in the market can come together to create new business models based on collaboration.  In addition to breaking down silos, breakthrough business models have the added benefit of reducing the risk of financially ruinous competition.

Although these approaches are outside the comfort zone of most incumbent law firms, they are well within the reach of any law firm that is willing to assume ordinary business risk, as law firms are already building upon their superior competitive advantage.

Customer empowerment

To adapt to a decentralized and disaggregated business environment, incumbent utilities had to drastically change their business models and business practices in order to meet customer expectations. One of the most fundamental decisions for utilities was whether they should become a consumer-centric business or stick to managing the generation, transportation, and distribution of power as a commodity supplier.

I believe we are in the same phase now with law firms. At least at the enterprise level (where I live), in-house legal departments have more options than ever to (re)think through the entire “job to be done” and shift away from the legacy artisan model of 1-to-1 direct service.

Technical legal expertise is not enough. Corporate customers have business problems, not legal problems, and don’t need 40-page memos.  Rather, they need 5 bullet points summarizing critical issues accompanied by practical, hands-on solutions and recommendations. Attorneys (internal and external) now need to be intimately familiar with the operating systems of the businesses they support.

In the energy sector, providers began to re-evaluate the way they engaged their customer segments. Utilities needed to provide customers with easily digestible, personalized energy information that enabled them to make smart decisions about their energy usage, rate selection, and the like. It became all about deeply understanding users’ data, operations, and consumption behaviors.

Like utility companies, law firms should focus on demonstrating customer knowledge and understanding at every corner. Identify key touchpoints and moments where inserting personalized insights will improve the customer experience.

Conclusion

The transformation of the legal ecosystem (including regulatory reform) is inevitable and urgent. However, certain segments of the legal sector still cling to a mental map formed in a different time that no longer exists or is quickly fading away. These segments need to wake up to the possible existential challenge posed by disruptions at the legal grid™ edge – the place where new market entrants and more innovative existing players are threatening to render traditional systems and business models obsolete.

As consumers in a digital age, we have been conditioned to expect efficient, seamless, and customized interactions with our service providers. Legal service providers, in particular, are uniquely positioned to leverage valuable customer data, knowledge assets, and the close, personal relationship built with customers over time.

As such, law would benefit immensely by broadening its mindset to gain some of the advantages that other sectors have enjoyed. Applying a reframe that has already proved itself in another industry greatly enhances the prospects of hitting on something that makes business sense and is more likely to be future-proof. But there’s no avoiding that this overarching effort requires taking risks, experimentation, outside-the-box thinking, a willingness to differentiate from the pack, challenging longstanding core beliefs and assumptions, and a genuinely entrepreneurial approach to the production and delivery of legal services.


Some realism on the regulatory reform movement


Imagine a legal sector neatly divided into two groups: the Rule Makers and the Risk Takers.  With evidence piling up that the legal market is not working for ordinary citizens, the Rule Makers come together to evaluate possible changes. After the new rules are enacted, the burden shifts to the Risk Takers to build out workable solutions.

If we apply this simple model to the US legal sector, it appears that the Rule Makers are struggling to deliver, as the most high-profile liberalization efforts at the state and national levels are now being shelved or slow-walked. See, e.g., Cheryl Miller, “California State Bar Puts Brakes on Proposed ‘Regulatory Sandbox,’” Am. Law., Mar. 13, 2020 (citing “political headwinds” as reason for tabling ATILS Task Force recommendations); Brenda Sapino Jeffreys, “ABA Approves Innovation Resolution, With Revisions to Limit Regulatory Changes,” Law.com, Feb. 17, 2020 (discussing passage of watered-down resolution that disavowed any changes to nonlawyer ownership or the unauthorized practice of law).

By disposition, the majority of lawyers are Rule Makers. Indeed, much of the rule-change dialogue can be boiled down to a single question: “Should we let nonlawyers invest their time and capital to solve our access to justice problem?”

Rebecca Sandefur

The above iceberg image, which is inspired Rebecca Sandefur, a sociologist and MacArthur Genius at Arizona State, suggests that Rule Makers don’t see or understand the problem they’re trying to solve.  This is because so many regulatory reform conversations are among lawyers who (a) lack the resources and methodological skills to define and measure the problem, and (b) are hopelessly conflicted by a desire to protect their own economic turf.

Right now there is a lot of frustration within the progressive wing of the Rule Makers.  Yet, let’s have some humility here. If the market were liberalized tomorrow, what would the impact be for ordinary citizens?  And how long would it take for those benefits to diffuse? “Don’t know” and “not sure” are the honest answers.

Because we’re bothered by the status quo, we have a tendency to conflate market liberalization with a big win for access to justice.  See Post 106 (discussing issue in context of California).  Unfortunately, the A2J problem is much bigger and more complex than we’re admitting.  As a result, a complete solution will likely require entirely new institutions and regulatory frameworks built from the ground up in consultation with skilled social scientists. There is much work ahead. Who’s going to do it?

