Reading for empathy

I consider myself lucky to know people (online and offline) who read widely. I know that we might not see eye to eye on what we read, or on all sorts of other issues, but we do agree that there is something important about books and the ideas they contain.

In Design Observer recently, Ken Gordon described how he found new meaning in Philip Roth’s novel, The Plot Against America.

…buried in The Plot is a surprise. I didn’t realize until this go-around, but the novel contains, among many other virtues, a superb illustration of how empathy informs good design. That’s right: Philip Roth, designer manqué!

In addition to the normal modes of scenic description, common to many novelists, Gordon describes how one of Roth’s characters solves a problem for another just as a designer would. That vignette is enough for Gordon to consider the book worthy of inclusion on the syllabus of an introductory design course. But he makes a more important point at the end of his article.

As an undergraduate law student, I was encouraged to read novels with legal themes, such as Dickens’s Bleak House or Harper Lee’s To Kill a Mockingbird.  There is certainly merit in that, just as a design student might learn from the subtle way Roth deals with a design problem in The Plot Against America. Gordon’s broader point is that the practice of reading novels gives broader benefits than that.

The Plot is a novel of grand design, and I’d love to see more designers read this, and other such books, as a way of educating themselves in empathy. Submersing ourselves in great works of literature is a wonderful way to train us to be more human.

So I say to you, designers, students, aspiring humanists: If you’re serious about understanding people, feeling for people, and using that to inform your design, you’d do well to read superlative works of fiction. The Plot is a fantastic example, but it’s one of many, many volumes you should be extracting from the shelves.

Other forms of fiction may be equally powerful. I am reminded of Roger Ebert’s perspective, in the biographical film, Life Itself:

…the movies are like a machine that generates empathy. It lets you understand a little bit more about different hopes, aspirations, dreams and fears. It helps us to identify with the people who are sharing this journey with us.

In an age when legal practice is being improved by intelligent applications of technology, empathy is an increasingly important aspect of what it means to be a valued practitioner. Clients are people, so lawyers should read widely, for similar reasons as designers and other humanists. (Whether or not design is brought into the business itself.)

Institutional memory — a diversity problem?

The BBC has discovered that knowledge management is important, at least in the form of improving institutional memory. In a report for Radio 4’s Analysis programme, Phil Tinline writes:

Each time someone leaves their job, a chunk of the organisation’s memory leaves too. How, then, do you run complex systems, see through long-term projects, or avoid past mistakes?

Short-term contracts and outsourcing reduce the appetite for learning company or product history. And when job losses land, even more knowledge is lost.

In 2012, one institution found that, as City firms poached its bright young employees, its staff turnover was hitting 28% – faster, apparently, than McDonalds.

And for Her Majesty’s Treasury, after its experiences during the financial crisis, this was rather scary.

The report describes a number of initiatives in commerce, industry and the public sector, but I was particularly struck by the inclusion of the UK civil service as an institution suffering particularly badly from organisational amnesia. How is it that one of the world’s pre-eminent administrative cadres, studied by academics of all types, with record-keeping and archival traditions dating back hundreds of years, can forget experiences and decisions made just a few years ago?

Tinline suggests that staff turnover is an important component of the problem and I suspect that, as with many other organisations, the faster pace of work probably also plays a part. But what struck me was a reference to ‘folk memory’ by the outgoing Treasury Permanent Secretary. Without trying to read too much into the Permanent Secretary’s words, I think there may be a slight, but significant, difference between ‘folk memory’ and ‘institutional memory’.

When I learnt, and then taught, constitutional law, the civil service was still regarded as a very traditional force within British government. The research of Peter Hennessy and the comedy of Yes Minister suggested that centuries of experience were distilled into power exercised gently but forcefully to sustain a variety of constitutional norms. Almost invariably, senior civil servants were men, Oxbridge-educated, and with good networks across government through which traditions could be maintained. Those traditions contribute to a particular kind of folk memory that allows people to communicate and work more efficiently, since they can rely on a shared understanding.

Even when I was a student, this traditional approach was changing. The civil service recognised the need to improve the breadth of its recruits — drawing people in from roles in the private sector, and working to improve the diversity of recruitment — more women, and more non-Oxbridge graduates. At the same time, the civil service also found itself competing with political appointees — special advisers — for the ear of ministers. Yes Minister gave way to The Thick of It. There is no easy way for folk memory to be transmitted in a more fragmented system like this. What is needed is a concerted effort to develop and sustain shared understanding — the more formal institutional memory.

In a sense, folk memory can be sustained by lazy adherence to outdated standards of recruitment and advancement that lead to a lack of diversity. As organisations (not just the civil service) become more diverse, the benefits that come from diversity are matched by a new burden of finding new ways of ensuring that there is a proper understanding of the organisation’s history. This might be a personal obligation, as shown in the obituary of the late Chris Martin, the prime minister’s principal private secretary.

Martin, who has died of cancer aged 42, had always thought deeply about the place of the civil service in the constitution. He wrote his university dissertation on its role, and was a compulsive reader of biographies and political works that helped him understand its history and its place in the British story. The network of relationships he built up through successive jobs at the top of Whitehall was not just tactical; he used it wherever he could to enlist support for the civil service as an essential institution.

In Downing Street he set up a History Board with Anthony Seldon and Peter Hennessy to record and preserve No 10’s own story.

But organisations cannot rely on there being people like Chris Martin to take responsibility for learning like this. The range of examples provided in the BBC report show clearly that organisational amnesia is a widespread and pernicious problem. Overcoming it should be a priority. Doing so demands careful consideration of the problem, how best to address it, and proper resourcing of the prescribed remedy. What organisations should not do is avoid good current actions (such as improving diversity), simply because they may lead to future forgetfulness. That approach stands in the way of inevitable progress and is lazy.

Breaking silos for client service: the internal view

Unbundling legal services has become the norm. Less than a decade ago, virtually no firm would even have known what this might mean, but now even the Law Society has recognised in its recent report, The Future of Legal Services, that this is a real choice for firms and clients.

