The Actors:
Oz Benamram, White & Case
Michael Mills, Kraft Kennedy, formerly of Davis Polk
Brent Miller, Cleary Gottlieb
Jeff Rovner, O’Melveny

Act 1: It’s a Mad, Mad World - Challenge to the Way We Used to Print Money

Abbreviated - we all know that the printing press is not working the way it used. Rates can’t keep going up. Profits likely to remain flat. Realization is down. Alternative Billing is expected to grow. Still a gap in surveys of GC v law firms. Former expect more than latter but e-billing folks say it is actually still only 5%. Hildebrandt says billable hour is not dead but is shrinking in importance.

Act 2: The Devil Wears Business Casual - The Impact of Millennials on Legal IT and KM

Baby boomers: Born 1946-64
Gen Xers - born 1965-79
Millennial or Gen Y - born post 1980

Millennial Attitutes:
- Prefer smaller ogganizations
- Look f or’good’ employers
- Skeptical and question rhetoric
- Not as focused on work

Millennial Learning Styles:
- Networks, teams, searms (leaderless)
- Multimedia / tech savvy. Intuitive. But can’t drive a stick shift.
- Engaging / stimulating methods
- Strategy guidesand visualization, not throughg experts and bosses
- Segmentation - stick ‘newbies’ together, let the ‘gamers’ advance at different rates
- Failure is ok
- Want to be included
- Want constant feedback

Audience Comments:
- Military is using games to teach but CLE certification would not allow games.
- Meritocracy replaces bureaucracy
- Those who go into law may self-select to be more like boomers
- As Millennials gain work eperience, they may become more like older generations
- Millennials want KM check lists and guides because they are used to getting instructions
- Information sharing is part of their culture (think Facebook and Twitter) so they support KM; but they won’t pick up the phone and talk

Millenial Associates
- Higher attrition (even before lay offs)
- Less committed to partner track
- Tend ot communicate online instead of in-person
- Expect greater work flexibility and options to work remotely
- Fewer boundaries between work and home

Law Firm Economic Implications
- Traditional motivators less important
- Training more important
- Rise of alternative career paths
- Demise of time-based billing likely a positive

Law Firm Technoloy Implications
- Comfort with social media mean firms need to adapt. For example, think social tagging and additional communication and collaboration channels
- Constant connectivity
- Reduced toleratnce for hierarchy
- Expect coll interfaces. Without a good user interface (UI), your app is dead
- Want more tools and toys (multiple monitors, gadgets, options)
- IT and KM may have to allow work outtside firewall and outside of firm-controlled content
- Rethink training / planning: this gen may be more tech savvy than the trainers

Knowledge Grid in Millennial Era
- Tacit to Tacit (Socialization): online networking and teaming
- Tacit to Explicit (Externalization): tagging, crowd sourcing, auto categorization
- Explicit to Tacit (Internalization): search based precedent, reliance on wikis, blogs and other unapproved resources
- Explicit to Explicit (Rationalization): smart search; page-oriented; personaolzied and small gorup data management, Web 3.0

Audience Comments:
- Millennials attuned to how advertisers are collecting behavioral data. Watch the advertiser to learn how to bring info needed when it’s needed.

Act 3: Fixed Fees Magic - Change to the Way Law Firms Deliver Legal Services

The Grim Reality
- Business model is in peril
- Imagine a law firm that does one litigation matter in a year, for which it gets $100
- Assume 40% margin on this. $60 is salary and other costs
- Realization has fallen so what used to be $100 is now $85
. Clients getting discounts
. Auditors chopping bills
. Clients refuse to pay for junior associates
- Now, assume revenue base is $85 >> that means profits go from $40 to $25 (absent changing cost base)
. That means margin drops by more than one-third
- So firms have tried to lower cost. But this is hard to do quickly
. Firms have cut lawyers and staff and outsourced but the model has not really changed
. How can firms lower cost base without further cuts
- Reduce admin costs
. Can firms cut these further after 2009? Seem unlikely
- So firms need to think how to reduce the cost of delivering legal services
. Perform tasks in less time
. Perform work with lower-cost personnel
. Reduce low-value effort that gets written off
. But firms need to profit from improved efficiency
- For law firms, fixed fees are better than discounts
. With fixed fee and efficiency, firms can maintain margin
. With discounts, impossible to maintain margins

