COVIDA LOCO

Woman in Grey Jacket Sits on Bed Uses Grey LaptopMost law firms have been lawyering the covida loco these past few months, and partners are encountering fundamental and rapid changes in the practice of law.

One major change has been the “free association” law firm. Previously unthought of, lawyers have been working remotely during this unsettling time. This has brought some profound revelations.

Experience revealed how well this has been working. Although a May 4, 2020 Clio briefing showed a 30-per-cent reduction in legal matters, clients are still coming in, meetings are being conducted, files are being filed, and there has been litigation. Lawyers always seem to do well in times of change. Boom times mean purchases, mergers, and new public offerings. Down times means sales, foreclosures and litigation over lack of disclosure around the public offerings.

The COVID-19 experience has ideally shown us how robust our information systems have been. With just about everyone accessing the network, some calls and meetings may not have proceeded as smoothly as one would have liked; but at least they happened.

A significant downside of the increase in online usage, however, has been a corresponding increase in phishing and other socially engineered attacks. Although your IT department may be marvelling at its impenetrable firewalls, it is always the human element that will continue to be the weak link.

One surprise may be the increase in productivity and billable hours during these past few months. The enterprise software company Aternity’s analysis from Feb. 24 through March 26, using its Remote Work Productivity Tracker, showed a 25-per-cent increase in employee productivity generally. One can assume the reduced commute time has been used as effectively as possible — or perhaps staff have just been working harder to show how well the remote office does work.

Of course, we cannot ignore the potential Hawthorne effect. In 1924, Western Electric in Chicago announced that they would increase the lighting in one of its factories, Hawthorne Works, in order to improve productivity. When the lighting was increased, productivity increased. Eventually other health benefits were provided and productivity increased again, even after the light levels were returned to where they had started.

Researchers then determined that workers were in part responding positively to the increased attention being paid to their workplace, and that listening to the concerns of staff provided the most productivity gains. So just be mindful if productivity gains in the firm show up merely in the short term. Ensuring long-term gains requires, interestingly enough, measuring things for the long term.

 

Another revelation has been the potential to reduce downtown office space. Law firm accountants may be too quick in counting the possible gains as they contemplate the “new normal” of working at home and reducing office costs. Yet although half of the staff may be enjoying the remote office, the other half are starting to have serious concerns.

Working from home can have a serious impact on staff morale. The isolation and reduced human contact may eventually take its toll on overall productivity. There may be increased turnover as some gravitate back to a more traditional law office with in-person mentorship. Although remote work has always been seen as a perk, many do not see it that way.

Remote work affects corporate culture. This includes the way things get done and how people interact. The culture may persist in the short term as you continue to interact with people that you have known for years. You can apply previous social interactions to flesh out the reduced present ones. However, as more time passes, soon you will be Zooming with people you have never met and may never meet. Pleasantries will continue but deeper working networks may diminish somewhat.

This would become a major concern for legal operations and overall knowledge management. Knowledge can be found throughout the law firm, but a substantial portion of this knowledge is found within the lawyers themselves, and is often gleaned from them by wandering around and sticking a head into another’s office to ask a question. This transfer of knowledge between senior and junior lawyers forms an important portion of each other’s overall development, and this knowledge exchange may be diminished in the present state of remote work.

All this could lead into a greater long-term failing: reduced innovation. Any innovation is the end product of a series of other steps including inspiration, creativity, motivation, entrepreneurship, and finally innovation.

Interacting with others can feed into each one of these steps as we each learn what is happening in the legal field, what has worked and, just as important, what has not. Inspiration can be triggered by seeing other bits and pieces of what others have done, leading to creating something new. Most motivation comes from within, but external motivators are helpful. The same applies to entrepreneurship. However, by the time the firm notices that innovation is declining, it may be severely behind the curve.

A strong argument can therefore be made for retaining some office structure where people may still interact face-to-face in a physically distant but intellectually and emotionally intimate way. This may mean alternating days within the office, and mixing staff around so they get exposed to new ideas and tacit knowledge.