An AdvanceLaw survey of GCs from 88 major companies, found that almost 75 per cent would be willing to move legal work away from the Magic Circle or Top 50 firms assuming a 30 per cent difference in overall cost. Fifty-seven per cent also noted that they find lawyers at the top firms less responsive than those of their second tier colleagues.

Rather than purchasing the full service option, by 2020 an increasing number of in-house lawyers are more likely to have taken work back in-house or opted for unbundled services, where they buy expert advice and assistance at key stages but deal with the actual running of their own cases. And by 2020 we are likely to see general public buyers also starting down this path.

It is interesting that the Law Society presents this as being driven by client demand, as if firms have played no part in the disaggregation process. In fact, whilst this is clearly in the client interest, some firms have played a leading role in thinking more imaginatively about the way in which they provide legal services.

A number of new roles have grown up to support unbundled legal services — legal project managers, matter coordinators, and so on. As such, unbundling is part of a set of practices aimed at improving legal work (including process mapping, greater use of technology , and so on). As Graham Laing puts it, unbundling makes legal services customisable to client needs, which is potentially a very powerful outcome.

Customisation of legal services is about integrating the client into the firm’s value chain. Firms are being required to reconnect with their clients and to compete effectively by recognising market drivers and investing in a deep understanding of client needs and desires. It’s about grasping what clients really want. Listening to them more. Understanding them better. Gathering valuable client information to attain reliable data on market demands will result in services with better market suitability. Merely satisfying what clients ask for is no longer enough for survival in a legal market environment of intense competition.

This is clearly something that clients want, as shown by these two tweets by Brett Farrell, a former lawyer, now responsible for buying legal services:

https://twitter.com/BrettPFarrell/status/701993783827656704

https://twitter.com/BrettPFarrell/status/702974448064856065

[Update: Sadly, Brett has retired from Twitter, so these tweets are no longer available.]

Brett’s view is not unusual, neither in its content nor in its tangible frustration at the current state of law firm client-centricity. Many firms appear to be moving (slowly) in the right direction. But the picture is much less pretty when one looks at how firms organise themselves internally. Real change needs to take place there, and few firms realise it.

Whilst most good firms are actively working on meeting client desires by rethinking the way their lawyers work with each other, with client lawyers and commercial people, with other firms, and with alternative legal providers, there is much less imagination about the way they expect their own business services professionals to operate. If unbundling is right for lawyers, should it not also be considered for internal services? What might that look like?

Although some firms have started to think more imaginatively about how they organise their business services professionals, most still approach recruitment and resourcing questions in a very traditional manner. Looking at the jobs listed on recruitment sites, for example, it is clear that firms still expect sales and marketing professionals to be part of a business development function, technology experts to be in IT roles, and resourcing specialists to be deployed in HR.

Arranging business services like this ignores the possibility that a more effective arrangement might be possible, where the starting point is not “how do we group similar people together?” but “what things need to be done, who should do them, and how should they be managed?” Thinking about deploying expertise in this way might help firms to serve clients better, amongst other benefits.

So, for example, there may be a set of responsibilities that go along with ensuring that the business can work effectively — infrastructural tasks. This would include the provision of core IT services, facilities management, core accounting and financial services, and some procurement and contract management responsibilities. Depending on the volume of work in each of these areas, some of these could be outsourced. Even if they are still done in-house, it is most likely that they can be managed to a specification, which suggests that they might reasonably be grouped together as a single management responsibility. in doing this, the firm might see benefits, such as a common approach to resilience and business continuity, that would be more difficult to achieve if they are separated.

Another approach might work at the other extreme — activities that are intimately associated with the provision of legal services to clients. Here silos can result in competition for resources between different areas, whereas a coordinated approach might allow more transparency about costs and benefits. Take client care as an example. The various people in a firm who come into contact with clients all have a part to play in providing a good (and consistent) client experience. However, few firms would consider managing their front-of-house reception teams (who are often internally managed in a facilities group or outsourced) alongside client relationship managers (more commonly found in business development teams). But those two groups have a lot that they could share with each other to improve the overall performance of the firm. Client management itself is often seen as a role for lawyers as well as expert managers. But not all lawyers take well to the demands of client management, and the client experience suffers as a consequence. Sadly, few expert client managers understand exactly what it is that lawyers do for clients, and this can also affect the client experience. Why not rethink client care completely — perhaps develop an account management capability (including people of all types) akin to the model used in advertising agencies?

Another approach might be to use dynamic teams for specific types of work or projects. A firm wanting to improve the way its technology supports clients, for example, might draw together a specialised group of people — lawyers, technologists, client relationship managers, information and knowledge professionals and financial experts, and others drawn from inside and outside the firm — to dedicate their time to developing a product or service that meets client needs. At the moment, firms tend to go a little way towards this model, but they often make it hard for the project team by expecting some or all of them to carry on with other work. When lawyers keep their chargeable targets, and the IT developers are expected to maintain systems, and the marketing folk have events that need support, all at the same time as being involved in a project, the urgency of the ‘day job’ tends to detract from the importance of the project. Managing the group separately and giving it targets to be met as a group should improve the likelihood that something good can be produced in the shortest time. The cost to the firm is that some less important tasks are not done. That is a choice of priorities that the firm needs to make with its eyes open.

Firms that have adopted a clear sector focus, or that have a set of key clients, might also consider aligning business services professionals with the legal teams working most closely with those sectors and clients. Some firms already do this to some degree, with pricing specialists, relationship managers, and business analysts for example, but there may be scope to broaden the idea to include others. This kind of approach also introduces a form of matrix management that firms don’t always get right. An accountant managed within the firm’s finance team who also has a role on pricing for a sector team might find themselves torn between two sets of management instructions. My experience is that in most firms the client or sector team rarely has a formal management responsibility for business services professionals. If the client experience is supposed to be at the heart of what the firm does, should those teams not be entitled to exercise stronger management control?

Putting the client at the heart of the firm does not mean automatic acquiescence to client demands. The customer is not always right. What this approach does is to allow professionals of all kinds (not just lawyers) the opportunity to participate in improving the way clients are supported. Each specialist will have their own perspective on this, but the current siloed model, with direct client contact reserved to lawyers and a few others, generally inhibits any real understanding of how things might be arranged differently and better. An unbundled, client-focused model can provide firms and their people with a more rewarding working experience.