How can law firms improve efficiency? Consider Orrick’s fixed fee deal with Levi-Strauss. Doesn’t Orrick have an incentive to be more efficient?

Challenges to efficiency
- Many lateral partners, each trained differently
- Lots of litigation teams, each with its own ‘way’ (vendors, processes, resource mix)
- Each associate plays for multiple teams, so can’t learn to be efficient

Efficiency Requires
- Firm-wide model to conduct litigation
- A common and efficient tech platform
- Ease of adopting new tech and process
- Substantial saving to pass along to clients

Ways to Improve Efficiency
- Adopt a production-lline mentality
- There is more to learn from manufacturing than service businesses think
- How would we litigate if we were starting from scratch
- Example: invention of mutual funds to simplify building diverse portfolios without high transaction ccosts

My firm gets a lot of pitches from outsourcers for administrative work. It’s not that they are smarter or better. But they’re willing to follow processes, and we’re often challenged to do that consistently.

Deconstruct the current Litigation Approach
- What does a firm produce? How can you produce the truly necessary components more effectively?
- Use tech to streamline processes
- Litigation consists of many sub-processes or modules
- Subject each sub-process to a best-practice analysis
- Replace sub-processes with cheaper or better ones as developed
- Outsource or insource sub-processes as competitive pressure dictates
- Each sub-process dictates personnel needs.

Fixed fees are a way to lock-in revenue as you improve the overall process.
- Firms may need tools to support fixed fee analysis
- Baker Robbins is developing a good tool

Act 4: The End of Lawyers? - The Efficiency Game

Where do we find places in our practices to improve efficiencies?
Consider replacing KM with “practice engineering”
Richard Susskind looks across practices to to find areas where lawyers can practice more efficiently
Lawyers in large firms believe all they do is bespoke but most is actually not
Even in a truly one-off deal, many elements can be systematized
. No matter what the deal, if big, there will be many routine filings and processes
Susskind model:
One-off > Standardized > Systematized > Packaged >|> Commoditized

Truly one-off work starts with a blank piece of paper. So, in theory, all a lawyer needs is a word processor.
But in fact, most practice relies on either standard forms or prior similar documents
Where there are enough similar deals, firms can develop check-lists, some automated
Lawyers can go still further with document assembly to automate commonly used forms
Davis Polk Netting system is example packaging expertise for delivery online

Efficiency Tools
- Enterprise search
- matter info and analytics across life cycle
- Project management tools
- Auto-categorization and entity extraction
- Communications and collaboration
- Cloud computing (possibly the client’s cloud)
- Social media, transparency,
- Doc automation

The panelists:
Marilyn Caldwell - Director of Practice Support, Lowenstein Sandler
Michelangelo Troisi - Senior Counsel and Director of Risk Managment, Samsung Electronics America
Scott Cohen - Proskauer
Craig Ball - Consultant and court-appointed Special Master for EDD

Introduction. Most everyone is already outsourcing at least some EDD work, so this panel is focused on considerations for bringing work back inhouse. A recent poll of inhouse counsel found that 3/4 said law firms are not doing enough to respond to cost pressures, especially on EDD. The volume of ESI keeps growing, so the problem is not going away. And ESI is becoming more complex with the advent of new media such as Facebook and Twitter.

The law is now clear - companies have a duty to preserve records. Doing this poorly, without expert advice, can lead to problems. So for organizations taking EDD inhouse, how do you make sure you meet your obligations?

