Randy Kiser

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Why do we attend legal industry events?  What makes them worth our time? Valuable blue sky remains.

Earlier this month I participated in the Inspire.legal conference in New York City.  Because Inspire.legal was sufficiently different than any other legal industry event I have attended, I began ruminating on the question “why?”

The matrix above, which reflects industry events I have attended over the the last 15+ years, and thus excludes those I have no firsthand knowledge of, provides a framework for my answer. Despite this limitation, I am likely in the 99th percentile of breadth of conference attendance. So let’s give it go.

My analysis breaks down into four parts:

  1. The vertical (Y) axis, which is type of format.
  2. The horizontal (X) axis, which is diversity of perspective.
  3. Why Inspire.legal is in a box by itself.
  4. The valuable blue sky that remains.

1. Type of Format

The vertical (Y) axis reflects the event format, moving from traditional talking head panels to an more interactive format to team-based classroom learning.

Talking Head Panels.  The most obvious takeaway is that talking head panels is a very common format.  Why is that? The most likely answer is that a portion of attendees prefer it that way, as it puts them (us) in control.  Attendees can attend the programming they want, spend most of the time networking in the hallways, or take time off without anyone noticing. Conference organizers may also prefer it because it’s a proven economic model — panels of experts attracts attendees; the opportunity to speak attracts the experts; and the format routinely qualifies for CLE credit.  It’s stable and generally does not require a lot of care and feeding to work.

Interactive Formats.  As we move up the Y axis into more interactive formats, we have large number of events.  Two events, the NALP Annual Education Conference and the Professional Development Institute (PDI), stand out because the vast majority of slots are filled by RFPs in which one of the key selection criteria is interactive teaching methods.

Most of the interactive format events, however, tend to be private and invitation-only.  In addition to numerous academic workshops where I get attend because I’m an academic, I’ve have the opportunity to attend roundtables designed for managing partners (several based on size, geography, prestige), general counsel, law firm COOs/EDs, law firm marketing, law firm KM professionals, and law firm talent management (several based on geography and recruiting / PD / diversity). The value of these formats is candor, enabling attendees to learn how counterparts are handling similar challenges and, hopefully, what works.

Significant New Learning.  The top Y-axis category is “Significant New Learning.”  Based on my experience, the only programing that fits this bill is offered by Harvard Law’s Executive Education Program.  These programs tend to be immersive 4-5 day programs where attendees — primarily law firm partners from elite firms and general counsel from major companies — are tasked with learning new knowledge and skills within a team-based environment.  Drawing upon the highly interactive business school case method, Harvard Law has developed an outstanding library of real-world cases to support this program.  HLS and HBS professors divide up the majority of teaching duties.

Most people who attend HLS executive ed call it “transformative,” which raises the question, “why is this type of programming so rare?”  The tuition is high and the opportunity cost of time away from clients and the office is even higher.  That said, a strong case can be made that this type of executive ed nonetheless leads to a significant ROI. See Henderson, “Milbank’s Big Bet,” AmLaw Daily, May 11, 2011; Henderson, “An Update on Milbank’s Big Bet,” LWB, Nov. 13, 2013.

2. Diversity of Perspective

The horizontal (X) axis reflects the diversity of perspectives, moving from professional silos to some diversity of perspective (mix of allied professionals and non-practicing lawyers in P3 roles) to significant diversity (GCs, law firm leaders, legal ops, legal tech, NewLaw, deans, regulators, law students).

Professional Silos. They exist because they are comfortable. During times industry calm, they also provide a way to exchange useful technical and operational information.

Some Diversity of Perspective.  But the last decade or so have been been particularly calm. I think that is why are are seeing the the proliferation of programming in the middle category, “Some Diversity in Perspective.”  More and more conferences are creating panels that bring together clients and service providers in ways that create a real exchange of ideas. Likewise, at many middle category conference, there is a growing realization that the practice of law is becoming increasingly multidisciplinary.  Thus, more allied professionals are put forward not only as technical experts, but true industry thought leaders and business leaders. Slowly, the silos are coming down.  What is so often missing from these conferences, however, are law firm partners.  See Post 054 (Jae Um noting that BigLaw partners aren’t at the industry conferences because they are busy servicing clients to hit this year’s numbers).

