Small Firm Lawyers and Innovation
By Jim Calloway
(Author’s note: This was not originally intended to be a companion piece to last month’s column, “The Seven Deadly Sins of Opening a New Solo Law Practice," but it turned out that way, with that one covering the basics and this one being a more advanced treatment.)
Encouraging innovative behavior in law firms is a challenge.
Actually, innovative behavior is often a challenge in many types of businesses. (An exception is noted for today’s technology companies where innovation is required.) It is just easy and more comfortable to do things the way they have always been done.
So, if innovation is a challenge generally, it is multiplied for lawyers where our professional discipline is bound by precedent and code.
Rapid advances in technology are a challenge for the law. Many of us recall the tortured application of common law principles to defamation claims in online forums. Were the forums considered “publications” like books or newspapers with the publisher held liable for anything that appears within the pages; or were these websites “distributors” like newspaper stands or telephone service providers, and therefore not responsible for an obscene call or defamation? Applying those common law principles would have led to the absurd result that a website operator who tried to exercise control and remove offensive posts could be held responsible, while one that allowed offensive items to remain on their site enjoyed immunity (Luckily, common sense prevailed, and section 230 of the federal Communications Decency Act ultimately addressed this).
“People do what they feel like doing,” Mr. Furlong wrote. “And most lawyers feel like doing today what they did yesterday. David Maister’s final book, Strategy and The Fat Smoker, made this point very clearly: No matter how sensible and positive a particular change might be, lawyers (like everyone else) will change only if they want to change. And very rarely do they want to do that.”
He also directed our attention to Dr. Atul Gawande’s article in the New Yorker Magazine
, “Slow Learning,”
about why some innovations spread quickly and others slowly. I’ve recommended Gawande’s book, The Checklist Manifesto
, previously in this column. The magazine article will have less direct application to law firm operations but is great reading about what motivates people to resist or embrace innovation. It contains some revelations.
But let’s be candid. Lawyers are perhaps more resistant to change than your average individual. Not only do we operate under precedents and code, but our training and experience make us quite risk-averse. We are hired to counsel clients on ways to minimize their risks, and we often deal with the aftermath of things that have gone wrong. We are trained to look for weaknesses and expose them. We also have the verbal skills to contest innovative ideas effectively.
Lawyer-coach Debra Bruce posted a comment to Mr. Furlong’s blog post, again quoting professional services firm guru, David Maister, from an article he wrote several years ago titled “Are Law Firms Manageable?”
Mr. Maister wrote, “In a room full of lawyers, any idea, no matter how brilliant, will be instantly attacked. Lawyers are expert loophole finders, trained to find counterexamples of or exceptions to any proposition. Accordingly, within a short time, most ideas, no matter who initiates them, will be destroyed, dismissed, or postponed for future examination.”
Critical thinking and healthy skepticism are certainly part of the lawyer’s toolbox, and many of our clients are far better off because of those skills. An environment of innovation is great for today’s businesses, but innovation comes with risk and the certainty of some failure.
DIFFERENCES FOR SOLO AND SMALL FIRM LAWYERS
Much of the reading material I have cited above assumes groups of lawyers decide innovation initiatives in law firm management committees or director’s meetings.
An often-quoted statistic is that most lawyers in the U.S. practice in a solo or small firm setting. That is certainly true in Oklahoma. A solo practitioner has no committees to ask for approval, and a small firm consisting of even five or six lawyers can all meet together as opposed to a committee of a dozen lawyers trying to adopt a policy that will impact many more lawyers in the firm.
Solo and small firm lawyers should be considering improvements and innovations to the same extent as larger firms, even if they may not have the increasingly typical external motivation of a general counsel from a large corporate client demanding change. Across Oklahoma from Ardmore to Yukon and across the country as well, there are many small firm lawyers serving clients ranging from individuals to large companies.
So let’s look at some possible innovations for these types of law practices.