Unbundling internal services also has consequences for the firm’s senior managers (directors and ‘heads of’ business services groups). In the silo model, each of these people has a clear set of responsibilities, and a fairly fixed group of people to manage. Sometimes roles at this level can become ossified, and sometimes the strategic focus that they should have is overwhelmed by the daily grind of operational management. An unbundled model would allow a firm to think more dynamically about line management, so that senior people can dedicate more time to strategic issues. Equally, unbundling some traditional silos might lead a firm to realise that not all the roles at this level are necessary. But a silo that exists only because it serves the interests of the person at its head is probably one whose work is least connected to the interests of the firm’s clients or its other employees.

I can’t promise that Brett Farrell’s plea for law firms to provide a better client experience will come quickly, but I am fairly sure that if it is to come at all it needs to involve more than just the lawyers. Traditional business services structures are much less likely to help generate the right experience than a more imaginative approach that draws on all the relevant talents that the firm holds.

Measuring performance and setting priorities

Today is a leap day, a quadrennial adjustment of the calendar on which tradition dictates that women may ask men to marry them. (Of course, this is just a convention — nothing in reality prevents either gender from popping the question.) In that spirit, I want to take a look at a convention in law firms that could do with being upset — recording time.

This isn’t simply a plea to move away from time-based billing: that topic has been done to death by other commentators. In any case, I think clients are increasingly resistant to the idea to the extent that it has almost become the charging model of last resort rather than the starting point. No, I am more concerned about a figure that looms large in the daily life of almost every private practice lawyer: the annual chargeable hours target.

Even firms that have adopted alternative ways of billing clients still cling to timesheets. Their lawyers are expected to account for every six minutes of every day. (Even holidays — many time recording systems need to be told that a lawyer is not working.) Many of the same firms set annual targets for their lawyers — they must record a certain number of hours per year. I understand why this is important. Even when the link between time spent and the price of legal services is broken, firms still need to know what their input costs are in order to know whether the work is profitable.

I think the cost of this knowledge is too great. Although they are potentially useful to firms, these targets have a pernicious effect on lawyers’ behaviour, law firm culture, and client service.

Behaviour and culture

Although the point of recording time is to give the firm an idea of how much effort is being expended on client work (and other activities, so long as non-chargeable time is recorded too), many firms also use targets to inform other things, such as eligibility for bonus payments, suitability for promotion, and so on. As a result, lawyers prioritise meeting their annual targets above all else. Any work that cannot be attributed to a client file is therefore given a lower priority. Unless the firm explicitly elevates the priority of non-client work, perhaps by allowing work on specific internal projects to be counted towards the lawyer’s annual target, lawyers will naturally be reluctant to contribute to activities such as knowledge management.

Law firm culture is, in part, an accumulation of the way people commonly behave. As such, habitual prioritisation of chargeable work in preference to certain types of non-chargeable activities will naturally cause those activities to be considered less worthy. The personal financial preferences of time-recording lawyers become cultural norms. Worse than that, however, the act of recording time has come to signify importance within many firms. That is where the fee-earner/non-fee earner distinction arises. Firms that claim to deprecate the use of the term ‘non-fee earner’ will only succeed in changing their culture by removing fee-earners from the stage. If nobody records time, the most obvious distinction between lawyers and business services professionals is eradicated.

A fruit-based digression: customer focus

In my last blog post, I linked to and quoted from a fascinating piece by Horace Dediu on the way Apple appears to measure performance, and how that affects (and is affected by) the priorities the company sets. Dediu points to a difference between the way most businesses measure performance and the way Apple appear to do it. He argues that the norm is to depend heavily on easy to measure financial data:

These “financial” measures of success are considered prudent and optimized for return on equity (also known as the maximization of shareholder returns).

Unfortunately, Dediu argues, financial metrics prioritise some forms of information over others, to the extent that the wrong decisions might be taken in consequence:

The mass phenomenon of measuring the wrong thing because it’s the easiest to measure is called “financialization”. Financialization is the process by which finance and finances (rather than creation) determine company, individual and society’s priorities. It comes about from an abundance of data that leads to fixation on what is observable to the detriment of awareness of hazards or obstacles or alternatives. This phenomenon is more likely when the speed of change increases and decision cycles shorten.

By contrast with companies wedded to the need to maximise shareholder returns, Dediu notes that Apple puts the customer, rather than the company, at the centre of its decision-making processes. In doing so, it aims to make the best product it can for customers. The challenge is to assess how successful it is in doing that.

The idea that the purpose of the firm is to create and maintain customers is not new but it is relatively rarely practiced. The reason is that the data is harder to obtain. The data that comes from sales is crisp and concrete. The data about customers is muddy and soft. In a world where spreadsheets are used as weapons, the crisper the data, the better the ammunition.

Optimizing around customer acquisition rather than equity returns leads to a new set of metrics. What would these metrics look like for Apple?

The company publicly offers three separate sets of quantity of customers and quality of customers.

In terms of quantity we have:

1. Number of iTunes accounts
2. Number of iCloud accounts
3. Number of active devices

In terms of quality of customers we have:

1. Average selling prices for devices (as a proxy for willingness to pay)
2. Customer satisfaction (as a proxy for loyalty)
3. Services and accessory revenues (post-sales and recurring value)

Dediu then shows graphically what Apple’s performance over the last ten years looks like against those metrics. (Generally good.)

Client focus for law firms

There is no reason why law firms should not also consider themselves as client-focused. In fact, there is a good case for arguing that they should be more client-focused than a company manufacturing quasi-commodity technology products and services. Law firms’ dependence on basic financial metrics suggests, however, that they struggle to measure how well they perform from a client perspective.

Firms’ persistent emphasis on time recording may be the most significant factor working against proper client focus. In prioritising measurement of the time taken to perform tasks, rather than finding a way to assess their importance for clients, firms choose to elevate quantity over quality. Even when a firm has a good system for assessing client satisfaction, it is rare for that information to be integrated into decisions about individual lawyers’ progression or bonus. (And I suspect good systems for assessing client satisfaction are vanishingly rare in themselves.)

