Separating the Practice of law from the Process of law.
Legal transformation is creating a fundamental change within the profession of law. This is due to the recent emergence of prolific technology use (finally within the law), and also of an efficient orientated focus on conducting the process elements of law. As Paul Lippe of Legal Onramp noted in the past and has Jeff Carr, GC of FMC Technologies (Jeff breaks it into his four buckets) – the fundamental elements of the practice of law are diverging in how they are delivered.
Perhaps too simple, I break the profession of law into two components – practice and process. For most people, the practice of law is what they picture when they think of lawyers. They see courtrooms, arguments, strategy and maneuvering, consultation and advice. Generally one can think of the practice as most things the lawyer writes or speaks based on original research and analysis. Note the use of the word “original” as many times what a lawyer speaks or writes is just a mashup of previous work with some minute edits, if any at all – but that is for another article.
The process of law then is almost everything else – that is everything a lawyer uses or needs in compiling their thoughts for analysis and content creation. Think of research, investigation work, evidence analysis, etc. Today either robust technology applications or third party experts who are stronger at specific skills can handle much of this work. For example, most law firms do not have a forensics capability to conduct data investigations – that service is almost entirely outsourced to third-party experts. Or conducting research – gone are the days when lawyers walked into the firm’s library to pull books and conduct actual research – now they log onto either Westlaw or LexisNexis from the desktops, laptops or is some cases their blackberries.
Forensics and research have existed outside the walls of the firm for some time and are easily justifiable for a firm to not participate in delivering themselves. Mainly because I cannot conceive of a client who is still willing to pay for book-based research or thinks its firms is as strong in forensics as an expert. Contrast these highly visible skills/tasks with the less visible process management or workflow methods that a firm utilizes in how it operates.
Lawyers are neither used to nor comfortable thinking in terms of process. A lawyer’s mind is trained and sharpened beginning in law school to always seek an exception or define a unique fact or argument. Put simply, every scenario, situation, or circumstance that a lawyers comes upon they see as entirely unique and different from any other. Put more simply, everything in a lawyer’s work is a variable with no constant. Contrast this viewpoint with say an engineer who often design processes that are based on handling all similar elements in an efficient fashion but allows for (controls) variables. Best model – an assembly line. An auto manufacture building cars with 99% same components on one assembly line but the 1% difference (exterior color, interior fabrics, radio) is controlled by a separate yet integrated process.
In the practice of law the best place to look for an analogy to the assembly line is document review. Document review by its nature lends itself to a process-orientated workflow (assemble line). There are mass amounts of data to review all generally similar in that they originate from one company, one person or deal with one topic. All of these documents then have to be reviewed (the process) for certain parameters (variables).
Firms have historically and presently tackled this by looking at every single document as separately unique. Each document separately examined. Often times by as many as a few dozen lawyers when it is all said and done. This is the equivalent to building a car one at a time. Build one then start the next. Whether firms use their own staff or temporary staff – this practice is repeated almost universally in the practice of document review.
Enter a process approach – most recently championed and promulgated by outsourcers – offshore companies and technology providers. This group is firmly planted in the process methodology framework. Mapping and measuring processes are part of not only how they deliver services but also how the operate as companies. Process is everywhere for most of these groups and they apply it everywhere they can.
In document review – most off-shore companies who participate in the is market have applied and continue to perfect the mapping of processes that can achieve greater quality and cost control. This is forcing firms to reexamine how they conduct their own work and is also forcing them to defend their processes to their clients. Most often firms will challenge the quality of any outsourced work and/or claim that because they are the firm representing the client that they can only have complete confidence in the work that they conducted themselves. A convenient argument on many fronts.
Whether firms can or will adopt any of these process methods will remain to be seen. Much will have to change in how they operate and generate profit in order to do so. In the meantime however, the process of law is continuing to be refined and perfected by non-lawyers - outside experts and providers. And this is driving legal transformation and widening the divide between practice and process.
Perhaps too simple, I break the profession of law into two components – practice and process. For most people, the practice of law is what they picture when they think of lawyers. They see courtrooms, arguments, strategy and maneuvering, consultation and advice. Generally one can think of the practice as most things the lawyer writes or speaks based on original research and analysis. Note the use of the word “original” as many times what a lawyer speaks or writes is just a mashup of previous work with some minute edits, if any at all – but that is for another article.
The process of law then is almost everything else – that is everything a lawyer uses or needs in compiling their thoughts for analysis and content creation. Think of research, investigation work, evidence analysis, etc. Today either robust technology applications or third party experts who are stronger at specific skills can handle much of this work. For example, most law firms do not have a forensics capability to conduct data investigations – that service is almost entirely outsourced to third-party experts. Or conducting research – gone are the days when lawyers walked into the firm’s library to pull books and conduct actual research – now they log onto either Westlaw or LexisNexis from the desktops, laptops or is some cases their blackberries.
Forensics and research have existed outside the walls of the firm for some time and are easily justifiable for a firm to not participate in delivering themselves. Mainly because I cannot conceive of a client who is still willing to pay for book-based research or thinks its firms is as strong in forensics as an expert. Contrast these highly visible skills/tasks with the less visible process management or workflow methods that a firm utilizes in how it operates.
Lawyers are neither used to nor comfortable thinking in terms of process. A lawyer’s mind is trained and sharpened beginning in law school to always seek an exception or define a unique fact or argument. Put simply, every scenario, situation, or circumstance that a lawyers comes upon they see as entirely unique and different from any other. Put more simply, everything in a lawyer’s work is a variable with no constant. Contrast this viewpoint with say an engineer who often design processes that are based on handling all similar elements in an efficient fashion but allows for (controls) variables. Best model – an assembly line. An auto manufacture building cars with 99% same components on one assembly line but the 1% difference (exterior color, interior fabrics, radio) is controlled by a separate yet integrated process.
In the practice of law the best place to look for an analogy to the assembly line is document review. Document review by its nature lends itself to a process-orientated workflow (assemble line). There are mass amounts of data to review all generally similar in that they originate from one company, one person or deal with one topic. All of these documents then have to be reviewed (the process) for certain parameters (variables).
Firms have historically and presently tackled this by looking at every single document as separately unique. Each document separately examined. Often times by as many as a few dozen lawyers when it is all said and done. This is the equivalent to building a car one at a time. Build one then start the next. Whether firms use their own staff or temporary staff – this practice is repeated almost universally in the practice of document review.
Enter a process approach – most recently championed and promulgated by outsourcers – offshore companies and technology providers. This group is firmly planted in the process methodology framework. Mapping and measuring processes are part of not only how they deliver services but also how the operate as companies. Process is everywhere for most of these groups and they apply it everywhere they can.
In document review – most off-shore companies who participate in the is market have applied and continue to perfect the mapping of processes that can achieve greater quality and cost control. This is forcing firms to reexamine how they conduct their own work and is also forcing them to defend their processes to their clients. Most often firms will challenge the quality of any outsourced work and/or claim that because they are the firm representing the client that they can only have complete confidence in the work that they conducted themselves. A convenient argument on many fronts.
Whether firms can or will adopt any of these process methods will remain to be seen. Much will have to change in how they operate and generate profit in order to do so. In the meantime however, the process of law is continuing to be refined and perfected by non-lawyers - outside experts and providers. And this is driving legal transformation and widening the divide between practice and process.