Large complex legal projects: 1 of 2: complicated or complex, and why does it matter?

This is the first in a three-part series of posts on the following themes–

  1. The difference between complicated and complex aspects of large legal projects.
  2. What this implies for effective handling of genuinely complex legal projects

I’ve drawn on a body of ideas developed outside the legal world[1] but which can usefully be applied within it.

My aim is to introduce them in a manner relevant and digestible for people working in the legal field, avoiding jargon.

This post distinguishes complicated and complex issues and why it matters.

I’ll start drawing out the practical implications in a second post and give some more examples of relevant practices in the third post.

1. Starting point

An outline of how I came to this topic may help to weigh what follows.

I worked as a lawyer for some 17 years, handling, for the most part, large litigation, arbitration and investigations in London and Asia

Eventually, I became interested in the problematic ways of working which are typical in that field. Lots of smart, conscientious people working in ways which, despite some good things, are widely perceived by clients as often offering poor value for money, particularly as team size increases. A further point which became more apparent over the years was the evident unhappiness of many of those involved in providing such services, despite the large incomes which can be earned.[2] 

For the last few years, my day-to-day work has mostly been in software development.[3] The following draws on a little of what I’ve learned in that context and reflects on its relevance to large complex legal projects.

I’ll start by describing two problems: an easier one and a harder one.

2. The easier problem – how can “complicated” legal work be handled better?

By “easier” I mean only that this problem is, nowadays, relatively easy to articulate and grasp, at least at a high level. Implementation isn’t so easy, but is increasingly being done successfully

The problem can be summed up as follows: how can legal work be handled more effectively when it's a relatively minor variation on things which have been done many times before? Such things, if intricate, aren't typically done that well by humans on their own: they're time-consuming to learn and execute efficiently but, once learned, can be dull to repeat.

The answer is essentially to automate so far as possible, leaving humans to concentrate on the bits which only they can do.

Two types of automation

The older, though still useful, approach to automation is for a human being to look for repetitive elements which can then be captured and reused.

  • Document templates and forms are a classic example in the legal context which has been with us for centuries in printed form, with increasing automation through software in recent decades.
  • Rule-based software systems have also had a few decades of use now for guiding people through intricate regulatory contexts and the procedural requirements of certain kinds of legal claims and transactions.

In recent years, an increasingly familiar approach is to go further and automate the pattern-spotting itself by using machine learning (ML) techniques.

  • This may involve looking for patterns or points of interest in everything from case outcomes to the financial results of projects. 

A clear trend

By imaginative and thoughtful application of these approaches, it's clear that much legal work can, with effective software engineering, UX design, business vision and (toughest of all) influencing of habit-change, be handled more cost-effectively and to a higher standard. 

  • Uses of such technology in contexts such as document review (e.g. in litigation, investigations and M&A) and document generation (e.g. assembling contracts, court forms and other documents based on templates) are well-known examples in areas traditionally handled by large commercial law firms.
  • Some large government and corporate legal departments have also been making significant progress with this sort of thing for many years - these days it's often referred to as part of “legal operations”. A particularly important theme here concerns large volumes of repetitive mini-projects (e.g. small claims, high-volume contracts, applications based on detailed regulations), making their handling more efficient and analysing the relevant data for business insights.[4]

In such approaches, humans stay in the loop to make judgement calls at appropriate points, but within a highly defined technological and procedural framework. The tendency is for the amount of human involvement required to decrease over time.

While the future is still unevenly distributed so far as efficient resolution of this sort of problem is concerned, the direction of travel is clear.

3. The harder problem – how much “complex” work will remain, and how can that be handled better?

The harder problem to grasp and assess is whether more can be done to help with the more complex legal tasks which remain for humans to do, and whether that category will matter anything like as much in the foreseeable future as it matters now.

"Nothing much can be done now, and later the machines will rule"

One view I've heard from more than a few lawyers is that there’s not an awful lot that you can do with certain types of legal work except to coach individual lawyers on effective behaviour, perhaps make legal project management professionals available to assist them to optimise the firm’s financial performance (e.g. by increasing associate:partner ratios) while improving pricing structures for clients, and perhaps also make some nice-to-use technology available to reduce the friction involved in turning round documents, conversing and sending messages. 

Another view is that, with better quality data, fast-improving technology and more imagination and effort, almost all of what lawyers currently do will soon be largely automatable because it’s mostly just a question of finding and using patterns effectively. Just another area in which software will eat the world of professionals.[5] 

A combination of these views which I've heard expressed a few times is that there’s not much more we can really do today, but that in future "AI" is going to take over almost everything that lawyers currently do.