As difficult as it may seem, steps need to be taken to ensure that law firms stay as human as possible.

 

photo by Pexel

#law #covid

Never let a good crisis go to waste

pexels-photo-4031818 woman on computer

Never let a good crisis go to waste.
—Winston Churchill

Churchill recognized the basis of good change management. If you needed to get something done but couldn’t under normal circumstances, then a good old-fashioned crisis usually allows you to get the changes you want.

Another aspect of change management includes looking at changes on an enterprise, organizational, and finally an individual level. For the future of law, we are looking at how the education, the delivery, the institutions and the law itself will likely change after COVID-19 has rampaged across the globe. No one really knows for how long COVID-19 intends to affect the overall global socio-economic environment, but March 15, 2021 looks like a good bet. (A bit of a stretch, perhaps, but Johnson & Johnson have a promising vaccine lead with human trials starting in September and likely emergency distribution in early 2021.)

Change management includes a number of best practices you can follow, namely starting at the top, getting engagement from stakeholders, finding champions, scoring some initial wins, and issuing communications. But a sometimes forgotten component is developing a sense of urgency. And COVID-19 supplies this.

Law schools, for example, were already at the forefront of change; they have been slowly incorporating online classes for years. The American Bar Association guidelines released in February indicate that over 150 law schools have moved to an online course format. This should have the added benefit of reducing costs and overall debt load of students.

Whether the online format is as good or better than the traditional classroom format that most lawyers are familiar with remains to be seen; but most learning may have taken place when you were reading on your own in any event. To confirm which format is better, a multifactor comparison in a peer-reviewed journal with replicated examples would be required to show the difference between online and traditional schools. Which is a long, polite way of saying it will probably never be confirmed.

The online learning model fits in well with the Canadian Centre for Professional Legal Education’s Practice Readiness Education Program (CPLED PREP). PREP, which will launch this June, is a nine-month program with four phases involving interactions, transactions and simulations. This is a new way of promoting other forms of competencies, such as professional ethics and practice management, which would nicely compliment an online law school. The old-fashioned articles may be the next thing to go. Up online, I mean.

We have all likely been experiencing this more cloud-based style of law firm. Most of us have had experience working remotely. I volunteered to give up my office almost a year and half ago. There may have been a day and a half of regret right at the beginning, but it has been smooth sailing since then.

This time in their remote offices has given lawyers ample experience in using the full capability of the digital platforms that their IT departments have (ideally) been working on for the past few years. These capabilities would have included video conferencing not only with staff but with clients as well. Lawyers have also had the opportunity to learn all about the security protocols that IT has been talking about in order to access secure documents from any location.

Necessity being the gender-neutral parent of invention, our organization has seen how Microsoft Teams teleconferencing has been a tremendous way to view and speak with members of one’s team. Documents for a team meeting are easily loaded and located. Chats can be posted and followed as comments are collected.

After a couple of weeks of working in this manner you can see how a law firm might transition to become virtual. Meeting with clients could be conducted over video conferencing right from the start as clients accessed the law firm’s web site.

It is even easier to see how numerous new firms could come into existence as virtual right from the start. Once again, CPLED PREP uses the format of a virtual law firm for students, where they meet clients online and all the firm lawyers and staff operate remotely.

This training allows new lawyers to see how a law firm would operate as it works on various files. Newly licensed lawyers would see the immediate benefit in this and may no longer be driven to join a traditional law firm. Some traditional leverage may soon be lost.

The virtual firm becomes even more enabled by the Federation of Ontario Law Associations guidance of March 20 on how to close real estate transactions remotely. Video confirmation of document signing can be acceptable. At least on a temporary basis.

The U.S. Supreme Court, for the first time since the 1918 Spanish flu epidemic, has suspended oral hearings. Courts in Canada have begun moving various functions online. No doubt the need to observe witnesses’ demeanors in person will continue for some time, though.

