Strategic Legal Technology

What is the state of the practice support lawyer (professional support lawyer or PSL) among US large law firms? 

I have not heard PSLs discussed much lately. So at a recent knowledge management meeting, I asked each attendee to report his or her firm’s number of PSLs. We had 10 large, US-based law firms attending, with the number of lawyers ranging from about 200 to well-over 1000. Assume that this group is not representative; by definition, these firms self-selected for above average interest in KM.

The PSL numbers are low:

• Average: 1
• Range: 0 to 3
• Mode: 0 [5 firms]

However we slice it, the numbers are so low that normalizing for firm size does not even pay. And these reported numbers might even be bit of a stretch. Of the reported PSL, not all have that title or exact function. A few of these PSLs are staff attorneys who function as PSL. A few were simply characterized as “like PSL.”

Based on my KM experience over the last decade, these numbers were only a little bit lower than I expected. It’s not that the recession or Practical Law Company (PLC) did in PSLs, they never caught on in large numbers in the US or at that many large firms.

It will be interesting to see whether the alternative fee arrangements (AFA) become big enough to change the economics of employing PSL.

In In Law Schools, Grades Go Up, Just Like That, the New York Times reports today that some law schools have artificially boosted grades. It’s hard to know where to begin assessing what this means - and why it is awful. 

The article reports that

“In the last two years, at least 10 law schools have deliberately changed their grading systems to make them more lenient…. Law schools seem to view higher grades as one way to rescue their students from the tough economic climate — and perhaps more to the point, to protect their own reputations and rankings.”

What disturbs me most is the perhaps not so subliminal message that lawyers can fix problems simply by changing appearances without changing substance.

The schools argue that the grade adjustment is a competitive responsive. Inflating grades changes nothing except appearance. How about competing by changing the curriculum so that graduates are more valuable to employers?

With law schools saying, in essence, it’s OK to fake grades, surely it’s OK for lawyers to take other short cuts and ignore inconvenient facts or whole areas of knowledge.

With law schools ‘adjusting’ grades to make them look better, no wonder clients fear that alternative fees are just papering over old fashioned bill by the hour.

If it’s OK to paper over grades, then it’s OK to paper over ignorance of key aspect so law practice. (See, for example, Craig Ball’s excellent commentary on lawyers failing to understand digital data in Show No Fear - Lawyers need to — and can — learn the language of e-discovery, Law Technology News, 1 June 2010).

It’s OK for law schools to adjust grades to look better. After all, there’s no law against it. So it’s OK to advise clients to take imprudent and immoral course of action; after all, there’s no law against it.

Or perhaps by “adjusting” slightly what words really mean, it’s OK for lawyers to advise that acts long-considered torture are really, after all, not torture.

The public view of lawyers is already bad. The practitioner’s view of the academy is already bad. Gimmicks like adjusting grades can only contribute to cynicism.

Recent articles provide a good snapshot of law firm office design; sadly, working virtually does not appear to be on the agenda. 

Changing Space - Law firms (slowly) respond to egalitarian trends in office design (ABA Journal, June 2010) reports on BigLaw office design trends. A few firms are changing traditional design elements: Seyfarth Shaw in Atlanta has lawyer offices all the same size; Orrick in NYC has put associate offices in the interior; and Morgan Lewis in DC used the great top floor views not for partner offices but for a common dining area. These example notwithstanding and

“despite the trend toward more open, collaborative and flexible spaces, law firms have been slow to adopt practices common among their corporate clients and other professional services firms: one-size or universal offices, open floor plans, and ‘hoteling’ arrangements where professionals reserve offices when they need them.

Rethinking the Law Firm Workplace (American Lawyer, May 2010) reports that firms “want a lighter and brighter space that is progressive and sophisticated. They want more collaborative work settings where attorneys and support staff can mingle and share ideas openly and casually… The most important concept in creating a more effective workplace lies in designing space that fosters collaboration. For many firms, the opportunity to share information at unexpected locations in the office has proven invaluable.” I suppose this is some progress.

Contrast these two articles, however, to an Information Week blog post , Radical IBM: 200,000 Home-Office Workers (1 June 2010), which reports on an IBM employee who regularly works virtually (remotely) from the Canary Islands. IBM is moving from a culture of presence to one of performance. Since teams are formed by professionals located in multiple locations, it turns out not to matter that much where any given employee is.

I frequently hear lawyers and law firm managers assert that working virtually would interfere with collaboration. As I suggested in my January 2004 Law Practice Management article, The Future Law Office: Going Virtual, virtual work does not have to mean never coming to the office. Firms can take steps to encourage in-person collaboration when and as needed.

If being in the office is so critical, how do skeptics of working virtually explain that, according to a Gensler architect cited in the ABA Journal article, “as many as 25 percent of their attorneys are working away from the office at a given time"?

Could it be that lawyer and law firm managers are simply ignoring reality? Tradition dies hard but ignoring the truth has consequences. When I look at the average AmLaw lawyer overhead of around $200,000 per lawyer, I can’t but help think that’s buying lots of extra space. And whether lawyers bill by the hour or using alternate fees, wouldn’t many rather save commute times on some days and work from home?

Many law firms profess to be green - but how many take into consideration that a culture that requires physical presence in the office spews unnecessary carbon? Working virtually - either from home or suburban satellite offices - would save many a trip by car. Furthermore, maintaining individual lawyer offices means that much more space to heat, cool, or light.

So, what am I missing? Why aren’t firms moving to reduce occupancy and free-up lawyer time by supporting virtual work?

Last week I read with interest Jordan Furlong’s blog post The evolution of outsourcing. He notes that though LPO is “in its relative infancy, legal process outsourcing has already had a huge impact on the legal services marketplace”.  