“The reality of e-discovery is it starts off as the responsibility of those who don’t understand the technology and ends up the responsibility of those who don’t understand the law” - Craig Ball

Identification and Preservation. Craig discusses the EDRM reference model. Prime candidates for insourcing are RM, identification, preservation, collection, and processing. Questions latest Judge Scheindlin Pension Committee decision, suggesting that custodians must be involved in preserving records. Custodians need to be involved but that is not enough. Mike says that it is not practical, at outset of litigation, to immediately go out in the corporation and interview all the custodians. Samsung sends out notices to employees. He says that this ends up in over-preserving. Talking to custodian to determine relevance just takes a lot of time. Custodians preserving their own docs is really the only practical solution. But acknowledges that not all employees read all notices.

Craig suggests some institutional / enterprise steps to help ensure preservation. For example, before sending out preservation notice, create and save back-ups of key systems such as an Exchange. Samsung does this with Exchange and Enterprise Value (again, he says, this results in over-preservation).

Collection. As lawyers and legal staff acquire skill, they will be able competently collect data. But today, lawyers deal with intermediaries. Craig argues that lawyers need to be closer to the data earlier in the case than is currently the case. Marilyn points out that lawyers are nervous about collection because they are aware that they may change the data. So some debate over whether collection is merely ministerial. Craig: why didn’t these lawyers know the answer to the data change issue. Marilyn: IT staff knew meta data needs to be preserved but business people think only about document content. This leads to a discussion of what credentials or training is required to collect data appropriately. Craig points out that there are no readily available certifications / training for lawyers. He says he could teach most lawyers in 2 to 3 days. But he is not aware of any courses. And he’s not sure how many lawyers would sit for such a course. Craig: in all the time lawyers spend rationalizing why they can’t or shouldn’t learn this, they could actually learn it. [Editor note: reminds me of mainframe computer days, when I sat though meetings where glass box IT staff spent hours explaining why data I needed was impossible to get instead of spending that time writing code to get it.]

Scott: many tools purport to help with collections. But you first have to understand requirements. Once you understand the legal requirements, then you can match up with actual capabilities of tools. Emphasize actual, meaning having tested the tool and not relying only on vendor representation.

Craig: bring as much as you can inhouse so that corporation can competently and defensibly reduce data volumes. This will yield smaller data set that gets turned over to vendor for processing and that needs review. A show of hands: many companies have hired vendors to forensically collect data. Craig thinks that with one competent and properly trained inhouse person, this is not necessary. Marilyn counters that you need someone who can testify appropriately and this may not be the typical inhouse IT person. Craig responds that if the collection is competent, the likelihood of having to testify is very low.

For companies outsourcing some of their IT infrastructure, they need to consider the real total cost of ownership, which includes the cost of collection and preservation.

Audience question: Should law firms offert IT training to clients? Scott would be more comfortable pointing clients to appropriate third parties. Marilyn would also turn to 3rd party vendors.

Steps for Insourcing - Corporate Perspective. (presented by Mike)

Questions :
1. Do steps comply with law?
2. Do you have the right processes?
3. Do you have an action plan for when litigation arises?
4. Has the action plan been tested and used?
5. Is the process defensible? Has counsel signed off on the plan?
6. Is the process repeatable? Does it work for all or at least most cases?
7. Who owns and manages the process and plan?

Forming an internal EDD team:
1. Is it cross-functional?
2. Who leads the team?
3. Does the the team have the necessary resources?
4. Is IT fully involved and committed?
5. Is the team truly cross-functional?
6. Which department manages ESI? (At Samsung, law department manages ESI. Company pays IT for support it needs.)

Technology:
1. How can tech help the process and people work better?
2. Is the tech modular or upgradeable?
3. Will the vendor continue to suppor the tech?
4. Can the company survive without the solution?
5. Can the company live with the tech becoming obsolete?