Significant Diversity of Perspective.  Note that the “Significant Diversity of Perspective” category comes with an asterisk.  What does this mean?  A handful of times over the last several years, I’ve been in a room that reflected significant diversity of perspective.  Yet, in hindsight, it’s obvious that all three events — all convened, at least initially, in the 2011-2014 time period — were magnets for innovators and early adopters seeking to make sense of a legal industry where traditional business models were foundering.  Thus, while participants came from a wide range of industry roles and experiences, attendees were highly self-selected based on their  innovator and early adopter status, albeit this typology was new to the legal field. Cf. Post 033 (discussing creation and attendees at inaugural Forum on Legal Evolution).

According to diffusion theory, innovation becomes more likely as we move from the left to the middle and right side of the graph. This is because professional silos are too insular in see beyond established ideas and hierarchies. (Everett Rogers relied upon the technical term homophily to describe this problem.)  Yet, as a group becomes more heterophilous, the sharing of potentially valuable ideas requires more effortful communication.  This conundrum is depicted in the chart below (from Post 020) shows the condrunum.

In most social systems, only innovators and early adopters are willing to pay the price of learning challenging new ideas and concepts during this mid- and late portions of their careers.  Cf. Randy Kiser, Soft Skills for the Effective Lawyer ch. 9 (Cambridge 2017) (in conclusion to his book, observing that for many lawyers, the disinterest in learning begins as early as law schools).

3. Why Inspire.legal is in a box by itself

Christian Lang

Inspire.legal is in the center box by itself.  This happened because the event’s founder, Christian Lang, made the decision of dumping traditional talking panels in favor of “Unpanels” where attendees drive the content.

Unpanels are part of the Unconference movement.

I attended my first Unconference in April 2017.  It was put on in Washington, DC by Vox.com.  To get an invite, I had to write an blurb that showcased what I might bring to a future-oriented policy conference where the attendees drove the content. Somehow I made the cut. Out of roughly 500 attendees, I was definitely a 1-percenter on the age spectrum — very few Boomers. That did not matter to me, however, because I was there on my own dime to try to understand the Unconference format.

Unconferences are ideal for broad groups of stakeholders who are passionate about change and frustrated with the constraints of the status quo.  At an Unconference, those those without fancy credentials and titles can steal the show based on the force and clarity of their ideas.

To the best of my knowledge, Inspire.legal was the first application of the Unconference format to the legal industry vertical.  Hosted at beautiful New York Law School on the Friday following ALM’s LegalWeek — a smart move by Christian — the event was extremely well attended by a demographic that was relatively diverse by age, experience, and role within the industry. (The underrepresented groups were line partners from law firms and legal departments lawyers.)

What made Inspire.legal both worthwhile and unique was how the Unpanel format leveraged the diversity in the room. Rather than giving all the airtime to established experts, we got to hear from people based upon how much they cared about a problem. In the session I ran on “Who should pay for the training of the next generation of legal professionals?,” we heard from deans, law students, law professors, current and former law firm associates, law firm PD and learning professionals, founders of legaltech companies, legal journalists, KM directors, and many others.

Our Unpanel created the rules of engagements using green, yellow, and red index cards, which seemed to work well.  Far from an echo chamber, we heard sharp and reasoned disagreement. If we had been running a tape recorder and truly had the time and resources to solve the “who pays” problem, our session would have been a profoundly valuable focus group.

4. The valuable blue sky that remains

Although ideas are fun and valuable, what is missing from the legal industry landscape is programming that supports deep, cross-disciplinary learning of the kind that can produce a competitive advantage for attendees and their organizations.  When and if that happens, expect the format to grow and eventually influence the entire social system.

The constraints, however, are formidable.