The bottom of the iceberg

In the fall of 2018, a research team led by Rebecca Sandefur surveyed the legal technology landscape and discovered a remarkable 322 tools designed to assist nonlawyer users “with a range of both criminal (e.g., arrest, police stops, expungement) and civil (e.g., family, housing, health, employment) justice problems.” See Sandefur et al., Legal Tech for Non-Lawyers: Report of the Survey of the US Legal Technologies at 3 (2019).  More than half of the tools enabled users to take some type of action on a justice problem, such as “producing a legal document, compiling evidence, diagnosing a legal problem, or resolving a dispute.” Id.  And approximately three quarters were free.

Despite the large number of tools, Sandefur and her team observed that they were not well aligned with the most common types of legal problems, nor were they especially easy to use, particularly for the most needy populations. The actors who make these tools — a wide range of “for-profit companies, startups, nonprofit organizations, and private individuals” — aren’t tied together by a common set of standards. Further, those in closest contact with target clients lack the time, resources and expertise to conduct a rigorous needs analysis and, in turn, translate those learnings into better, more scalable tools.

Arguably, this is a problem of insufficient capital at the biggest bottlenecks. But that’s an incomplete diagnosis.  Sandefur writes:

[T]here are two other important factors that limit what existing digital legal tools can do: the legal profession’s robust monopoly on the provision of legal advice and the challenges of coordination in contemporary state court systems.  Thus, a central responsibility for this situation rests with the justice system itself. …

Many working in the field look forward to a day when tools create forms accepted by courts and file them with the appropriate forum immediately upon completion. While this is beginning to happen, implementing standardized forms and getting courts to accept them is a herculean task of coordination that requires every court in every county in a state to accept a new way of doing its work. Even when rules change formally, clerks, judges and other courthouse staff can persist in older patterns, refusing to recognize documents that are officially approved by the court system. The barriers here are not technological, but human. Id. at 15-16.

Elsewhere, Sandefur reviews the empirical literature showing that nonlawyer guides and advocates can sometimes deliver better and more efficient outcomes than lawyers. See Sandefur, “Access to What?,” Daedalus at 52 (Winter 2019) (citing studies in divorce, unemployment benefits, evictions, child custody, and disputes over public benefits with government agencies).

At the January 2020 AALS meeting, I was on a panel with Sandefur, who delivered a showstopper presentation on the efficacy of nonlawyer representation. Sandefur walked the audience through various empirical findings from the UK, US, and Canada showing that people routinely seek out nonlawyers for legal advice (there’s demand); even when lawyers are free, people sometimes prefer nonlawyer assistance (there’s a preference); and in low complexity cases, which is the majority of legal matters, nonlawyers generally achieve results on par with lawyers (there’s competence).

To further illustrate Sandefur’s point, below is a chart from her presentation showing that in a peer review of UK solicitors and nonlawyer advisors, the nonlawyers performed as good or better than their licensed solicitor counterparts:

Sandefur, “Legal Advice: Consumer Demand, Nonlawyer Competence, & Public Harm,” 2020 AALS Annual Meeting (citing Moorhead et al, Quality and Cost: Final Report on the Contracting of Civil, Non-Family Advice and Assistance Pilot. London:TSO, 2001, tbl. 5.6).

More sobering, however, is the fact that when lawyers do deliver superior outcomes, the critical factor is often their mere physical presence in the courtroom, rather than substantive or procedural knowledge. This is because of the endemic lack of representation often creates an environment where things like burden of proof and rules of evidence are brushed aside in the interests of efficiency, particularly in cases involving eviction, debt collection, and unemployment benefits. “When lawyers are present on both sides of cases, courts act more like courts, following the rules they made to guide their own activities.” Access to What? at 52.

These are problems that run much deeper than Rule 5.4 (prohibition on nonlawyer ownership of law firms) or even the constraints on who can provide legal services.

We only have budget for words

After the passage of ABA Resolution 115, many lawyers in the House of Delegates were congratulating themselves as if they’d  accomplished something truly importance.  And certainly, the opening lines were inspired.

RESOLVED, That the American Bar Association encourages U.S. jurisdictions to consider innovative approaches to the access to justice crisis in order to help the more than 80% of people below the poverty line and the many middle-income Americans who lack meaningful access to effective civil legal services,

FURTHER RESOLVED, That the American Bar Association encourages U.S. jurisdictions to consider regulatory innovations that have the potential to improve the accessibility, affordability, and quality of civil legal services, while also ensuring necessary and appropriate protections that best serve clients and the public … .

Upon passage of Res. 115, the president of the New York State Bar Association exclaimed that it’s “great day for lawyers [and] their clients.”  Of course, as discussed in the same article, the New York delegation successfully led the charge to ensure that the final paragraph of Res. 115 explicitly disavowed any changes to nonlawyer ownership or the unauthorized practice of law. See “ABA Approves Innovation Resolution, With Revisions to Limit Regulatory Changes,”  supra.

