In Defense of Efficiency
Published for Thomson Reuters Legal Executive Institute June 16, 2015
As we’ve observed on this blog, the anticipated “paradigm shift” in legal service is proceeding much slower than most observers expected. It is proceeding and eventually will occur, but it is still moving at a relative snail’s pace.
I have written about some of the factors that slow the pace of progress: the absence of financial incentive for market-leading firms to change; the failure of corporate counsel to push law firms as much as they could; and a regulatory scheme that impedes innovation.
The Efficiency Paradox
Today I write about a more subtle, but potentially more significant, factor which I will call The Efficiency Paradox: Lawyers’ innate aversion to embracing efficiency measures.
I am motivated to write this post by a pair of recent experiences. The first was an exchange with a consultant who works with law firms on legal process design. She told me that she had learned not to emphasize efficiency in persuading lawyers to change their service models. “Once you go there, you lose them,” she said. Her experience informs her that lawyers will regard suggestions to change for the sake of greater efficiency as inconsistent with a commitment to quality and professionalism. On reflection, I realized she was right. At some level lawyers, including law firm leaders, see advocates for efficiency in legal service the same way that American business saw the so-called “efficiency experts” in the 1950s, as soul-less bureaucrats pursuing lower cost by draining the humanity out of the way we do things.
The Efficiency Experts are Here.
The second experience was a closing observation by Mark Cohen in a recent post on Legalmosaic.com that “at all segments of the market, moves are being made to improve the efficiency of legal service…” The observation might not have been noteworthy had it not been for the previous exchange. But it does reflect a central concept: that efficiency is a core element of the motivation and need for change in legal service.
So we have a real paradox on our hands. We have a profession in dire need of reform. But that same profession recoils at the concepts that are necessary to achieve that reform.
It Is Time to Embrace Efficiency
We could try to work around lawyers’ aversion to efficiency. I think it is better to take it head on by embracing why we need it and why it actually will return us to a day of greater professionalism. So here we go.
Let’s start by listing some of the challenges that generate the imperative for change in law today:
Legal service is too expensive, both the costs to the service provider and the fees to the clients—what’s more, the market perceives that legal fees are higher than the value of the services delivered;
In the consumer market, there are not enough resources available to meet the market’s demand, in part because of cost considerations;
Law school graduates have an increasingly difficult time finding jobs that will justify the expense of their legal education;
Lawyers are increasingly dissatisfied with their professional experience, finding the work tedious and not meaningful; and
Lawyers are spending inadequate time on the non-billable professional responsibilities that once defined what it meant to be a lawyer.
The modern complexity of law and data, exacerbated by globalization and the proliferation of government institutions, are at the root of all of these challenges. They embed in legal service countless time-consuming tasks, many of which are routine. While there is no “magic bullet” solution for these challenges, a focus on greater efficiency unquestionably would contribute to dealing with each one:
It would drive down the costs and fee levels;
It would enable individuals and entities to operate sustainably in service to consumers;
It would create more lawyer jobs in new positions that will emanate from new process designs;
It would make lawyer jobs more rewarding by re-assigning the most routine tasks to technology or personnel trained for those roles, enabling lawyers to focus on the roles that attracted them to the profession; and
It will free up lawyer time to devote to the other dimensions of their professional responsibilities.
This seems pretty compelling to me.
And it does not involve any threat to quality or professionalism. It merely contemplates that lawyers ask at the outset and throughout an engagement the following question: “Of the various ways we might do the work, which one will deliver the outcome the client seeks in the most efficient way?”
In fact, a focus on efficiency likely will increase professionalism. The more rewarding the lawyers find their work, the better the level of their service likely will be. As noted, lawyers will also have more time for their responsibilities to each other and to the bar.
And, finally, and very importantly, by managing costs and fees, it will be easier for lawyers to live up to their responsibility under Model Rule 1.5 (a)(1), which is to charge a reasonable fee in light of “the time and labor required, …and the skill requisite to perform the legal service properly.”
More efficient legal service is better legal service. It’s about much more than cost. It is about our fundamental duties to our clients and to society.
It is high time to embrace efficiency.