  • Cost to produce.  Immersive learning programs are very expensive to design and run.  Where does the seed capital come from?
  • Cost to attend. Sure, there is tuition/registration fees. But likely the bigger cost is time away from work and clients. This why line lawyers and law firm and legal department leaders are unrepresented at conferences that emphasize innovation — the demands of their jobs make new learning extremely costly.
  • Educated incapacity.  This is a term coined by military strategist Herman Kahn. As Kahn notes, “The more expert—or at least the more educated—a person is, the less likely that person is to see a solution when it is not within the framework in which he or she was taught to think.” See Herman Kahn, “The Expert and Educated Incapacity,” Hudson Institute (June 1979). Thus, multidisciplinary collaboration and learning is high value, but it comes at the price of letting go of comfortable old ideas.

Fortunately, chapter 9 of Diffusion of Innovations (5th. ed. 2003) provides some insight on this situation. Rogers breaks down diffusion systems into two types: Centralized and Decentralized.

Centralized Diffusion Systems, depicted below, are common in circumstances where a powerful central authority (e.g., government agency, corporation, trade association) has a strong interest in spurring innovation.

Adapted from Everett Rogers, Diffusion of Innovations fig. 9-1 (5th ed. 2003)

The centralized system applies to the diffusion of hybrid seeds during the first half of the 20th century. See Posts 008 and 020 (providing history). Farmers lacked the technical know-how to invent and use hybrid seed. Yet, for reasons of national security, the U.S. Department of Agriculture had a strong interest in increasing domestic agricultural yields.  Thus, the technology was invented by university-trained agronomists and shared with farmers through agricultural extension services funded by various federal, state, and local agencies. Through trial and error, personnel from the extensive services discovered the value of focusing on opinion leaders to speed up the process of adoption. Over the last half-century, this has proven invaluable in a variety of real-world contexts, particularly in the area of public health.

In contrast, Decentralized Diffusion Systems, depicted below, is what happens when a social system lacks a formal structure to solve system-wide problems.

Adapted from Everett Rogers, Diffusion of Innovations fig. 9-1 (5th ed. 2003)

The primary challenge of a decentralized systems is that social systems may lack technical skills and knowledge to properly vet new solutions, which could lead to various false starts and maladaptations. See Rogers at 398-99 (discussing disadvantages and risk factors of decentralized diffusion systems); see also Post 051 (Jae Um discussing blame game and sloppy “because lawyers” narratives). I think this is where the legal industry finds itself, circa 2019 — for the good of clients and the broader legal system, we need to embrace new disciplines and methodologies, yet none of this is part of lawyers’ formal training.

To my mind, the solution is find ingenious ways for lawyers and allied professionals to spend more time the blue sky portion of the matrix above. This requires the creation of an empirically validated body of knowledge and teaching methods that are (a) highly time efficient for busy, high-level professionals, (b) high-impact (you can start using what you learned the following week, and (c) highly scalable, which enables the highest possible quality to be delivered at the lowest possible cost.

In effect, the combination of quality, cost, and user experience serves a role similar to a centralized diffusion system. A profession worthy of self-regulation will figure out how to make this happen.

Legal Evolution PBC is pleased to announce our first public event.  On Tuesday, October 10, author and researcher Randy Kiser of DecisionSet® will give a lecture and Q&A session based on his recently published book, Soft Skills for the Effective Lawyer (Cambridge University Press 2017).

This event is graciously hosted by Chapman and Cutler LLP, 111 W. Monroe Street, Chicago, IL. The event will run from 6 to 7:15 pm in the building’s 8th floor auditorium (doors open at 5:30), followed by a reception at the firm. There is no charge for this event. However, advanced registration is required. You can register online here.

Why attend this event?

If you’re a lawyer or law student, the opening paragraphs from Kiser’s book, excerpted below, provide a powerful answer:

Anthony Sonnett, Ford Motor Company’s trial attorney, had nearly completed his cross-examination of Barry Wilson. After listening to Mr. Wilson describe how he showers, catheterizes, and frequently repositions his paralyzed wife, following an accident in which her Ford Explorer rolled over and fractured her spine, Mr. Sonnett posed his final question to Mr. Wilson: “The silver lining, to the extent that there could be one, it has brought you and Benetta [Mrs. Wilson] and the family closer together?” Mr. Wilson responded: “I think where we were together before, we are together after. I don’t think it’s done more for us. I think it’s — I don’t think it’s a benefit or a plus in any way. I am sorry, I don’t think I can see it that way.”