Probably the greatest change to the legal profession will be the clients. These past few weeks have enabled clients, and people in general, to try new things. All of the professions have reached out and demonstrated that they are prepared to meet with clients in a virtual manner. Using Zoom to set up a meeting with one’s lawyer or accountant no longer seems awkward, and the savings in time and cost has greatly increased the value proposition of many professionals. Client expectations will evolve over a very short time.

We should note that clients do not necessarily request professional advice to be delivered in a new fashion. But if they see it happening elsewhere, they are likely to drift to where they can take similar quality advice better and faster.

The type of legal advice provided has changed greatly over this present and urgent timeframe. A good portion of lawyers appear to be operating on a just-in-time provision of legal services. COVID-19 has become so topical so quickly, and the demand for answers so immediate, that there has been an incredible amount of free legal advice provided on blogs and other sites. This no longer seems like the standard identification of legal risks and the follow-up of ‘please come see our firm,’ but rather, ‘you can see some very concrete advice on how to deal with various COVID-19 related legal issues.’

All of this has also raised clients’ expectations, and in the future they will want to see practical and immediate legal solutions to their problems.

But as Yogi Berra said, “It’s tough to make predictions, especially about the future.”

 

 

#legal #covid #motivation #changemanagement #law

GoogleLaw and creative destruction of the legal profession

beating-construction-crushing-37409 (1)Google and artificial intelligence may not be the end of the legal profession, but, boy, can you see it from here.

I anticipate encountering what Joseph Schumpeter euphemistically called creative destruction. Innovation destructs archaic business models and creatively releases capital to be deployed elsewhere — a benign description of being out on the street with your law degree.

Perhaps it’s too hyperbolic, but, for example, Google has made a database of federal and state case law and legal journal articles available via its Google Scholar search. In their defence, lawyers can now purchase on Amazon the “Please Do Not Confuse Your Google Search With My Law Degree” coffee mug.

For a simpler DIY approach, YouTube displays more than 146 videos on family law. This also includes shuffle playlist for greater variety.

For comparison, AI factors into more than 38 per cent of regular enterprise planning for mainly customer interfaces. As for law firms, it’s likely not so much. Most of law firm and in-house planning centres on how to augment regular legal work with new AI tools to make this more effective and efficient.

JPMorgan Chase & Co., apparently, eliminated 360,000 hours of legal work creating legal security documents by the use of COIN, for Contract Intelligence, to review commercial loan agreements. The bank plans to use AI to analyze credit default swaps . . . since things worked out so well last time.

Other forms of AI can review entire contracts, interpret sections and even recommend sections that are not there. These recommendations can depend on which side of a particular transaction you happen to be. Similar to customizing streaming music systems, one can imagine the type of customization that can occur as you adjust the lever from buyer focused over to seller focused. We await the ultimate customization that includes sliding the scale either to the far left or far right into the “jerk” setting.

I tried a contract review application one time with a simple release. No comments came back. I imagine legal associates would be ecstatic to receive something back from a senior lawyer without any comments. I was hoping for at least one “atta boy” type of meme.

Instead of augmenting legal practice, another perspective suggests a client-based focus where the system asks questions and directs the client to certain resources. For example, The DoNotPay website helped users successfully appeal hundreds of thousands of parking tickets by having the client answer a number of questions. The system then interprets the situation and prints out a draft letter to send to the authorities.

I tested DoNotPay over the weekend and can confidently assert that the experience replicated that of retaining some legal firms. The site took in my request, said it was sorry to hear that and told me if I could email more information it would get back to me in 24 hours. Nice immediate reply, but a solution may come a bit later. Notwithstanding the delay, the value proposition — benefits divided by total costs — cannot be beat. The system is free.

So, where do the law societies stand among all of this creative destruction? Their mandate includes the protection of the public. However, the other two mandates generally include advancing the cause of justice and the rule of law, which requires the public disclosure of legal codes and processes. Societies also facilitate access to justice. This suggests making it as easy as possible for the general public unable to afford a lawyer access to some form of legal information.

