Should we manage our existing process more proactively? Or should we change the process and then manage the new process more effectively? Does it matter? More than four years ago I wrote a blog addressing "which comes first, legal project management (LPM) or legal process improvement (LPI)?" At the time, there was a lot of confusion about the two terms. They were used interchangeably and the concepts of both were included in defining one or the other. Two years later, I addressed the topic in another blog. There was more clarity around the definitions at that point, but the question of which should come first was still debated.
Ultimately, the legal arena decided, for the most part, that LPM comes first. Is this a classic case of the tail wagging the dog? Not really. Both techniques are important. The truth is the two methodologies support each other. If you use LPM techniques, you inevitably identify ways to improve some aspects of the project (i.e., process improvement) as you manage work more carefully and with more tools than in the past. The difference is in the level of scrutiny of the steps in the process. LPI is about designing an "ideal" process and LPM is operating that process. The resulting change from LPI is a more efficient process. LPM results in a project that is well managed and completed on time and on budget. LPM skills are essential in order to manage to the new, more efficient processes that are developed, if you want those new processes to be successful. Both methodologies provide opportunities for improved performance.
Not long ago, only a few firms were recognizing the need to analyze the steps in some matter types more closely and to identify where there are short-term and longer-term opportunities to streamline those steps and those types of matters, in addition to improving performance with LPM. Today, more and more firms are tackling the topic of LPI. Many are still just talking about it, while others are identifying matter types where LPI could have the greatest impact.
So what's inhibiting broad acceptance of LPI? I'm certain some cynics would claim that lawyers and law firms chose to focus on LPM first, and sometimes exclusively, because it's easier or less threatening than LPI. But I believe other reasons are involved as well.
In my experience, the resistance to LPI falls into several categories and each is worth exploring:
- Recognition that other things are impacted by changing how services are delivered (e.g., staffing, fees, compensation) and too overwhelmed to know where to start
- Belief that services and people will become commoditized by "standardizing" the process
- Lawyer personalities and resistance to change
LPI does impact other things—and it should—but that doesn't mean it all has to be tackled (or "fixed") at the same time. When a process is streamlined, staffing needs change. Ideally, lower rate professionals will be able to complete more standard tasks. That's the point. Those tasks that are repetitive across matters should be done in as uniform a manner as possible and by the lowest cost professionals possible. The unique tasks should be the focus of the highly experienced lawyers.
Fees will change. Again, that's the point. The idea is to have routine matters handled at the lowest possible level—use technology or non-timekeepers, if possible—in order to reduce the cost of the service to clients. This means that lawyers and firms need to rethink how to maintain profits under that scenario. Fixed-fee billing, which is accurately priced and managed to budget, is often the answer. This is where strong LPM skills are critical.
Compensation systems are still frequently linked to bulk revenue, and not enough consideration, if any, is given to efficiency, low cost, or profitability. This may be the last thing to change, but that doesn't mean firms should continue to deliver legal services in an inefficient manner. Delivering value to your clients should be the driving force behind your choices, not your compensation system. If not, you're likely to lose your clients.
Fear of Commoditization
A key concept behind LPI is efficiency. It's true that historically lawyers have not been paid to be efficient. They were paid primarily for their legal expertise, but the primary measurement tool, billable hours, encouraged inefficiency. To be fair, over time firms differentiated themselves on a number of other factors—e.g., price, geography, industry expertise, responsiveness, relationships, etc. In today's market, those differentiators are no longer enough. Law firm clients expect their lawyers to be efficient and to deliver high quality at the same time—and maintain all those other qualities.