The leap-year challenge for law firms, then, is to consider what good qualitative measures of client service they might have or be able to generate, and to work out how those metrics could be used to supplant the outdated conventional measures of firm performance. In doing so, they should find improvements in lawyers’ openness to involvement in important practice support and development activities, in the firm’s culture, and in the quality and creativity of service provided to clients. I can’t promise that those improvements will lead to Apple-scale profitability, but other examples across the corporate world suggest that better performance flows more often from a customer focus than from a shareholder focus. In addition, firms would no longer need to invest in time-recording technology and the panoply of enforcement tools and processes that flow from them.

 

Hidden innovation: the best kind?

I suspect almost everyone is fascinated by Apple. For some, the company is a peculiar cult that holds its acolytes in thrall to blocks of glass and metal. For others, it is a benchmark against which all types of innovation can be measured (and usually found wanting). I am particularly interested in the things that are often missed in Apple’s innovation story.

The video below shows Steve Jobs addressing an audience at Apple just 8-10 weeks after he rejoined the company in 1997. The main purpose of the presentation is to show the new ‘Think Different’ advertising campaign. That’s not the bit that interests me though. Within the first minute, Jobs sets out the priorities: “We’re trying to get back to the basics of great products, great marketing, and great distribution.” I think the third of those is the most significant hidden contributor to Apple’s sustained success since then.

Jobs goes on to say (at 2’08”):

We have not kept up with innovations in our distribution. I’ll give you an example — I am sure it was talked about this morning. We’ve got anywhere from two to three months in our inventory, in our manufacturing supplier pipeline, and about an equal amount in our distribution channel pipeline. So, we’re having to make guesses 4/5/6 months in advance about what the customer wants. And we’re not smart enough to do that. (I don’t think Einstein’s smart enough to do that.) So what we’re going to do is get really simple and start taking inventory out of those pipelines — so we can let the customer tell us what they want and we can respond to it super-fast.

(By all means watch the rest of the video, but that is all that is relevant for this post.)

Those responsible for two of the three basics identified by Jobs were already part of Apple. On the product side, the designer Jony Ive had been promoted to Senior Vice President of Industrial Design, and Jobs himself led Apple’s marketing efforts. Within six months the third element, distribution, would be taken on by a new appointee — Tim Cook.

Just one year after this video, Apple launched the iMac: designed by Ive, marketed by Jobs, and built by contract suppliers appointed by Cook. The same combination underpinned successive new Apple products — new generations of iMacs, the iPod, MacBooks, the iPhone and iPad. Tim Cook became Apple COO in 2007, and was appointed CEO in succession to Steve Jobs just before Jobs died in 2011.

The Apple products we (some of us) use today may still be Ive creations and also bear the imprint of Steve Jobs’s personality in their marketing, but their success in the market is just as much Tim Cook’s doing. In a profile from 2008, he is described as “demanding and unemotional:”

Think of Cook’s contribution like this. There are two basic ways to get great profit margins: Charge high prices or reduce costs. Apple does both. The marketing and design drive consumers wild with desire and make them willing to pay a premium; Cook’s operational savvy keeps costs under control. Thus Apple is a cash-generating machine. Cook has called the company a place that is “entrepreneurial in its nature but with the mother of all balance sheets.”

Apple’s high profit margins are driven by two forces: the company is obsessed unlike any other of its size with creating products that it thinks people will love, and its supply, production, distribution and retail processes are managed more tightly than any of its competitors.

Some aspects of that tight supply chain management appear to be readily copied. Others are more innovative and unique to Apple, but depend on constants like long-term relationships with suppliers and choosing simple options rather than complex ones, even if those are exorbitantly expensive. Early examples included block-booking all available air cargo slots in advance of the iMac’s first Christmas sales period, and shipping iPods direct to retail customers from the manufacturing facilities in China. There is also no competition between product, marketing and distribution. They work as a team:

That mentality—spend exorbitantly wherever necessary, and reap the benefits from greater volume in the long run—is institutionalized throughout Apple’s supply chain, and begins at the design stage. Ive and his engineers sometimes spend months living out of hotel rooms in order to be close to suppliers and manufacturers, helping to tweak the industrial processes that translate prototypes into mass-produced devices. For new designs such as the MacBook’s unibody shell, cut from a single piece of aluminum, Apple’s designers work with suppliers to create new tooling equipment.

Can other businesses learn from this aspect of Apple’s success? Possibly very little:

How Apple is managed is one of its enduring mysteries. The idea that a company with $235 billion in sales is managed with a single P/L is fascinating in many ways.

There are obvious lessons about the need to keep inventory as low as possible, but otherwise I think the main thing is not to concentrate on obvious innovations. It may feel easier to identify novel products and services that could find a valuable place in the market, but just as much (if not more) profit might flow from making the hidden parts of the business work better. Given how different these hidden parts might be, each firm has to make its own choices.

Change, technology and people

A long time ago, I argued that social technologies make most difference when they start by meeting real needs that people have. I still think that is true, and I am beginning to wonder if the same is true for other types of technology too. A few things over the past week have brought some threads together for me.

Joanna Goodman wrote a very good overview of the state of legal IT and innovation in the Law Society Gazette. Embedded in the middle of the article was this short statement:

Firms are focusing on innovation because legal IT is getting a lot of attention at the moment and they are looking for opportunities to use technology as a differentiator.

I am not so sure that technology alone can be a differentiator, except for a short time, especially as firms generally have to buy in systems and expertise (which is therefore likely to be available to everyone else on the same terms). When firms mix technology with something unique that they have (the knowledge of their people, for example) then there is a possibility of differentiation. I posted a couple of tweets suggesting my reservations (within the scope of 140 characters.

By its very nature, technology is a rising tide: lifting all ships. (Apart from those moored too tightly to the sea bed.)

