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Miles to Go Before We Sleep
by Wendy R. Leibowitz
(This article originally appeared in
ABA Law Practice Management magazine, March 2004)

Whither a better future for lawyers and their clients? Let's start with a declaration of independence from the old bad habits.

As baseball great Yogi Berra said, "If you don't know where you're going, you'll probably end up somewhere else." I frequently wonder if the legal profession knows where it wants to go, and whether we couldn't find some better roads to head down.

Can't we leapfrog some of the obstacles to a better future for the profession? Obstacles such as the darn billable hours that reward endless litigation instead of value to clients; law schools that don't prepare students for the realities of practice; hierarchical firm structures, with a bottom-line mentality and an allergic reaction to the basics of marketing and client relations; and a skeptical, risk-averse attitude to technology that is embedded in the profession as deeply as an affinity for footnotes. Let's start improving things from somewhere, please.

What could the practice of law look like if many parties-big firms, small firms, solos, law schools, legal technologists, the judiciary-knew where they wanted to go and were determined to do something concrete, on a daily basis, to get there? I looked at the courts as a starting point in a column last year (Turning the Courts into Public Servants, in the July/August issue). Now, it's time to take firms big and small to task and ask where they want to go-and how to get there from here.

Large Firms: Even the Hidebound Can Break Bad Habits

Eons ago-maybe it was around 1999-the biggest firms in the country were reevaluating everything they did in an effort to court dot-com clients. This went beyond having the lawyers dress more hipply as a way to convey to the young dot-commers that, "We can speak your language."

Big firm lawyers did everything for their dot-com clients-acting as business advisers and offering management advice on hiring, firing and expansion plans. They experimented with different billing schemes-stock in the company, computer services as barter, deferred payments. Even the most hidebound firms offered flat-fee packages of legal and business services that were designed to bring an idea on a soggy napkin through incorporation through an IPO.

Young associates were given greater opportunities. People like marketers who knew about communication and client satisfaction enjoyed enhanced status. People like law librarians who knew about information systems started to get the recognition they deserved. And firms were more than willing to investigate and implement a range of IT tools to woo technology-savvy companies and provide better client service all around.

Of course, many big firms did all these things for one reason: to get rich quick. Still, they showed that it is possible to change.

The Big Boys Are Getting Smarter

Change, you say? What's that? Now that the dot-coms are busted and economic times in general are rough, a lot of big firms can't think of anything except paying the rent. They are returning to their old, entrenched habits instead of continuing to innovate for clients.

Big firm lawyers need to become client-obsessed again-to refocus on asking, as they did during the boom years, "What do my clients want today, what will they want tomorrow, and how can I best deliver it to them?"

Some large firm lawyers-especially those involved in complex litigation-are, it seems, taking these questions seriously. In particular, they are making concentrated efforts to use technologies that bring greater efficiencies to the litigation process-which, we can hope, will in turn save cost, time and hassle for the clients, and maybe the judicial system, too.

Where big firms could really step up to the plate is in helping to tame the nightmare of discovery. With electronic files (including the endless realm of e-mail) now an integral part of the discovery process, the old lazy tactics of demanding "any and all" documents pertaining to a case must yield to more thoughtful, tightly focused discovery requests. Some firms, in fact, are recognizing this reality and bringing in the needed expertise to get things under control.

"Attorneys are getting smarter about using [electronic discovery] experts from the very beginning," according to Sharon Nelson, a lawyer who co-founded Sensei Enterprises, Inc., to assist firms with technology issues. Where's the benefit? Experts can help "to craft complaints that make technological sense, to compose discovery, to depose IT witnesses, etc., in addition to the obvious uses of getting the evidence and then analyzing it."

Nelson also reports that a number of her big firm clients are getting a better handle on their own electronic case documents. They're actually buying high-speed scanners, digitizing their documents and getting entire case files into case management programs. The concept has been around for a while, but as Nelson points out, "This was more theory than reality previously."

Large firms engaged in complex litigation have also pioneered the use of presentation technologies such as NOMAD or DOAR projectors to make concepts easier for juries (and judges) to understand. Nelson notes that her local court, Fairfax Circuit Court in Virginia, even bought a projector that it makes available to lawyers by reservation. Perhaps next these technologies will start to permeate firms themselves, to clarify decision-making processes to the benefit of clients and all members of the legal team (and maybe even to make partner meetings across different offices more pleasant). "The more like TV it is, the better they absorb it," Nelson says. Make the practice of law more like watching TV-who could object?

