A Company’s Legal Health Calls for Skills that Attorneys Lack

A few years ago the Washington Post published an article entitled, “There Really are 50 Eskimo Words for ‘Snow'”:  ” … ‘Aqilokoq’ for ‘softly falling snow’ … ‘piegnartoq’ for ‘the snow good for driving sled’ ….”, etc. An Inuit living above the Arctic Circle needs to be precise in describing something so vital to daily survival.

So for a company concerned with its legal health in the cold litigation and regulatory climate of the United States in 2018, it’s too bad that the legal industry has only two words for professional talent:

“Lawyer”, and

“Non-lawyer”.

(And most lawyers aren’t all that excited about substantial delegation to anyone not bearing the title “lawyer” — more about that below.)

It’s too bad because effective delivery of legal services to a client company requires more skill sets than lawyers’ limited, two-word vocabulary can describe:

Skill set #1. Legal analysis and advocacy: Critical examination of statutes, court decisions, and regulations in light of the client company’s circumstances — and arguments to persuade judges, agency officials, and opposing counsel that the client company is in the right. (Unlike the rest of this list, this task absolutely calls only for the skill set of attorneys licensed in the relevant jurisdictions, and it’s what lawyers are trained for in school and — after at least 4 or 5 years experience — acquire on the job.)

Skill set #2. Design and management of work flows: The use of process design and project management to insert lawyers’ skills where they’re needed — and to avoid involving lawyers where they’re not needed.

Skill set #3. Purchasing of legal services: Once legal goals are identified and work flows are designed, identifying and securing the right attorneys for the right task at the right price.

Skill set #4. Technology: Software to improve management of the work flows designed to achieve legal goals — for enhanced accuracy, reduced cost (including less lawyer time), and increased delivery speed.

Skill Set 1 absolutely requires “lawyers”. No other kind of professional talent will do.

But Skill Sets 2 through 4 don’t require lawyers as much as they call for cost control and other executive skills: General managers, project managers, business process designers, and IT specialists — with attorneys (possibly) having some helpful suggestions at the margins.

The problem: Most lawyers’ schooling and work life consists of learning and perfecting Skill Set 1: Legal analysis and advocacy.

Yet the legal industry’s business effectiveness — much of its accuracy improvement (through technology), its potential to reduce costs (notably through savings on expensive lawyer time), and any possibility of accelerated delivery depends on Skill Sets 2 through 4.

Unfortunately for the legal industry’s client companies, Skill Sets 2 through 4 are the bailiwick of those whom lawyers relegate to the undifferentiated, second-fiddle title of “non-lawyer”.

Last week the Association of Corporate Counsel’s Legal Operations Conference in Chicago included a panel titled “The Rise of the ‘Non-Lawyer’: A Panel Debate”. Legaltech news described the question facing the panel:

“What does it mean to be a non-lawyer in the legal industry? It means … well, it could mean a lot. There are process engineers, and project managers, and technologists, and business designers, and accountants, and a whole lot more.”

One panelist put it this way:

” … Why pay $500 to an outside counsel to essentially do project management spreadsheet work, when an actual project manager would perform the task just as well, and more cost effectively?

“It behooves us in the legal business to see that you don’t always need a lawyer to solve the problem that you’re facing.”

The panelists asked their audience what’s keeping lawyers from giving over that power to the project management specialist, technologist or whomever where they have a better skill set than an attorney:

“The panelists asked the assembled crowd via a web-based poll question, and drew laughs when 28 of the 46 respondents answered, ‘Ego’.”

Of course the client company needs lawyers. It needs them to do the legal analysis and advocacy described in Skill Set 1.

But client companies don’t necessarily need lawyers for Skill Sets 2 through 4.

As I’ve said before in this blog:

1. Lawyers need to do the lawyering, but

2. A company’s law function needs to be accountable to general managers who are responsible for the whole business — not just to other lawyers.