Alternatively: "Much can be done now, and in future"

I don’t share these views. Based on the things I’ve seen over the years in legal projects, and my own grasp of what software can and cannot conceptually do, my view is that

  1. The sources of uncertainty in certain types of legal project are so important that a high degree of human involvement will remain essential if relevant legal systems retain approximately their current sensitivity to facts.
  2. There are real things one can do to improve how such involvement is handled.

As an analogy, you may be familiar with the well-known phenomena in which the application of apparently simple rules of physics leads to wildly unpredictable, chaotic outcomes.[6] Certain types of legal project are like that, but much worse because of the elements of human will in the things they deal with, and the nature of the legal rules which apply, at least in some legal systems.

Risk factors

In my experience, legal projects are at particularly high risk of getting out of control - in terms of cost, focus or both - even with smart and honest professionals in charge, where the following factors are present–

  1. Uncertainty of relevant outcome - A transaction, dispute or investigation in which there are realistic alternative outcomes with significantly different implications for different parties who have a significant ability to influence those outcomes.
  2. Factual/legal openness-to-argument - A reasonably involved, contestable, differently-characterisable set of facts and rules, with the differences having a potential impact on element 1. Within disputes, in particular, hunting for complexity is often part of a party's strategy - there's an incentive to find and magnify complexity. But even without artificial magnification, there is real complexity in certain types of transactions - e.g. large cross-border ones or ones occurring in highly-regulated sectors, and the legal instinct is to try to manage such complexity by complicated tactics (e.g. detailed regulations and contracts) without fully appreciating the costs. In the case of investigations work, the reality is usually that there probably wouldn't be an investigation in the first place without something messy and hard to assess having happened.
  3. An effective, sophisticated yet traditional legal system - A legal or regulatory system (or systems) with actual or potential impact on the transaction, dispute or investigation and which takes factual (including interpretive) nuance seriously – i.e. the sort of system which has quite "sophisticated" legal rules and which has an objective (dispassionate, evidence-based, non-corrupt) human-led process for assessing their application to facts - and where, as a result, outcomes are ultimately influenced by evidence but also human factors such as argument, empathy, emotion and negotiating skill. The fact that such a system is likely to come to a conclusion and that the conclusion is likely somehow to be enforceable (or at least not ignoreable) is relevant here.
  4. People willing and able to pay - Something significant enough at stake for parties willing and able to spend substantial resources to increase the probability of achieving a better result. The thing at stake may be a direct financial interest or a matter of reputation, or a public interest. "Resources" usually means money though, on occasion, someone may be willing to spend huge amounts of their own time (e.g. in litigation of the McLibel type). "Resources" may also come from a source other than people who will directly be benefited (e.g. legal aid schemes) - though the future of such arrangements seems doubtful.
  5. More than a very small team - if the above factors result in more than a handful of people involved, the challenges of coordinating them increase in a way which may not be intuitively appreciated. This significantly increases the risk of an out-of-control project unless this problem is identified and tackled in ways which, again, may not be intuitive.

Complex projects

I use the term “large complex” for such projects, drawing on the terminology adopted for many years in the field of “complex adaptive systems”.

  • A one sentence summary is that a complex adaptive system is one “in which a perfect understanding of the individual parts does not automatically convey a perfect understanding of the whole system's behavior” though I would in the legal context substitute a word like "adequate" for "perfect" in order to make the point that the concept is only really interesting here in so far as there is a practical impact. [7]

In my experience, large complex legal projects become higher risk as the above elements multiply. Realistically:

  • Elements 1, 2 and 3 make complexity potentially relevant, but without element 4 that potential is quickly damped. 
  • Element 4 means that someone is willing and able to engage in depth with the potential complexity.
  • This has potentially explosive, multiplicative consequences if someone else with divergent interests is willing to do likewise to promote a different outcome (and yes, there's often an element of prisoner's dilemma here).
  • Element 4 often also leads to element 5, i.e. the number of individuals involved in a project increases and the problem gets worse.

One way of mitigating these risks

The apparently complex may turn out on closer inspection to be merely complicated (i.e. automatable) and susceptible of being dealt with in ways which reduce elements 4 and 5.

Distinguishing the one from the other effectively then implementing an appropriate strategy to execute the complicated aspects in an easier-to-control way is an important way to reduce the risk of the project getting out hand, not least because doing so enables reduction of the size of team handling the remain complex aspects (see element 5). 

What remains

Nevertheless, I believe that, unless and until the nature of relevant legal systems changes[8] there is something irreducibly human required to handle large elements of such projects effectively.