— Mark Gould (@markgould13) February 16, 2016

There followed a very interesting discussion about the need to consider technology and cultural issues in innovation, sparked also by a couple of observations by Charles Christian. (The whole thing can be seen on Storify.) In the end, I was persuaded by Joanna’s argument that technology is too important (and moving at too fast a pace) to be left to one side while firms deal with people and cultural issues.

Not necessarily – to continue your analogy, watch out for longshore drift! @markgould13 @ChristianUncut #LegalIT

— Joanna Goodman (@JoannaMG22) February 16, 2016

Today, two excellent blog posts have made me return to the question of the balance between people and technology.

Julian Summerhayes, writing about “the broken law firm”, suggests that firms have never been particularly good at considering people issues:

As someone who’s worked in the business a long time, I’ve witnessed countless changes. Mostly these have been technologically driven. But what I’ve not witnessed is any attention being paid to the soft stuff. At this stage I’m reminded of what Tom Peters has been banging on about for about 40 years: Hard is Soft. Soft is Hard. In other words, focusing on the numbers is easy. The other 101 soft stuff is the really, really hard part of running a law firm (or any business).

Julian is not just concerned about innovation, but his point is particularly valid in that context. How many firms focus on improving processes or on taking advantage of the latest technology in the belief that these are hard options, when the really meaningful work consists in nurturing people (employees and clients)?

Anne Marie McEwan comes at the question from a slightly different, but no less interesting, angle. She has been developing a new approach to workplace learning that she has called Tiny Triumphs, and has written a long post on LinkedIn describing why it is important. (The post was first published last week, but Anne Marie substantially updated it today.)

Tiny Triumphs has a deceptively simple structure:

Eight themes and associated topics are explored across three phases:

• Diagnose workplace context (what’s happening)?
• Select, scope and plan a small workplace project – do it!
• What happened? What next?

What sets Anne Marie’s work apart from other approaches to developing skills is the fact that she puts people and their social interactions at the heart of work, and this principle then drives the learning experience:

…business processes are socially-generated through people, their relationships and inter-actions. These dynamic social processes are emergent (they emerge from what people do together) and they are complex – the people who generate them are diverse, connected, inter-dependent and adaptive.

I prefer self-organising to adaptive. People are not robots. Despite prescribed rules and sanctions for deviating from them, people decide the extent to which they will comply. They self-organise, acting alone (influencing / coercing others) and together in ways that may or may not be in line with what’s expected of them. It is therefore important to have some knowledge of topics like power, cultures (national, organisational, professional, demographic), collaboration, conflict, and how taking personal responsibility and organisational values-in-action encourage humane behaviour.

Anne Marie takes a similar approach to understanding customer-facing workflows — meeting (often undefined) customer expectations through the “outcome of relationships among people, their capabilities and how they interact” — and to workforce needs:

…work is changing. Operational roles are expanding and becoming more socially, technically and organisationally complex. What sort of pressures, for example, might fast-paced, collaborative, relationship-focused demands create for people? What might the issues be where knowledge is new, perhaps abstract and emerges from cross-boundary, cross-cultural conversations.

The issues that Julian and Anne Marie raise brought be back to the technology vs culture discussion I had last week. I am still persuaded that the future for law firms must involve advances in technology. (Those who hold out will become as rare as modern hand-weavers, compared to the successors of the 18th-century developments in weaving technologies.)

But, law is still an inherently people-centred business. As such, technological development needs to proceed with people in mind. When innovation is led by technology, and by people who promote technology without considering its impact on people, it is less likely to succeed than if change is driven by and depends on the interests of real clients, employees and others inside and outside the firm.

The upside of partnership

I have been known to suggest that law firms might benefit from a shift away from the partnership model. I am broadly sympathetic to Bruce MacEwen’s critique of this form of ownership in an environment of change. In particular, the collegiate nature of partnership can make it hard for law firm leaders to assert unambiguous authority, as Laura Empson’s research has shown. However, there are some recent indications that the legal partnership still has much to offer.

Notwithstanding the doom-laden prognostications from a variety of directions (including an assertion that 75% of the current UK 200 law firms could disappear in the next five years), legal partnerships appear to be very resilient. Surprisingly few large firms failed during the financial crisis. There have been failures and those added to mergers and other closures have contributed to a reduction in the number of law firms overall. According to the Law Society’s figures, there has been a fall in the number of firms every year for the last four years — going from a peak of 10,413 in 2010 down to 9,542 in 2014. At the same time, the number of solicitors employed in those firms has gone from 86,748 to 90,306 (the majority of that increase occured in the last year reported).

More evidence of the resilience of traditional law firms came at the end of last week in a report published by Jomati Consultants: Re-engineering Legal Services: How traditional law firms are finally learning to embrace alternative working practices. (I don’t have a copy of the report itself, so I am relying on vicarious accounts of it from Legal Futures and Legal IT Insider.) Jomati identify three areas where firms are changing to meet the market:

• the rise of the law firm-operated low cost centres,
• gradual acceptance of client-facing legal project management and process improvement
• engagement of contract lawyers in addition to law firms’ permanent fee earners.

Jomati reports that firms are taking these steps in response to client demand and to reflect shifts in the market as a whole. They also suggest that many firms are attacking these changes in a piecemeal fashion, partly because of resistance amongst partners.

This second point goes to the heart of the difference between partnership and a more corporate structure. Someone once described a university to me as being staffed with “people who think they are self-employed, and act accordingly.” Much the same is true of partnerships. Partners sometimes resent, and therefore resist, firmwide initiatives that they think undermine their own practices — especially when they also think their clients’ interests are at stake. In many situations, partners’ closer proximity to their clients will mean that their assessment of what is needed might be more realistic than a firmwide approach mandated from central management. More importantly in this context, partners with their clients’ interests at heart might take action to improve the way they work with clients in advance of the firm. Where some partners resist, others will want to be pioneers; partnership allows that possibility.

