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A workout plan to become an Agile lawyer

Updated: May 3, 2023

By Eliana Fonseca.


(Disclaimer: this is not about getting a six-pack)

Yes, as you read it. You need to work out to become agile. Don’t feel lazy! And to make it easier, you can keep your suit and tie on (or your pajamas if you work from home). This is not a body workout but rather a mind-stretching exercise. To become Agile (with capital A), you need a change of perspective. It is about developing skills that you were not likely taught at law school. Being Agile is not about being cool or easy-going. It is about embracing the idea that you can become lighter and more adaptable, acting quickly and easily, by lessening the weight of bureaucratic and rigid approaches. That sounds just like you might feel after months of physical training, right?


Agile is the new kid in the block. The term is often used in marketing speak, namely that by going Agile, you are doing good. You may have heard phrases like “I am an Agile lawyer” or “We have an Agile law firm”, or “We do Agile” and other self-promotion labeling. But are they Agile as they say? Well, it depends. Agile can mean different things in different contexts. The term was born within the software development industry and has spread across other sectors, including Legal. Since IT is perceived to be a versatile and dynamic industry as opposed to the rigid and conservative legal industry, what Agile means to IT people may not be the same as what legal professionals embrace as such. However, the values and principles evangelized by the Agile Manifesto, even with industry-focused tailoring, shall be present for any Agile initiative or approach to fit into the Agile value proposition.

The Agile Manifesto [1] was established in 2001 by a group of software development engineers outlining four values and twelve principles to transform the way software is developed. The philosophy is formalized in four statements in which the items on the left are valued more than the items on the right.

  1. Individuals and interactions over processes and tools

  2. Working software over comprehensive documentation

  3. Customer collaboration over contract negotiation

  4. Responding to change over following a plan

The word “over” is not a minor point. Agile does not mean refusing to acknowledge the items on the right. It recognizes their value but considers them much less important in a fast-changing and adaptive environment. Therefore, an Agile implementation will vary based on the weight assigned to each of the four pairs of items.


In an IT environment, Agile teams develop software over short periods or iterations. There are usually less than ten members who make decisions collaboratively. The team structure is flexible and adaptable, with team members swapping roles to gain new experiences. The project manager is not the decision‐maker but rather a facilitator or coordinator. At the end of each iteration, a fragmented deliverable (aka, Minimum Viable Product) is delivered to the client to collect feedback. Subsequent iterations will focus on incremental improvements and adaptive changes until the final product is released to the client’s satisfaction by incorporating feedback into each iteration.


Right, you are not a software developer, but the same approach (with industry adaptations) can be applied in other business environments, including Legal.


So, what can be learned from the Agile Manifesto?


1. Individuals and interactions over processes and tools Having processes and tools in place brings security, governance, and standardization. Legal is indeed an industry that is led by preset rules, mandates, and processes. However, processes do not evolve as quickly as human interaction and outcomes, and they may not capture all possible application scenarios. Agile is human-centric. It looks at the people behind processes. It recognizes that good tools in the wrong hands are worthless. So, the focus is on the people who not only know how to use a tool but can adapt it creatively to fit the circumstances rather than the tool itself being blindly used, unchangingly, in different situations. By focusing on people interactions (dialogue, brainstorming, coaching, reasoning, etc.) Agile allows for innovation, creativity, and adding value while at the same time ensuring you don’t fall back into outdated patterns. It is not anarchy, as some people might believe. Tools and processes help people do a job, but human intelligence is a must to modify them when needed, to be more productive.


Think how much time you save by discussing a contract sticking point face-to-face with your counterparts rather than through a series of back-and-forth emails and track changes. Or how much quicker solutions can be found by team collaboration or brainstorming meetings rather than by working in silos.


Agile looks at empowering people because motivated people perform better. Breaking a long-term project into shorter cycles enables short bursts of intense activity. Completing those small bursts and achieving short-term goals provides a sense of achievement for team members and motivates them to periodically re-check that they are on the right track. Also, in an Agile way of working, the decision-making process is re-thought. In self-autonomous and cross-functional teams as Agile predicates, everyone in the chain contributes to deciding the best course of action. This represents a major step away from traditional systems where the decision-making authority is only in the cuspid of a rigid hierarchical management structure.


2. Working software over comprehensive documentation

Lawyers like documentation. Comprehensive. Robust. They are trained to create legal masterpieces like a William Shakespeare play but with rights and obligations. However, heavy or highly comprehensive documentation that does not “work for” or “fit” the business purpose may be an unnecessary investment in time drafting, reviewing, and negotiating.


Are you one of these people who doesn’t like reading instruction manuals but prefers to watch a five-minute YouTube video on how to install and use a product? This is because many people learn better by seeing the product functioning rather than figuring out what the manufacturers wanted to say as written in their manufacturing language! So, you may now understand the look on the faces of businesspeople when you enter a negotiation room with a forty-page contract under your arm.

Before making it to the negotiation table, better ask yourself, are these forty pages really needed? And if the answer is yes (because that may be the case), are you sure you know how to convey those forty pages to these people in clear, user-friendly, plain, and business language?