And then there are extranets. These secure Web sites are touted as a great way to connect the client to the law firm in value-added ways. Talk about a client-centered innovation: better lawyer-client communications, improved workflow management, client access to specified case data, resource sharing and community building. No wonder some large corporations are actually requiring extranets from their law firms.

Interestingly, legal tech expert Ron Friedmann, a lawyer and founder of Prism Legal Consulting, feels that extranets have not lived up to expectations, even though many big firms offer them. Perhaps in some cases they're like the exercise machines that are really used as clothes hangers.

But Friedmann also says that extranets might not have found their niche yet. It may be a matter of more clients needing to demand external access to their files. Really, clients demanding more information about their legal matters? It doesn't sound like such a bad idea.

Small Firms and Solos: No Dream Is Too Big

What about the road ahead for small firms and solos? Too often in the past, small firms and solos have not aimed high enough. If they could survive and have a small profit at the end of the year, well, that was enough. Will they remain content to languish in the shadow of the big firms, a place too many have been for too long?

Fortunately, times they are 'a changin'. Through dint of repetition, many clients-including well-heeled ones-are getting the message that small firms and solos can provide equal or better legal services for less money than the big boys. It would be wonderful if all small firms and solos got that message, too. They might even start to actively emulate the strategic planning and marketing drives that big firms engage in, so that they could dream similar dreams of the future-though with better office hours and more reasonable billing practices.

In this day, nothing is too big for the small firms and solos to tackle-if, that is, they first make a declaration of independence from the big firms' shadow and lawyer-centric practices.

Smaller Firms Can Be More Creative

A number of smaller practices are already leading the way by adopting innovative tools and tactics to enhance delivery of services and forge stronger bonds with clients in ways uniquely suited to small firms. In particular, smart, efficient use of the Internet, weblogs and other technologies are highlighting the work, the personalities and the creativity of small firms and solos.

It is small firms and solos, for example, that are debuting the online self-services that may humanize the legal profession and bridge the "trust gap" between the public and the legal profession. Trusts and estates, divorce, bankruptcy: Many form-driven practices are suitable for automation and online delivery. Baltimore practitioner Richard Granat, who runs MyLawyer.com, is a pioneer in this area. It is slow going, and so much education must take place. But if anyone has the motivation to serve many clients as inexpensively as possible, it's small firms.

The change in thinking may, in no small part, be driven by the public itself-specifically, by people who are choosing to represent themselves pro se rather than hire a lawyer. These are prospective clients that are put off by unclear billing practices, poor lawyer-client communication and images of lawyers from the 1980s. They are there, in need of legal assistance, at places like www.findlegalhelp.org. They are the kinds of clients that small firms and solos need to speak to more clearly-perhaps most importantly, by implementing sound, sensible, client-focused management and billing practices.

Electronic billing is one area where small firms can take a cue from the big boys. To date, most of the buzz on e-billing has centered on larger firms that provide this service to major corporate clients. But firms of all sizes are being dragged into online billing, notes Prism Legal's Friedmann.

Is that a good thing for smaller practices? Well, since every bill is a communication with a client, small firms could really shine as they personalize their legal services in ways big firms might find uncomfortable. Plus, an online service that replaces a paper bill saves a firm money, which sounds like a pretty good idea for the more cost-conscious small firms and solos. We should expect them to move quickly in this area.

Wanted: An Advance Guard

Of course, there are many more ways in which law firms of all sizes can overcome the obstacles to better client service and put the entire profession on a brighter road. But, rather paradoxically, we first should look back to those big questions of the late-'90s boom: What do my clients want today, what will they want tomorrow, and how can I best deliver it to them?

We can't go back to the late '90s-and why would we, even if we could? Backward in time is not where the profession wants to head. We can, however, retain and build on what was good about the late '90s and break away from the bad habits. Client-oriented practices and thoughts need not die just because the remarkable years of the dot-coms are dot-gone.

Can lawyers offer extraordinary service during ordinary times? Yes, I think they can. But we have miles to go before we sleep-and a lot of room for leadership, from lawyers in firms of all sizes.


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