For the moment, let’s presume good faith by the entire ABA House of Delegates. What exactly did Resolution 115 accomplish?  Basically it recommended that other lawyers get together to study, collect data, and solve very difficult problems related to cost and access to justice.  Further, the Resolution appropriated exactly zero dollars to advance the innovation agenda. Indeed, the ABA as an entity is bleeding money and losing members, as are most of the state bar associations.

On a similar note, in their memo to the Trustees of the State Bar of California, the ATILS Task Force suggested that the regulatory sandbox would likely require “grant funding” to set up and that the Task Force “recommends that the State Bar convene a funders summit to explore the feasibility of philanthropic start-up funding.”  ATILS Agenda Item B.3 at 9.  In other words, the largest bar association in the wealthiest state in the nation is unable or unwilling to finance its own regulatory restructuring for the benefit of the citizens of California. Even more remarkable, this modest recommendation was tabled because it was viewed as too politically controversial to vote on. This is quite a statement on the state of legal self-regulation.

Folks, it’s getting hard to take the Rule Makers seriously. Let’s hope that Arizona or Utah get it right. See Post 112 (praising Utah and its leadership committing to a regulatory sandbox).

A point of comparison

As I write this post, all of us are relying on our healthcare system to get us through the COVID-19 pandemic.  Although we might complain about the high cost of healthcare, few of us complain about its quality.

Here is a statistic that surprises many people — fewer than 1 in 10 healthcare workers in the US has a medical degree (MD or DO).  Below is a breakdown of the workforce by level of education.

[click on to enlarge]
When one digs into these various career paths, it is astonishing to observe the large number of medical occupations that require some type of educational certification followed by licensure.  What makes this possible are several dozen nonprofit organizations that build out knowledge and put it in a form where it can be taught and tested.  Further, more than 80% of this workforce — all of whom are directly involved with patient care — have no more than a bachelor’s degree.

In comparison, nearly 8 in 10 legal service workers have a law degree. Here’s the breakdown.

[click to enlarge]
Despite a surfeit of highly educated professionals, how well is our legal “system” working?  Here are few data points:

  • 86% of low-income American with a civil legal problem receive inadequate or no legal help. See Legal Services Corporation, The Justice Gap at 6 (2017).
  • 76% of all cases in state courts have at least one self-represented litigant. See National Conference of State Courts, The Landscape of Civil Litigation in State Courts at iv (2015).
  • The typical small firm lawyer spends almost as much time per day looking for legal work (2.0 hrs) as performing legal work (2.3 hrs). Clio, Legal Trends Report at 10-15 (2017).
  • Lawyers and law firms are caught in a pattern of “consensual neglect” where no one take responsibility for the industry’s bleak statistics. Thomson Reuters, Report on the State of the Legal Market at 3 (2018).

Over the last several decades, a slow-moving pandemic has swept through the US legal profession. It’s moved so slowly that we’re blind to its consequences. Instead, we’re hunkered down trying to protect our own small square of turf.  It doesn’t occur to us that new thinking and a broader group of stakeholders might grow the pie for everyone, including the public.

The motivations of Risk Takers

The legal sector has its full allotment of Risk Takers who see opportunities to improve some aspect of modern law practice. If you doubt this statement, take a look at the Thomson Reuters’ market map or the LawGeex’s legal AI landscape.

The proliferation of Risk Takers is primarily a function of people who see what’s possible under existing constraints.  Although Rule Makers could, in theory, expand or de-risk the universe of innovation opportunities, the Risk Takers are generally focused on what they can do today without asking for permission.

In my own thinking, I’ve found it useful to use Richard Susskind’s familiar five stages of evolution with additional overlays designed to show the transition from one-on-one services to one-to-many legal solutions.

Although many people are drawn to one-to-many opportunities because of the potential to create enormous wealth, such as the sale of PLC to Thomson Reuters, a huge number of Risk Takers are pulled into this field by the opportunity to create something new and better, often for the benefit of the industry.  To deliver for this latter group, we need Risk Takers who are willing to step into positions of leadership that are, in reality, positions of sacrifice and service.

In the above graphic, virtually all of these leadership needs are connected to the immense complexity associated with systemizing and packaging legal solutions (i.e., the orange rectangle).  A good example is Toby Brown’s creation of the SALI Alliance (Standards Advancements for the Legal Industry) or the regulatory and lawyer development efforts undertaken by IAALS during the KourlisGerkman era and now being carried forward by Scott Bales.  Others include Jayne Reardon at the Illinois Supreme Court Commission on Professionalism (2civility.org), who has tirelessly raised awareness on industry changes throughout Illinois and the nation; the folks at Diversity Lab, who are using clever ways to set off waves of improved diversity and inclusion practices among influential law firms and legal departments; and IFLP, which was created by Risk Takers trying to connect the shared interests of the emerging one-to-many legal sector with the next generation of legal professionals struggling to launch their careers.

By and large, the dynamism in the legal sector is powered by a relentless growth in market opportunities, with Risk Takers supplying capital, ideas, and the labor necessary to achieve alignment among stakeholders. But not everything that can be done or should be done is necessarily going to result in someone making a profit.