Jordan focuses on two effects outsourcing has on the legal market:

“The first affects LPOs themselves: they now need to move their value proposition beyond cost savings in a market they helped to make more sophisticated. The second affects everyone: the legal profession’s response to LPO is having an unexpected effect on how legal work is distributed and how legal resources are allocated.”

Working for an LPO provider, I agree that that simply offering lower labor cost is not enough. I see my company and other established LPOs working hard to improve processes, introduce technology, increase efficiency, reduce cost, and achieve better outcomes for the lawyers whom they support. Personally, “I’ve put my money where my mouth is” twice. First, I joined an LPO three years ago. And second, I recently made a switch inside my company and now focus “legal operations consulting” to help do exactly that.

Jordan was perhaps even more prophetic than he realized when he wrote that “a surprising number of law firms are adopting — and adapting — the outsourcing model themselves.” Last Thursday, Legal Week published Taylor Wessing set to create arm in Cambridge for standardised work.

The article reports that the Anglo-German law firm will set up “an affiliated corporate services business to offer clients standardised work.” Their goal is to offer lower-cost options for routine work such as corporate due diligence. Eventually “it is likely that the firm will offer the service to third parties, including other law firms.” The firm may also partner with an IT outfit to streamline work.

“Adopting the outsourcing model” as Jordan suggests is exactly right. From the limited information I have, it sounds like the firm’s Cambridge unit will be a captive LPO.

I think this development is good news for the legal market. It further validates that law firms must respond to corporate pressure for (1) options, (2) lower cost, and (3) process improvements. Given that I’ve been writing about process improvement for a long time at this blog, I am glad to see more action toward that goal. Of course, I also see it as an explicit endorsement of the LPO approach.

Until recently, the corporate law market was served almost exclusively by in-house lawyers and large law firms. Today, however, clients can choose from among boutiques, regional law firms, LPOs, and now, law firms as LPOs. This choice and competition foster innovation and drive costs down - good news for clients. Firms like Taylor Wessing that innovate benefit. And LPOs benefit because in a diverse world of providers, I see LPOs as having the skills, experience, know-how, technology, and global platform to win a good share of the work to support lawyers.

I published a variant of this post last week at the Integreon blog, LPO Now Driving Law Firms?

What will it mean in the future to be a lawyer? 

For an excellent, sweeping view of the future, read Richard Susskind’s The End of Lawyers?. On his website, Susskind asks “what elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality using different and new methods of working.” He answers

“that the market is unlikely to tolerate expensive lawyers for tasks that can be better discharged with support of modern systems and techniques [and that] the legal profession will be driven by two forces in the coming decade: by a market pull towards the commoditisation of legal services, and by the pervasive development and uptake of new and disruptive legal technologies.”

Two recent E-discovery (EDD) items instantiate the issues that Susskind discusses. My colleague Babs Deacon wrote a great Integreon blog post, Early Case Assessment - The Emperor Has No Clothes. She explains that early case assessment (ECA) is a process, not a software application, and a process that takes significant skill and thought. She notes

“If litigators are beginning to agree that e-discovery is really just part of discovery, then all litigators will have to have some level of comfort with e-discovery management — from Information Management at the far left of the EDRM framework through Presentation. No litigator, or even an attorney in another practice area, should be truly free from the responsibility of attaining basic competence in this area.”

She notes that comparatively few lawyers have the requisite skill. This means that lawyers (A) should learn more and (B) rely on professionals who know ECA. She continues “don’t sideline ESI attorneys as ‘nerds’ and push them off of the partner track — a fear I’ve heard articulated more than once from junior associates.” I too have heard this and seen how lawyers who branch out from skills beyond the most basic, core, traditional law practice are penalized, not praised.

Well-known EDD commentator Craig Ball comments similarly in Show No Fear - Lawyers need to — and can — learn the language of e-discovery (Law Tech News, 1 June 2010). Ball asks “How many times have you heard a lawyer tell a court that he or she doesn’t ‘understand computer stuff’?”. He acknowledges the challenge of learning how to understand digital data relative to paper but argues lawyers must do so.

I agree with Babs and Ball that lawyers should learn EDD. A handful of AmLaw 100 firms also agree, the ones that have e-discovery practice areas. Lawyers in these practices do understand the law as well as the bits and bytes.

The challenge with lawyers learning more about EDD, however, as I see it goes to skills, training, and perhaps most importantly, mindset. Lawyers learning EDD is not the only solution to the problem fortunately. As Susskind and other commentators point out, we are in age of unbundling and disaggregating legal services. Just because lawyers have been the putative masters of discovery in the past does not mean that must be true in the future.

Perhaps there is a better solution than lawyers learning EDD, especially if the following points are true:

• The mindset of those attracted to law school does not favor the skills and ability to handle EDD; these skills include technology, process, and quantitative analysis.
• Law schools have little interest interest in teaching EDD. Granted, there are signs of change but progress in the first decade of EDD has been glacial.
• BigLaw does not have the cultural or organizational mechanisms to evaluate much less truly value skill sets not taught in law school, at least as attended by the partners who now matter. If law firms continue to focus on rainmaking on the one hand and reading cases and writing briefs or transaction documents on the other hand, wither EDD?

Richard Susskind emphasizes the question mark in the title of his book; he recognizes lawyer will have a continuing role. The future role of lawyers, however, depends on what lawyers and the institutions training and supporting them choose to do today. In my view, individually and institutionally, with respect to EDD, they have until very recently put their heads in the sand. That may be fine; it just may mean the future scope of what lawyers do is that much further narrowed to its original, pre-20th century (much less 21st) conception.