Recent history is littered with major corporations whose failure came quickly when the market moved on without them — common current examples include Kodak and Nokia. The reasons for those collapses are hard to disentangle, but they often include a failure to recognise and react to environmental changes. The monolithic nature of large corporations makes it hard for anyone other than a small group of leaders and senior managers to take the steps required to change the company’s direction. (Those at a lower level who see the future coming are usually best advised to leave altogether.) By contrast, partnership spreads power more widely. Even a fairly junior partner may have sufficient autonomy to change the way they and their junior colleagues work with their clients — introducing process improvements or changing resourcing models. If they are successful, the whole firm will be able to see and copy. That is the kind of change that Jomati reports seeing across the sector.

It is probably not a coincidence that two of the most significant law firm collapses after 2008 — Dewey & LeBoeuf and Halliwells — were brought about, at least in part, by actions taken by central management. They were probably, therefore more akin to corporate failures. Closer adherence to traditional partnership principles might have helped those firms weather the economic storm better than they did.

Partnership is not necessarily the only way to manage a law firm. It may not even be the best. But it has shown a degree of resilience that corporate structures may lack. On the other hand, the firmer direction that can come with a steeper corporate hierarchy can allow faster and more lasting change across the business. (Will that change always be positive?)

Lawyers moving into business services: good or bad?

Practising lawyers sometimes find themselves moving into operational roles in other areas of their firms. This tends to occur most in areas of business services (especially knowledge management, but also business development, risk, HR and learning, or procurement) where legal skills are relevant or where no particular expertise is needed. (IT, finance and facilities tend not to attract lawyers, except in management roles.) This flow raises two separate questions for me: are lawyers right for these roles; and should the firm be looking externally, rather than moving people within its walls?

The Lawyer’s website today features the story of Linda Zell: a litigation lawyer at Olswang who became the firm’s head of corporate responsibility (CR). Her progress into that role is a really good example of how moves like this come about. Her introduction to CR came from a need to add a paragraph to a client pitch document, and then grew over time to a real interest, then a drive to see it promoted properly within the firm. After a time juggling CR and lawyering, she is now responsible full-time for leading Olswang’s CR strategy. One of the firm’s partners is quoted, “we asked her to write a paragraph on CR and she set up a whole department instead.”

This kind of transition is not unusual — in fact, I did something similar when I moved into a lead knowledge role. Firms need to be aware that good and bad things can flow from such a move.

The upsides

On the positive side, when a firm’s lawyer moves into a new business services role, the firm gets the benefit of someone who knows how the firm and its lawyers work. They therefore have an edge over outsiders who might take a while to get under the skin of the business. This may be particularly valuable in roles like KM or CR, where a significant part of the job involves careful influencing and persuading, so that understanding people is at a premium.

Another benefit is that the lawyer who moves into such new roles is likely (as I think may be the case with Ms Zell) to be especially driven to succeed. When a firm is taking a new direction, this zeal can be very useful.

Most firms consider it important to support their people develop their careers. This might easily be done within existing career tracks. Lawyers may move smoothly from trainee to partner, whilst business services professionals might advance from entry-level roles through management to leading a function. It is much harder, and therefore more laudable, for a firm to show its commitment to career development when someone makes an unusual move such as from lawyering into business services.

The drawbacks

The areas where lawyers tend not to take roles, such as Finance and IT, often depend heavily on technical expertise that lawyers do not have. This is becoming true of some other areas (such as HR and marketing), which have previously been destinations for lawyers moving out of practice. In newer areas, such as CR and KM, firms still have a choice to appoint people with experience and expertise in the field in preference to their own lawyers.

Appointing an expert from outside might allow the firm to be more confident that they were getting the benefit of the most up to date thinking in the area, which could mean that the function could mature much more quickly than if it were led by an internal lawyer. In some situations, the firm’s partners may be more respectful of acknowledged expertise as opposed to a more familiar, but untested, internal appointment.

External appointees might also their own networks of people in similar roles who could swell the ranks of the team quickly if that is what the firm needs. It may take some time for ex-lawyers to be able to develop their new teams around themselves.

Getting the good without the bad

Fortunately, there are ways to get the benefits of internal appointments without the downsides. (Or at least minimising any negative impact.)

One critical step would be to get external validation of the firm’s choice to create the new role in the first place. It may be too easy to give in to the pressure of a lawyer to create a new business services function for them to lead. Most disciplines have a community of consultants who can advise on the adviseability of embarking on this new activity. They might also help to define the purpose of the function, and help the firm to develop a role profile for the ideal leader. If the internal candidate matches this role profile, then the firm would know it was on the right track.

The new appointee might also benefit from external support, and good firms should budget to pay for this. No matter how enthusiastic someone is, starting up a new support function is a hard task. Almost inevitably, in this scenario, the new appointee is the person in the firm who knows most about the job. Without an internal mentor or coach, they may not get the right kind of constructive support and flounder quickly. If they are able to draw on expertise from outside, the firm will get some of the benefits of making an external appointment.

On the whole, then, I think firms should continue to help their lawyers move into different areas of the firm, but they need to be aware of the possible risks and manage them sensibly.

(In case it needs saying, I have provided support of the kind described for knowledge roles. Please get in touch if you are new to a knowledge role, or if your firm is thinking of creating or extending its knowledge function.)

Process won’t save you from mistakes

One of the benefits of Twitter for me is that I get great pointers for new things to read from the people I follow. One such came a couple of weeks ago from Simon Bostock. He drew my attention to “Bedford and the Normalization of Deviance” — an analysis by Ron Rapp of a recent National Transportation Safety Board (NTSB) crash report. In Rapp’s words:

…after fifteen years in the flying business, the NTSB’s recently-released report on the 2014 Gulfstream IV crash in Bedford, Massachusetts is one of the most disturbing I’ve ever laid eyes on.

If you’re not familiar with the accident, it’s quite simple to explain: the highly experienced crew of a Gulfstream IV-SP attempted to takeoff with the gust lock (often referred to as a “control lock”) engaged. The aircraft exited the end of the runway and broke apart when it encountered a steep culvert. The ensuing fire killed all aboard.

…in this case, the NTSB report details a long series of actions and habitual behaviors which are so far beyond the pale that they defy the standard description of “pilot error”.

