Process is Not a Four-Letter Word
I remember the first time I was told by a colleague "Don't you just do that process stuff now?". It came across a little condescending and dismissive. Since I still remember it so vividly, obviously that was an impactful moment for me, and somewhat pivotal. I realized two things that day: (i) that lawyers just didn't quite get what I do, and (ii) I need to carry that reputation of "doing process stuff" with pride. At a time when the legal industry is going through unprecedented change, it is no surprise that many attorneys still don't appreciate the role that process plays in the legal practice.
Some attorneys see the practice of law as a unique and special craft; one which cannot be reduced to a process. Meanwhile process is something associated with other disciplines - perhaps engineering or business operations
By calling something a process, some attorneys think it makes their work less meaningful, or perhaps less impactful. It also makes it seem like work that perhaps does not require intellectual aptitude. Obviously, all of that is not true. While there is the craft of the practice of law that requires deep analysis and judgement, there are many aspects of the practice that are amenable to process review and optimization. It is important that attorneys are trained to identify those parts of their practice that can be improved and made more efficient. While the practice of law is focused on that work which requires the unique expertise and training that attorneys get, it may not be obvious how process fits in.
The way to contradict the process stigma is to demonstrate with basic data and logical analysis how certain functions of the attorneys' day job can be broken down into some process steps and how some of the steps can be completed faster. A cautionary word about speed and efficiency: For those law firm attorneys who have not yet embraced the alternative fee arrangement and continue to bill by the hour, completing work faster can seem contradictory to the firms goals. This is a core issue with the current model of hourly law firm services. On deeper analysis, once alternative fees are embraced it is precisely the efficiency lever that will yield greater profits while revenues may stay flat. Efficiency and speed are the key to increasing profitability for law firms. We will continue with the assumption that everyone agrees that efficiency gains are necessary for the successful evolution of legal services and ultimate client satisfaction.
It is easiest to accept that process is part of every legal practice at its most basic core. Every lawyer receives work somehow, whether by e-mail, intake portal, phone call, etc. Just that simple action, a seemingly passive step, where work lands on the metaphorical desk of the attorney, is the first step in a process.
For illustrative purposes, I've created this very simple flowchart of the process by which I create contracts for my clients
This same flow can apply to a request to write a cease and desist letter, or another deliverable requested by the client. This is very basic, but helpful to setting the stage of how to help lawyers start to think of their work as a process. In this flow, it is immediately obvious where the attorney's highest and greatest value is - drafting. Of course, it could take quite a bit of back and forth before the drafting can begin to get the full picture of what the client is seeking to accomplish. Those loops, which would have appeared between the "urgent” decision diamond and the “drafting” box, are not reflected in this diagram. .
Another obvious point where an attorney plays a key role is deciding if the request is urgent. One may think that the requestor is responsible for making that determination, but that is partially true. In fact, my experience is that most requestors would rather call something urgent than not. Otherwise they risk being completely deprioritized and the work falling into that terrible “black hole” that some legal departments have been described as. Accordingly, this decision requires some judgment by the attorney as to whether or not the request is truly urgent.
Arguably, besides determining urgency and the drafting, the other parts of this process could perhaps be handled by someone else. Perhaps some steps could be automated. Let's dissect that a bit more.
Disaggregation of a Legal Process
There is a reason that Legal Process Outsourcing was born about 20 years ago, and largely in India. There was the notion that certain parts of the legal work were in fact process steps, which could be separated from the core legal analysis, judgment or decision-making that are the best use of the attorneys' time. Those steps could then be performed by someone other than the attorney who had initially received the work. Since these steps were not providing legal advice or otherwise practicing law, it was more accurate to call it a legal process. The outsourcing of such processes became quite common for high-volume practice areas like discovery in litigation, or document review in mergers and acquisitions. Slowly the legal process outsourcing functions began to move up the value chain closer to the traditional legal work. At the same time automation started to eat away at some of the highest volume repeatable work - hence the rise of e-discovery tools and systems.
Back to our example, there are several steps in the process where a lower cost resource (not necessarily a lawyer in India, but perhaps a paralegal contract manager in a low-cost region of the US) could handle parts of this engagement with the client.
The alternative resource can triage the request and gather all the necessary details of the transaction the business is trying to accomplish. Similarly, that resource can dig a little deeper to gather the facts that will help the attorney assess the urgency of this request, by asking a similar series of questions of the requestor that will help provide some parameters and perspective on urgency. This enabler can also gather feedback from the client after the attorney sends the initial draft, and coordinate changes. Finally, the entire finalization and closing of this request can be handled by someone other than an attorney. Arguably, that step can be handled by yet another person, who is less experienced (and less costly resource) than the one doing the triage and feedback gathering.
Automation of Certain Processes
In any process, the many steps that are involved can often be a sub-process or micro-process. Really anything that has more than a few steps can become its own process. Intake of a request from a client can be its own sub-process, assuming there is some gathering of information and back and forth before the attorney can actually start the work.
A sub-process like that can be actually automated and circumvent the need for anyone on the legal side to get involved until all of the intake information has been extracted from the requestor. By reviewing the data related to the requests received historically, it is highly probable that the intake process can be dwindled down to a series of questions that a requestor can answer.
These questions can be provided to the requestor via an online form, with some choices and drop-down ideas that will help channel the requestor into the right direction. By having a robust online intake form, the attorney only begins to work once all of the information has been gathered. Similarly, urgency can be assessed through an automated process, where the series of questions asked can provide the determination, rather than simply asking the requestor (whose tendency will be to say "I need it yesterday.")
By using online collaboration tools, the feedback loop can be handled much quicker without the risk of people being out of office and losing time waiting for the loops of questions and answers. Online collaboration allows for live time resolution of questions, especially when the questions require rather simple or clarification answers. Online collaboration is not an automation of the process itself, but a great example where technology plays a key role in creating efficiencies in a process that
otherwise could take much longer.
Back to the Simple Example
If we were to optimize the process of serving a client for a contracting need, we could break it down into parts and then align the most effective resource to the different parts. Through a combination of alternative staffing and automation, the attorney could spend time on only the highest valued part of the work, where the specific legal training is needed.
The other parts of the process don't require a lawyer to perform. Yet, we are so used to providing the entire service that we have not given ourselves a break to stop and assess the process. Yes, it is a process. And it is ok to admit that large portions of our days' work essentially can be mapped into a process, broken down and reviewed for efficiencies. Admitting that it is a process is the first step to recovery.
About Lucy Endel Bassli
Lucy joined the legal department of Microsoft in 2004, providing legal support to the central procurement organization globally and across all lines of business at Microsoft. She focused extensively on complex and global outsourcing contracts and gained firsthand experience in outsourcing by engaging an outsourced legal services provider (LPO) to assist her with high-volume contract transactions. She has launched a new “managed services” engagement with law firms and actively works on expanding legal outsourcing opportunities and seeking opportunities for automation. She oversees Microsoft’s legal operations and a centralized contracting office, specializing in process efficiencies and automation. Prior to joining Microsoft, Lucy practiced law at Davis Wright Tremaine, LLP in Seattle, WA, focusing on commercial transactions and commercial bankruptcy. Lucy received her J.D and BA from the University of Houston in Houston, Texas, where she grew up, but has been living in the Seattle area since completing law school. Lucy is a licensed member of the Washington and Texas state bar associations, and was named to the National Law Journal list of Outstanding Women Lawyers, 2015. She is a frequent speaker on topics of legal services innovation, legal technology and legal process outsourcing.