This type of access does not mean providing paper or online brochures but a more customized response. In other businesses, chatbots can ask an advancing series of questions and provide a more “intelligent” and applicable answer. This forms the entire basis behind a customer-focused type of interface.

A new client-driven model suggests perhaps an Uber approach. Uber does not own cabs and tries not to employ drivers. The courts have imposed some obligations here. Generally, Uber is a simple platform that connects customers and drivers. A similar approach could connect a client and a lawyer providing the most cost-effective service. Cost is not everything, but as the law becomes more commoditized, then perhaps being “the better lawyer” may not carry the day if everyone uses the same type of AI platform to research and provide a result. And, yes, everyone shall likely have their respective settings maximized over to jerk, so there will still be plenty to argue about.

From a policy analysis perspective, one appreciates the different approaches each law society brings to the table and the complicated socio-economic analysis that would be required to balance justice access and public protection. The 2014 CBA Legal Futures Initiative outlined a number of areas that the legal profession could take to remain relevant. Implementation of the recommendations may be slow in coming.

The various law societies currently have authority over who can practise law. One can easily imagine a public lobbying effort to storm the ramparts to allow some form of AI system that can ask questions and guide the individual to a possible area where help could be found. There is nothing like a bit of urgency to assist in the legal change management process.

 

 

Canadian Lawyer November 6, 2017

Legal Operations 101

 

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I fought the law and the law won.

I fought the law and the law won.

Buddy Holly

 

Legal operations emphasizes the effective and efficient delivery of legal services in-house. This relatively new discipline addresses a number of organizational issues. Counsel should no longer fight against the organizational assimilation, but they should instead work at becoming part of it.

 

Admittedly, Legal Operations even sounds cool. Someone going to the Legal Department sounds a bit like going to the old style department stores to look at furniture with your parents.

 

The best part of being in-house involves being part of an organization. The most difficult part of being in-house appears to be being part of an organization. LO helps with the effectiveness of being part of that organization.

 

We need to identify some of the issues that LO can alleviate. Dealing with organizational activities comes with the territory, AKA Willey Lowman. Some of this can be great when you are off to a retreat to do some strategic planning. Even if this involves going even further north during the winter since its off-season and there can be some great buys.

 

Another issue recognizes that in-house counsel require updates as to what is happening outside of their own department or function. The watercooler used to help with that, but now we have the ethereal coffee shop that we use for Microsoft Teams. This seems to lack the same level of integration and networking, but the coffee at home tastes better.

 

With limited resources, the next issue involves trying to educate your clients ahead of time. This really means being involved with the planning process.

 

Counsel need to demonstrate the value of the legal department or function. One must resort sometime to counting all of the icebergs or landmines the organization missed because of your risk management activities.

 

Sometimes the organization asks you to do tasks or projects outside of your area. This recognizes your abilities outside of your law degree, shows additional value and facilitates your engagement in other areas of the organization. Leading the business planning process can be a great way to demonstrate value and learn about other areas of the organization. Some refer to this as scope creep. I actually refer to this as ‘chipping in’.

 

The final and potentially greatest issue involves the need to reduce overall legal costs. Moving from a cost center to a profit centre can be a great achievement, so long as in creating profits you still have time to avoid that iceberg. The collision is what people generally remember, not that great business plan you put together.

 

LO competencies solve or alleviate some of the above issues. For example, learning the budgeting system goes far to learning the business and keeping on the CFO’s good side.

 

A major competency includes document management. Bringing in or learning how the DM operates can go far in alleviating time and costs. You waste a great deal of every day searching for a document, or searching for a document that never existed. DM search mechanisms can quickly bring you up to speed when it comes up with the ‘document not found.’ If you have every tried to prove a nullity, you can appreciate how an electronic search can substantially reduce the amount of grief.