Simplicity, clarity, using visual and example-based tools, referring to use cases and practical application of a clause, using Legal Design, can be your best allies to fit into your business team and add value to the negotiation.

3. Customer collaboration over contract negotiation

It is easy to predict that when the counter parts’ lawyers enter the negotiation room looking at each other like boxers in the ring, the contract negotiation will be tougher and lengthier than needed. Lawyers are trained to think that excellence comes from making the most changes and comments in a contract or securing more points in their favor than their counterparts. Heavily one-sided contracts, inflexible document templates, and abuse of bargaining power sometimes put a business relationship at risk. Lawyers are used to thinking of contracts as legal documents written for potential disputes in court rather than a tool for business cooperation.


An Agile mindset is trained for a win-win rather than a zero-sum negotiation and outcome. A well-balanced contract comes after the parties understand each other’s needs, success criteria, and deal-breakers. This is possible by collaborating with your client or counterparts and establishing and maintaining a trust-based, business relationship.

4. Responding to change over following a plan

Agile is a reaction in response to the traditional method of handling projects called Waterfall and summarized by the quote, “Plan your work and work your plan”. This is how risk-averse and change-resistant industries work, in a linear path and with minimal room for change. Change is often thought of as something wrong (You become frustrated when your client or line manager asks you to re-do your work or change your approach, don’t you?). Rigid policies and procedures, scripted and inflexible speeches and documents, and a fixed mindset fed by the motto “If ain’t broke, don’t fix it” are aimed to fend change off as long as possible.


Agile is prepared for change because it recognizes that change is inevitable and necessary to cope with a fast-paced and dynamic world. It not only responds to change but also welcomes it. Change is seen as an opportunity to add value rather than an obstacle or threat.


Dynamic contract clauses go hand-in-hand with flexibility and adaptability. For example, by incorporating predetermined review points into a long-term contract, the parties have the chance to evaluate performance up to that point and decide whether they wish to modify the arrangement, continue as planned, or terminate altogether. Agility comes from contract terms with built-in dynamism that can be driven by data. This means that terms and conditions can adjust over time by responding to the state of the physical world they aim to govern. For example, consider contracts that are prepared to respond and automatically adjust or deploy a plan B in case of currency fluctuation, force majeure events, or changes in the scope of work.


Most Favored Customer terms are also an example of flexible and adaptive clauses. If just after a purchase a customer can demonstrate that the price of a product has dropped or that another supplier is selling it at a lower price, he may be honored that lower price and obtain a refund on the excess paid. This means that the original price is changed triggered by a real-world event, without the need to amend the original contract.


Switching to an Agile mindset does not happen overnight. A big change is simply the sum of smaller changes, and you can start with simple change initiatives and build on their success. Therefore, you can create your own workout plan by putting the following activities into practice:

  • Hold a daily STAND-UP meeting with your team (less than 15 minutes, no chairs, no minute taking).

  • Leverage a COLLABORATION tool within your team.

  • Encourage acts of LEADERSHIP and DECISION-MAKING at all levels.

  • Play the role of FACILITATOR rather than a manager.

  • Implement a kudos program to MOTIVATE your team.

  • Deploy a FEEDBACK CHANNEL within your team and with your clients.

  • KISS more often (KISS = Keep It Super Simple).

  • Create your next document template by

  • using LEGAL DESIGN [2] techniques.

  • Implement a KANBAN [3] board.

  • Incorporate DYNAMIC clauses into your contracts.

  • Shift from legalese to PLAIN LANGUAGE.

  • Hold a retrospective meeting (LESSONS LEARNED) to build knowledge through experience.

There is a saying that “change starts with you”, and therefore, training your own Agile mindset is a good starting point. However, for an Agile initiative to succeed at an organization or project level, it requires an organizational rather than an individual-only change, so all team members pull in the same direction and all processes have the same cadence. Scaling Agile is vital for project or organization success.


Remember that you will be as fast as your slowest process. Therefore, it doesn’t matter how fast you can run if you do not calibrate your treadmill well to follow your pace.

Ready for today’s workout?

 

Notes

[2] Legal Design is the application of human-centered design thinking to the world of law to make legal systems and services more user-friendly by taking a step back from complex legal jargon and processes that are difficult to understand for the stakeholders.

[3] Kanban is a Japanese word meaning “visual board” or “sign”. A Kanban board is a project management tool designed to help visualize work, limit work-in-progress, and maximize efficiency or flow.

 

About the Author

Eliana Fonseca is a qualified Argentinian lawyer currently based in Dubai and working as a legal counsel associate for one of the leading retailers of luxury watches and jewelry in the United Arab Emirates. Eliana is a certified Legal Project Practitioner. (LPP) and the exclusive Accredited Training Provider in the United Arab Emirates of LPM courses accredited by the International Institute of Legal Project Management (IILPM). Eliana delivers LPM training to Dubai registered lawyers through the Continuing Legal Professional Development (CLPD) Programme administered by the Government of Dubai Legal Affairs Department and actively conducts private and public LPM coaching sessions and training programs for legal professionals.


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