Steps for Insourcing - Law Frim Perspective. (presented by Marilyn)

Evaluate and Plan
- Need personnel with right expertise, technical and consulting
. Keep in mind that training is a continuous process
- Need the right hardware and software
. Is your system scalable
. Does your tool have the right feature set
. When there are problems, what do you do?
- Determine admin requirements
. Keep track of what you have done and who did it
. Record action in case challenged in court
- Assess risk
. What happens when something goes wrong?
. Will the firm accept this risk?
- ROI
. There are a lot of moving parts - is the firm ready for all these costs?

SWOT analysis
Strengths
- Flexibility, efficiency, deeper understanding, transparency, control
Opportunities
- Cohesive work with case teams
- Integrate tech efficiencies into work flows
- Expand knowledge
Weaknesses
- Limited exposure to varying data types
- Staffing constraints
Threats
- Difficult to decline work once you’ve started
- Scaling up
- Data volumes growing
- Software bugs

Considerations for In Sourcing
Do you have the people?
Do they hae the time, expertise, and interest?
Do you have the budget?
Can you monetize?
Do you have the right tools and infrastructure?
Can you stay current with tools, with the right training, and keeping methods current
Are you lawyers willing to be looped in?
When in doubt, farm it out

Desktop Search with X1. In 2009, I had to uninstall Google Desktop Search because it seemed to crash Outlook. (Well, that’s what my IT advisors told me and after uninstalling, the crashes stopped.) For some time, I lived without desktop search, which was painful. I’ve now been using X1 ® Professional Client Version 6.2.4 for about 5 weeks. I find it very useful and better than Google for the most part. It’s intuitive interface allows _fast_ searching of e-mail or files (a tabbed interface allows selecting other categories such as Inbox or music). Fields allow searching by meta data such as sender, subject, or date for e-mail and document type or path for files. X1 provides a viewer for most file types, though I personally don’t use it that much. Working from the search result list, it’s very easy to open files or the file directory in which the file sits. Personally, I like it better than Google Desktop. The only thing I can think of that it does not do that Google does is index web pages visited. (One tech note for install: I had some clutter in my Outlook profiles, meaning some old ones. X1 found these and wanted to index files that no longer existed. This forced me to clean-up old profiles, which is probably a good idea anyway.)

E-mail Autofiling with Xiant. I have long been impressed by Decisiv by Recommind, a product for automatically filing e-mail. That has not been available to me but late last year I read about Xiant Filer for automatically filing e-mail messages. Xiant is a company started by Microsoft co-founder Paul G. Allen. Xiant integrated easily with Outlook and saves me a lot of time filing messages (individual messages and threads, including replies, which means I now rarely need to file sent messages - a huge savings in time). I know some people think filing is a waste of time, that with products like X1, you can find messages. But I personally still find it useful to be able to scan a folder of related messages so that I can see the history of a project. I’ve used Xiant a few weeks and its recommended folders are typically good picks and seem to improve over time as it “reads” more of my e-mail and “sees” my filing choices. Though not billed as a feature, Xiant has the benefit of allowing me to find where in my extensive list of nested folders a particular folder sits. Can you tell I am splitter and not a lumper? [Tech note: At least for my install, the buttons Xiant adds to each messages for auto-filing do not work; I can only file from my inbox. Also, though I have three views / windows of Outlook open, the Xiant buttons appear only on one of them. I have not sought tech support to resolve these issues.)

Ease Tweeting with HootSuite. HootSuite is a web site that simplifies writing and reading Tweets across multiple Twitter accounts (and other social media though I only use it for Twitter). I like it’s multi-column interface better than the native Twitter interface, though I continue to use the latter in some instances (e.g., searching Twitter).

[As usual, the above are my opinions and I have received no consideration from any of the vendors / products reviewed here.]