The jury returned a verdict against Ford for $4.6 million in economic losses, $105 million in noneconomic losses and $246 million in punitive damages. Reviewing the verdict on appeal, the California Court of Appeal honed in on Mr. Sonnett’s “silver lining question” and noted, “This question implied that the family should find a silver lining in what befell Mrs. Wilson. It may very well have been viewed as callous by the jury and might explain, in some manner, the actions of the jury in rendering a verdict so out of line with the amounts requested by the Wilsons’ own counsel.” The question, the court stated, “might well have inflamed the passions of the jury.” Concluding that the award against Ford was excessive, the court reduced the noneconomic damages award to $18 million and lowered the punitive damages award to $55 million.

The silver lining question, according to Adam Liptak, the Supreme Court correspondent of The New York Times, “was a legal classic that has echoed through the appeal of the case.” “The Wilsons’ case,” he opines, “suggests that a lot can turn on little things, including flat-footed lawyers and stupid questions.”

Attorneys can argue endlessly about the appropriateness and impact of the silver lining question. That argument obscures the fact that judgment calls like the silver lining question permeate a lawyer’s daily existence and are not resolvable by statutes, rules, regulations, appellate court opinions or practice guides. These judgment calls are invariably subjective and inherently dangerous; they tend to be more personal than rule-based, more intuitive than empirical. They require a broader set of skills than technical legal knowledge and analysis and necessarily implicate “soft skills” like sensitivity, discernment, empathy, perspective taking and foresight.

In making these judgment calls, whether cross-examining a witness or negotiating contract terms, attorneys rely heavily on their personal experiences and their sense for people. They ask themselves imponderable questions like: How am I coming across to everyone else in this room? Do they trust me? What do they expect of me? Have I realistically assessed this challenge? Am I adequately prepared? Is my sense of what is happening here affected by how I feel about something else today? What will I do if I fail here? This book is about these types of questions — how we pick the questions to ask ourselves about ourselves, how accurately we answer them and how we can improve the soft skills that are ignored in educational testing but turn out to be dispositive in life.

Over their fall break, current Indiana Law 2L and 3L students are eligible to enroll in Randy Kiser’s 1-credit course based on Softs Skills for the Effective Lawyer. We are very fortunate to have Chapman and Cutler LLP also host the class in their Chicago office. I am proud to have played a role in organizing the Kiser Soft Skills course and the Kiser public event.

More about Randy Kiser

Randy Kiser was a very successful practicing lawyer for 20 years before pursuing graduate studies in psychology and developing a second career as a researcher and consultant on lawyer decision making.  Although Kiser has no permanent academic affiliation, his work on the legal profession is among the most rigorous, engaging, and important currently being published, with wide-ranging implications for society, practicing lawyers, and legal education.

Kiser’s 2008 article “Let’s Not Make a Deal” in JELS (the leading peer-reviewed empirical journal on legal topics) documents the pervasiveness of errors among lawyers in the decision to reject a final settlement offer and proceed to trial. Although plaintiffs’ lawyers were twice as likely to make a mistake (determined by getting a judgment less than the final settlement offer), defense counsels’ errors were vastly more expensive for clients — the average costing $43,000 on the plaintiff side versus $1.1 million for the defense.  See 2008 NY Times article on Kiser’s research.

The message that comes through Kiser’s research is that all of these mistakes are fixable by becoming aware of a wide range of inherent human biases and taking appropriate corrective actions. Nonetheless we persist in our decision making ignorance, with clients suffering the economic consequences and lawyers wondering why their careers are stalling.  For the last several years, I have integrated portions of Randy’s seminal book, How Leading Lawyers Think (Springer 2011), into both my Deliberative Leadership and Legal Professions course at Indiana Law. The book does extensive qualitative research on plaintiff and defense counsel who consistently make wise evaluative judgments and thus obtain consistently better client results when going to trial.

You can learn more about Kiser at his DecisionSet® website.

What’s next? See “Crossing the Chasm” and the “Hype Cycle” (024)