Liberalization versus the need for new institutions

The more I study the legal market, the less convinced I’ve become that market liberalization can be a complete solution (though, in my view, it would definitely help).

The incompleteness of the solution is particularly true in the area of PeopleLaw, where the combination of low financial stakes and human complexity makes it very difficult to build scalable businesses.  As a result, we are going to need new institutions, such as government-sponsored online dispute resolution, see Post 099 (Civil Resolution Tribunal), and intergovernmental entities that move state and federal courts and agencies toward unified, human-centered portals, filings and workflows.  Likewise, there should be interagency support for the legal technologies designed to help nonlawyer users solve their justice problems — if we have 322 tools in the current harsh environment, imagine what we’d have with better soil and some regular caretaking.

None is this is likely to happen, or happen fast enough, if consensus within the bar is a precondition of all regulatory reform.  For the third time in this essay: Lawyers lack the time, knowledge and expertise to solve the problems at hand; moreover, they’re conflicted.

In my view, A2J progress depends upon the emergence of a new class of regulatory Risk Takers who have the courage to use brunt power to overcome the objections of the bar plus the political skills necessary to wrangle together sufficient public resources.

State supreme courts as regulatory Risk Takers

Ben Barton

In my research, the closest I’ve found to a workable blueprint is Ben Barton’s analysis of state supreme courts’ “inherent authority” doctrine. See Barton, Glass Half Full: The Decline and Rebirth of the Legal Profession ch. 2 (2015).  The leading case on this topic is In re Day, which centered on a decree by the Illinois Supreme Court that conditioned admission to bar on the completion of three years of law school combined with a written bar exam. Because this was an existential threat to students at existing two-year law schools, who would have been automatically licensed under the old regime, they successfully lobbied the Illinois legislature for an exemption.

Yet,  “[w]hen these applicants petitioned the Illinois Supreme Court to be licensed, the Court invalidated the Act because the legislature had ‘assumed the exercise of power properly belonging to the courts.'” Barton at 42 (citing In re Day, 54 N.E. 646, 648 (1899)).  The court’s analysis was entirely grounded in separation of powers principles under the IL State Constitution. Barton writes:

In re Day was favorably featured in a contemporaneous Harvard Law Review article and was widely cited and imitated afterwards. By 1936, the inherent authority of state supreme courts over lawyer regulation was well settled enough that the ABA Journal published an article on the matter, and the courts were using their inherent authority to investigate, and even sua sponte prosecute, UPL. Id. at 43.

Admittedly, it’s profoundly ironic that one of the primary mechanisms used to erect protectionist barriers would now be our best shot at unwinding their most damaging consequences.

State supreme court justices, particularly those who are appointed to the bench (~30), are like Dorothy from The Wizard of Oz — on their feet are ruby slippers that give them all the power they need. To use it effectively, however, justices need to carve out sufficient white space from the daily grind of deciding the state’s most important cases and managing a sprawling judicial bureaucracy.  That’s not easy.  Likewise, they have to acknowledge the futility of waiting on the consensus of conflicted, non-expert lawyers; and they have to absorb the insights social scientists like Rebecca Sandefur and Gillian Hadfield, who have the skill and perspective to see the bottom of the iceberg.

These are uncomfortable acts for supreme court justices.  Yet, it can definitely happen, as the Utah Supreme Court has so wonderfully proven. See Post 112 (discussing conditions that lead to the creation of Utah’s regulatory sandbox); Post 099 (discussing Utah’s embrace of ODR). In addition, in the year 2020, IAALS is set up to be the ideal support network.

Conclusion

I am an optimist by nature. And I generally don’t like to scold.  But folks, it’s time we each play our part to be Risk Takers, and support Risk Takers, who are laser-focused on the long-term public good.


“Everything should be made as simple as possible, but not simpler.”    — Albert Einstein


The members of the Delta Model working group imagine a world, not too far off, where law schools, legal employers and clients all share a common touchstone for lawyer development.  For the last two years, we’ve been working on such a touchstone, which we call the Delta Model.  Our current version is expressed in the graphic above. Continue Reading The Delta Model: simple, accurate, versatile (125)

Click to enlarge / Match the data-enabled deliverable, service or product to stakeholder needs.

How should legal teams get started with data?  Here’s a prescription, along with a #RealTalk diagnostic.


In Post 066, I shared that law firm and law department leaders often ask me how to get started with data analytics. I also shared that I usually respond by asking about their most important strategic objectives.

For today’s post, I will play doctor and take a cut at a framework to serve as a prescriptive roadmap. The above graphic is the result. It visualizes a practical framework to think structurally about high-value applications of data.


To Design a Value Proposition for Data Analytics, Start with Clear Thinking Around Needs

As with any new idea, tool, service or product, the key to designing a successful value proposition is to think deeply about the needs of the intended end-user.