In it, I explain my views of why the new normal will require law firms to deliver more value to clients. This will require more technology. In e-discovery, this means substituting technology for humans where possible. That said, my view is that it is “man and machine", not “man versus machine”. I comment on early case assessment (ECA) and predictive coding, suggesting that they are more points on a continuum than different approaches. Both require significant human input and share the goal or automating document review.

Several other interviews appear this week at the Posse List and are worth reading.

A government lawyer who read my material on risk analysis asked these good questions. It’s the same questions in-house counsel should ask. For both corporations and the government, the surest way to reduce legal cost is to do less legal work. Improving efficiency or reducing rates is beside the point if skipping or reducing the work altogether is an option. And part of reducing work is to accept a “good enough” answer rather than a 100% answer.

So, is there a structured way to decide how much to invest in legal questions? That is, when a legal question arises, how can a lawyer assess its magnitude and rationally decide how much to invest to address it? Some lawyers believe every question merits thorough analysis. From an economic perspective, however, the client should first know the order of magnitude of the problem. Problems come in different sizes - a pebble, rock, boulder, hill, mountain, or asteroid - and the effort should depend on the size?
Because formal risk analysis incurs a cost, one might reasonably apply it only to problems that are say, at least boulder-size.

A reasonable economic / business decision might be to ignore pebbles and rocks. Certainly treating every problem as if it were an asteroid or boulder is uneconomic. I am not aware of any systematic and documented in-take process designed to assess a legal question and how much to invest in it.

Of course this assessment, intake process, or “gate keeping” happens; I just don’t see evidence that it is systematic and documented. No matter how experienced the gate keeper lawyer, questions will arise outside the scope of experience. What then?

If business and government are to reduce legal expense, then we need a systematic gate keeping approach. A knowledge management professional might suggest that every incoming query be captured in a database, along with its disposition. Then, once there is enough data, the gate keeper can search for similar past questions. The problem with this approach is that the range of legal issues is enormous, as is the language describing them. So I’m not convinced this would get us very far (aside from the challenge involved to collect and maintain the database).

Some of my peers likely would suggest a “crowd sourcing” approach. If the gatekeeper cannot answer with confidence, he or she could use a variety of technologies (inside or outside the firewall) to seek the opinion of other lawyers and experts. Those opinions could help gauge the severity of the problem and how much to invest.

Perhaps my suggestions take us in the wrong direction. Does anyone have examples of a systematic gate keeping / intake approach, one specifically designed to assess the level of investment appropriate to answer a legal question? And does anyone have views how government lawyers should deal with this given that many legal issues they face may have as much to do with policy as with dollars? I welcome your comments here or on Twitter (flag @ronfriedmann).

Update (26 Jan 2010): Steven Levy of Lexician references the above post in his very helpful Simple Risk Analysis blog post. He presents a simple but systematic way to assess risk. I agree with his view that just the act of getting a group to write down, working collectively, what the risk are is very valuable.

Laid-off lawyers, cast-off consultants (21 Jan 2010) reports on the impact of the economic crisis on lawyers and management consultants. The Economist writes that

“the legal profession seems likely to undergo the most profound structural changes. For the first time—long after IT and finance departments went through the same experience—the corporate legal departments that hire law firms are under great budgetary pressure, and are thus demanding much better value from them.”

One consequence of the shift according to the article is “a growing gap between the best firms and the rest.” Another is that “legal-process outsourcing is booming, as law firms parcel out some of their more basic work to reduce costs.”

On legal matters, lawyers argue a point until the Supreme Court rules on it. For economic matters, the market is the final arbiter. It does not debate whether to to grant a writ of certiorari; it simply does its job of selecting winners and losers. If I were a managing partner, I would listen to the Economist and assume the worst. If you wait until we know for sure, it likely will be too late.

Bad news for law firms could be good news for legal technology managers. The reality of the new market will require delivering more value. This could usher in a new chapter - maybe even a new volume - in legal technology. As firms get serious about process improvement, project management, and alternative fees, they will need to be creative in deploying new technology and using old technology more effectively.