 

Document management includes increased knowledge management. KM seems to be another term that comes and goes in favor. You can have all of the facts and information, but you need context for these two things in order to reach the knowledge plateau. Ultimately, you want the wisdom plateau when you accumulate all of the necessary institutional knowledge. Hopefully this occurs before retirement.

 

Another part of DM includes standardized contracts. Most organizations already have this. So if you do, then add it to your ‘to do list’ so that you can check it off. There is no greater feeling when it comes to setting out to accomplish something you have already accomplished.

 

Paperless policies form an integral part of document management. Previously people would scan a document but still keep the paper copy in another file. You simply have to face the situation and shred the original. Unless it is a negotiable instrument. You should keep those for a few days to make sure the scan to the bank works. I have scanned in personal cheques and shredded them immediately. This practice will catch up with me some day, but right now, I am just living on the edge.

 

Another competency involves project management. When taking my MBA, I went for a two-day seminar on PM. I spent a week cramming on using Microsoft Project software thinking that this would be the emphasis. However, we spent the two days learning to talk to one another and to listen to what the other person was saying. I did not learn anything significant about software, but it improved my relationship with my significant other. Good win there.

 

During the PM seminar, we all met up in the banquet hall. The large crowd waited at their tables, mostly patiently, for dinner. The seminar leader announced that if anyone could tell a project management joke, their table would be first in line for the buffet. I immediately stood up and asked ‘Why did the chicken cross the road?” Dramatic Pause here. “Because it was a critical path.” (Which is a major project management term that one needs to learn.) It was a groaner, but my table got to eat first. Or at least I did. The rest of my table wanted to put a bit distance between them and me.

 

The benefit of these LO techniques, excluding the lame joke telling, facilitates an effective in-house legal department and reduces the amount of legal work sent outside of the organization. Reducing outside legal work can result in reduced budgets, alternative fee arrangements or retention agreements.

 

Another LO benefit allows focus on higher priority and more strategic work. There appears to be a synergistic and not a sum zero effect. By spending more time on legal operations, this allows the remaining time spent more effectively on the legal function.

 

This is not quite the same thing as doing more with less since you need the LO expertise. You do more legal work but you need a bit more LO at the same time. If you are single legal officer worker (SLOW), then you need to become a FAST (Following A Strategic Tempo) legal operator. Yes, the acronyms sound contrived, but all business articles require several.

 

Becoming involved in other aspects of the business can be a bit of a cultural shift. Picking a few areas where you can provide value quickly and effectively would show other parts of the organization your value. Focusing on how you can help others achieve their business objectives provides the greatest value.

Incorporating Machiavelli into the mergers and acquisitions department

Niccolò Machiavelli

 

Niccolò di Bernardo dei Machiavelli was the Renaissance-era politician, writer, philosopher and name-sake of the adjective “Machiavellian,” frequently used in political discourse to refer to achieving power through cunning, manipulative, cynical, ruthless and immoral means.

“So Nick, thanks for coming in for an interview. We are very interested in having you join our M&A department. I understand that you have been in practice for a number of years. Prior to this, you were an Italian historian, statesman, and political philosopher. Your legal tactics epitomize cunning and duplicity. Even your name conjures up negative thoughts. To be called a Machiavellian lawyer can be the worst form of insult.”

“It is much safer to be feared than loved,” Nick replies.

“Interesting, I see. It really seems that you have one of those ‘rags-to-riches’ type of story. Did that impact you in anyway?”

“He who has relied least on fortune is established the strongest,” Nick says.

“What does not kill me makes me stronger. Yes, I have always liked that approach,” the interview continues. “You became quite active in mergers and acquisitions. Do you have an eye for businesses ripe for a takeover?”

Nick briefly considers the question. “He who does not properly manage this business will soon lose what he has acquired.”

“So looking for a poorly run business seems a good approach. I understand that when you helped your client, Mr. Prince, for your last acquisition, it was a hostile takeover. Did you have to clean house a bit? The directors may have been upset.”

