Are Lawyers Really Luddites?
“How many lawyers does it take to change a light bulb?” the predictably lame legal technology joke goes.
“None,” is the answer. “Lawyers don’t change anything. They’re Luddites.”
In 1779, Ned Ludd allegedly broke a stocking frame — a mechanical knitting machine — in fit of rage. Whether he did it or not, he gave his surname to a movement — the Luddites — whose anti-automation influence persists to this day and whose name has come to mean anyone who actively or passively resists technological progress.
Which brings us to lawyers. Their reputation, certainly among technologists but perhaps even among themselves, is that of status-quo-loving technophobes. Lawyers are always the last to adopt emerging technologies, so it’s said, and they may even be wrench-throwing techno-anarchists. In a word: Luddites.
But is that truism really true? Or is it simply meant to wound a favorite target in the way so many other lawyer jokes do? Are lawyers really deserving of this laggardly reputation? Or have they, as some say of Ned Ludd, been wrongly accused?
Maybe the workplace isn’t the venue to answer this question. What happens if we follow lawyers home and observe their interactions with technology there? Given their reputations, you would expect to find VCRs with midnight-flashing time displays — technology from the last era in which lawyers were remotely comfortable. But that’s not what we find. Lawyers are pretty much an average cross-section of technology users. Sure, some operate at quill and inkwell levels. But many are adept app-using smartphone experts. Others easily manage difficult, multi-layered technologies in a wide array of avocations, ranging from aviation, to fantasy sports, to MIDI-driven synth rock. And a fair number of lawyers can actually program.
So, I say, lawyers are not Luddites. And in calling them that, we in legal technology excuse ourselves from taking action to fix problems that actually exist. There is a path to upping law practice’s technology game. But it doesn’t run through Luddite territory.
So what is the problem? I think it is inherent in expertise. Or, more accurately, I think the training that lawyers receive, both in law school and in practice, confers upon them a sense of their own expertise that insulates them from clients in ways that foreclose innovation. But it’s fixable, and, indeed, some firms are on a path to recognizing and fixing this very concern.
Law school and in-practice training emphasize the need for lawyers to be correct above all else. As often used in law school, the Socratic method exposes those who are wrong to public humiliation. And, of course, in practice, the implicit and often explicit message is that lawyers are worth their high fees only when they are correct. Nothing in this gauntlet of correctness emphasizes the need to be helpful.
One doesn’t have to look far to validate that. On a micro level, examine an opinion latter sometime from a client perspective. It’s hard to imagine a body of text more hedged than the typical opinion letter, or one less likely to help a businessperson weigh risks and make decisions. A carefully drawn opinion letter is correct without being helpful. Very often, the only reason clients get them is to secure financing or otherwise because they are in some way required.
Or examine a typical user agreement — say a cell phone contract. My own is thirty pages of legalese — and the simplest concepts — say how my privacy rights are protected in practice — are buried, unintelligible. In a word — not helpful.
Move to the macro, and we see this unhelpfulness on a continental scale. The vast majority of the poor in North America have no access to justice. They can’t afford lawyers and those lawyers provided for free are too few and too underequipped to be of real use. Likewise the middle class and the realm of small business — lawyers are too expensive for most people to consider, so they go unrepresented or underrepresented when they encounter legal problems.
Even the largest corporations complain that cost and value for legal services have become disconnected. Indeed, a fee-slashing movement has arisen among corporations to remedy that problem.
The net of all of this is that lawyers are unhelpful on a vast scale, and our society as a whole suffers for it.
And, at long last, that suffering has gotten noticed. Others from outside traditional practice have begun to redesign law practice so that it is helpful, affordable and available.
Services such as RocketLawyer and LegalZoom are redefining the infrastructure for the delivery of legal services. Virtual entities such as Axiom, Counsel on Call and VLP are reformulating what it means to be a firm. Blockchain-based technologies are restructuring that most basic of legal instrumentalities — the contract — and offering up electronic contracts that are lawyerless, smart and self-enforcing. Alternate dispute resolution services are springing up to remedy the cost, delay and unfairness inherent in an overloaded court system. And all of this is clearly just a beginning. Watson and his yet-to-be-thought-up companions are waiting in the wings.