As we know from Atul Gawande’s work and elsewhere, pilots are supposed to work methodically from checklists. In larger aircraft, there will be more than one pilot so that each can check the other. In this incident, neither of those safeguards prevented a complete failure to attend to instrument warnings or follow instructions to avoid the crash.

Rapp suggests that the aggregation of errors in the face of clear instructions and warnings is an example of the normalisation of deviance. This is a term coined by an American sociologist, Diane Vaughan, in a study of the culture of NASA that contributed to the Space Shuttle Challenger disaster. She summarised the concept in a later interview:

Social normalization of deviance means that people within the organization become so much accustomed to a deviant behaviour that they don’t consider as deviant, despite the fact that they far exceed their own rules for elementary safety. But it is a complex process with some kind of organizational acceptance. The people outside see the situation as deviant whereas the people inside get accustomed to it and do not. The more they do it, the more they get accustomed.

Vaughan’s work has been developed by others. I first came across the concept in a radio programme in 2010, in which Scott Snook was quoted:

Each uneventful day that passes reinforces a steadily growing false sense of confidence that everything is all right — that I, we, my group must be OK because the way we did things today resulted in no adverse consequences. 

When I tracked down this quote to its source, in Chapter 6 of Snook’s book, Friendly Fire: The Accidental Shootdown of U.S. Black Hawks over Northern Iraq (an account of an incident in Iraq in 1994), I discovered that there was more useful detail, which is directly relevant to the growing use of checklists and processes in law firms and elsewhere.

Practical drift between stability and instability

A useful summary of Snooks’s insight can be found in Industrial Safety and Hygiene News, by reference to the diagram linked below.

Snooks’s model describes behaviour in four quadrants bounded by the degree of ‘situational coupling’ and ‘logics of action.’

Situational coupling is described as loose or tight, depending on the extent to which parts of the organisation are free to operate autonomously. The more interdependence there is between different parts of the organisation, the tighter the situational coupling.

Logics of action are described as rule-based or task-based, depending on the primary driver of actions in a particular context. Rule-based actions are driven by checklists, policies, or other pre-determined norms. Task-based actions are more likely to be responsive to the immediate scenario or on local or personal habits — doing whatever is necessary to get the job done.

Snooks’s view is that two of these quadrants are mismatched and therefore unstable — that is, rule-based logics of action are unstable in loosely-coupled situations, and task-based logics are unstable in tightly-coupled situations. The ‘practical drift’ described by the circle of arrows in the centre of the diagram suggests how organisations move through the sequence from stable to unstable quadrants.

Law firm process and normalisation of deviance

How might this apply to the way law firms adopt (or improve) working processes?

The starting point would be a desire to define the nature and content of the policies or processes to be applied across the firm — these might cover working practices, compliance requirements or client-care standards, for example. These norms are set in the ‘design’ quadrant — where there is a common view that the firm needs to work together to achieve a particular goal (therefore tightly-coupled and naturally rule-based).

Once the rules are set, they become the basis for action, even when parts of the firm are working separately from other parts. This is the second quadrant, described as ‘engineered’ because actions are forced to be rule-based rather than driven by the context. Whilst the rules are new, they tend to be followed despite the mismatched nature of the situation. As such, the firm need have no cause for concern (apart from some teams reporting that the situation feels unnatural).

However, because of the mismatch, work in a loosely coupled situation will eventually default to task-based behaviours. This means that in the third quadrant (‘applied’ in the diagram), people will work in a way that feels more natural. They may ignore the wider organisational rules because they ‘don’t feel right’ or because a better outcome (personally or for clients) can be achieved by responding to more concrete or immediate needs.

This is where normalisation of deviance arises. All those involved know what the rules are, but they (tacitly or otherwise) agree to act according to a different set of standards. For the most part this is not a problem. As Snooks puts it, loosely coupled systems are both resilient and fragile. They can last a long time — until an external, possibly random, factor breaks them. This is where the original quotation resurfaces:

Each uneventful day that passes in a loosely coupled world reinforces a steadily growing false sense of confidence that everything is all right — that I, we, my group must be OK because the way we did things today resulted in no adverse consequences.

The emphasised phrase (omitted when I first heard the quotation) makes things much clearer.

Failure (the fourth quadrant) occurs when the system is pushed into a tightly coupled situation. This may happen when work that usually progresses autonomously is forced to take account of actions elsewhere within the firm or even externally. Where there is interdependence, task-based norms no longer work, because the newly introduced elements cannot be aware of the traditional behaviours (whether deviant or otherwise) of the loosely coupled team. In the worst-case (such as that described by Snooks in 1994 Iraq), previously loosely coupled teams have to assume that everyone else is following the rules, and behave accordingly, with fatal or disastrous effect.

Avoidance mechanisms

I think many, if not most, firms could identify situations falling into the failure quadrant. These errors may be minor, but they always have a cost — the persistence of a particular type of mistake-making inevitably suggests deeper problems to clients or insurers. How can they be avoided?

The standard response to persistent errors is to provide additional training and to highlight the importance of the rule-based systems even for loosely coupled situations. As I have pointed out before, this approach is rarely successful. On further reflection, I think a better response needs to be developed with the errant team.

Snooks’s description of practical drift suggests that the problem isn’t simply disobedience to organisational rules — it is that a rules-based logic does not match the needs of a loosely coupled situation. I suspect persistent errors in law firms occur more often in teams that work autonomously, and which are therefore more comfortable using task-based logic to structure their work. As such, then the answer must lie in one of two options.

The first is probably most attractive to firms with an interest in controlling the work people do. This would be to force interdependence between teams across the organisation. If the organisation becomes tightly coupled by default, adherence to common rules would be more natural. There may be additional benefits in such a refocusing of work, and they could make it more palatable, but otherwise it may be a struggle within the normal partnership model.

The second option is to open up a discussion about the way loosely coupled teams work, especially in difficult situations. This might include making work more visible, or clarifying the shared task-based logic used by different teams, so that the wrong assumptions aren’t made. Discussions of this type are likely to be very sensitive (particularly if they are positioned as a response to error-making), and so they probably shouldn’t be undertaken by the firm’s management. Impartial external, but informed, facilitation would be more fruitful. (Of course, if your firm is interested, I can do that.)

