This is a tale of two definitions. Two definitions of what “productivity” denotes in the delivery of legal services to a company.

It’s about an MIT-trained software engineer named Jason Barnwell who worked in one of the country’s major corporate law firms right out of USC Law School.

The tale begins two months into his first job with a nationally prominent corporate law firm.

Spoiler alert: In Part 2 we learn that Jason Barnwell later became — and is now — Assistant General Counsel – Legal Business, Operations & Strategy at Microsoft.

But I’m getting ahead of the story.

Jason Barnwell had been, “staffed as the junior-most associate on an M&A deal advising our client as they sold their business”. He was “naïve” enough — his word — to believe that automating a process in which the law firm deployed six associates and paralegals to manually photocopy and collate voluminous shareholder consent documents would offer greater productivity to his team at the law firm.

And to the law firm’s client company.

By writing some basic computer script that was part of his software engineer skill set, Mr. Barnwell’s automation solution would enable one individual to prepare all of these necessary transaction packages — thus freeing up the remaining five team members to do the other tasks needed to close this M&A deal.

For Jason Barnwell — veteran of 4 years of software engineering — getting more done, with fewer resources, in less time, and with fewer mistakes — that all seemed fairly “productive”.

But Jason Barnwell — newly minted attorney with a mere 2 months of corporate law practice — was about to learn that his new profession had a different definition of “productivity” than he’d been taught at MIT.

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The case of Cass v. 1410088 Ontario Inc. contains this one sentence written by an Ontario Superior Court judge in the course of disallowing from an attorney’s fee request the amount designated for “legal research”:

“If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced.”

Padding on the hours billed for researching case law is a favorite method for bulking up legal fees related to court cases — for lawyers in the United States — as well as for those in Canada:

1. Thomson Reuters’ Canadian arm noted this:

“Judge says AI could have been used”, and “Courts mindful of technology”.

2. A Toronto-based intellectual property lawyer offered this observation:

“Really, that judge was saying, ‘If you can do this faster, why are you not doing it faster? Why are you charging your client for something that could be done more efficiently?”

3. And the CEO of legal AI pioneer Ross Intelligence Andrew Arruda tweeted:

“If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced.

“… IT’S HAPPENING FOLKS.”

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In the Financial Times article which concludes with the above statement, English lawyer David Allen Green reminds the reader that the value of legal work depends on quality — not quantity:

“… To assess the value of legal advice purely on the basis of cost or volume of output is a mistake. The most valuable legal advice can be succinct, the most effective legal letter can be one page long. What businesses are paying for is expertise and security. The point of legal advice for a business is to ensure that the right protections are in place and that risks are well managed. The problem with expertise and security is that they are hard to calculate by reference to the size of outputs.”

So wrote English lawyer David Allen Green in the Financial Times the other day to conclude his op-ed on how to cut legal costs:

“The best way for a business to manage legal costs is to be clear about what it wants from lawyers and to force them to be clear about what they offer ….

“… Technology can only help so much. To manage costs directly needs a change in attitude as well as new hardware or software ….

“Legal technology is not primitive magic. It can have a beneficial effect on legal costs only if the will is there. Precision, plainness and purpose are more important ….

My goal for my readers and my clients is the same as Mr. Allen’s for his readers and clients: Clarity of thought on exactly what business owners and managers need from their lawyers — and specific guidance on how they can get it.

This English commercial lawyer urges business people to get control over their legal costs by getting clarity of thought about what they actually need from their attorneys. To make this point he underscores what’s unclear to most business clients about their lawyers.

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In business getting “results” is basically a management question.

So is getting artificial intelligence (AI) or any other tech innovation right.

But it’s vital to begin with a management approach that can achieve those results — only thereafter does it make any sense to pick AI or any other tech innovation to reach them.

As Aileen Leventon — counselor to the legal industry and practicing attorney — put it:

“Tech is easy. Figuring out what really matters is hard.”

