There seems to be a sentiment pervasive in the legal blogosphere that lawyers are “behind”:
“The pace of change in legal services is not slowing down while lawyers’ day-to-day practice of law continues to lag far behind” (Remaking Law Firms)
“Law Is Lagging Digital Transformation” (sic.) (Forbes)
“'Change' Is a Mantra for Law Firms, But Will They Tune In?” (Law.com)
“When It Comes to Innovation, Lawyers Are Being Left Behind” (Lawyerist.com)
Given that “behind” is a relative term, you think that every other industry has totally reinvented itself. Yet that is emphatically not the case.
In 2018, McKinsey found that “still less than 20% of companies” have taken the challenge of “digital reinvention” head-on. That is 20% of all companies across industries. A 2016 study from McKinsey found that “84% of global executives reported that innovation was extremely important to their growth strategies, but a staggering 94% were dissatisfied with their organisations’ innovation performance”. That is a lot of people in a lot of industries who feel they are behind on innovation. Even engineering thinks its behind, let alone professions more similar to law like medicine and accounting.
It doesn’t matter the industry: the latest technology is not being used, the business models are out-dated, and nobody is willing to take ownership over making a change. These sentiments are so ubiquitous that casting aspersions on the legal profession as if it’s “so far behind” is not only counter-productive, it’s inaccurate. The so-called laggardness of law is not an industry-specific problem. It is a common challenge of human nature.
The reason for a gap between the sentiment of being behind and the reality is that if you are an innovator, your job is to live in the future. The vast majority of people do not and should not necessarily be equally committed to living in the future. Naturally, from the innovator’s perspective, they will appear to be behind. But “behind” is a relative term, so it’s worth asking: behind compared to what?
Realistically, how much should the practice of law incorporate new technology? Unless you know that, you don’t know which technology is worth really pushing for. And if, like most legal innovators, you tend to assume law is cursed to always be behind like some sort of original sin, then you end up perpetually chasing the newest thing. You risk being so far in the future that you alienate those in the present – i.e. the majority, including those running law firms – and become less helpful.
Here is an upper bound: being innovative doesn’t mean law should have the very latest in compared to other professions. Other professions have leveraged technology more than in lawyers because, frankly, it was much easier.
For example, both law and engineering made the transition from manual to digital drafting. Engineering could then leverage this transition even further because the main component of engineering – numbers – matches exactly the inherent strength of computers. The main components of law – words and human language – have historically been intractable for computers. The fact that computers naturally fit better in other fields is not the fault of lawyers.
We can summarize this upper bound with the phrase strategy first, innovation second. While it is important to learn from others, it is also important to ask what works best in law. Being on the cutting edge generally doesn’t guarantee being more competitive in the specific market segment of your particular law firm.
As a lower bound, innovations must bring some relevant benefits to real law firm. Much like a fledgling magician without an audience, an innovator without a customer is just another person with a quirky hobby. From an end user’s perspective, an innovation should be obviously better than what it aims to replace. If something cannot be settled by experiment or observation, then it is not worthy of debate.
We need these bounds because “behind” just isn’t a compelling argument for most people. Unless something is making an improvement in a relevant way, all that’s left a moral argument. The two hemispheres of PeopleLaw and Organizational Law seldom overlap, so you have to make specific arguments for each one. While the moral argument makes sense for improving access to justice, it doesn’t have the same appeal for large law firms or the businesses they serve.
What you should not do is turn your law firm into a start-up.
It’s not that the Biglaw mentality (or the mentality of any other big company mentality) and the startup mentality are “anathema to one another”; the two mentalities are trying to accomplish different goals. As the start-up guru Steve Blank explains, “Start-ups are not simply small versions of large companies.” Assuming otherwise confuses scale for culture.
Law firms still need to adapt to a changing marketplace, but a full-on start-up approach isn’t the right way to do it. Start-ups are in search mode for a viable business model. “Search mode” does not describe an established business. The management that goes on in IBM, GM, and Boeing is not the same as start-ups. Most organizations probably prefer that their law firms have management practices they are familiar with. There are exceptions, but they typically involve lawyers with proven experience, suggesting that peace of mind generated by experience and expertise is still of chief importance.
I can imagine that most GCs of would err on the side of stability when it comes to legal service providers, which rules out startups. Startups, like mosquitos, tend to be an all-or-nothing proposition. And you don't generally know which of the two you're going to get until the last minute. Bob Ambrogi’s legal startup catalogue evinces this extreme uncertainty: less than a third are labelled “Active” (217 of 704), the rest are presumably defunct.
Saying lawyers are the cause of our legal innovation woes is tautological. Who else is there – paralegals? janitors? All cultural changes are difficult. The grass may seem greener in another profession, but it is just as hard to cut. While it sucks to have your innovation efforts picked apart, it is the hard truth about innovative companies:
Innovative cultures are misunderstood. The easy-to-like behaviours that get so much attention are only one side of the coin. They must be counterbalanced by some tougher and frankly less fun behaviors… intolerance for incompetence… rigorous discipline… brutal candor… individual accountability…and strong leadership.
It is both expected and important that much of the legal profession maintains high standards toward new tech. In already being skilled at many of these less fun behaviours, lawyers provide the necessary tensions for having an innovative culture.
Instead of first buying software and then fighting the uphill “battle” of adoption, it is important to see lawyers as key stakeholders and not as roadblocks. For example, David Cambria demands software meet the lawyers’ rigid standards by flatly telling providers that if “lawyers [are] required to engage ‘in a single unnatural act,’ the implementation [will] fail.” High standards plus strict boundaries on what technology to adopt will surely help reduce innovation angst, or at least outsource it.
While other professions have gone further to integrate technology, they haven’t necessarily gotten “ahead”. Technology does not automatically make you more competitive. If the founder of a legal tech company that uses AI isn’t worried about not being on the cutting edge, then you probably don’t need to be, either:
There is nothing in what we’re doing that is exceptionally novel. We don’t have a new algorithm. We haven’t advanced the state of the art. All we’ve done is take the state of the art, and go long and deep on the actual application of it.
I am all for seizing opportunities to make my organization more competitive. I believe there is massive room to make law firms more client-focused, more effective, and to draw on the complementary strengths of other professions. I believe there are many low-hanging fruits. And I think it is unhelpful to start out with the incorrect premise that lawyers or the legal profession are somehow inferior to other professions. (Are you telling me that accountants are inherently more innovative?)
Making the argument that lawyers are behind because they haven’t applied enough technology exacerbates lawyer exceptionalism. If lawyers have already overburdened themselves then why are we asking them to do more by overhauling their practices? The same engineer doesn’t simultaneously design a building and build cutting-edge design technology. Innovators and practitioners need each other and together should strive for a balance.
About the Author
James Côté is a Legal Technology and Innovation Specialist at Bennett Jones LLP. He combines technology and innovation with business strategy to navigate the changing legal landscape. Before law, he worked as a journalist, entrepreneur, engineer, and farmer.
Views and opinions expressed in my articles are my own.