Decision support, when applied to sufficiently high-stakes contexts in both the business of law (e.g. new business models for legal service delivery) and practice of law (e.g. litigation finance), likely offers the highest probability of generating material economic returns or a strategic leap forward for the sponsoring organization. Of course, identifying the decision opportunity and shaping the analytics approach requires a high threshold of domain knowledge as well as technical expertise across both data engineering and data science competencies — hence the need for a multi-disciplinary team.

Execution support. That said, for the time being, the most widespread data efforts in the legal market probably still focus on fairly familiar products around business intelligence, operational dashboards and financial reporting.  While there is plenty of opportunity here for useful deployment of data-informed decisions and actions, the pace of innovation here is unlikely to hit a drastic inflection point due to the heavy burdens around process improvement and change management for data handling, on an organization-by-organization basis.

Persuasion. Broadly in the world, the art of storytelling has gotten almost as much adoration as data science in recent years, but this is one area that hasn’t gotten much traction in legal. (Let’s see if 2019 brings us a bit more ✨ sparkle.)


Common Complaints, Pain Points & 😱💀 Horror Stories 👻🤡

As with many other topics about new and evolving capabilities, dialogue about data in the legal industry can be confusing and contradictory. There is a material level of hype (Big 📊 Data 🤯 disrupting 🤯 Big ⚖️ Law!!) – paired per usual with the requisite cynicism and skepticism (LOL 😆 lawyers can’t speak data 😖😰🙄).

In the abstract, I 💖 data. Full stop. 😍

Out in the real world, however, my adoration for data has many disclaimers, disclosures, and exceptions — particularly when it comes to the legal industry.  In this section, I address a few of my misgivings about the current state of data usage in the legal vertical, drawing not only on my own experiences but also the most common complaints I hear in my travels.

1. We Have the Data Sets We Deserve (but Not Always the Ones We Need 🦇)

This is often how it starts. Because most legal organizations are in possession of some data assets, and because data-informed or data-driven methods are all the rage these days, many organizations embark on directionless and costly exercises to squeeze insights from the data they already have.

Common scenario, full of traps.

Conversations that begin this way are hugely concerning to me.  What I hear in this exchange is “sure, I’d love to see something interesting or cool because it sounds like it’s free.”  That’s not a cost benefit equation with a high probability of a happy ending, for two reasons:

  1. Overvaluing existing data assets without regard to data quality or sufficiency (more on this a bit)
  2. Underestimating the cost and effort required to extract business value from those assets

On the business of law side, both data sufficiency and data condition are material concerns. A point worth noting here is that much of the existing business data in the legal industry oriented around cost to the buyer: most of the readily available data sets across law firms and law departments tend to come from time-and-billing systems and provide the history of transactions, essentially as accounting events. Of course, these data sets often suffer from material quality issues that require time and money to resolve.

Very few law firms and law departments have comparable depth or volume of data oriented around value delivered. In other words, there are precious few readily available and reliable systems of record that capture the history of legal events through which the service provider created and delivered value to the buyer of legal services. On a per-organization basis, more practice management or experience database solutions are emerging to help create this record, and in very few cases correlate those events directly to billing data. However, in 2018, such efforts are relatively nascent, particularly relative to the time-and-billing systems that have served law firms as their primary mission-critical system for many decades.

In such instances, the upside potential of the project often has a hard ceiling — yet issues with data condition can mount, not just in hard dollar expense but also time lag and overall drag on the organization. Particularly in projects without a sharp focus on the end-goal, those costs and subsequent adverse impact on the organization can be significant: not least, the potential for change fatigue and mounting resistance to future endeavors involving data.

In short, designing an analytics program at scale represents a material investment of organizational resources.  To secure sufficient ROI on such an effort, analytics must meet a higher bar than simply being interesting — analytics must be useful. And the overall utility and value proposition of the data effort should, whenever possible, be articulated at the outset, not while a costly effort is in flight.

2. Mostly Neglected Everywhere: Assessments of Data Sufficiency

My favorite question format on the GMAT is unique to the exam: data sufficiency. (Yes, it is weirdly 🤓🤓🤓 to admit I have a favorite question type on standardized tests. For inquiring minds, I 💕 logic games on the LSAT and analogies on the SAT.)

I provide an example below:

Source: PrepScholarGMAT

For everyone whose eyes glazed over, that’s OK. Data sufficiency enjoys a flavor of notoriety even among the b-school crowd. The question doesn’t directly test for quantitative problem-solving aptitude; the provided problem (in the example above, the ratio of full-time to part-time employees in Division X and Company Z) is usually asinine and beside the point.

Rather, data sufficiency questions test aptitude for metacognition: how to 🤔 think about 🤔 thinking. Correctly answering a data sufficiency question is at its core an exercise in logical reasoning, in addition to a test of content understanding of number properties and statistics. More precisely put, this question format demands rigorous and structured thinking about the underlying method of problem-solving, and most importantly the ability to correctly identify the factual inputs required to generate insights relevant to the problems or objectives at hand.

This represents hard work for our brains that feels unnatural, because the exercise of evaluating data sufficiency requires that we focus on the white space — something beyond reacting to or dealing with the facts and numbers that are right in front of us. This question asks us to think categorically and descriptively about whether we might need facts and numbers that are not readily available.