Does that mean a lawyer's work is commoditized in the process of creating efficiencies? The answer is "sort of." Part, but not all, of a lawyer's work is recognized to be commodity work through an LPI initiative. This is where LPI skills and techniques are helpful. If LPI is employed, then one is able to identify the repeatable and more routine aspects of legal services. Those services are streamlined, outsourced, replaced with supporting technology, sourced back to the client, or eliminated completely. These are the aspects that become evident with experience and they comprise the "decades of experience" a firm has in handling these types of matters, when they're pitching their services to clients. The unique aspects of a matter, or even of similar matters, are what remain, and those require significant legal expertise. Clients are willing—and perhaps even reluctantly happy— to pay for that expertise and those unique legal skills.
Now, if employing LPI skills and techniques offers firms an opportunity to showcase their unique expertise, and perhaps charge a premium for those, does implementing an LPI initiative necessarily mean commoditizing services? Perhaps it doesn't. Law firm clients have already decided they will not pay for what they view as commodity or routine work. Routine work is just that—it's routine and it's what a firm has already told the client they know how to do based on having done "a lot" of this type of work. If LPI helps a firm identify the routine pieces of a matter and reduces the cost of delivering those pieces, then profits are no longer squeezed out of those routine pieces, or at least not as much. What comes to the surface with all that experience is how to handle the unique aspects of similar matters. These are the aspects of the matter where premium rates can be charged.
Resistance to Change
What is it about lawyer personalities that would hinder the implementation of LPI techniques? Turns out there might be a few things. According to Dr. Larry Richard, Principal Consultant for LawyerBrain LLC, lawyers share a number of personality traits that distinguish them from the general public. Dr. Richard has been studying the personality traits of lawyers for over 20 years and has measured dozens of traits among thousands of lawyers. Results from one test, the Caliper Profile, indicate that lawyers are very different from the general population in 6 of 18 traits. Three of those six—Abstract Reasoning, Skepticism, and Urgency—likely contribute to the delay, postponement or abandonment in rethinking the delivery of their legal services.
Abstract Reasoning—This trait indicates the potential to solve problems and understand the logical relationships among concepts. People who show a high level of abstract reasoning ability are typically capable of understanding complex issues and integrating information. Lawyers score an 82 as compared to the general public score of 50.
Impact of trait on implementing LPI: The potential for "paralysis by analysis." Lawyers tend to overanalyze something or challenge something because they enjoy challenging another's ideas. So, if someone is suggesting that they deliver their legal services differently (i.e., look at the current process and identify a more streamlined approach or improve the process), they can either analyze it to death (paralysis) or challenge it to the point where nothing is accomplished.
Skepticism—This trait indicates one's inclination to doubt or question others' motives. Caliper's research has shown that this attribute is a "performance inhibitor" in some jobs. Highly skeptical individuals tend to be guarded and doubting of others' intentions. Lawyers score a 90 as compared to the general public score of 50.
Impact of trait on implementing LPI: High skepticism correlates with being cynical and/or argumentative. As such, a skeptical lawyer is likely to be adversarial in all encounters, especially if he or she perceives that delivery of legal services is being challenged. Mapping a process and identifying potential areas for improvement require a collaborative effort, not a confrontational one. Skeptical lawyers derail those efforts.
Urgency—This trait measures the tendency to take quick action in order to obtain immediate results. It's a measure of an individual's sense of immediacy and a need to get things done. High scores on this attribute tend to be driven to act quickly. Lawyers score 71 as compared to the general public score of 50.
Impact of trait on implementing LPI: High scores correlate to impatient and results-oriented. Analyzing a process takes time and patience. Identifying how to streamline that process takes even more time and patience. Monitoring and controlling to that new process takes yet even more time and patience (and attention to detail). If lawyers have high urgency, they're unlikely to want to spend the time analyzing a process. They would rather get to work on solving the client issue (the legal issue).
Combine these three traits with lawyer high autonomy scores (dislike for being told what to do) and low resilience scores (resistance to criticism or perceived criticism) and it's clear that it's a challenge to try to get lawyers to consider LPI. Does that mean we shouldn't try? Or is it all in the approach?
So how do you get started? Where should you start? Which should be first—LPM or LPI? It doesn't matter. Just get started.
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