Part 1 and Part 2 of this three-part series describe the views of Dr. Richard Susskind — Scottish lawyer and Oxford PhD in computer science — on how AI can get the “results” business people need from their lawyers and other professionals — faster, cheaper, and more accurately.

Before I had read Dr. Susskind’s essay (British Academy Review’s Autumn 2018 edition), I viewed him as the leading thinker in the world on “how information technology and the Internet can improve lawyers’ effectiveness on behalf of business clients”.

But in light of his essay cited above, as covered in Parts 1 and 2, it would be more accurate to describe the aim of Dr. Susskind’s work a little differently:

Not: “How information technology and the Internet can improve lawyers’ effectiveness on behalf of business clients”. 

But instead: How information technology and the Internet can improve the “results” — or the “outcomes” — that business clients want in their legal affairs.

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In Part 1 of this three-part series, I wrote that business people care about results.

And that 99.9% of a lawyer’s education and focus are devoted to analytical preoccupations and time-honored how-to methodologies — “lawyer tasks” — not so much to the results their clients really care about.

Lawyers are focused on the “how” of their professional skill sets to such as extent that it obscures the “why” of their clients’ desired business outcomes.

Also in Part 1, I introduced Dr. Richard Susskind’s thinking on how artificial intelligence (AI) could bypass attorneys’ obsession with those “lawyer tasks” — to target results instead — what he calls “outcome-thinking”.

Here’s Dr. Susskind’s diagnosis of attorneys’ obsession with their “lawyer tasks”:

“… This kind of task-based thought is deeply flawed. Think about legal work. Commentators and practitioners often insist that much of the work of lawyers is beyond the reach of technology. They will suggest, for example, and not unreasonably, that the work of court lawyers cannot be replaced by machines. How on earth could a robot appear as an advocate before a judge? The answer, of course, is that we are light years from this happening. But the story doesn’t end here, because these traditionalists are asking and answering the wrong the question. Mistakenly, they are focusing on current ways of working rather than on whether the outcomes that court lawyers deliver might be achieved in very different ways.”

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Business people care about results.

That was the biggest lesson I learned upon crossing to the client side of the lawyer / client table.

After spending a decade as a practicing attorney.

Kind of a “duh” factor for my friends who’ve lived and died by the P&L all their careers.

But for a lawyer whose career had been devoted to the analytical preoccupations and time-honored how-to methodologies that occupy 99.9% of a lawyer’s education and daily focus — it was a revelation.

Until I shouldered executive responsibilities, I was tone-deaf to what business “results” actually were.

… 

How to get the results-oriented legal services that business clients need — if their attorneys can’t seem to see beyond their “lawyer tasks”?

This is where Dr. Richard Susskind‘s recent insights — and artificial intelligence (AI) — might help. Susskind is a British lawyer and computer expert.  His work emphasizes the ways in which information technology and the Internet can improve lawyers’ effectiveness on behalf of business clients.

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One of this blog’s goals is to help business owners and managers understand why their lawyers act the way they do.

My question in this two-part series: Why don’t more law firms treat the businesses that pay their bills like customers?

In my post a week ago I quoted Forbes’ legal commentator Mark Cohen:

“There is unambiguous evidence of a significant and persistent disconnect between law firms and their clients. Only 25% of corporate legal buyers said they would recommend their ‘go-to’ law firm.”

A business owner or manager might ask: Why can’t law firms treat my business with the same care and attention with which Southwest Airlines, Starbucks, the Cleveland Clinic — or my local dry cleaners — treats me?

Law firms are rarely managed the way that you run your business. To move toward a relationship with them that better serves your interests, it would help to understand how certain perverse incentives in the law firm world work.

The way law firms handle internal issues — like the two addressed below — creates perverse incentives. And those perverse incentives make law firm leadership more responsive to its partners — its owners — than to the organizations who pay their fees.

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