This is a very specific type of thinking that we don’t often practice in the legal industry. We ought to.

3. Data Sets Have Origin Stories, but We Often Ignore Them

Most data sets don’t simply appear out of thin air via immaculate conception. In some way shape or form, most data sets are generated by people.

In most brick-and-mortar businesses and product-heavy sectors, sensors do much of the work around collecting and gathering data, often unobtrusively in the background. The same is true for high-tech platform plays where data on user behavior turns out to be the core product to be monetized.

That said, the legal services market is still a services-first category, and our industry still relies heavily on manual data inputs. As a result, busy and stressed people are clicking buttons or filling out fields to generate many of our data sets, particularly in intra-organizational initiatives in knowledge management and practice data maintenance. This type of data work demands accuracy and precision, which are two areas where humans tend not to excel. These tasks also tend to comprise the more tedious and soul-crushing components of anyone’s job: data upkeep/maintenance is usually the “one last thing” on the checklist or to do list before quitting time, and on most days, these tasks probably don’t get done. 🤷‍♀️

Particularly because we tend to function in environments that produce low-fidelity data, understanding the means and mechanics of data collection is a critical prerequisite to defensible analysis and interpretation. Too many teams working with data in law firms and law departments function as database (or spreadsheet) administrators, overwhelmed with the mechanics of data collection and cleaning without a serious attempt to engage with the content of the data sets — i.e. what the data says and what it all might mean.


The Root Cause Diagnostic: New & Different Methods Require More & Different Skills (but Not in One New Super-Lawyer)

Out in the real world, using data to actually solve real problems is much 😓 harder and more 😩 effortful than a day of GMAT prep, and the requisite skills are both valuable and rare. The ability to identify the needed inputs and assess the best method of obtaining them are skills we don’t associate directly with data analysis. These upstream competencies in fact-finding and fact collection are skills taught in research, investigation and intelligence work — across academic, enforcement, military and corporate traditions.

In practice, work to assess and achieve data sufficiency tends to look both non-linear and messy, because it is. In addition to a firm grasp on the mechanics of research design, the team must bring to bear some depth of domain knowledge (content understanding of the specific facts and data points relevant to the problem at hand) and environmental familiarity (the ability to navigate the available universe of sources and to assess each information source for reliability). Lastly, this type of work benefits from a few specific attributes: intellectual curiosity, resourcefulness, and tenacity.

Often, generating original and useful insights requires multiple cycles of hypothetical reasoning followed by factual investigation. Formulating smart and specific questions to explore requires creative and open-ended thinking rooted in meaningful understanding of the problem, and actually going out to verify what is happening out in the real world requires a willingness to engage in legwork.

All this is a tall order. In 2011, McKinsey predicted that “by 2018, the U.S. alone could face a shortage of 140,000 to 190,000 people with deep analytical skills as well as 1.5 million managers and analysts with the know-how to use the analysis of big data to make effective decisions.”  See “Big Data: The Next Frontier for Innovation, Competition, and Productivity,” McKinsey Global Institute, June 2011.  Fast forward to this year: big data and analytics has topped the skill shortage list for the 4th year running in the annual Harvey Nash/KPMG CIO Survey, and two-thirds of IT leaders say this shortage is “preventing them from keeping up with the pace of change.” See “Big Data Skills Shortages – and How to Work Around Them,” Computer Weekly, June 2018.

A 2017 analysis by PwC echoed McKinsey’s 2011 prediction, noting that the overall talent need will be “mostly for business people with analytics skills, not just analysts.” See “What’s Next for the Data Science and Analytics Job Market?,” PwC Research and Insights, January 2017.

The grid above sets forth their recommended skill inventory mapped to jobs across two categories: analytics-enabled business roles and more technical data science roles. This is an instructive model for legal practitioners and legal educators alike: increasingly, there is a need to rethink the boundaries of the legal practitioner role, either as “data-driven (legal) decision makers” or “data-enabled (legal) analysts.”

I particularly favor this PwC model because it sidesteps a couple of familiar traps. Once in a while, Law Twitter revives the debate over whether lawyers should learn to code (strong opinions abound). I’ve never been fond of how this question is framed. Firstly, I’m not sure it’s helpful to debate whether all lawyers should learn to code. Secondly, I think the question lacks nuance and specificity about what level of conceptual literacy or practical prowess “learning to code” would or should comprise. (As for my two cents on the “learn to code” debate, I agree 🙌 with Jason Barnwell’s hilarious tweet below.)

What the PwC skill grid accomplishes in one visual is to remind us that the full complement of analytics skills modern organizations need must be spread across several jobs. Analytics is a team sport. What’s more, the PwC grid also communicates very effectively that each distinct role demands a differing mix of skills.