It is in this complex context that the large law firm world has in recent years been full of talk about teamwork, collaboration and legal project management.

However, it's widely recognised that really beneficial progress has been limited. As Catrin Griffiths aptly put it very recently, discussing the leading UK global law firms, “the past ­decade has seen a prolonged concentration not on transformation but on costs.”

What's perhaps not so well recognised is that a focus on technology as an augmenter of individual activity, or to deal with complicated issues, is not going to be enough in itself to bring about a positive transformation. 

4. A different perspective

Over the last few years, my involvement in software development has mostly been done within the framework of two species of Agile approach, namely, Scrum[9] and Kanban. I’ve also continued throughout to work and speak with lawyers and their clients about how to handle their legal work more effectively.

As I’ve engaged with the world of software development, it’s become apparent to me that the Agile approach is relevant to the challenges of handling large complex legal projects.

Despite many differences, there are some interesting parallels between complex legal projects and software development -

  1. Projects handled - both are much less predictable and more uncertain than outsiders typically appreciate. The "machine-like" levels of technicality and jargon tend to lead to misunderstanding of what's really important below the surface. 
  2. Typical traits of people who tend to be good at software and law- I won't push this too far but both professions tend to attract people with high levels of intellect and conscientiousness but with a certain tendency for some people to slip into unhelpfully egotistical, autonomous and even perfectionist behaviour.
  3. The sorts of problems which tend to arise - e.g. balancing value, risk and cost (seeing the wood for the trees) and communicating effectively about these things with the non-specialists who are, typically, paying the bill but often can't realistically be expected fully to understand or be interested in the technicalities.

What I find most impressive about the modern software world’s approach to these problems is that there has in recent years been a widespread recognition of them, and a focus not just on coaching individuals to improve (nothing wrong with that, of course, but the impact is limited unless other people come on the same journey - which is difficult if you have a group of opinionated, autonomy-valuing professionals). Instead, the focus has been on providing an effective framework within which teams can be helped to collaborate more effectively on complex projects and to collectively improve in all relevant ways – quality, productivity, user experience, job satisfaction and sustainability. A process, in other words, which reduces waste (in all senses) while empowering rather than stifling activity which creates value.

5. Summing up so far

The essential points made so far are that it is a category error to treat complex, inherently human, aspects of legal projects as if the issues they raise are merely complicated, automatable ones; and that the scope of what can be treated as merely complicated in legal work is increasing but should not be overestimated.

The second post in this short series will consider what things can be done to improve the handling of the complex aspects of projects.  

____________________

Note: some restructuring and editing of this post was carried out on 14 and 17 November 2017.

Endnotes

[1] The ideas discussed are mainly drawn from the field known as Agile. This shares some common ground with a field known as Lean, but both stand on older shoulders: most importantly, perhaps, the work of Deming and (in software) Brooks. “Agile” in this context is not to be confused with more recent usage of the word “agile” in law and other professional services firms as a synonym for flexible working; and Lean is not to be confused with Lean Six Sigma, but that’s another story.

[2] For an important recent discussion of some underlying issues see Laura Empson’s work, Leading professionals: power, politics and prima donnas (2017), a flavour of which may be gathered from Andrew Hill in the FT on 2 October 2017(Insecure overachiever? You are perfect for the job). Chapter 2 of Bruce McEwen’s latest work, Tomorrowland (2017) tackles this topic entertainingly.

[3] “Mid-career” changes of direction are quite the thing these days, apparently.

[4] For an introduction, see the website of the Silicon Valley-led organization CLOC (Corporate Legal Operations Consortium) and the legal operations section of the website of the ACC (Association of Corporate Counsel).

[5] See the works of Richard Susskind, passim.

[6] For a reminder, see https://en.wikipedia.org/wiki/Chaos_theory

[7] For the complex/complicated distinction, a couple of readable introductions are Holland, Complexity: a very short introduction (2014) (fairly academic in style) and Nason, It’s not complicated: the art and science of complexity in business (2017) (breezier).

[8] Not inconceivable, as the kinds of large complex legal projects discussed in this post are, fundamentally, phenomena the origin of which is closely tied to the nature of a small number of common law legal systems, though they have spread more widely in recent decades. The common law discovery culture is a particular sources of complexity and expense when inconvenient facts come to light and have to be considered. Lawyers in non-common law systems do, of course, sometimes regard this culture as part of an out-of-control legal process - "fiat justitia, ruat coelum."

[9] Jeff Sutherland, one of the originators of Scrum, has stated that its root is the theory of complex adaptive systems.

Graeme Johnston