Graeme Johnston / 16 July 2023
Olas de gordo aceite son mis días:
pasan tan lentamente que no pasan.
Los hombres a mi lado miran, pasan,
lentos también como mis lentos días.
El futuro está ahí, lleno de días,
pero es un duro charco: por él pasan
lentas sombras de sueños cuando pasan…
Nocturnos cielos cúbrenme los días.
Aprendí, me enseñaron los que pasan
que siempre pasan, pasarán los días,
aunque a veces parezca que no pasan.
Supe además que a bordo de mis días
pasaré yo también con los que pasan,
ceniza en la ceniza de los días.
Pasan días – 1948 by Nicolás Guillén (1902 – 1989)
Waves of thick oil are my days,
passing so slowly they seem not to pass.
People near me watch, and pass,
also slowly, like my slow days.
The pool of the future is full of days,
but it’s hard to cross, and over it pass
slow shadow dreams, and when they pass…
Night skies conceal my days.
I’ve learned – they teach me, as they pass,
that they all pass, they’ll pass, these days,
even if sometimes they seem not to pass.
I also know, here in my days,
I’ll also pass with those that pass,
Ash in the ash of the days.
In the late 1990s, the arrival of email significantly changed the way legal work was done. As the information revolution continued into the 2000s, and lawyers adopted mobile email (remember the BlackBerry?) the view was increasingly heard that some kinds of data-heavy work could be managed in a better way. Important early innovators were business process-outsourcers in India, the Philippines and some other places.
By the time of the financial crisis of the late 2000s, some real pressure was being felt in the large law firms to change the way that legal work was done. The two biggest changes, in my view, involved setting up two kinds of organisations, independent or captive:
- to facilitate lawyers working flexibly on a contract basis. This allowed firms not to change their basic operating model (kicking the can down the road, some might argue), while giving them some access to a supplementary labour force in busy times without having to commit to salaries in quieter times, and
- to do really data-intensive work more efficiently and to a higher standard. Sometimes as projects (e.g. disclosure in investigations or disputes, due diligence in transactions, re-papering in response to regulatory issues) sometimes ongoing ‘operational’ or ‘business as usual’ issues (e.g. contract management, claims handling for companies which face many).
- Much legal work turned out to be less susceptible to automation or top-down management than some people expected.
- Various types of digital tools have helped a bit, but have sometimes created unexpected complication and cost of its own.
- Top-down processes can only go so far, and much legal work, properly understood, is less susceptible to that than often imagined by those who’ve never done much of it.
- Initiatives to tackle complexity by improving standardisation, pricing, project management and process improvement have gone more slowly than many hoped. One reason seems to have been, in the absence of real economic pressure, in-house lawyers (typically the buyers’ agents) haven’t had to push too hard, and firms have been reluctant to do too much unless they can immediately turn it into revenue, which mainly means billable hours. So far, the pressure hasn’t been there to incentivise more significant change. Push has not come to shove.
- There has been lots of theatre which has taken up a lot of bandwidth without delivering much. And no, I’m not going to give examples. If you know, you know.
A US consultancy whose views I respect courageously admits to not knowing what comes next. This text is from the introduction to its most recent (2022) survey of law firms and corporate legal departments in that country:
“We’re facing a future that’s more uncertain than ever. Assuming we see the extended economic downturn experts forecast, law firms—as well as law departments—will need to change their behavior. That shift has already begun to occur in predictable ways; some law firms are already reducing headcount in anticipation of hard times to come and clients are tightening budgets. But is that enough? What would it take to produce measurable, sustainable change?
These aren’t new questions. We’ve been waiting for years for a breakthrough in efficiency or value of services. We’ve hoped that new technology will drive change or that an increased focus on legal operations—in both corporate law departments and in law firms—will begin to move the needle. In , we were intrigued at the apparent change acceleration spurred on by a global pandemic. We thought it might be a sign of a new wave of legal service delivery. But we haven’t yet seen legal service providers make a breakthrough to the degree we expected—and clients haven’t demanded wholesale change.
Instead, all of the players appear to be stalled out. Law firms still haven’t found a way to exponentially improve their efficiency or deliver the ever-elusive “value.” Clients haven’t figured out what value means to them or rewarded law firms that put in the effort to improve efficiency or innovate. No one has offered a radical improvement on the status quo—yet.
This leads us to the question of whether that breakthrough is ever coming. Is it an earthquake in the Pacific Northwest—something that’s definitely going to reshape our world, although no one can say when—or is it Santa Claus—a myth, something we’ll never see because it’s not real?
We observe periodic progress in times of crisis, but that momentum is rarely sustained. With the potential for hard times ahead, will law firms rise to the challenge? Will clients leverage their hiring decisions to drive change? Or will some as-yet-unseen market force be the one to break through and upend the industry? Time will tell.”
Here are my basic thoughts on where we now are.
It’s an interesting moment because two major forces are now present at once –
- significant technological change, as in the late 1990s
- increasing economic pressure as in the late 2000s
And both these are coming to bear against the background of ongoing dissatisfaction and unmet needs, a continuing explosion of data, a thickening of laws and regulations, and a fragmentation of laws internationally (raising the legal challenges and costs of doing business across borders).
That’s a heady mix and it’s likely that some people will lose out. But I think there are two basic routes by which law firms and organisations with legal needs can do better for their clients, potential clients and teams, by building on the progress made in previous phases of innovation.
- Getting smarter about the substance of legal work and its deliverables, focusing on what delivers real value, time-saving or both.
- Focusing more on how things are done in complex work (not just in complicated work) and, enabled by that, on how legal work is priced. Join these things up, at last.
A lot of public discussion is about 1. It’s interesting and exciting, at least to lawyers.
But, assuming that economic conditions do toughen, I suspect that 2. may prove to be at least as important and transformative.
I would venture to add that the wins there are potentially easier and bigger because, done right, they involve doing less, making things simpler and saving clients time as well as money.
Whatever’s coming down the line, and whatever the precise timing, I suggest that the way to get ahead of it is to invest in a balanced, intelligent way in things that contribute to both 1. and 2. And to find scope for that by not spending time and money on things which don’t contribute as powerfully. Strategy is often about saying no. About focus.
Returning to the opening quotation – Nicolás Guillén and his endless passing days of 1948 – it’s worth remembering that big change did eventually come to Cuba in the period 1953 – 59. Just not of the type that the government of 1948 would have wished. Some things are worth getting ahead of.
Prequel to this article is my earlier one, A fourth pillar for legal work: process and pricing (2023)
Pablo Milanés, Canta a Nicolás Guillén (1975)
Robert Nasatir, 33⅓ (Cuban) Revolutions per Minute (2015)
Bob Dylan, The Times They are a-Changin’ (1964)
Image by Dan Cristian Pădureț on Unsplash