Even if no action is needed, being aware of practical drift should help firms understand better why and where their process improvements might succeed (and, more importantly, what might make them fail).

The unknown future of technology

Last week saw the fortieth anniversary of the first commercial passenger-carrying Concorde flight, as highlighted in this tweet by Aviation Week:

#AWarchives: the inaugural @British_Airways #Concorde pax service took place 40 years ago https://t.co/UPg4ZUE1y0 pic.twitter.com/d9hzMDU1zK

— Aviation Week (@AviationWeek) January 21, 2016

Concorde was probably the most well-known product of Harold Wilson’s government’s high-profile science and technology policy during the 1960s. (Strictly speaking, the joint Franco-British project started under the preceding Conservative governments, but much of the work was done under Labour.) That policy was announced in a speech in 1963, whose concluding passages included the following fateful words:

The Britain that is going to be forged in the white heat of this [scientific] revolution will be no place for restrictive practices or for outdated methods on either side of industry. We shall need a totally new attitude to the problems of apprenticeship, of training and re-training for skill.

“The white heat of technology” became a watchword for the Labour governments of 1964-1970. Looking back, it might also be seen as a kind of curse. Some of the highest-profile advances of this era had little lasting impact, or were undone in later years by the kind of outmoded methods and practices that Wilson said should be rejected.

Concorde was one of those disappointments. The development and production of a supersonic aircraft was an incredible achievement, but it was only purchased by the national carriers of France and Britain. Other airlines conducted evaluations, and some went as far as placing orders. All the orders were cancelled over time. Concorde remained in service with British Airways and Air France until late 2003 when it was withdrawn by both airlines, due to low passenger numbers and rising maintenance costs.

Concorde’s purpose was purely to carry passengers faster than other aircraft. This purpose was shared on the sea by another 1960s technology: the hovercraft. Just as Concorde cut the time for Atlantic air crossings, the SR.N4 hovercraft operated by Seaspeed, Hoverlloyd and (after their merger) Hoverspeed allowed passengers to cross the English Channel in a fraction of the time taken by traditional ferries.

In the end, though, not enough people wanted to pay the premium to save on their travel time. The hovercraft service between England and France ran for just over thirty years — from 1968 until 2000. The cost of fuel ultimately made the service uneconomic — especially once cross-Channel duty-free sales were outlawed (like many forms of transport, traditional retail opportunities had subsidised the core service).

The real problem for the hovercraft and for Concorde was that they prioritised the wrong thing. Whilst their progenitors (including the British government, which subsidised both projects either directly or through its management of the transport operators) concentrated on speed, travel became a volume business. As foreign travel became more common, it would be more important for operators to have craft that could service as many passengers as possible. Since the high-speed options tended to have limited capacity, they were much less attractive.

As a result, Concorde was much less successful than the Boeing 747. The latter plane was developed at about the same time, but was far more capacious and flexible in operation. Concorde could only carry a maximum of 120 passengers, whilst the smallest 747 variant carried 480 people. The 747 was also capable of longer flights. Unsurprisingly, the Boeing remains in production (albeit in updated form).

On sea, a similar pattern emerged. Whilst hovercraft services operated, the traditional ferries stayed in service. Although slower, the ferries carried 3-4 times as many passengers and cars.  It wasn’t until the Channel Tunnel opened in late 1994 with a high-speed high-volume service that the sea-borne craft of all types were properly threatened.

This stark retelling of the history of Concorde and the cross-Channel hovercraft would suggest that those investments were a complete waste — the only return was 30-40 years of high-speed travel for a small minority of travellers. But there were other benefits. The most obvious is that the Anglo-French cooperation in developing Concorde was the foundation for the Airbus consortium, which is now the main competitor to Boeing in the production of large passenger and cargo aircraft. Hovercraft technology is not dead — in a modified form, it persists in surface-effect ships such as Norway’s Skjold-class corvettes.

The outcome of these experiments could not have been foreseen. That they were not commercially successful is not a reason for suggesting that they were misconceived from the outset. Their failure arose from changes in the market (the behaviour of the travelling public and the global oil market) as well as governmental action (liberalisation of air and shipping services on both sides of the Atlantic and the Channel, together with closer European integration). I am certain that almost nobody could have predicted the result of this combination of factors, even if they had foreseen each alone. In the end, though, very few unsuccessful ventures produce absolutely nothing of value at all.

And that is where I draw a link with current technology developments in the law. As I have mentioned before, the technologies of the future are not necessarily the ones we predict in the present. That said, there is an incredible amount of technological change and experimentation in legal services at the moment. Some of those experiments will be as successful as the Boeing 747 — changing the way people use the law across the world. Some will be as exciting as the hovercraft for a while, but will ultimately be beached for reasons that are currently unforeseeable.

There are a few important things to bear in mind during this period of novelty.

Experimentation is necessary, which means that some things won’t work out quite as intended. Firms that stick to what they know might be lucky to survive, but they may still be overtaken by those that experiment and fail.

It is possible to try more than one experiment. Unlike other professional services firms, law firms struggle to diversify in the services that they offer — few stray beyond the law — but they can try different ways of working.

Don’t forget the people factor. At a technology level, Concorde and the large hovercraft were a success. They delivered exactly what was promised — fast, safe travel. But they didn’t serve people in the way they wanted. The market chose something different. Likewise, law firms’ may create technology-based services that are successful in their own terms, but fail to appeal to people for some reason. Projects that are driven by technologists (in the broadest sense of the term) are more likely to forget to consider how people (lawyers, clients, regulators, and others) might react.

What is going on elsewhere? This is crucial. The lessons learned from Concorde resonate beyond the companies and teams directly involved in that project. On the other hand, had those people paid closer attention to the development of the package holiday and the work being done in other areas of the aircraft industry, they might have decided to cut their losses much earlier than they did. Likewise, law firms need to be aware of how other firms’ experiments are progressing. Just as businesses need to avoid reinventing their own wheels, they should try not to repeat other people’s mistakes but build on their successes instead.