Need traditional firm lawyers be left out of all this redesigning? No, of course not. Because the problem is not an inherent condition of lawyers, but rather a lack of training in fundamental skills of helpfulness.
Mind you, not all lawyers are helpless. Each firm has a few lawyers that clients absolutely love. And usually the reason is those lawyers actually listen to clients. They exhibit empathy for their problems. And they take positive steps to remedy those problems. Some of the most creative legal solutions emerge from such lawyers. For example, I would argue that Marty Lipton created the poison pill defense to hostile takeovers out of empathy for the businesspeople whose work was being ravaged by the takeover trolls of that age.
And some firms seek to propagate to all lawyers the skills that are natural to some lawyers. Bryan Cave’s Coaching the Coaches program, for example, teaches associates empathy skills like active listening and strives to encourage authenticity in client relations.
That’s a start.
But to have broad impact, to remedy the widespread problems now inherent in practice, I believe that lawyers need to go further. They must add another discipline to their box of tools. And I mean discipline in the same sense of hard work, study and practice that attended the acquisition of basic legal skills.
We see this sort of discipline in an emerging field focused on applying design outside the narrow confines of what are regarded as the “creative” professions. Over the past several decades, businesses have begun to notice that professionals in design fields — architects, urban planners, industrial designers, and other “creative” types — solve problems in a fundamentally different way than scientists, businesspeople and lawyers. They exert just as much discipline as more conventional analytical thinkers, but often wind up in very different, and very much more productive, places. Design Thinking, as it has come to be called, is a translation of the methods used by the most successful designers into language that can be applied in other settings.
Design Thinking is a catchy name, but a little misleading, given our understanding of the term “design.” When we speak of design, we often attach an article to it, referring to “a” particular design as being beautiful, or elegant. The smooth metallic surface and radiused edges of the iPhone, for example, fit that understanding of design. In that sense, design refers to a particular physical aesthetic and it seems to fall far outside realms like business and law.
But design is also a process, a methodology used to arrive at a superior end state. And it goes far beyond the physical aesthetics of product creation to encompass the entire user experience associated with a product or service.
As attractive as the iPhone’s physical design was, for example, the revolution it spawned had much more to do with how users interacted with a wide range of services, from telephony, to email to music to photography and videography.
And to get to that required a most extraordinary kind of inquiry. Because had you asked conventional phone users whether they needed something like the iPhone, they would have said no. They might have quarreled with this or that bit of functionality in their RAZRs, but they were not asking for iPhones.
To get to the iPhone, something else had to happen during the design. This “something else,” this way of inquiring that is so different from the way in which businesspeople and lawyers typically approach problems, can prove revolutionary when applied to business problems.
At the core of Design Thinking is something utterly outside the toolset given lawyers in law school and businesspeople in business school — empathy. Empathy goes beyond simply trying to understand a problem. It asks you to put yourself in the shoes of the person who will use your product or service, and to try to understand that person in ways that transcend logic, that draw upon intuition and emotion as well.
Design Thinking recognizes the first-level importance of the emotional content of a successful design. When we think of traditional value propositions, we often bring to mind some emotionless notion of utility. This product or service will accomplish a certain thing. Lawyers think like that. We will provide you with advice, and it will be correct.
But the most successful designs go beyond mere utility. If you buy a Tesla, the automaker promises that you will receive the safest transportation in the world, that you will be transported in a sumptuous surround, that you will feel pampered, affluent, intelligent. In other words, the design of a Tesla is loaded with emotional content. So too with the iPhone. It’s hip exclusivity is as much a part of the design as its elegant user interface. All of the best designs are founded first on human considerations.
Clients have been telling us for years that they want more than utility in their law firms. One of the most common complaints about lawyers is that they take no time to understand their clients’ businesses. That complaint certainly relates to the utility of advice — abstract advice is less valuable than that given in a specific business context. But the complaint also has just as much emotional content as a “you don’t pay enough attention to me” statement in any other human relationship.
