What if you invented a better mousetrap, but the world didn’t beat a path to your door? What if you developed a promising new medicine for a troubling condition, but when the doctor prescribed it, the patient refused to take it, simply sticking it in the desk drawer while continuing to complain about the malady?
At the very least, you’d lament lost opportunities. At worst, your disillusionment and cynicism would drive you to check out of Frustration Hotel and repair to the nearest solo-occupancy desert island. And so it is with many of us trying to improve the current state of the legal profession.
What If the Paradigm Doesn’t Shift?
Recently Stephanie Kimbro, a respected, gifted and innovative thought leader in the legal profession, wrote an utterly discouraged and discouraging blog post in which she threw in the towel:
I have written, researched, co-founded, created, evangelized, volunteered, taught and counseled lawyers and others in the legal profession…I was originally motivated by the idea that I could make an impact on the legal profession, educate lawyers to use technology to improve the delivery of legal services, and help increase access to justice…After fighting uphill battles and still seeing the pace of adoption and attitude change go at a snail’s pace, I’ve decided to stop trying.
The issue here is not simply the tragic loss of Ms. Kimbro’s wisdom and insights, the loss of a committed resource to the legal profession. The bigger problem is the legal profession’s denial of profession-threatening economic paradigm shifts and its resolute resistance to innovations, technologies and methodologies that could make legal service more effective, more efficient, and, above all, less costly.
In the face of forces, factors and developments that pundits told us would fundamentally alter – for the better – the law firm-client relationship and the modus operandi of legal service delivery, a profession still ruled by the nattering nabobs of negativism (Google it) continues with its head stuck firmly…in a state of denial. The sleeping giant simply will not wake up.
Who Is to Blame?
The malady is confined neither to lawyers in law firms nor lawyers working in-house. All too many still sit passively as momentous events and forces threaten to steamroll them. There are innovative law firm leaders who are attempting to lead, but the rank and file simply are not following. Most law firm lawyers still swear that the billable hour – which equates value conferred with the amount of time spent delivering service – will have to be pried from their cold, dead hands. And game-changing technology? If a new software tool requires more than two key punches, fuhgeddaboudit.
Still, when it comes to assigning responsibility for antediluvian legal business practices, we must cast the lion’s share of the blame on the client – on in-house counsel responsible for selecting, managing and, if need be, imposing discipline on outside counsel. Law firms’ resistance to change can be understood, if not forgiven, because they are simply clinging to an historical economic and bargaining imbalance that long gave them the upper hand and made them a lot of money.
Oh, Poor Pitiful Me
Harder to fathom is the lethargy of in-house counsel. Sulking on the other side of that wall between firms and clients (a wall that many optimists like ourselves hoped could be demolished by improved techniques for law firm-client collaboration and communication), the in-house folks continue to wail and rend their garments in response to the draconian cost pressures they are experiencing, all the while proceeding to do nothing about it except demand discounted billing rates from their outside counsel (a stratagem shown to play well with the execs in the C-suite, but produce absolutely zero reduction in overall legal costs).
William Henderson, a professor at the University of Indiana’s Maurer School of Law and a pioneer in the rapidly evolving discipline of Legal Project Management, recently simply could not contain his astonishment at the inability and unwillingness of in-house counsel to exercise the negotiating leverage that the global financial crisis has bestowed upon them: “I overestimated the ability of in-house lawyers to effectively use their purchasing power in their own long term interests.”
It’s All a Matter of Will
As we see it, this problem basically is a matter of will —and will not: 1) In-house counsel lack the will to compel beneficial changes. 2) Law firms will not change. Oh, they would if enough important clients imposed sufficient disincentives to their inflated billing practices and inefficient, hidebound service delivery methods.
But clients can’t…or won’t…or don’t know how. As a result, a variety of proven innovations – including requiring accurate budgeting, alternative fee arrangements, using e-billing for data mining firm billing practices, RFPs with real pricing teeth, Legal Project Management, Legal Process Improvement, Legal Process Outsourcing, integrated budgeting and project management software, to name but a few – have failed to gain traction and enjoy wide acceptance. For the moment, it appears to us as if the Luddites are winning. Ms. Kimbro’s frustration is understandable.
In an email stream attendant to the 2015 annual conference of the Association of Corporate Counsel, consultant Susan Hackett, former General Counsel of the ACC, tweeted about “VMWare’s wish for firms to stop charging as if every matter is one of first impression; stop charging to re-invent the wheel.” When I responded that “the solution is for clients to decide and reinforce what they WILL pay, instead of making the same time-worn complaint,” one in-house counsel (and I trust he was just being sarcastic) responded,
I wish the lawyers whose huge bills I keep paying without question would suddenly start charging me less without me asking.”
When Pigs Fly
Oh, sure, that’s gonna happen (just beware of all those flying pigs). Dusty Springfield once sang a pop ballad called “Wishin and Hopin’,” the refrain of which was that “wishin’ and hopin’ and thinkin’ and prayin’, dreamin’ every night of his charms, won’t get you into his arms.” In other words, to get what you want, you have to take some action and create meaningful incentives in order to compel needed change. For in-house counsel, it really is time to stop wishin’ and start taking action.
One would think that today’s economic imperatives and drastic budgetary complaints would impel in-house counsel to exercise their newly-acquired leverage. So far, sadly, inertia is winning out over pain.
© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.