RT @stephenseckler 58% of corp counsel think law firms too profitable http://bit.ly/6JMHKx || Answer is easy: shop around

RT @IntegreonEDD The Big (Legal) Picture by Beaton Consulting http://bit.ly/66ztcQ | Integreon Blog || Great video re future legal market

Hammonds moves to 4:1 ratio with DDS, Orange Rag (@ChristianUncut) http://bit.ly/7d9W71 || How many firms won’t be at 4:1 soon?

Axiom wins British Legal Award for innovative firm http://bit.ly/7wfHCJ || leave it to legal market to wait 10 yrs to recognize innovation

LPO, re-engineering, tech to reduce need for lawyer time. Hildebrandt http://bit.ly/8OSnpQ || Efficiency at last. Next: demand control?

3rd party litigation funding broker Calunius to launch private fund LegalWeek http://bit.ly/8l3A66|| Drives efficiency http://bit.ly/5aeCKb

RT @ReesMorrison Trivial cost-reduction steps commonly reported by legal departments in survey http://bit.ly/8Ko5Yd || Nero fiddled…

I am striving to perfect my ‘nano op-eds’ - 2 to 6 word comment on a re-Tweet

Thanks @denniskennedy for the Blawggie award and selecting other top blogs http://bit.ly/4X3IvA (thnx also @lancegodard, @VMaryAbraham)

Just installed X1 search by @X1Technologies. So far, I like it a lot. Had to clean up old Outlook profiles but that needed doing anyway.

@michmahon re busy year for laterals: are partners moving to maximize income or to seek a better, more stable biz model? Former seems likely

Not Yet A Gartner E-Discovery Magic Quadrant, But Still A MarketScope’ EDD 2.0 post http://bit.ly/4mWTNl || convergence at hand?

Pfizer doing alternative fee arrangements. Corp Counsel Mag. http://bit.ly/8uxFJF || Big AFA news. Legal tech angle: www.codeflow.net

LegalWeek.com Global 100 law firm results out today http://bit.ly/4w69zo || Likely new ‘world order’ not yet apparent in listings

Will 2010 see lawyers working virtually more often… to reduce occupancy cost? Anyone know of firms planning this as they move? #in

Comcast’s top lawyer calls the workload shots Phil Inquirer http://bit.ly/8NSnro || GCs act at last? But why pay rate increases at all?

Aric Press of American Lawyer: ‘2010 survival for those who aren’t retiring’ http://bit.ly/8wjTTh || ‘disaggregating and re-engineering’

Contract lawyer paid $35 charged out at $250. ABA J http://bit.ly/8brYf4 || Bad enough ever. Why do clients tolerate now?

Michael Mills - formerly legal IT, KM, and EDD guru at Davis Polk - joins Kraft & Kennedy, Inc. - email press release || Wow

ValueNotes launches proprietary LPO ratings http://bit.ly/6Hyp3R || Like Gartner Magic Quadrant for legal outsourcing

Eversheds gears up to launch its own outsourcing business LegalWeek http://bit.ly/7SMxSg || LPO or low cost co-counsel / office?

Legal process outsourcing facing a ‘watershed’ year Law Gazette http://bit.ly/6Bpi3U || My imagination or is L/G an LPO skeptic?

Just noticed that Google Docs now allows uploading, and optionally converting, any file type. 10 gig limit.

Jones Day Practice Head Joins Winston; Other Lawyers Likely to Follow (ABA Journal, 13 Jan 2010) reports on a lawyer moving firms in part because his new firm has a “commitment to streamlining its legal work with the help of new technology” and “a knowledge management department that collects good pleadings and good research so you don’t have to reinvent the wheel when you take on a client issue.”

Given how much firms invest in recruiting and vetting laterals, I wonder how much they have thought about the “equipment” they offer to practice as a recruiting tool.