That untapped resource, the as yet unasked questions that open up the workings of our clients’ businesses, presents an extraordinary opportunity for law. Helping lawyers understand their clients’ businesses, or even better, helping clients themselves better understand their businesses, represents the foremost opportunity to turn every lawyer into a Marty Lipton.
Some firms are taking this opportunity very, very seriously. For example, King & Wood Mallessons has taken to bringing all of their lawyers and a healthy cross section of clients together for a week each year with the aim of completely redesigning how they deliver service. And in preparation for that many of the firm’s staff had actively studied Design Thinking, including doing so at world famous design schools. They were preparing themselves to be Design Thinking leaders for the firm.
In that preparation is a lesson for all professionals who work in conjunction with lawyers. Because technological laggardness is not a status inherent in lawyers, because it is not an irremediable trait, is susceptible to leadership. And law firm professionals who undertake the disciplines of Design Thinking put themselves in a position to lead.
By importing empathy into law firms, by seeking to build “Easy Buttons” for practice problems that affect the delivery of legal services to clients, technology, knowledge management, finance, accounting, marketing and other professionals can begin to arm law firms for the competition that will inevitably ensue in the legal marketplace. The Rocket Lawyers and Axioms of the world are already beginning to challenge the flip phone standards that prevail now in the delivery of legal services. But it remains to be seen who can achieve an empathic equivalent of the iPhone in law practice. To be sure, though, that achievement will be designed in the most active sense of the word. It won’t be left to accident.
So how do you prepare yourself for delivering “Easy Buttons” in practice? The temptation will be to think of it as an easy thing in itself. As we often hear, all that has to happen is for this IT professional or that KM expert to be given “a seat at the table” and a bit of a budget and everything will work out fine. That is, all that has to happen is for lawyers to somehow acquire newfound respect for IT or KM staff, and Easy Buttons will begin springing up.
But that’s a little like expecting Apple to have gone out and asked whether customers actually wanted iPhones. They didn’t do that and they would have gotten wrong information had they done so. What Apple did instead was to get deeply inside the psyches of their customers and understand what their needs were. And this went far beyond articulated desires. Customers could not articulate that they wanted iPhones, because that concept simply did not exist.
So the burden fell upon Apple to figure out their customers’ deepest desires.
But Apple didn’t create the iPhone in one fell swoop. It created a number of portable antecedents, beginning with the earliest touchscreen devices, such as the Newton MessagePad PDA. And through close work with the customers using successive devices such as the iPod and the ROKR cell phone, the psyches of customers were peeled away layer by layer. Only then was the iPhone possible, and even it was perfected only after a number of prototypes and early production models.
This same design cycle operates just as well in law firms. Much of my focus in law has been on the delivery of law firm and client business intelligence. But entry into that field was not a product buying choice or an any other sense a conventional law firm IT decision. Rather, it grew out of the hard-won realization that most lawyers did not understand how law firms made money. They had no intuitive grasp of the inflection points that made their businesses thrive.
And that discovery was the product of a very deep dive into the brains of lawyers, and not just by me, but rather by a whole team of people trying to figure out how to help lawyers make business decisions. In our earliest endeavors in this field, the most sophisticated technology we used was Excel. But that was sufficient to highlight the fundamental problem.
The result was more than a decade of work and a succession of ever more sophisticated BI products, training regimens and support structures.
And, like the iPhone’s development cycle, all of this stemmed from peeling back layer after layer, testing hypothesis after hypothesis, trying first one approach and then another. The result was a completely transformed business process.
iPhone-like product and service development cycles are available to anyone in any business organization. They start with fundamental questions like “What is hard about our business? What needs to be made easier?
It may be that you don’t start that sort of inquiry at the client level. It may be that you start next door to your own cubicle.
And, as with the iPhone, the determination of what is easy and what is hard comes not from the answer to a survey or to a direct, in-person question. The best data is an amalgam of observations — words, deeds, non-verbal clues, oblique behaviors.
And you definitely can begin by acquiring skill in the harvesting of such information. The Stanford Design School’s Bootcamp Booteg, for example teaches the basics of observation and assimilation of user experiences. That’s a beginning. From there, work your way to your own iPhone step by step, year by year, until you’ve created something that makes the difficult easy.