Click to enlarge / Don’t try this at home alone 😱

Modern law, too, is increasingly a team sport. Legal teams are particularly challenged to field a high-performing team that brings together the full complement of necessary skills, for several reasons. In the current state, the vertical not only has a skills shortage but no real pipeline strategy to attract high-caliber analytics talent. See Post 066 (talent shortage as structural barrier to innovation).  That talent shortage is exacerbated by the extreme fragmentation in the industry. See Post 051 (key graphic). Indeed, as a mental exercise, I’d be willing to lay 10-to-1 odds that there simply aren’t 200 qualified candidates to lead serious data analytics initiatives at each of the Am Law 200 firms.

The industry relies on pockets of brilliance for thought leadership (Dan Katz of Chicago-Kent & LexPredict and Evan Parker of LawyerMetrix come to mind). However, advancing analytics-enabled thinking at scale will require a much larger talent pool and/or a more creative market-making solution to help scale the limited supply of talent to a broader swath of demand.


A New Hope, Always: the Legal Industry Isn’t Actually That Far Behind the Curve

Before I close, though, let’s take a slightly different look at the state of data analytics in legal — because tech products represent one pathway to scaling the promise of analytics on a one-to-many model.  See Susskind, The End of Lawyers? (2010) (introducing one-to-one and one-to-many terminology). Certainly as of late, more and more legal tech and content players are focused on data applications with the potential to arm legal practitioners and business stakeholders to make better legal and business decisions faster: these efforts currently coalesce around natural language processing, from extraction to categorization and reasoning. Some of these component technologies are already baked into mainstream products in legal research and document intelligence categories:

Click to enlarge / Partial view of the Research and Document Intelligence categories

Many of these products are still likely enjoying success in early markets, but both categories seem poised on the cusp of penetrating mainstream markets. The Research category demonstrates an unsurprising level of consolidation given the longstanding oligarchy of incumbent content publishers. The document subcategories are still fairly crowded, particularly in the diligence engine subcategory: whether a clear winner will emerge, it is too early to say.

One last noteworthy point is that the legal vertical may represent a fairly optimal lab environment to test frontier technologies in the more advanced NLP subcategories like machine translation. In that sense, the perpetual notion that the legal industry is perennially behind everyone else may be a bit fatalistic — and signals in the marketplace suggest that there is likely sufficient interest from both capital and the buying market to drive those experiments forward, particularly in the upmarket segment of Big Law:

  • Eigen Technologies, which works closely with both Linklaters and Hogan Lovells, raised a $17.5m Series A round in June of this year, with Goldman Sachs as lead investor. See “Eigen Technologies Raises £13m,” finextra.com, June 11, 2018.
  • Luminance raised a $10m Series A round in late 2017 with Slaughter and May on its investor roster. See “Slaughters Ramps Up Luminance Investment in $10m Round,” The Lawyer, November 29, 2017.

So, is the legal industry really a decade behind everyone else in how we use and consume data to make decisions? While it probably feels that way to many market participants, I take a slightly more positive view. The advance guard is certainly charging forward. As for most of us in the middle of the pack, I’m here to tell you that many of our frustrations and complaints are commonly heard outside the legal industry.

What I do think we need to improve might be our attitudes: more willingness to invest in attracting new technical talent and more attention to developing the talent we already have by way of education and training would probably go a long way.


What’s next?  See Introducing contributor Dan Rodriguez (076)

Photo by Louis Reed via Unsplash / Microsoft is bringing the scientific method to legal innovation.

Microsoft is pushing legal buy and provider engagement to the next level and asking their primary firms to come along. Here’s why it matters: they’re thinking bigger, committed for the long haul, and bringing a STEM mindset to legal innovation.


Continue Reading Huge, If True: How Microsoft’s Big Ideas Could Transform Legal Buy (069)

Among the many impressive finalists for this year’s ILTA Innovation Awards, the submission for the Telstra legal department stood out as a compelling change management story.  By enabling the right kind of collaboration among its lawyers, the Telstra change initiative reduced the internal workload on the 220-lawyer department by 40,000 hours. Further, by returning time to overburdened lawyers, the department created a culture that is much more supportive of change efforts.

Yet, what is most significant about this story is that virtually any legal organization could replicate this success by taking a few simple steps.

The business challenge facing the Telstra legal department

Telstra is an Australian telecom company that was formally a state-run utility.  Shortly after completing a phased privatization in the mid-2000s, the 2008 financial crisis forced the company into downsizing mode. 10% annual budget cuts were implemented for all parts of the business, including the legal department.

Like many successful change initiatives, this one began with false starts and disappointment.  As the cost-cutting pressures continued to mount, in 2013 the legal department created a long list of key pain points that needed to be addressed for the group to be successful. Recalls Mick Sheehy, Telstra’s General Counsel of Finance, Technology, Innovation & Strategy, “we thought the list was so important we made it everyone’s shared responsibility, including our senior legal leaders, which meant ultimately it became no one’s responsibility.”

A Process to Prioritize, Plan, Implement, and Repeat

With the department struggling to gain significant traction, in 2015 Sheehy attended a design thinking course at Harvard Law School.  Impressed with these ideas, Sheehy returned home and ran a design thinking workshop with a group of his own lawyers, receiving some expert facilitation from a team at Herbert Smith Freehills. Cf. Post 015 (noting key determinants of organizational innovativeness are leadership’s attitude to change and openness to external perspectives).