This year will likely see stable instead of shrinking legal demand. Firms have to adopt to a new reality of clients who want more value. With the crisis over, it will be interesting to see how legal IT and KM fare. And whether this article represents a blip or a trend.

Lawyers have long viewed law practice in mythical and mystical ways, which supports the belief that predicting cost is impossible. Myths die hard but desperate economics have a way of changing minds. Several trends - alternative fees arrangements (AFA), project management, and process standardization - work to de-mystify law practice.

So I disagree with Brad Smith, GC of Microsoft, who writes in his January 1, 2010 column in Inside Counsel, Alternative Arrangement, that “Some legal assignments are too unique to estimate in advance. Paying by the hour for such services can make good economic sense.” I agree with everything else he writes and was impressed to see he expects 45% of MS legal spend to be AFA.

Perhaps what he really means is that some matters are so complex that estimates are not reliable enough for either side to feel comfortable using AFA. If so, that does not warrant skipping estimates. Rather, it means variances between estimates and actual spend will be bigger than for more routine matters.

The right approach for one-off matters is to refresh estimates as the work progresses and to estimate by stage, taking into account the many discrete activities of each phase. Sophisticated clients and law firms should be able to combine personal experience with analysis of prior billing data to produce reasonable estimates at any given point in a matter.

We may need lawyers who specialize in estimating. And to avoid potential economic and other conflicts, it likely makes sense to have an estimate prepared by someone who will not work on the matter. This would be true even for work done purely internal to a law department. “Legal estimators” might add to cost short-term but over time, the discipline of making estimates and then comparing them to actual costs would add to lawyers’ understanding of complex matters and how best to manage them.

First, a story. After graduating NYU Law I worked for Bain & Company as a strategy consultant. Consultants, like lawyers, consume much information. Unlike lawyers, however, they accept ballpark estimates. So I was in for a surprise when I subsequently switched to practice support for a law firm.

I needed to know the average rate for documents reviewed per review. The firm had no data so I asked several lawyers. All said “I don’t know” and said they could not estimate the rate. OK, I thought, time for new tactics. I asked some other lawyers, this time saying “I’ll assume the review rate is 100 docs/hour” to which they replied “no, that’s way to high”. OK, I said, then I’ll assume it’s 5. No, that’s way to low. Back and forth we went - all the conversations converged to a rate between 10 and 15 docs/hour. (This was 1989, paper docs, with issue coding.)

This was a valuable early lesson for me, one not taught in law school: for lawyers, silence is better than a chance of being wrong. Silence is better than approximation. The thinking and fear that underlies this mindset - I’ll call it ‘perfection thinking’ - has consequences.

And I’m not sure we can still afford it. Clients often want to know if there are any major risks: “let me know if there are any boulders in this playing field.” Lawyers often hear that and think they need to find not just the boulders, but also the pebbles. The fear of being wrong - and of malpractice - runs deep. ‘Perfection thinking’ makes it hard to approximate, to apply to 80-20 rule, to guide in the right direction but with some imprecision.

And this, I think, is a big reason corporate legal costs are so. And why consumers can’t get affordable legal service. A Nation of Do-It-Yourself Lawyers, a New York Times op-ed piece by two state court chief justices, on 2 Jan 2009, argues that the profession should support “unbundled legal services and other innovative solutions — like self-help Web sites”. Unbundled here means limited-scope representation. “Perfection thinkers"want absolutely correct answers, always; most people, however, would settle for just a bit of guidance.

My hypothesis is that firms that overcome ubiquitous ‘perfection thinking’ will do better. They will be the ones to communicate clearly with clients to learn the client’s risk parameters (not their own). Of course we need general counsels who think this way too. They must understand the risk their companies are willing to take. How else can they limit the demand for lawyering? Of course, all this means living in the universe most of the rest of us inhabit - one full of approximations and imperfections. Welcome to the real world.