“The prince, with little reluctance, takes the opportunity of the rebellion to punish the delinquents, to clear out the suspects, and to strengthen himself in the weakest places,” he answers.

“Yes, I read that you moved out most of the directors who opposed you. Was this ‘shock and awe’ tactic pivotal?”

“Hence it is that all armed prophets have conquered and the unarmed ones have been destroyed,” he says.

“Well, that is a bit dramatic, but I take your point. I hear you managed to reverse some declared but unearned options for the individual directors. That must have hurt.”

“Men ought to be well treated or crushed, because they can avail themselves of lighter injuries, of more serious ones they cannot; therefore the injury that is to be done to a man ought to be of such a kind that one does not stand in fear of revenge,” Nick declares, crossing his arms with self-assurance.

“Sounds a little harsh, but seemed to work. The new board certainly believed in your new direction. Do you think they will stand behind the new CEO?”

“And thus it is necessary to take such measures that, when they believe no longer, it may be possible to make them believe by force,” he replies.

“Get on the bus, or get under it. That is really tough leadership. And you helped implement some new business plans I understand. How did you view the staff who remained?”

“Because this is to be asserted in general of men, that they are ungrateful, fickle, false, cowardly, covetous, and as long as you succeed, they are yours entirely,” Nick says matter-of-factly.

“You are saying that as long as you are reaching your goals, people are happy. Did you have any problems with management and the new strategies you were suggesting?”

Nick took a deep breath, exhaled and looked at the ceiling, before replying, “There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things.”

“I’m with you on that. Boy, we implemented this new accounting package and the backlash caught everyone off guard. How did the rest of the staff respond to the fast paced changes?”

“In seizing a state, the usurper ought to examine closely into all those injuries which is necessary for him to inflict, and to do them all at one stroke so as not to have to repeat them daily,” Nick says.

“Yes, if you are pulling off a band aid, better to do it all at once … ”

Nick interjects, “For injuries ought to be done all at one time, so that being tasted less, then offend less: benefits ought to be given little by little, so that the flavour of them may last longer.”

“What sort of leadership qualities did the new CEO Mr. Prince have that really stood out?”

“It is unnecessary for a prince to have all the good qualities enumerated, but it is very necessary to appear to have them,” he says.

“Fake it till you make it. Got it. But to be a good leader, do you agree that credibility is one of the most important criteria?”

“It is necessary to know well how to disguise this characteristic, and to be a great pretender and dissembler; and men are so simple,” Nick says, “and so subject to present necessities, that he who seeks to deceive will always find someone who will allow himself to be deceived.”

“I hear you. A leader has to put on a front for staff and can be himself for family and friends. Do you have an open-door policy, you know that speaking truth to power thing?”

“But when everyone may tell you the truth, respect for you abates.”

“I see. Did you implement some sort of bonus retention plan to keep the key staff?”

“He who believes that new benefits will cause great personages to forget old injuries is deceived,” Nick says.

“Ok, so money may not smooth over past slights. Do you have particular ways to discipline staff that may not be following your directions?”

“Leave affairs of reproach to the management of others and keep those of grace in their own hands,” he says.

“Seems like a good idea to pass out the roses yourself, and leave the real dirt to someone else. I know this is confidential. But what can you tell me about any future takeovers?”

“He ought never, therefore, to have out of his thoughts this subject of war, and in peace he should addict himself more to its exercise than in war,” Nick replies.

“Yes, business is like war, and all is fair in love and war. Do you have any guidelines you follow to make your clients a fortune with M&A?”

“Fortune, who shows her power where valour has not prepared to resist her,” he says. “And thither she turns her forces where she knows that barriers and defenses have not been raised to constrain her.”

“Got it. Go for the weakest underbelly. I read something like that in Art of War or something. Thanks for your time Nick, and we will let you know. People certainly are talking about your working approach.”

“Hatred is acquired as much by good works as from bad.”

“Good to know. Have a nice day!”

 

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