After once again creating a laundry list of the department’s biggest pain points, the group limited itself to the top four.  Thereafter, they used design thinking techniques to construct potential solutions for each problem and to implement them through an eight-week “sprint.” (Borrowing from the world of software development, a “sprint” is a discrete time period — usually two weeks to two months — where a team creates a working prototype or an updated version of a product. See Agile Glossary.)

Below is the simple process each Telstra work team used evaluate and improve each change initiative:

What makes the Telstra process different that other change initiatives is that it is iterative and enables the group to learn from implementation.  Thus, a decision to continue is also a decision with much better information and a higher likelihood of success.  Likewise, a decision to kill an initiative is less a failure than a prioritization of limited department resources to support the highest impact projects.

Notes Sheehy, “We ran the sprints and we came back to another workshop and we looked at what we achieved and were so enthused and excited that we decided to do the whole thing again. And we haven’t stopped. This is now an embedded process in Telstra legal and we recently ran our 8th Telstra innovation workshop.” Cf. Post 008 & Post 011 (noting simplicity and trialability as among the keys to successful adoption).

Telstra rotates lawyers through the innovation program, known internally as the Legal Innovation Forum, or LIF.  As of August 2017, 35 Telstra lawyers have participated in the program.

Results

Thus far, four “streams” have left the Forum, having achieved their core objectives.  Although Sheehy notes that none of them are particularly exciting on their own, “collectively they’re telling a great story.”  Here are the four streams.

  1. Self-Service NDAs (5,300 hours saved).   Most non-disclosure agreements are standard and low-risk.  By embedding the key decision points into an automated workflow, the number of lawyers hours per annum dropped from 6,425 to 1,125, resulting in an 82% time savings.
  2. Less Legal Report Generation (2,250 hours saved).  The equivalent of two lawyers were producing a weekly report for the CEO that he was not regularly reading. So the reports going to the CEO were cut by nearly 2/3, reducing the time commitment from 3,750 hours to 1,500, resulting in an 60% time savings.
  3. Fewer Internal Meetings (31,500 hours saved).  Throughout the legal department, the numbers of internal meetings was widely viewed as excessive. As part of a LIF initiative, internal meeting where categorized as either “decision making” or “information sharing” meeting. For decision making meetings, organizers were told to only invite people they needed and to make the decision points explicit in advance. For information sharing meeting, each attorney was limited to 2.5 hours per week. Across the 220-lawyer department, this resulted in a drop in internal meeting hours from 60,180 to 28,680 (52% reduction).
  4. Reduce Legal Review of Internal Communications (1,008 hours saved).  A careful triage of the type of internal communications subject to legal review revealed that a substantial volume of review was unnecessary.  Better workflow criteria resulted in reduction of attorney hours from 3,470 to 2,462 (29% time savings).

Telstra’s internal time saving target for these four initiatives was 27,000 hours per annum time.  Yet, they overshot the mark by achieving more than 40,000 hours.  This is the type of ROI available when lawyers use people, process, and technology to “do less law.” See Ron Friedmann, Do Less Law — A Taxonomy of Ideas, June 11, 2015.  It was also enough for Telstra to win the 2017 ITLA award for legal department innovation.

Lessons learned

As noted above, as of August 2017, Telstra had eight workshop/sprint iterations, which is the basis for an enormous amount of organizational learning. What are the key lessons?  Sheehy offers several:

  • Data.  “It’s critical to measure your baseline and know your starting point so you can tell a data driven story so people can understand all the effort you’re putting in is driving results.”  Cf. Post 008 (data makes innovation more observable and thus more likely to be adopted by others).
  • Not reinventing the wheel.  “The problems we’re solving are not unique to Telstra legal department and may be faced by other law firms and departments in the company. Having an outward focus rather than an inward focus is critical.” Cf. Post 017 (noting openness to external ideas and influence as key determinant of organizational innovativeness)
  • Not waiting for perfect; avoiding options paralysis. “We have a tendency to overthink problems when we sometimes just need to get started. Jeff Bezos had a great point when he said that if you’re waiting for more than 70% of the information to make a decision you’re probably waiting too long, and getting something wrong is less expensive than being slow.”
  • Communication.  “All of this has a degree of behavioral change and behavioral change is really hard. We had to focus on the communication. The reduction in meetings was difficult and to get people to think differently on that – a lot of it was down to communication.”

Below is the last graphic from Telstra’s ILTA presentation.  Note that in its original form it was a series of sticky notes generated by team members during the Forum debriefs. In other words, a simple low-tech process is the engine that is powering tremendous organizational efficiency and learning.   Per Sheehy and his Telstra colleagues, the blocks in red are particularly important.

A special thanks to Mick Sheehy and Ali Caldicott of Telstra for making the ILTA slides and presentation script available to me.

What’s next? See Currell on Convergence and Preferred Provider Panels (028)