CONVENIENCE AS A SERVICE MODEL
In my column, “The Law Convenience Store,”
in the September/October issue of Law Practice magazine,
I discussed the idea that a law firm that primarily serves individual clients should consider innovations that would improve convenience for clients. Maybe that could include regularly being open one weekday evening so clients can schedule appointments that did not necessitate missing work. This would be particularly true in a suburban location where many people commute to work in the city. As noted in the article, many law firm staff might easily trade working a Thursday evening for taking Friday afternoon off.
DOCUMENT REPOSITORIES FOR CLIENTS
A huge amount of electronic discovery is now often handled by shared online document repositories. Many large law firms and other businesses use online document repositories for a variety of reasons.
Small firm lawyers have probably thought that client document repositories were out of their price range. But consumer clients, who might not be used to organizing many paper records, might appreciate having an online document repository that they could log into to review their records.7
Now online practice management systems, Clio
and My Case
have online individual repositories built right into the standard monthly service package. No doubt the others will follow suit.
The idea of an online repository where a client can log in and review all documents associated with their matter will be attractive to many and, no doubt, scary to a few.
AUTOMOBILE SALE ‘CLOSINGS’
Many, many years ago, before anyone had ever heard of LegalZoom™ and similar services, a service for people to download self-help legal forms was launched in Great Britain. I do not recall the name of the service, but I heard the gentlemen who launched the service speak at ABA TECHSHOW™. The most interesting thing was that the number one self-help document downloaded — by far — was an agreement to buy or sell an automobile. They noted this was a type of legal transaction that historically had rare, if any, lawyer involvement.
But this is a transaction that many people do every year, and it is certainly possible to get burned. Perhaps this transaction would not merit a lawyer opening a file. But there are a lot of things that could be covered with proper forms and instruction sheets. A lawyer might develop a system to do automobile sale “closings” at a reasonably small fee that could be handled by staff. People would schedule appointments and meet with the lawyer’s staff only. They would receive a simple form that could be completed with basic information and notary service (Photo IDs required), and the seller could be also given Form 773
under 46 Okla. Stat. 1107.4 to protect themselves in the event the buyer failed to register the title. A little thought would no doubt generate other information that should be distributed.
Note that innovation requires work and risk. Doing a single “automobile closing” would perhaps not make economic sense for the lawyer. Building a system for these and then promoting the system so that it could be done regularly might be interesting. The cautious lawyer would check with his or her malpractice carrier to see if the service was covered and also discuss with an ethics expert whether a conflicts check was required for this limited service.
SERVICES FOR HOME BUYERS
In many states, lawyers are involved in residential real estate contract negotiation and closings. This is not so in Oklahoma, which leaves many people signing one of the most, if not the most, significant contracts in their lives without a lawyer’s advice. Just imagine how many fewer people would have signed up for a floating interest rate instead of a fixed one if they had been counseled on the risk and benefit of each.
Perhaps there is an opportunity for information services to the prospective home buyer. There is a lot of common sense advice based on experience here mixed with legal advice. (e.g. Buyers should always be present when the inspector does the home inspection.)
FANTASY FOOTBALL OPPORTUNITIES
In a recent blog post, I examined whether the fact that fantasy sports is now over a $1 billion-per-year industry presents opportunities for lawyers. I concluded it did. But perhaps that ship has already sailed. You can read the blog post online
Solo and small firm lawyers have the advantage of not having to convince many partners to go along with a new idea. It is a good time to consider innovation. There are many changes in society and consumer technology. These changes bring opportunity. “Drone law” sounds like something involving international treaties and high tech innovation now. But when many people (or police departments) begin buying remote-control drones with cameras installed at the local hobby shops, you can bet there will be many resulting problems and legal work for solo and small firm lawyers.
Mr. Calloway is director of the OBA Management Assistance Program. Need a quick answer to a tech problem or help resolving a management dilemma? Contact him at 405-416-7008, 800-522-8065 or email@example.com. It’s a free member benefit!
Originally published in the Oklahoma Bar Journal -- Nov. 2, 2013 -- Vol. 84, No. 29